In a time where marriages are becoming a thing of history and more couples are either divorcing or choosing to cohabitate and with teenage and unwanted pregnancies again on the rise, there is now a question over whether unmarried and single fathers deserve more rights to see their children.
As someone who has worked in the matrimonial and family law sector, there are always arguments over access of children and these claims always come from the father. There seems to be an ever-increasing number of mothers attempting to ‘protect’ their children and limit the access that the father has. This is why if you go into a McDonald’s on a Sunday, you will be guaranteed to see at least one single father with his children.
At present in the law in England and Wales, an unmarried father does not obtain automatic parental responsibility of his child. For an unmarried father to gain parental responsibility he has four choices.
The first is that he could marry the mother. However, this option could prove very unpopular if the mother and father don’t get on. The next three options are set out in the Children Act and are as follows: he becomes registered as the child’s father; he and the mother make arrangements for him to gain parental responsibility; the courts accept his application for parental responsibility.
However, is the law fair on unmarried fathers and does it truly reflect what goes on in society in modern times? Is it fair not to give the father more rights? If the mother and father are not on civil terms with each other, how is a father expected to spend time with his children if his rights of access to them are incredibly limited? These are questions that the current law should be looking to address.
Firstly, the marriage option. As previously stated, this could prove very unpopular if the couple do not get on. Moreover, couples may not want to be together and get married if they feel they are best suited apart and think that they get on better with each other if they are not romantically involved. With regards to the second option, becoming registered as the child’s father, this in theory should be simple, however, in practise it is something that is not always achievable. To be registered on the birth certificate, there has to be the approval of the mother, which again is not always the easiest thing to gain. Some mothers may not wish the father to register which is unfair but in practice is the current law. While in an ideal world, mothers would be obliged to let their child know who their natural father is, in reality this is not the case. This again goes for the third option of the mother and father arranging for him to gain parental responsibility; there has to be some kind of a decent relationship for this to take place.
The last option is gaining a court order. This is really a last resort as the courts prefer couples to sort matters out for themselves, so this is an approach they least favour. It can be hard for the father to gain parental responsibility through a court order. However for this to take place, the court must have seen a degree of commitment from the father and the extent of attachment between him and his child before granting an order. This is by no means straightforward. The mother may block any attempt by the father to show commitment towards his child and therefore prevent any attachment from taking place.
Again, this situation proves to be completely unfair as the father may show a great deal of commitment to try and see his child, yet the court will never see this given that the mother has denied access. The court may also take an objective approach towards other activities that the father undertook in the past. However, this does not always succeed. In one case, a father was denied parental responsibility by the court for previous material that was deemed to be inappropriate.
Furthermore, there is always an argument against such rights being granted. There can be valid reasons for why some mothers may not wish to allow the father parental rights. This could be based on past actions or the father’s inability to take care of himself let alone a child. Such factors can play a crucial role as to why fathers should not again more rights – it could simply end up being more damaging to the child.
There are also cases when the mother marries someone else while the child is still very young, and raises it to believe that the man in their life is their real father. In this instance, identity issues can arise for the child if they find out the truth, with the added trauma of having a stranger come into their life claiming to be their birth father. This can really leave a child scarred, especially if they are not told at the correct time in their life.
It is an intriguing argument and one that will likely rumble on and on as society moves further into the future. With the Gay Marriage Act coming into force in modern times, this could cause more controversy over the rights of fathers and this issue can become even more complex. Let’s all hope then that the courts are up to the challenge of maintaining the best interests of the child.
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