#1768 - Bainham What Is The Point Of Birth Registration - Family Law

Bainham - What is the point of Birth Registration?

Births to married mothers

• In all but a tiny minority of cases, the identity of the mother, whether married or unmarried, will be clearly demonstrated by the fact of child birth

  • It is of course sometimes the case in surrogacy arrangements or where eggs or embryos are donated that the birth mother is not the genetic mother. Here the birth mother will be registered as the legal, and supposedly 'biological', mother whether or not she is also the genetic mother

    • So as far as the registration process is concerned, English law requires the mother who gives birth to register the birth and to identify herself in so doing and it does not permit her under any circumstances, as in France, to give birth anonymously

    • . It is argued below that the fact of donation should be recorded by some means in the birth registration system and there is no reason why this should not apply equally to the donation of sperm, eggs or embryos.

• As is well-known, where a married woman gives birth, her husband is presumed to be the father

  • Cretney notes that the English courts were traditionally reluctant to bastardise a child

  • The attitude of the courts historically to this question needs to be understood in the context of a society which attached much greater significance to the institution of marriage,

    • reflected particularly in restrictive divorce laws, and to the status of legitimacy as a means especially of securing the orderly devolution of property.

      • But none of this contradicts the central point that on those occasions on which it was proved that the husband was not the biological father, his status as legal parent would be lost

• Our concern here, however, is not principally with paternity suits but with the process of birth registration in the case of a married mother.

  • Because of the strength of the pater est presumption it is sometimes asserted that it is the social fact or circumstance of being married to the mother, rather than being the biological father of the child, which establishes the mother's husband as the legal parent.

  • Is this true?

    • Under the Births and Deaths Registration Act 1953

      • The primary duty and right to register the birth in the case of a child born to a married woman therefore rests jointly with the two parents.

      • The other qualified informants are placed under a duty to register only where the parents are unable to do so because of their death or inability to register.

        • However a married mother or her husband may comply with the legislation by registering the child alone

    • It is extremely rare for babies not to be registered- the NHS assigns a number to each baby, and this information is passed to the Registrar who can give notice of the obligations

• The Government's view of birth registration where the child is born to a married woman is that the system 'works well' and it does not propose to make any changes.

  • There is no hint here that the child could be any other than the biological child of both spouses.

    • But whether or not the system 'works well' rather depends on whether the aim is to secure registration in virtually every case of birth to a married woman, in which case doubtless it does,

    • or whether the aim is to establish wherever possible the biological parentage of the child, in which case the success of the system is more questionable

• Specific difficulties

  • It is true that the effect of the Perjury Act 1911 is that it is a criminal offence for either M or H to register H as the father where it is known that he is not the biological father and that some other man is.

    • The offence will not be committed where there is doubt about paternity,

    • It is manifestly not the case that M is, for example, entitled to register H as the father where she knows that the child was the product of a brief affair

      • and H wishes to assume responsibility for raising the child as a child of the family.

      • However laudable this might be, and however much it might be thought to promote the welfare of the child and family stability,

        • the fact remains that if the true paternity of the child is known to either the mother or her husband,

          • to attempt to register the husband as the father amounts to a criminal offence

  • Also, Registrars do not see themselves as being under an investigative duty unless positive suspicions have arisen

    • Most of the time they will simply be recording the information required by law as related to them

  • There can then be a re–registration of birth showing another man to be the father.

    • However, unlike the situation relating to births to unmarried women, there cannot be a joint initial registration by a married woman and a man other than her husband

      • even where that man acknowledges himself to be the father and even where the husband is in complete agreement.

      • Here we feel the force of the pater est presumption.

        • The registrar will require proof of an alternative paternity before there can be registration of a man other than the mother's husband

• Conclusion

  • The general conclusion which can be drawn in relation to the registration of births to married mothers at present is that, for all the strength of the pater est presumption arising from marriage, it is fundamentally biology and not marriage which determines paternity.

    • The husband is the legal father because he is presumed to be the biological father, and the minute there is strong suspicion or proof that he is not, he cannot be legally registered.

Unmarried couples

• Where a child is born to an unmarried mother there is no presumption equivalent to the pater est presumption within marriage, however long the mother may have been in a relationship with a man or however long she may have been cohabiting with him. Paternity in this instance is a matter of proof, but registration of a man as the father will trigger a presumption that that man is the father

  • Since December 2003 there has also been the important consequence that the registered father thereby acquires parental responsibility — in contrast to the position of other unmarried fathers who remain unregistered and have not been awarded parental responsibility by a court

  • Registration of a man as the father now therefore fulfils the important dual function of establishing paternity (unless and until this is successfully contested) and conferring parental responsibility. The registered father is to all intents and purposes placed in as good a position as the married father.

• The duty to register lies on the mother alone

  • Moreover 'the registrar shall not enter in the register the name of any person as the father of the child' except in a list of prescribed circumstances. Briefly, these are:

    • at the joint request of the mother and the person stating himself to be the father where they attend the Register Office together and sign the register;

    • at the sole request of the mother on production by her of a declaration that a man is the father accompanied by a statutory declaration by him acknowledging paternity;

    • or vice-versa at his sole request by production of a declaration by him and a statutory declaration by the mother;

    • at the sole request of the mother or father on production by her or him of a copy of a parental responsibility agreement, parental responsibility order

      • or certified copies of certain court orders and a declaration that such orders have not been discharged or terminated

  • Conspicuous by its absence in this list is a calculation by the Child Support Agency.

    • The fact that a child support calculation has been made against a man as the non-resident father does not give rise to any right or obligation on his part in relation to birth registration.

      • This omission is significant as it is often argued that it is inappropriate and indeed unfair to impose financial liability on biological fathers for children

        • without also recognising their parentage more fully, in particular by conferring on them wider parental responsibility

Reform Proposals

• The principal features of the proposed scheme are set out in chapter 3 and are briefly as follows.

  • Unmarried parents will be required to register jointly the births of their children, meaning that there will be an obligation to register the father unless it would be 'impossible, impracticable or unreasonable to do so'.

    • These exemptions arise from the Government's concern that there would be a minority of cases in which the mother would be unable to identify the father or would feel that she or the child would be put at risk if the father were to be identified in the birth register.

      • The Green Paper had proposed a long list of exempt categories but, following consultation, the Government accepted that this list of specific exemptions would add complexity, stigmatise children and be unworkable,

        • and that the exemptions should be restricted to broad categories

• 'Impossibility' would cover cases of a permanent obstacle as where the father's identity is said to be unknown;

• Impracticability would cover circumstances in which registration was not a practical option as where a father's whereabouts are unknown,

  • though where this is temporary (as where the father is working abroad) the mother could be encouraged to follow up a sole registration with a re-registration later;

• Unreasonableness would cover a broad spectrum, ranging from convicted rapists at one end to cases where a medical practitioner or social worker advises that it would not be in the mother's best interests to register at the other

• Where the mother wishes to...