#1860 - Wallbank Criticism Of Current Law - Family Law

Wallbank – Registration rights

Statute

• Decisions about whether to make a PRO are based on s.1 of the CA 1989, which states that the welfare of children are paramount

  • i.e. must be in interest of child for order oe b made

  • making of a PRO must be better for the child than making no order

    • it is a matter of weighing the balance

• The current system disallowing PR to all fathers irrespective of marital status recognises the distinction between “good” and “bad” fathers

  • And the meritous father will be rewarded with PRO

• 1982 Law Commission

  • Irresponsible men might subject unmarried mothers with primary responsibility for care of children to interference and harassment

  • Women might also suffer from insecurity and/or stress

• Eekelaar:

  • Report failed to establish whether harassment was a significant problem

    • And stereotyped unmarried father as social deviant

• Bainham:

  • The general criticism that can be made of the Commsision’s revised stance was its apparent willingness to equate the psychological needs of unmarried mothers with the best interests of their children

    • The objection to automatic parental rights appears to have been founded more on the psychological discomfort which was predicted for mothers

      • Than on realistic projections of interference or harassment.

Ethics of justice versus ethics of care

• When women assume primary responsibility for the child and carry out the practical and meitonal tasks aossciated with this

  • Then they rightly should be given priority in decisions about whether the putative father should be given PR

  • The current system, though flawed, at least acknowledges the imbalance of power that can exist between women and men in relation to exercising PR

  • Currently women have the power to refuse consent to PR when they believe that PR is not in the child’s best interests

    • Thus, father’s have to apply to the court and show some merit in his application

• Under the new system of joint registration at birth,

  • The burden is palced on mothers to show that fathers are not deserving of PR in the event of serious incident

    • They have to apply for one of the available legal orders to deal with the specific incident or apply to revoke PR

    • Deech:

      • PR encompases feeding, washing, clothing the child. Housing, educating, stimulating etc.

        • Fatherhood that does not encompass a fair share of these tasks is an empty and egotistical concept

  • PR is redundant when devoid of any of the practical and emotional tasks associated with caring for children

    • Per Tronto, caring for should be regarded as a moral practice and should not be marginalised in moral debates

      • Caring for should be attributed with considerable value, as care is central to human life

      • Argument which say care should be extended to fathers on the basis of justice focus on the abstract principles and give prominence to equality and possession of rights

        • This is at the expense of a consideration of the practical work women perform as mothers.

• Is it desirable to grant PRO to all registering fathers?

  • Current cases are based on an individual level

    • PR only ever a problem for unmarried father if mother refuses consent or cannot be found

      • Test is fairly stringent – three pronged test

        • Degree to commitment father has shown the child

        • The degree of attachment between the father and child

        • Reasons for applying for the order

    • New rule serves to dilute the test for large group of fathers

  • The problem of Ward LJ in Re S

    • Ward LJ: “it was wrong to place undue emphasis on the rights and duties and powers comprised in PR

      • And not concentrate on the fact that what was at issue was the conferring on a committed father of the status of parenthood for which nature has already ordained that he must bear responsibility.

    • So disntinction between rights and powers associated with PR and the status it confers on non-res parent

      • He minimises the extent to which fathers may exercise, in any substational way, their rights arisinf from PR

      • He relies on the idea that non-res parent has limited opportunity to influence or exercise powers in day=t-day life

    • Problem

      • Kaganas: Judgement diminishes the significance of formal legal position

        • Also minimises the potneitla impact that the formal legal spositon affirming his status will have on the ontological security of primary care giver and child

        • Not saying that PR has no rights attached, just saying that little opportunity to use them justifies PR conferral

    • Problem

      • By construing PR narrowly as merely conferring status on fathers rather than corresponding powers and duties

        • Courts have been enabled to make orders to father who have no practical contribution to child’s life

      • In Re P, PR was denied to older man convicted of sexual offences b/c likely to interfere

        • PR refused on third limb – reason for getting PR

        • Hirst LJ = where judge makes a finding of fact that F intends to use parental responsibility for inappropriate ends to try and interfere and undermine M’s care

          • Then court retains discretion to refuse PR even if part of F’s likely abuse can be contained through PSO and SIOs

      • Wallton: conflict here with Ward LJ in Re S

        • Ward LJ prefers to use s.8 orders rather than using PROs to protect welfare of child

        • In Re P, recognised that PRO has more than a merely symbolic meaning when regular contact takes place

          • Ward LJ = wait and see – with M having to apply for orders if difficulties

          • Hirst LJ = more proactive. Seeks to protect M and child from harm by looking at evidence and then deciding whether harm is likely to occur arising from award of PR

            • There is an embedded expectation that F must have the capacity to act responsibly to show himself worthy of PRO

  • Re H

    • CoA recognised that all three of the test were met

    • But then knocked it out on welfare

      • Recognises that PR not just a matter of status, but also gives the non-residential parent a right of say in upbringing

    • Per Butler Sloss LJ:

      • The responsibility order is for the benefit to the child

        • Not to satisfy the desires and feelings of the non-custodial father

        • Responsibility is the very word

          • A responsible parent does not abuse his child.

      • Me: Q = should the court be taking this approach – seems a lot more judgement and interventionist

Symbolic Value?

• Accoridng to Ward LJ

  • The benfit of the child in the father having PR is that she will grow up with the knowledge that law conferred its stamp of approval and that the disqualification of the father having PR is potentially pernicious to the child’s sense of self

    • Kaganas: whilst the symbolic power of the law is undisputed, it is doubtful whether the refusal of a PRO would play any important role in shaping the child’s view of her father

      • The child’s view is more...