|Membership||What's Happening||Committees||Publications||Assembly Commission||General Info||Job Opportunities||Help|
COMMITTEE FOR HEALTH, SOCIAL SERVICES AND PUBLIC SAFETY
COMMITTEE FOR FINANCE AND PERSONNEL
REPORT ONTHE FAMILY LAW BILL(NIA BILL 4/00)
Ordered by the Committee for Health, Social Services and Public Safety to be printed 28 March 2001 Report: 4/00/R (Health, Social Services and Public Safety)
FOREWORD BY THE CHAIRMAN OF THE COMMITTEE FOR
On 6 November 2000, the Family Law Bill passed its Second Stage in the Northern Ireland Assembly and was referred to the Committee for Finance and Personnel for detailed scrutiny in the Committee Stage. Owing to the burden of work arising from bills already with the Finance Committee, an extension of the Committee Stage until 8 June was sought from and agreed by the Assembly.
Subsequently, it was agreed with the Chairman and members of the Committee for Health, Social Services and Public Safety that the Committee Stage of the Family Law Bill would be undertaken by that Committee under Standing Order 48(1). The reasons for taking this course of action were the Health Committee's general interest in children's legislation and the ability of the Health Committee to undertake the Committee Stage of the Bill within a shorter timeframe than would otherwise have been possible.
I am sure that all Assembly Members will welcome the fact that this Report has been completed well in advance of the extended deadline. On behalf of my colleagues on the Finance Committee, I am delighted to take this opportunity to thank the Chairman and members of the Health Committee for undertaking the Committee Stage of this important Bill and for completing the intensive work programme that has been required to produce this Report.
COMMITTEE FOR HEALTH, SOCIAL SERVICES AND
The Committee for Health, Social Services and Public Safety is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of Strand One of the Belfast Agreement and under Standing Order No. 45 of The Northern Ireland Assembly. The Committee has a scrutiny, policy development and consultation role with respect to the Department of Health, Social Services and Public Safety, and has a role in the initiation of legislation.
The Committee has the power to:
The Committee has eleven members, including a Chairperson and Deputy Chairperson, and a quorum of five.
The membership of the Committee since its establishment on 29 November 1999 has been as follows:
All correspondence should be addressed to The Clerk of the Health, Social Services and Public Safety Committee, Room 419, Parliament Buildings, Stormont, Belfast, BT4 3XX. The telephone number for general enquiries is: 028 9052 1932.
The Clerk's E-mail address is: firstname.lastname@example.org
Report on The Family Law Bill
1. Although the Minister for Finance and Personnel is the sponsoring Minister for the Family Law Bill, it was agreed between the respective Chairmen of the Finance and Personnel Committee and the Committee for Health, Social Services and Public Safety that the latter would take the matter forward. This arrangement was agreed because a major objective of the Bill is to make appropriate amendments to the Children (Northern Ireland) Order 1995 in order to make further provision for the acquisition of parental responsibility under Article 7 of the Order.
2. The Committee is grateful for the opportunity to scrutinise the Bill, as provided for under Standing Order 48 (1) of the Northern Ireland Assembly, which covers instances where legislation due for consideration appears to fall within the remit of more than one Statutory Committee. Accordingly, it extends its appreciation to the Committee for Finance and Personnel for its co-operation on this matter.
3. The Committee on 7 March, 14 March, 21 March and 28 March 2001, considered the Family Law Bill (NIA 4/00) that was referred for its consideration.
4. It had before it the Family Law Bill and the Explanatory Memorandum to the Bill (NIA 4/00-EFM), as introduced.
5. Mr Mark Durkan, Minister for Finance and Personnel, made the following statement under section 9 of the Northern Ireland Act 1998:
"In my view the Family Law Bill would be within the legislative competence of the Northern Ireland Assembly."
6. The Bill covers three broad areas. First, it amends the Children (Northern Ireland) Order 1995 by providing that an unmarried father who jointly registers the birth of his child with the child's mother shall have parental responsibility for that child. It also provides for a step-parent to apply to a court for an order conferring parental responsibility on the step-parent in relation to a child of his or her spouse. In both cases, that parental responsibility may be terminated only by court order.
7. Secondly, it provides that a man shall be presumed to be the father of a child in certain circumstances: namely, if (a) he is married to the child's mother; or (b) he has been registered as the child's father in the Register of Births in any place in the United Kingdom. The presumption that a man is the father of his wife's children already exists at common law and (a) above simply puts this into statutory form.
8. Thirdly, it amends the Family Law Reform (Northern Ireland) Order 1977 by enabling courts to direct the taking and testing of bodily samples for the purpose of resolving questions of parentage. Courts are currently confined to directing the taking and testing of blood only.
CONSIDERATION OF THE BILL
9. The Committee held two oral evidence sessions in March 2001, taking evidence from the Office of Law Reform (within the Department of Finance and Personnel) and the Belfast Family Proceedings Court Standing Committee. It also wrote to 26 individuals and organisations to request written submissions. The Committee was pleased to receive 15 wide-ranging written submissions that addressed the issues in the Bill in considerable detail and from a number of perspectives. The entire evidence has been included in the report. The Committee wishes to place on record its gratitude to all of the witnesses for the quality of submissions received.
10. The background to the Family Law Bill lies with the Government's recognition of the changing patterns of family life, with fewer people getting married as more and more people choose to live together. In 1997 some 6449 children were born outside marriage in Northern Ireland, 26.6% of all live births. It is against this backdrop that the Office of Law Reform drafted legislation to review two aspects of family life in Northern Ireland: parental responsibility for children and court procedures for determining paternity. These are separate but linked issues affecting children and their parents.
Clause 1 (Acquisition of parental responsibility by father or step-parent)
11. The new concept of parental responsibility, which was introduced into Northern Ireland by the Children (Northern Ireland) Order 1995 emphasised that parents not only have rights in respect of their children but responsibilities towards them. The Order defines parental responsibility as "all the rights, duties, powers and responsibility and authority which by law a parent has in relation to the child and his property."
12. However, at present under the Children (Northern Ireland) Order 1995 unmarried fathers only acquire parental responsibility for their children by entering into a parental responsibility agreement with the mother, or by obtaining an order from the court. The level of take-up through these mechanisms has, though, been very low since the Order came into force. For example, in 1999 fewer than 200 parental responsibility orders were made in respect of unmarried fathers.
13. Nonetheless, this low uptake would not appear to represent unwillingness on the part of unmarried fathers to assume responsibility. In Northern Ireland in1997 there were 6449 live births outside of marriage of which 63.6% were registered jointly by the mother and father of the child. And this reflects a growing trend. Under current legislation, however, the unmarried father's registration of the child's birth does not confer upon him parental responsibility for his child. As a result, the vast majority of unmarried fathers have no formal legal relationship with their children.
14. The provision in the Bill for unmarried fathers to acquire parental responsibility by jointly registering the birth of the child reflects an increasing perception that the present discrimination between the position of married and unmarried fathers is unfair and should be remedied. It is felt that the proposals in the Bill will significantly strengthen family relationships in Northern Ireland by creating a legal relationship between children and their unmarried fathers.
15. Some witnesses argued that the Bill's provision for unmarried fathers to acquire parental responsibility continued to discriminate against them on the grounds of both gender and marital status. They maintained that the Bill did not really improve the position of the unmarried father, as he is still dependent on the consent of the mother as to whether or not he has parental responsibility for the child. While married fathers and natural mothers, who are automatically vested with parental responsibility, can only lose it where the child is made the subject of an adoption order, the unmarried father must jointly register the birth of the child, enter into a parental agreement or make an application through the courts. Moreover, he can be divested of his parental responsibility by a court order whereas the unworthy married father or mother does not face such a prospect.
16. It is generally acknowledged that this is an area fraught with difficulty involving competing human rights and equality arguments. The Committee acknowledges, however, that while the Bill deals with the rights of unmarried fathers, these rights are themselves firmly embedded in the rights of children and mothers. It noted the concern raised by some witnesses that some unmarried mothers would have if the unmarried father of their child were given automatic responsibility for their child. That child may have been born in the context of an abusive and violent relationship, though it is conceded that the same could equally occur in a marital relationship.
17. The Committee accepted, on balance, the arguments made by the Office of Law Reform that the United Kingdom's family law conforms to European human rights standards. The McMichael v UK case is particularly relevant in that the European Court ruled that an unmarried father's rights were not infringed by the fact that he did not have automatic parental responsibility. The Court took the view that there needed to be some test to protect children and mothers from unmeritorious fathers, and the test was marriage. Any differential treatment between parents on the basis of gender or marital status within articles 8 and 14 of the European Convention on Human Rights is reasonably justifiable with reference to the need for protection for mothers, fathers and children.
18. The Committee also acknowledges, however, that as society evolves it may not always be the case that current domestic legislation will conform to human rights standards. This area will need to be closely monitored.
19. Favouring a degree of caution, the Committee believes that the granting of parental responsibility to unmarried fathers who jointly register the birth of their child with the mother strikes a fair balance between the sometimes conflicting rights and interests of children, mothers and fathers, whether married or unmarried. The unmarried father who jointly registers the birth of his child is making a public commitment, just as a married father has publicly demonstrated a commitment to his wife and subsequently the mother of his children.
20. The Committee was content with the provision in clause 1 for a step-parent to be able to apply for a court order conferring parental responsibility for a child of his or her spouse. It accepts that in many second marriages a strong bond is built up between a step-parent and child, who may have lost contact with the natural parent. From a practical perspective, in terms of taking decisions with the other parent on the child's education and welfare, for example, it is important that a legal relationship be established between the step-parent and their "new" children.
21. Some witnesses argued that the granting of parental responsibility to step-parents could lead to the absent natural parent being sidelined, which could be potentially destabilising for the child; and that this should only be extended with the agreement of both natural parents. The Committee, however, accepted that the fact that the natural parents will continue to have parental responsibility and can alert the court to objections they might have, which it must take on board, provides for fair representation.
22. The Committee was content that article 8 of the Children (Northern Ireland) Order 1995 provides the mechanism for the court to arbitrate in disputes among the parties about decisions that will affect the child. It was also reassured by the Office of Law Reform that, in accordance with article 3 of the Children (Northern Ireland) Order 1995, courts will automatically place paramount consideration on the best interests of the child in deciding whether to make a parental responsibility order.
23. Members were satisfied that the Bill provides a mechanism for the courts to divest unmarried fathers and step-parents of parental responsibility, which was generally viewed as a sensible safeguard to protect children and mothers from violence, abuse or intimidation. This will complement existing legislation that deals with violence and abuse in family situations.
24. The Committee considered the arguments made by some that the Bill should equally provide for married fathers and natural mothers to lose parental responsibility where the particular circumstances warranted it. However, it was satisfied that, in such cases, there is provision for the courts to decide on the issue of parental responsibility if there is a need to make a prohibited steps order or a specific issues order. If there is concern about a child's welfare the child will be taken into care, and parental responsibility will lie with the Health and Social Services in addition to the parents. Ultimately, social workers can apply to the court to have a child adopted if they feel the case is so bad that no amount of work will help the family function properly. This extreme action divests married parents of parental responsibility.
25. The Committee considered the arguments made by some witnesses for the provisions of the Bill to have retrospective effect, but it accepts the more widely held view that retrospectivity is a legal principle to be avoided if at all possible. If the legislation were to have retrospective effect, it could impose unfair obligations on an unmarried father who had not registered his children with the intention of securing parental responsibility. On the other hand, if there is an earlier child for whom there was no assertion of parental responsibility, an unmarried couple can still make a parental responsibility agreement in respect of that child, thereby giving all their children the same status.
26. Members were in full agreement that as the rights of children lay at the heart of the Bill, there was consequently a clear duty to protect their best interests. The Committee is therefore pleased that the Office of Law Reform has agreed to take forward its request for amendments to Clause 1 that will specify the "best interests" test as a factor to be considered by the court when making an order conferring parental responsibility on an unmarried father or a step-parent.
27. Several witnesses argued persuasively that there ought to be a strong link between the acquisition of parental responsibility and providing emotional and practical care, direction and guidance to the child. Some proposed that the definition of parental responsibility in the Children (Northern Ireland) Order 1995 be amended to achieve a greater balance in relation to the caring and controlling aspects of parenting.
28. While the Committee saw considerable merit in the argument for a change in the definition of parental responsibility, it accepts the rationale of the Office of Law Reform that to redefine parental responsibility would also affect contact and residence cases and cases in the public care system, and would require further wide consultation as it would have effects outside the Family Law Bill. Academic authorities attest that the current provision works well in practice. There is also significant jurisprudence in case law of what parental responsibility means. Moreover, it was argued that to define tightly such a concept might mean restricting a court's latitude at a later date.
29. Having accepted the arguments against redefining parental responsibility, the Committee agreed with the many witnesses who stressed the crucial importance of developing an effective, high profile and widespread publicity campaign about the implications of the Bill, particularly in relation to unmarried fathers who jointly register a child's birth. A public information brochure on how to obtain parental responsibility should be made available to all new parents, which sets out in clear terms what this entails. The publicity campaign must place an equally strong emphasis on rights and powers, and the duty to provide emotional care, direction and guidance to the child. The importance of showing respect and support to the mother should also be highlighted.
It was agreed that Clause 1 should stand part of the Bill on the understanding that the Minister will bring forward an amendment relating to the "best interests" principle where the court orders that an unmarried father or step-parent shall have parental responsibility.
Clause 2 (Presumption of parentage)
30. The Committee was content with Clause 2, which deals with the common law presumption that a man who is married to a woman between the conception and birth of the child is the father of the child and places it on a statutory footing; and the further common sense provision that a man's registration as the child's father in the Register of Births anywhere in the United Kingdom is an acknowledgement of paternity. It was content that the Bill provides for the presumption of paternity in both instances to be rebutted on the balance of probabilities.
It was agreed that Clause 2 should stand part of the Bill.
Clause 3 (Tests for determining parentage)
31. The Committee welcomes Clause 3 as a technical measure that provides for the courts in Northern Ireland to have future additional powers in order to help determine the parentage of a child. The new provision for courts to direct that bodily samples, such as saliva or hair, may be taken for the purposes of scientific tests to determine parentage is clearly a less invasive and distressing procedure, especially for children, than existing mechanisms, which involve taking blood samples in order to determine parentage.
32. The Committee did, though, share the concern of some witnesses in relation to the rights of the child on scientific tests for determining parentage. Members felt that it was a crucial human rights issue that the views of children, particularly as they grow older, should be taken into account where the question of parentage arises in civil proceedings cases. The Committee was satisfied by the Office of Law Reform's assurance that the court will take account of those views when deciding whether to direct that a parentage test be carried out. Article 3 (3) (a) of the Children (Northern Ireland) Order 1995 states that, when dealing with the "best interests" test, the court shall have regard to the wishes and feelings of the child concerned, taking account of his age and understanding.
33. The Committee also acknowledged the point made by the Office of Law Reform that just as a child under the UN Convention on the Rights of the Child is entitled to know who his or her parents are, parents have a interest in determining who their children are, especially in the light of their financial obligations to them. So, while the best interests of the child are certainly a factor here, they fall to be considered within the overall circumstances of the case.
34. While concern was raised by the Committee about who is responsible for meeting the costs of tests for determining parentage, it was satisfied with the response from the Office of Law Reform that a general principle is that the costs follow the event. In other words, if a parent with care institutes proceedings to obtain a declaration of parentage and is successful, then the absent parent who has disputed parentage will bear the costs. Similarly, if the Child Support Agency takes a case against an absent parent who disputes parentage and loses the case, the costs of obtaining DNA tests and associated legal costs would be borne by the Agency.
35. The Committee was satisfied that the court-directed tests are carried out by an accredited laboratory company, whose terms of contract requires its retention of samples for two months after which they are destroyed. The Committee accepted that the two-month retention period was reasonable to enable further tests or challenges to be made upon the tests prior to the court making a decision where parentage is disputed.
It was agreed that Clause 3 should stand part of the Bill.
Clauses 4 and 5 (Commencement and Short Title)
36. It was agreed that Clauses 4 and 5 should stand part of the Bill.
37. The Committee is content that the Minister will bring forward the agreed amendments to Clause 1. It does not propose to bring forward any amendments of its own.
DR J HENDRON MLA
MINUTES OF PROCEEDINGS OF THE HEALTH, SOCIAL SERVICES
AND PUBLIC SAFETY COMMITTEE
Dr Hendron took the Chair at 2:06 pm.
4. Family Law Bill
A. Belfast Family Proceedings Court Standing Committee
The Chairman welcomed the panel to the meeting at 2:20 pm, after which Ms Bowman-McAlister presented the Belfast Family Proceedings Court Standing Committee's view of the Bill followed by a question-and-answer session. The entire proceedings are recorded separately in verbatim minutes of evidence. The Chairman thanked the panel for their input, and they left the meeting at 3:29 pm. The meeting was suspended at 3:30 pm and resumed at 3:40 pm.
B. Office of Law Reform
Dept. of Finance and Personnel Officials: Ms Claire Archbold
The Chairman welcomed the Officials to the meeting, after which Ms Archbold presented the background to the Bill and its rationale. The entire proceedings, including the Committee's consideration of the Bill, are recorded separately in verbatim minutes of evidence. The Chairman thanked the Officials for their input, and they left the meeting at 5:10 pm.
Clause 1 - The Department will consider the following amendment: in paragraph (2) (c), after "child" insert ", where this is in the best interests of the child."
Clause 2 - Agreed
Clause 3 - The Officials will advise the Committee as to who it is intended will be responsible for the costs of tests for determining parentage. They will also advise as to whether samples taken for such testing are to be destroyed immediately following the court's decision.
Clauses 4 and 5 - Agreed
The Committee will continue its consideration of the Bill, particularly in relation to a number of concerns on Clause 1, with the Office of Law Reform at a later date. In the meantime, following a concern raised about the inclusion of women's and children's groups in the consultation process, the Officials will, if possible, provide a full list of consultees on the Bill.
WEDNESDAY, 14 MARCH 2001
Dr Hendron took the Chair at 2:06 pm.
6. Family Law Bill
i. The Chairman reported that his counterpart on the Committee for Finance and Personnel will be writing to the Speaker with a view to establishing a satisfactory Assembly policy on the handling of Bills brought through the Office of Law Reform.
ii. The Clerk will prepare an options paper for members' consideration in advance of the meeting scheduled for Wednesday, 21 March, which will be attended by Officials from the Office of Law Reform.
WEDNESDAY, 21 MARCH 2001
Present: Dr J Hendron (Chairman)
In Attendance: Mr G Martin (Committee Clerk)
Dr Hendron took the Chair at 1:52 pm.
3. Family Law Bill
The Chairman advised that Officials from the Office of Law Reform would speak to their written response providing further information on their oral evidence given to the Committee on 7 March 2001. The Committee continued its deliberations and considered an options paper setting out the consultees' various arguments on the Bill's main principles.
Office of Law Reform
Dept. of Finance and Personnel Officials: Ms Claire Archbold
The Chairman welcomed the Officials to the meeting at 2:40 pm, after which they spoke to their written response to the Committee's previous request for further information on aspects of the Bill. The entire proceedings are recorded separately in verbatim minutes of evidence. The Chairman thanked the Officials for their input, and they left the meeting at 3:10 pm.
Clause 1 was agreed with the proviso that the Department of Finance and Personnel bring forward amendments to paragraphs (2) (c) and (3) (1A) stating that unmarried fathers and step-parents should acquire parental responsibility through the courts where this is in the best interests of the child.
Clause 3 - Agreed
WEDNESDAY, 28 MARCH 2001
Dr Hendron took the Chair at 2:03 pm.
6. Consideration of the Report on the Family Law Bill
The Committee deliberated.
Draft Report on the Family Law Bill (NIA Bill 4/00), proposed by the Chairman, brought up and read.
Ordered: That the draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 37 read and agreed to.
Resolved: That the Report be the Fourth Report of the Committee to the Assembly.
That the Report should include written and oral evidence from the following witnesses. (Annex 2)
Resolved: That the Report be printed.
1. Falls Women's Centre
WRITTEN SUBMISSION BY:
The Falls Women's Centre welcomes the opportunity to comment on the Family Law Bill in order to outline to you our serious concerns regarding the potential outcome of several clauses in the Bill.
We welcome the fact that additional organisations have been asked to comment on the Bill. The Explanatory and Financial Memorandum detail a range of organisations included in the original consultation process which includes men's groups, however, it seems strange that women's groups were not included in the process. This excludes a key constituency from commenting on the Bill and denies the Assembly important feedback on this issue. The absence of this vulnerable and disadvantaged group from the consultation process raises some concerns when the proposed action is aimed at addressing the perceived disadvantage of a dominant group: men. All groups affected by the proposed action should have their views sought.
Background and policy objectives state the primary purpose of the Bill is to facilitate the acquisition of parental responsibility by unmarried fathers. It details the existing mechanisms by which this may presently be done. 1. By written agreement with the child's mother that has been registered at the High Court. 2. By order of the Court. It also notes that these mechanisms have been held to comply with the European Convention on Human Rights by both the domestic courts and the European Court of Human Rights, as a justified interference with family life in order to protect the rights of others, namely women and children from unmeritorious fathers. The main reason for seeking to alter this state of law is given as the low take up by unmarried fathers of the existing mechanisms for acquiring parental responsibility. However, the Bill fails to address the impact of this change against the need to protect the rights of women and children.
The Falls Women's Centre would argue that the acquisition of parental responsibility is primarily a children's rights issue. The United Nations Convention on the Rights of the Child (UNCRC), states, government
".shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment or exploitation including sexual abuse while in the care of parents, legal guardians or any other person who has care of the child."
Government can not ignore the potential for persons who should provide care and protection to a child to abuse that child. It should be satisfied that the law does not facilitate persons who should provide care and protection to a child to abuse that child. It should be satisfied that the law does not facilitate persons who currently exercise parental responsibility in using that status to act irresponsibly, negligently or abusively towards the child: nor can government give control over a child's life to people who do not provide care to the child unless they can be sure that such persons can be relied upon to act in the child's best interests.
The UNCRC also states, state parties must
".use their best efforts to ensure the recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern."
This article promotes equality in the context of both parents engaging in caring and raising the child and acting in the child's best interests. The government is also required to
" .respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by custom, legal guardians or other persons legally responsible for the child in a manner consistent with the evolving capabilities of the child, appropriate direction and guidance in the exercise of the child's rights as exercised by the convention."
Thus recognising the importance of parents, extended family and community to the child in order that the child's right to experience and maintain kinship be respected.
The United Nations Convention on the Elimination of all forms of Discrimination Against Women, states,
"State parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations..."
and in particular to ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and the development of the children; it being understood that the interests of the child is primordial consideration in all cases. The Falls Women's Centre believes it to be open to serious error if legislation which aims to be anti-sexist should be introduced without actively seeking women's views as to how equality in family life can be achieved.
Article 6(1) of the order defines parental responsibility as all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his property. This means that any person who has parental responsibility has control over important decisions in a child's life, for example, where the child will be educated, his or her religious practice, whether to consent to medical treatment, etc. While the Bill proposes that the unmarried father acquire this legal status by jointly registering the birth with the mother; it imposes no requirement for the unmarried father to provide or intend to provide any emotional or practical care to the child. The FWC believes that this does not offer adequate protection to either the mother, who may be left with all the burden of care and only half the parental authority, or the child whose best interests could not be served by the exercise of control without attending care and nurture. We believe equality in family life is not best promoted by forcing a woman and child to share control of all essential decisions with a man who may not be part of their intimate family and who is not required to contribute in any way towards the child's social and emotional life. This Bill would therefore seem to give pre-eminence to the rights of the unmarried father over those of the mother and child.
Unmarried fathers are currently entitled to acquire parental responsibility by making an agreement with the mother or by applying to the courts for a parental responsibility order. The explanatory note for the Bill suggests that less than 200 applications and less than 50 agreements are made annually. It remains unclear, however, as to why unmarried fathers do not apply for parental responsibility or make agreements with their partners as they are entitled to do, or what steps the government has taken to inform them of their current rights. It may be that once aware of these rights unmarried fathers will choose to exercise them.
The FWC recognises that the relationship between unmarried fathers and their children should be facilitated and that appropriate measures need to be in place for them to acquire control as easily and quickly as possible when it is necessary to carry out a caring role. However, we believe this Bill as currently constituted fails to adequately address this issue and that further research needs to be carried out as to how this can be done without adversely affecting the rights of women and children.
WRITTEN SUBMISSION BY:
Before I enter into the main body of the Families Need Fathers NI submission, I would like to illustrate from my own experience how the average father in Northern Ireland has evolved over the last 25 years.
The first time I consciously remember seeing a man pushing a pram in Belfast in the early 1970s was when I was around 5. The man in question was the subject of much comment amongst the locals, and on seeing said father pushing a pram, my mother said to her friend "Look at the heck of yer man" to which her friend replied "Aye, he must be English!"
Following the press categorisation of the "New Man" in the 90s, a reawakening of the issues surrounding fatherhood has become a matter of much debate. Yesterday's "Englishman", is today's "New Man", and any one outside that model is deemed to be either "feckless" or repressed.
NEW MAN BUT SAME OLD STORY
Birth fathers' attitudes to their role has certainly changed, but the incumbent legislature still seems to wish to keep them on the periphery of their children's lives. Much talk along the lines of "Children Need Both Parents" by notables such as Blair and Boateng is never backed up by proactive legislation in defence of the child and non-resident parent (NRP). In 90%+ cases the NRP is the father.
The introduction of the Children's Act 1989 and the Children (Northern Ireland) Order 1995, both promised much, but delivered little in the way of positive outcomes for children and their birth father after divorce/separation. When Contact/Residency issues are contested, the outworking of both pieces of legislation has led to an adversarial system where the winner takes all, and the perception of the loser (the non resident father in 90%+ of cases) is that he gets a derisory amount of contact. If the Parent with Care (PWC) (mostly the mother) takes an "Implacably Hostile" position to the NRP having contact with the children, and/or Parentally Alienates the children against the NRP, then that parent may get no meaningful contact at all. This could be avoided if there was a presumption of Shared Parenting on separation or divorce.
WILL THE PROPOSED BILL BE THE BEST LAW POSSIBLE?
Biological fathers come in two varieties - married and unmarried. One set has automatic PR, one does not. Birth mothers however are honorary members of the "one size fits all" club and automatically have PR, regardless of their marital status.
According to some (including the author of the Explanatory and Financial Memorandum that accompanies this Bill as introduced) this clearly biased stance is wholly necessary to protect mothers and their children from the unwelcome attention of unmeritorious fathers. On closer examination the aforementioned rationale has very few merits itself.
The most common reasons put forward to support the view that automatic Parental Responsibility should not be granted to unmarried fathers are:-
1. It would lead to interference by the non-resident father in the day-to-day care of the children by their mothers.
2. What about rape?
In what is recognised as one of the most credible pieces of research into the subject, Ros Pickford's "Fathers Marriage and the Law" (Family Policies Studies Centre, Joseph Rowntree Foundation, London, 1999) deals with both topics. She accurately asserts that any of these concerns can equally apply to married fathers who are separated/ divorced from the child's mother. There is adequate provision in current law to deal with fathers regardless of their marital status. She also notes that:-
"There is also a difficulty as to whether there is a case for the identity of certain types of fathers being concealed. There are no reasons why a husband does not appear as the father on the birth certificate, not even rape, and the grounds that the father has undesirable characteristics that the child may find disturbing apply to many children who have to cope with unpalatable truths about married parents. The existence of any exceptions does carry with it the risk of increase litigation. The arguments against having exceptions generally for unmarried fathers are therefore strong. However even though it has been suggested that the number of births as a result of (non-marital) rape are very small (Scottish Law Commission, 1992), many consider that there is something repugnant about the idea of the identity of a rapist (if known) appearing on a birth certificate. There must be concern, that if this was an exception it might lead to more claims of rape. The disadvantages of such an exception might far outweigh any justification in terms of numbers affected, as the Scottish Law Commission accepted."
FNF NI COMMENT, CLAUSE BY CLAUSE
PR FOR UNMARRIED FATHERS
Families need Fathers NI see Section 1(2)(a) of Clause 1 as a small step towards equality for unmarried fathers.
We do however have concerns that the Assembly could make an error of judgement by not awarding PR to all fathers, regardless of their marital status. If this is passed without amendment the mother still has an effective veto over the father acquiring PR by the method proposed in this Bill. Our observation is supported by Pickford when she comments on page 43 that:-
"There seem to be some arguments against having joint registration as the sole determining factor for PR. The most important of these is whether it might reduce the number of joint registrations, and while this research found no evidence that this would be the case on the part of the fathers, it has to be a possibility that some mothers would refuse to allow fathers to register for this reason.".
ACQUISITION OF PR BY STEPPARENTS
We believe that the ability of stepparents to apply for PR is a mildly worrying development, even though a large number of our members are stepparents themselves.
Our worry is that in nearly all contentious cases it will mean that if a parent with PR has not remarried or their new spouse does not acquire PR through the courts, one parent with PR will be outvoted by the other and their spouse if they acquire PR through the courts.
As this impact on vital matters concerning the education, religious upbringing, nationality and medical treatment of the child, it may lead to increased litigation, and will almost certainly lead to greater pressure on an already stretched Family Proceedings system.
PRESUMPTION OF PARENTAGE
Clause 2 Section (2) states
"Any presumption under this section may be rebutted by proof on a balance of probabilities".
FNF NI feel that the above section should speak of certainty, not probability. The "balance of probabilities" is a subjective process, and is not to be trusted as fact. There are non-invasive methods of DNA testing available that offer this certainty.
If a parent wishes to contest the presumption of parentage they should have free access to the courts and the relevant resources of the NHS to do so. No party to the proceedings should have the power of veto.
TESTS FOR DETERMINING PATERNITY
Non invasive DNA testing has been available for some time, and we men have had to use resources in the US to establish paternity by this method, rather than have their children's blood taken.
PROMOTING THE CHANGE IN LAW AFTER THE ACT IS PASSED
It is generally accepted that most unmarried fathers (75% as found by Pickford) did not understand their legal position re PR. There is no reason to believe that the figure is not similar in NI.
FNF NI are all volunteers and we receive no money at all from any agency. If funding was procured from Government we could help publicise the law that emerges in relation to the above.
FNF NI can be contacted on 028 9074 3952, mobile on 07968 625913 or by email at email@example.com
WRITTEN SUBMISSION BY:
Northern Ireland Women's Aid Federation (NIWAF) is appreciative of the opportunity to offer further comment on this legislation. We commend the Assembly's action in giving further consideration to the sensitive issues raised in the Bill.
Acquisition of Parental Responsibility by Father or Step Parent
NIWAF acknowledges the injustice experienced by fathers who are in committed relationships and who are undertaking responsible parenting, but are legally denied rights enjoyed by married fathers. It is right that the law should not discriminate in this way and indeed should encourage parental responsibility by men.
The comments on the Family Law Bill (as introduced) give an agency perspective on the issues raised. Women who experience abusive and violent relationships are the focus of our work. We seek to promote their best interests and those of their children.
Information on Agency
NIWAF was formed in 1978 and exists to challenge attitudes and beliefs that perpetuate domestic violence. We seek, through our work, to promote healthy, non-abusive relationships.
There are eleven Women's Aid groups throughout Northern Ireland, who core aims are: to provide refuge to women and their children suffering from domestic abuse, recognise and care for the emotional needs of the children involved, to educate and inform the public, media, courts, social services and other agencies about the effects of domestic abuse. The 24-hour Helpline is a direct service of NIWAF.
Acquisition of Parental Responsibility by Father or Step Parent
While the experiences of individual women and children affected by domestic violence may vary, there are many shared characteristics: abusive partners are adept at using children, including the unborn, as a means of pressurising and coercing mothers. Parental rights (or supposed parental rights), like conjugal rights, have been viewed intrinsically as the prerogative of men.
The original consultation document distributed by the Office of Law Reform in July 1999 recognised the violence factor:
"2.34 One of the important issues we wish to highlight is the concern that some unmarried women would have if the unmarried father of their child were given automatic parental responsibility for their child. That child may have been born as the result of rape or otherwise in the context of an abusive and violent relationship. Of course, the birth of a child within a marital relationship could often occur in those contexts also.
3.35 If the law on parental responsibility is to be changed it may be that consideration would have to be given to the need for mechanisms whereby those unmarried fathers on whom the law confers parental responsibility could be deprived of those rights and responsibilities by a court order. The obvious example would be the mother applying to the court to have those responsibilities removed because the unmarried father is violent towards her or the child. Under the present law if an unmarried father is granted a parental responsibility order that order may be revoked by the court."
It is very disappointing that the Family Law Bill has not specifically addressed this issue. We would urge the Health & Social Services Committee to introduce a clause which recognises the potential risk in the best interests of the children, as well as their mothers. While acknowledging the fact that many children in Northern Ireland have no legal relationship with their father, we need to be aware of unintended consequences and guard against increasing opportunities for abuse.
It is essential that under amended legislation the protection of rights in this area should be somehow safeguarded, giving clear messages viz. that the use of violence, bullying and intimidation by unmarried fathers would prevent the acquisition of parental responsibility.
The suggestion that unmarried fathers, who jointly register a child's birth, be provided with information on how they might acquire parental responsibility would have merit in this regard, if the process required a clear undertaking from fathers regarding their responsibilities towards, not only the child, but the respect and support towards the mother. The process should give clear messages about parenting as a partnership and that evidence of violent, abusive, controlling behaviour, assertion of male privilege etc, will result in the denial of parental responsibilities in law.
An additional possibility is that the courts require evidence of satisfactory completion of a course in human relationships and parenting for unmarried fathers, to qualify them to acquire parental responsibilities. This could be explored as part of the court's support for parents. Needless to say, this should not be a method by which abusive men could claim parental responsibilities, but one which might be helpful to younger men to enable them to parent.
NIWAF regards the Family Law Bill as an important opportunity to bring about a cultural change in attitudes towards parental responsibilities, which are consistent with International Human Rights Judgements and the UN Convention on the Elimination of Discrimination Against Women to which the UK Government is a signatory, We urge the Assembly to grasp this opportunity to ensure that while extending the rights of fathers by granting them the opportunity to have a formal legal relationship with their children, they also protect the rights of vulnerable children and women from violent and abusive unmarried fathers.
WRITTEN SUBMISSION BY:
I welcome the proposals contained in the Family Law Bill. In particular, I welcome the proposal to facilitate the acquisition of parental responsibility by unmarried fathers. The proposed amendments to the Children Order seem to offer a practical and effective means of assisting more unmarried fathers to acquire parental responsibility for their children. This significant reform of the law will reinforce one of the central messages of the Children Order which is that parents have prime responsibility for the upbringing of their children. Wherever possible, this responsibility should be shared by both parents throughout the child's life. It will be very important therefore that the legal consequences of jointly registering a child's birth are explained to both parents and that they are fully aware of what it means to have parental responsibility for a child.
BAIRBRE DE BRUN
WRITTEN SUBMISSION BY:
It seems to be from the outset that there is a misconception in relation to parental responsibility. There is an assumption that authority over children facilitates the development of a relationship. What would facilitate that would be care for children and care for children is not necessarily given by having authority over them.
There also seems to be an assumption that parents do not deliberately harm their children. This is not the case and Doctor Ewan McEwan an adolescent expert can tell you that he spends a lot of his time repairing damage to children deliberately caused by their parents who have authority over them.
Basically parents rights should decrease as children's abilities develop. It seems to me that the purpose of this Order was to encourage men to take care and responsibility. However this is not the way to do it. There would need to be consultation as to how this is to be achieved.
This Bill, although short, has huge significance on the relationships between adults and children and people in general.
It would seem at first glance that the granting of parental responsibility to step-parents is a good thing. However the definition of step-parent being a person who is married to a child's parent who has parental responsibility for the child would seem to be really wide. For example, a man could, under this Order, obtain parental responsibility merely by signing the register at birth. Then a person who has no connection with the child marries him and that person too could have authority over the child.
The basic flaw in the legislation seems to be that there is no requirement for care to be shown before authority is given. The explanatory notes say that signing the register recognises in law that joint registration demonstrates a public statement by the man that he is the father of the child and that he accepts the responsibility of parenthood. I would say that this is not the case at all.
The first thing that would need to be done is that there would need to be an intense public education to make young women who have just had children aware of what it might mean to allow someone to register as father of a child. But even before that there would need to be detailed research into some of the assumptions that have been made.
It would probably be found that it would be a good thing for a child to know his father. However is it necessarily a good thing that that father has authority and control over the child?
The Bill as proposed means that mothers who rear children will have all of the duties and only half of the control.
Difficulties will also arise with the Benefits System where some people will argue because they have joint parental responsibility that they are entitled to joint benefits.
There will also be difficulties in schools when the consent of someone who may only have signed the Birth Certificate and who disappears will be required for example, a school trip. There will be difficulties in medical surgeries when Doctors may be challenged on what happened without the consent of a parent who has joint parental responsibility but who may not have seen the child for a number of years.
While certainly research should be done to see how better to provide care for children it seems to me that this Bill is not the best way to proceed.
WRITTEN SUBMISSION BY:
1. The Bill addresses a fundamental issue in regard to unmarried fathers acquiring parental responsibility for their children and is welcome. The fact that the legislation does not cover unmarried fathers who have been registered as their children's father on birth certificates prior to the commencement of these changes is a weakness which perhaps needs to be addressed. While generally legislation is not retrospective, provision does exist to make it apply retrospectively. Building in retrospection should be considered in this case to ensure that neither children, nor unmarried fathers, are disadvantaged by this new legislative provision. Research indicates that the majority of men who jointly register a birth assume that this action establishes a legal relationship between them and their children.
2. The legal safeguards emerging from the process whereby a step parent acquires parental responsibility is welcomed as it ensures that birth-parents input into this process can be facilitated.
3. There is no reference, in the section "Tests for determining parentage", as to who is responsible for meeting the cost of such tests. Currently, the Child Support Agency requires men named as fathers to meet the costs of these tests. I understand this cost remains even when the man is deemed not to be the parent. This does appear an unreasonable cost and provision should exist in legislation to have costs fall to the party requiring the test, where such tests fail to substantiate his/her claim.
4. The approach not to afford automatic parental responsibility to unmarried fathers is endorsed, as this in some cases would disadvantage women and their children. The ECHR case McMichael v UK, ensures that this approach is currently consonant with the European Convention on Human Rights. This is, however, an area which will require to be kept under review in the light of developing European jurisprudence.
5. In summary, the provisions of this Bill are to be welcomed.
WRITTEN SUBMISSION BY:
BASW (NI) welcomes the opportunity to comment on the Family Law Bill and appreciates the decision to extend the consultation period in order to involve as broad a spectrum of viewpoints as possible. The issues which the Bill seeks to address are both emotive and complex, and as the initial consultation document illustrates (1) (pages 8-9) the question of parental responsibility is being dealt with in a variety of ways by other jurisdictions. Although the consultation document refers to the rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) and to the UN Convention on the Rights of the Child (UNRC) 1989, the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979 also has particular relevance to the Bill.
BASW (NI) is aware of the fact that other organisations have recently taken the opportunity to respond to the Bill, in particular the Committee for the Administration of Justice and the Children's Law Centre. We wish to endorse the issues raised by both of these agencies in relation to the rights of women and children. At the same time, we acknowledge the position of unmarried fathers who wish to fulfil an "equal" role in parenting their children. Having outlined the context in which the current paper is written, BASW (NI) wishes to draw attention to the following issues:
1. Public Information Strategy
2. The Paramouncy Principle
3. The Concept of Parental Responsibility
1. Public Information Strategy
The initial consultation document (1) acknowledges that the "rising trend of children born outside marriage will continue in the coming year" (page 1). Patterns of family life are changing and so must the law and family policy in order to reflect the needs of people. On page 7 of the document, reference is made to comments from David Utting's report (2), which states:
"A more worrying finding concerned the ignorance of cohabitants regarding their rights as parents and as partners. None of the 77 long-term cohabiting mothers interviewed had taken the legal steps necessary to give their partner the equal and independent parental rights that a married father would automatically enjoy. In most cases, they seemed unaware of the law's requirements or to have, wrongly, supposed that joint registration of the child's birth was enough.".
While it should be noted that this research refers to the Children Act (1989), the concern remains that:
(a) Such erroneous assumptions are being made by parents 10 years after the implementation of the Act in England and Wales and,
(b) The process of implementing the Children NI Order 1995 has not fully taken account of the experience in England and Wales.
As regards the current Bill, this point is highlighted within the initial consultation document (1) which seeks views in relation to the following proposals:
(i) The father of a child, whether married or unmarried to the child's mother should automatically acquire parental responsibility for the child.
(ii) An unmarried father who jointly registers the child's birth with the child's mother should automatically acquire responsibility for the child.
NB: This Is the option which is currently included in the proposed Bill.
(iii) The existing law on parental responsibility for unmarried fathers should remain unchanged but unmarried fathers who jointly register a child's birth are provided with information on how they might acquire parental responsibility.
The third option begs the question, why is this process not already happening? The fact that it has not happened, may point to an important factor influencing the facts and figures quoted at the beginning of the document, that is, in Northern Ireland in 1997 there were 6,449 live births outside marriage, of which 63.6% (4,104) were registered jointly by the mother and father of the child, and yet,
"The existing provisions by which an unmarried father can acquire parental responsibility under the Children (NI) Order 1995 have been little used" (page 10).
2. The Paramouncy Principle
The welfare of the child is paramount, this is one of the fundamental principles underpinning the Children Order. The UNCRC states that the 'best interests' of the child must underpin all other rights and responsibilities (article 3). Inquiries such as the Cleveland Inquiry and High Court decisions such as the Gillick judgement, stress the point that the parental role is for the child's benefit. Parental rights yield to the child's right to make his or her own decisions, in other words parental responsibility should only be exercised to the extent that it supports a necessary caring role. It is therefore concerning that there is no reference made to the 'best interests' principle either within the key clauses of the proposed Bill, nor is it discussed in the explanatory notes.
3. The Concept of Parental Responsibility
Article 6(1) of the Children Order defines this as "all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property." A definition which places great emphasis on the controlling and authoritarian aspects of parenting, a view perpetuated both by the initial consultation document and within the current proposed Bill itself.
In light of the Human Rights Act (1998), and the UNCRC, the concept of parental responsibility requires in depth exploration which would take account of the views of all interested parties. To fail to take the opportunity to carry out such an exploration at this key stage, could be regarded as detrimental to the 'equality dimension' (page 4) to which the consultation document itself refers. It would be the view of BASW (NI) that a need exists for greater balance in relation to the caring and controlling aspects of parenting.
BASW (NI) recognises that change in family policy and law must reflect the needs of the people. It is with this in mind that the following recommendations are made:
1. Given the experience in England and Wales, as well as the fact that the issue of parenting is so fundamental, an information strategy should be formulated in relation to the main implications of the Children Order for families and children. This would allow for an informed debate to take place among interested parties.
2. The best interests of the child should be given priority in all proposed changes to any legislation which affects them.
3. The concept and meaning of parental responsibility should be addressed before any further amendments to the Children Order are considered.
1. (i) Parental Responsibility for unmarried fathers
(ii) Court Procedures for the Determination of Paternity
A Consultation Paper form the Office of Law Reform July 1999
2. Utting, D., (1995) Families and Parenthood
Joseph Rowntree Foundation 1995
WRITTEN SUBMISSION BY:
1. About Care
1.1 CARE (Christian, Action Research and Education) was established 16 years ago to combine caring, at national and community level through church support, with campaigning on social issues. CARE has more than 100,000 supporters in the UK (2,500 in Northern Ireland) from across the Christian denominations, who regularly receive information and support CARE's work. CARE initiatives such as the network of 141 pregnancy and post abortion counselling centres and the Homes Programme draw heavily on the involvement of local Christians and the support of local churches. CARE is also concerned to see national and European law and public policy reflect Christian ethical principles.
1.2 CARE's Public Policy Department acts as a think tank on ethical issues involving the family, medical ethics and sexuality. We are a point of reference and information on these issues for our supporters, who we keep informed about developments in policy and the law through our regular publications. We also brief Parliamentarians and Assembly Members as relevant matters are considered in Westminster, Belfast, Edinburgh, Cardiff and Brussels.
1.3 Part of CARE for Education's work has been to produce a number of educational resources for primary and secondary schools which include successful sex, marriage and drugs education resources for pupils. In addition we have produced a number of resources for use by school governors in devising policy.
1.4 Our Caring Services Department co-ordinates several practical initiatives. The Homes Programme involves a network of Christian families and single people throughout Britain, who open their homes to provide short-term respite for those needing a break from their current circumstances. In addition we run CARE Remand Fostering - offering home based accommodation and training for young offenders on remand instead of traditional secure accommodation.
1.5 CARE for Life supports a network of 141 pregnancy crisis centres operating throughout the country, including centres in Lurgan, Coleraine, North Belfast, Ballymena and Bangor. The aim of these centres is to provide a safe, impartial environment in which women, and men, can talk through their circumstances of unplanned pregnancy, and discover all of the options open to them. The centres offer free pregnancy tests. Some of the centres operate schools work initiatives, which examine sexual activity in the context of relationships, unplanned pregnancy, sexually transmitted infections and the choices made by young people with respect to their physical and emotional health.
2.1 CARE welcomes this opportunity to contribute to the discussion of the Family Law Bill at committee stage.
3. Parental Responsibilities and Rights
(2) In paragraph (1) (acquisition of parental responsibility by father who is not married to child's mother), for the words after "birth" substitute ", the father shall acquire parental responsibility for the child if:
(a) he becomes registered as the child's father;
(b) he and the child's mother make an agreement (a "parental responsibility agreement") providing for him to have parental responsibility for the child; or
(c) the court, on his application orders that he shall have parental responsibility for the child".
3.1 CARE believes that fathers play a vital role in the protection, support and emotional development of children. There is much research showing the need for children to have a father who is closely involved in their life and we would want to do all possible to ensure this happens.
"When fathers are readily available and actively engaged with their children from an early age there is positive impact on achievement, notably in the area of cognitive skills."
3.2 We believe that parents are the crucial touchstones of a child's life and have a vital responsibility and function in the daily lives of their children. We believe that women and men together are intended to take their parental roles seriously and should not be discouraged from putting their children and families first. The parent-child bond is unique. Its nurture or neglect produces long-term outcomes, such as social competency and self-confidence, or fearful behaviour and withdrawal tendencies, respectively.
3.3 CARE believes that it should be easier than is currently the case for unmarried fathers to acquire parental responsibilities for their children. We believe that all parents should exercise responsibility for their children and that most unmarried fathers are responsible and interested in their children and deserve a legal role as parents.
3.4. However, CARE is concerned about the effects of this proposal upon the position of marriage in society. A proposal to give the same rights to unmarried fathers as to married fathers cannot ignore the effect that this will have on the special status of marriage and the rights of married couples.
3.5 Although we would wish to see the acquisition of parental responsibilities and rights made easier, we do not consider that it should be made automatic upon joint registration of the child's birth. We believe that a differential must be maintained between married and unmarried fathers, in order to protect the unique status of marriage and thus to protect the interests of children in the long term.
3.6 CARE recommends that provision be made to allow for an appropriate amount of time for the mother to consider whether or not she wishes the father to have parental responsibilities.
3.7 Decisions about whether to grant parental responsibilities will have long-term and far-reaching consequences for the child as well as the mother.
3.8 CARE suggests that prior to the birth, at ante-natal classes for example, and also at the registration of the birth, information relating to parental responsibilities and rights for unmarried fathers should be given to the parents, with a set period of time (eg 3 months) for the application to be made.
4.1 CARE urges the Committee to seek to ensure that cohabiting fathers are not given the same, automatic rights as those of married fathers.
4.2 We believe that fathers play a vital role in the protection, support and emotional development of the most vulnerable in our society, children.
4.3 However, a proposal to give the same rights to cohabiting fathers as those of married fathers cannot ignore the effect that this will have on the special status of marriage and the rights of married couples. CARE is concerned that if cohabiting couples are given all the "advantages" of the married state, but without the permanent commitment of marriage and its associated responsibilities, this will remove incentives to marriage, and society will be the long-term loser.
4.4 CARE is concerned that, if the permanent, public and unique commitment of marriage is undermined in any way, this may serve in the long term to actually cause more harm to children. Although of course there are some cohabiting relationships that are committed and last a lifetime, and there are marriages that do not, the statistics comparing marriage and cohabitation portray very clearly that cohabitation is significantly less stable than marriage, even when children are involved:
4.5 CARE believes that it should be easier for unmarried fathers to acquire parental responsibility for their children. However, although we would want to see the acquisition of parental responsibility made easier we do not consider that it should be made automatic. As we have stated more fully above, we believe that a differential must be maintained between married and unmarried fathers, in order to protect the unique status of marriage and thus to protect the interests of children in the long term. The implications of changing the balance between marriage and cohabitation are far-reaching and directly impact on the raising of children.
5. Retrospective Parental Responsibilities
5.1 CARE is opposed to giving retrospectively automatic parental responsibilities to unmarried fathers. We consider that this would be unfair to those mothers who have taken sole responsibility for the raising of a child. It would throw up a number of legal difficulties in terms of the Human Rights Act 1998, which prevents retrospective legislation. It may inflame difficult relationships and on occasions place in jeopardy the safety of the mother and/or child concerned. In some cases there would be a danger of domestic violence or a kidnap attempt on the child. We also consider that this proposal could be emotionally damaging to some children who have had little or not contact with their natural father. We are concerned that any system of public objection, which branded the father as unfit to have contact with his children, would be open to abuse.
"(1A) A child's step-parent shall acquire parental responsibility for the child if the court, on the application of the step-parent, orders that he shall have parental responsibility for the child."
6.1 CARE is generally in favour of this proposal. However, we would wish an explicit requirement placed in the Family Law Bill to take the views of the child into consideration in relation to giving step-parents parental responsibilities. In particular, we would wish to see this apply to older children and where the child is able to make an informed decision.
6.2 We are also concerned that giving parental responsibilities to step-parents might cause difficulties with the other natural parent of the child. Additionally, in some cases parental responsibilities might be made available to three, four or even more people. This we would view as being destabilising and having the potential to cause emotional damage to the child. Consequently, we would be cautious about extending parental responsibilities to step-parents without the agreement of all surviving natural parents.
7. Other Considerations
7.1 CARE recommends that the provision of parental responsibilities should only be terminated by a court.
WRITTEN SUBMISSION BY:
This submission is made on behalf of the Association of Family Solicitors for Children which was inaugurated on 10 May 2000. The main aim of the Association is to promote justice for all children and young people. The Association is a proactive organisation which acts as a pressure group to lobby for properly funded legal mechanisms to enable all children and young persons to have access to justice.
All mothers automatically have parental responsibility for their children. Parental responsibility is also vested in fathers married to the mothers of their children. Under Article 5 of the Children (Northern Ireland) Order 1995 unmarried fathers do not automatically have parental responsibility but can acquire same under the conditions stipulated by Article 7 of the Order. The Family Law Bill proposes to change the law by automatically conferring parental responsibility on unmarried fathers who jointly register the birth of the child with the mother. Article 8 of the European Charter on Human Rights and Fundamental Freedoms (hereinafter the "European Charter") as given effect to by the Human Rights Act 1998 states that
"Everyone has a right to respect for his private and family life, his home and his correspondence".
It should not be forgotten that Article 8 applies to children as well as adults and therefore protects the rights of a child to respect for family life.
The Family Law Bill clearly adopts the presumption that family life is to be treated as revolving around marriage. The concept of family life has been considered at length by the European Court. Boughanemi -v- France (1996) involved an immigrant who argued that his expulsion from France would violate the right to family life which he enjoyed with his family. The Court held that:
"the concept of family life, on which Article 8 is based, embraces even where there is no co-habitation the tie between a parent and his or her child regardless of whether or not the latter is legitimate. Although that tie may be broken by subsequent events, this can only happen in exceptional circumstances".
In Soderback -v- Sweden (1998) an unmarried father and his daughter were found to enjoy family life, despite the fact that they had never cohabited or enjoyed regular contact. The Court's approach in these cases indicates that the presumption in favour of family life has been extended to unmarried fathers and their children. We would submit that the child's right to respect for family life - which is accepted as existing between unmarried fathers and their children - includes the right to the existence in law of safeguards to protect and guarantee the child's right to respect for family life.
In Marckx -v- Belgium (1979) - the European Court established that:
"respect for family life implies the existence in law of safeguards that render possible from the moment of birth the child's integration into the family".
We would therefore submit that it is incumbent on the Government to protect this right by establishing a legal tie between children and their fathers. We would recommend that all unmarried fathers should automatically have parental responsibility for their children. It is only by taking this step that the child's right to respect for family life will be guaranteed.
The explanatory and financial memorandum to the Family Law Bill purports to justify any discrimination between unmarried fathers and between registered fathers and mothers as justifiable on the basis of the need to protect mothers, fathers and children. We would remind the Committee that a determination of the existence of family life as between all unmarried fathers and their children does not of itself determine the scope of obligations that will result from such a determination. The Court may still consider whether interference is justified under Article 8(2) of the European Charter in conjunction with regard to the Welfare Principle under the Children (Northern Ireland) Order 1995. We would therefore submit that the current legislation provides the appropriate mechanisms to protect mothers, fathers and children.
We would also refer the Committee to Articles 7 and 8 of the United Nations Convention On The Rights of The Child. Article 7 recognises the right of a child to be registered after birth, the right to acquire a nationality and, as far as possible the right to be known and be cared for by his or her parents. Article 8 guarantees the right of the child to preserve his or her identity. In Johnston -v- Ireland (1986) the Court found that the normal development of natural family ties between unmarried but cohabiting parents and their child required the child to be placed legally and socially in a position akin to that of a child whose parents were married. Similarly Marckx -v- Belgium highlighted the importance of the legal recognition of family ties enabling the child to be integrated into the family. It is clear from these cases that the child's right to identity is inextricably bound up with the child's right to respect family life. Preserving the child's right to identity imposes an obligation on the Government to ensure that there is proper legal recognition of family ties so as to enable the child to be integrated into the family.
We would submit that Article 7 and Article 8 of the United Nations Convention on the Rights of the Child, taken in conjunction with Article 8 of the European Charter and the case law referred to above imposes a duty on the Government to ensure that all fathers have parental responsibility. The Family Law Bill as proposed continues to infringe not only the child's right to respect for family life but also the child's right to identity.
Under the Children (Northern Ireland) Order 1995 it is clear that unmarried fathers are treated differently to mothers and married fathers married to mothers of their children. Unmarried fathers suffer discrimination on the grounds of gender and on the grounds of marital status. The Family Law Bill does not remedy this situation. Unmarried fathers continue to be treated differently on the grounds of gender and marital status. Unfortunately and most significantly the Family Law Bill fails to improve the position in relation to illegitimate children. The effect of the Bill is to enable discrimination to continue between legitimate and illegitimate children. Children will continue to be penalised and children's rights under the European Charter and the United Nations Convention on the Rights of the Child will continue to be infringed merely on the basis of the parents behaviour or status.
In relation to the application by step parents, once again the legislation adopts the presumption that family life revolves around marriage. As stated previously this approach is inconsistent with European Case Law. In the case of X and Z -v- United Kingdom (1997) the Court set down a useful test for the existence of family life ie
"when deciding whether a relationship can be said to amount to "family life" a number of factors may be relevant, including whether the couple lived together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means".
To limit the bringing of applications for Parental Responsibility to step parents is a failure to take account of the wide variety of circumstances where family life may be held to exist and where it may be appropriate for the Court to consider the granting of Parental Responsibility to safeguard and protect the best interests of the child. We would submit the clause discriminates against persons not linked by blood or marriage to a child. The statistics indicate that 40% of births occur outside marriage. The definition of family life as limited to married families is clearly outdated and fails to reflect the reality of family life as it now exists. We would however state that any application brought by any person who is not a natural parent of the child should be considered in accordance with the Welfare Principle of the Children (Northern Ireland) Order 1995.
We therefore conclude by making the following recommendations:
1. That Parental Responsibility be automatically vested in all mothers, married fathers and unmarried fathers.
2. We propose that the legislation is amended enabling a third party, not linked by marriage or blood to the child, to bring an application for Parental Responsibility subject to the proviso that any such application be considered in light of the Welfare Principle of the Children (Northern Ireland) Order 1995.
WRITTEN SUBMISSION BY:
1. NIGALA broadly welcomes the initiative to facilitate the acquisition of parental responsibility to greater numbers of fathers through joint registration with the mother of the birth and enabling step parents to make application for parental responsibility.
2. NIGALA recognises from the figures proved in the memorandum that many children born outside marriage, have no legal relationship with their fathers. The measures proposed by this Bill will significantly alter this position. This will assist the development of many children through strengthening their sense of identity.
3. The acquisition of parental responsibility by considerably more fathers will have an impact on Adoption and Public Law proceedings where those with parental responsibility are granted party status. This will have some impact on the workload of NIGALA, Trust Social Services staff and others.
4. The opportunity for step parents to acquire parental responsibility may see a decline in the number of step-parent adoption applications.
5. The changes to the tests for determining parentage are welcomed as being much less intrusive for children.
The effect of the proposed Bill in relation to points 3 and 4 above will be closely monitored by NIGALA. The fine line Bill which seeks to tread between balancing the need for equality of opportunity and the need for protection of mothers, fathers and children is recognised as being necessary to ensure that the child's welfare remains the paramount consideration. When the Bill becomes law, NIGALA recommends that steps are taken to ensure the public become more fully aware of the legislative provisions concerning parental responsibility.
In order to make the legislation in relation to parental responsibility more easily understood by the public, it is necessary that the legislation offers clearer guidance on the meaning of the concept. Unfortunately our current legislation is open to criticism in this regard. The Children (NI) Order 1995 Article 6(1) simply provides that
"parental responsibility means all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his property".
It is generally recognised that the Children (Scotland) Act 1995 provided a more fulsome general guidance as to the meaning of parental responsibility. The Scottish approach is a substantial improvement on that contained within the Children Act 1989 for England and Wales, which was replicated in our own Children Order. It is therefore, with respect, proposed that the opportunity should be taken to ensure that the legislation is amended to achieve greater clarity of the concept of parental responsibility.
R H WILLIAMSON
WRITTEN SUBMISSION BY:
Thank you for the opportunity to comment on the Family Law Bill and in respect of its social policy aims. NSPCC completed a submission to the regional consultation favouring the option to acquire parental responsibility that now appears in the Bill. We feel that this was the most suitable compromise in terms of promoting children's rights and protecting them from situations where there was relationship instability or the child had been concerned as a result of rape etc.
WRITTEN SUBMISSION BY:
This submission if made on behalf of the Children's Law Centre which is a registered charity established in September 1997. We carry out research, provide training, information, advice and representation in relation to children's rights in N Ireland. Our arguments are grounded on principles enshrined in The United Nations Convention On the Rights Of the Child, The European Convention On Human Rights as incorporated by The Human Rights Act 1998 and The Equality Provisions of The Northern Ireland Act 1998 (all attached for ease of reference at Appendix A).
We welcome the fact that the important issue of responsibility for children is being debated.
the united nations convention on the rights of the child
key relevant articles
Article 3 The best interests principle
Article 12 The right of the child to express his or her opinion and to have that opinion taken into account in any matter affecting the child
Article 7 The right of the child to a name at birth and as far as possible to know his or her parents and be cared for by them
Article 8 The right of the child to preserve his or her identity and family ties
Article 9 The right of the child not to be separated from his or her parents unless this is in the child's best interests
Article 16 The child's right to protection from interference with privacy, family, home and correspondence
Article 18 Parents have common responsibility for the upbringing and development of their children. Parents or legal guardians have the primary responsibility for the upbringing and development of children in their care
The State shall provide the appropriate assistance to parents and guardians in child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children
Article 19 The right of the child to be protected from abuse and neglect
Article 36 The child has a right to protection from all forms of exploitation prejudicial to any aspect of the child's welfare
the human rights act incorporating the echr
Article 3 ECHR Children have the right to be protected by the State from torture, inhuman and degrading treatment. This article has been argued in the European Court of Human Rights in the context of the protection of children from physical harm and from child abuse and ill treatment. It is clear that there is a positive obligation on the State to ensure that children are protected from ill treatment.
Article 8 ECHR Children as well as adults have a right to family life and to privacy. Family life is a wide concept and means people with whom there are "close personal ties". Family life is not restricted to those with parental responsibility. This wide definition of family life is reflected in Article 5 UNCRC.
Article 6 ECHR It has been clearly established that the right to a fair hearing extends to the field of family law and applies to administrative as well as judicial processes in this regard. Recent case law suggests that in order for a child to have a fair hearing, they must be able to participate and understand proceedings in which they are involved. This is an important concept and is strengthened by Article 12 UNCRC.
S75 Northern Ireland Act 1998; the duty to promote equality of opportunity between men and women generally, between persons of different marital status, between persons of different ages, between those with dependants and those without, between persons of different religious belief, political opinion, racial group, sexual orientation, between persons with a disability and without.
consultation and impact assessment
We note from the Explanatory Document that a consultation paper was sent out to 185 organisations in July 1999.
The obligations under s75 of The Northern Ireland Act 1998 have to be considered in relation to the requirement that due regard be given not only to the promotion of equality of opportunity between persons of different marital status and men and women generally, but also between persons of different ages.
In this regard we would be interested to know whether any consultation has taken place with young people about their views on the proposed changes to the law on parental responsibility. They may have strong views on the importance of knowing one's identity and parentage or about being denied contact with a parent who no longer lives in the family home. They may have views on the input that absent parents should have on their day to day lives, for example should a parent whose name is on the birth certificate, but who has not had any recent contact with the child, have automatic access to school records or be able to withhold consent to medical treatment? They may have views on being physically restrained into giving DNA and blood samples when they have a genuine reason for refusal. It is only by talking to children and young people themselves that we will ever know more about these issues.
We recommend direct consultation with children and young people with a clear explanation given about the meaning of parental responsibility and about blood testing and DNA testing. The consultation should endeavour to investigate the perception that children and young people have of family life and responsibility for their care and upbringing.
We recommend that an impact assessment be carried out in relation to the proposed changes to the law under The Family Law Bill.
blood testing / dna testing
The Family Law Bill seeks to extend the powers of the court to order the taking of bodily samples for resolving disputes about parentage. There is no doubt that this would make the results more certain. Our objection to this proposed legislation in relation to the taking of blood tests and DNA samples from children is as follows;
The Family Law Bill amends the Family Law Reform (NI) Order 1977 to enable courts to direct the taking and testing of bodily samples for the purposes of determining parentage. At present the courts can only direct blood tests. Article 3 of The Family Law Bill deals with these amendments.
Article 65(3) Child Support and Pensions Bill amends Article 9 of The Family Law Reform (NI) Order 1977 in relation to consents required for such tests. It replaces the wording of the old order which said
"If the person who has the care and control of him consents"
a) If the person who has care and control of him consents; or
b) where that person does not consent, if the court considers that it would be in his best interest for the sample to be taken.
This clause is obviously designed to prevent the parent with care and control "vetoing" the tests being done. In the past this resulted in children being denied certainty in relation to their parentage. It is quite clear from English case law that there was a concern that the courts were unable to order that tests be carried out, but could simply make a direction in this regard in England. From a child's perspective however the Bill does not mention the child's consent. Our view is that subject to age and understanding the child's consent should be obtained or at least Article 65(3) b) should make reference specifically to the ascertainable wishes and feelings of the child concerned in accordance with Article 3 Children (NI) Order (the welfare checklist). Article 65(3) b) should state: "that where either the person with care and control does not consent or the child does not consent, if the court considers that it would be in the best interest of the child for the sample to be taken."
We are aware from Hansard that an amendment was proposed to the Child Support and Pensions Bill in relation to consent of the child. The debate did not reflect the key question of the child's consent. We are not implying that a parent with care or a child should be able to thwart DNA or blood testing where the court deems this to be in the best interests of the child, after consulting the child and applying the welfare checklist at Article 3 Children (NI) Order 1995.
The Family Law Bill does not discuss consent at all. Young people aged 16 and over are capable of giving valid legal consent in their own right and this is not reflected in this draft legislation. A further difficulty, which arises from a children's rights perspective is in relation to a child under 16 who is refusing consent.
Article 12 UN Convention On the Rights of the Child states that any child who is capable of forming their own views must be given the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. In our view therefore there should be a mechanism for referral to a court where the child refuses consent and not just where the adult with care of the child refuses. The decision made by the court should be guided by the best interests of the child, with regard to the welfare checklist under Article 3 Children (NI) Order 1995. In the case of Re A (A Minor) (blood tests: constraint) 1988 Fam66, 1998 1FCR41, it was held that under the English law governed at that time by s20 FLRA 1969, whilst there was an absolute embargo against forcing an adult to supply blood against their will there was no such bar against ordering the supply of blood from a child even to the extent of ordering physical constraint against him/her. However, it was considered that the best course of action in such cases might be to allow the Official Solicitor to represent the child in cases where consent was withheld. However in Re O (A Minor) (Blood tests; Constraint) 2000 2 All ER 29 Wall J stated that in his view under the English legislation the person with care had an absolute right to withhold consent. The court could simply direct blood tests but could not enforce them. In his view the child had a right to know the truth about his or her parents unless the child's welfare justified the "cover up".
We agree that the child has a right, but not a duty, to know his or her parents and this is reflected in Article 7 UN Convention On The Rights of The Child. We agree that one parent should not be able to veto tests and that the decision making process should always be grounded in the best interests of the child. However, in the event of a child withholding consent to DNA tests or blood tests at any time, we would recommend that the balancing exercise between the rights of the child to know his/her parent and the child's overall welfare and best interests be carried out by a court, with independent legal representation provided for the child. The court mechanism would at least allow for the child to voice their opinions and to have the benefit of advice and guidance from their own independent legal representative.
We are confused about how the Child Support & Pensions Bill and The Family Law Bill fit together. The position under s15 of the Child Support and Pensions Bill relating to presumption of parentage should now reduce the necessity for blood testing or DNA testing to be carried out as there is a presumed liability for payment of child maintenance where either a) a non resident parent whose name appears on the child's birth certificate does not rebut the presumption that he is the father or b) where the parties were married at the time of conception and there is no rebuttal of parenthood.
In the cases where it remains necessary to carry out blood testing or DNA testing, is it the case that the CSA will refer the matter to court for a declaration of parentage if the parent with care refuses consent and at that stage the court will have to make a decision grounded on the best interests of the child? If so, there is no mechanism for referral to court if the child refuses the testing to be done, because CSA only need the consent of the parent with care and control. It is essential that the best interests of the child is central to the decision making process and not financial considerations. We would not like to see any administrative decisions being made, which could result in the physical restraint of a child.
We realise that many cases involve babies and young children who will not be able to voice their views and feelings but older children do become involved in these disputes. We would like to ensure that the child's right to physical integrity as enshrined under Article 8 ECHR is not breached by testing against a child's will where the court has not been able to evaluate what is in the best interests of the child concerned. The child also has a right to a fair hearing under Article 6 ECHR and a right to freedom from inhuman and degrading treatment under Article 3 ECHR and it is important that these rights are protected in any proposed legislation.
Finally it is essential that the identity of testers is carefully regulated and controlled. The position in England is that the Lord Chancellor holds an approved list of testers. All testers carrying out tests on children should be PECS checked. The tests carried out should be strictly regulated and should relate only to the child's parentage. The arrangements for storage and retention of DNA samples should be made clear to all parties concerned and transfer of information between agencies should be prohibited.
We recommend that the child should have a right to participate in the decision making process, in relation to blood testing and DNA testing.
We recommend that if the child refuses consent to a test, the matter should be referred immediately to a court, which should make a decision on the principles of the best interests of the child. The legislation should make explicit reference to the refusal of consent by a child and to the Article 3 checklist of The Children (NI) Order 1995. This would ensure compliance in terms of Article 6 ECHR as incorporated and Article 12 UNCRC.
We recommend that the child should have the benefit of separate legal representation in cases where consent is withheld.
the acquisition of parental responsibility
The UNCRC states at Article 18 that recognition should be given to the principle that both parents have common responsibilities for the upbringing and development of their children.
Article 18 requires that services be provided by the State to ensure that parents and guardians of children can look after children properly and, in this regard; Article 18 is linked to Article 27, which requires the State to ensure that children have an adequate standard of living. It presupposes a level of commitment and care for the child concerned and looks at how the State can help parents/guardians in a caring role to provide for and support their child's health and development.
The Explanatory Notes accompanying The Family Law Bill at paragraph 5 point out that from a child centred point of view the low take up of parental responsibility orders and agreements by fathers means that there are many children who do not have a legal relationship with their fathers in N Ireland.
In our view the meaning of the UN Convention provision is much wider than a "legal relationship". It means that parents should be assisted to bring up their children in a meaningful way and that family ties should be respected. This envisages a positive contribution, not a passive one from the parents themselves.
A legal relationship can, as we know unfortunately be meaningless to a child if they are not cared for properly. It is also a very adult perception of the relationship between parent and child. Whilst we appreciate the importance of a legal relationship between parents and children, we would prefer to see the emphasis of any legislation, affecting children to be grounded in the best interests of the child and the care, development and protection of the child.
An emphasis should be placed on the need to provide services such as contact centres and family support services to help parents have a meaningful relationship with their children, particularly in relation to facilitating contact arrangements, where it may be necessary to have a third party present. This would require additional resources for social services to be able to develop services in this respect.
In relation to the low take up of parental responsibility orders and agreements, many parents may not be aware of the fact that they do not have parental responsibility and an awareness-raising programme about the need to apply for an order or enter into an agreement would perhaps have been helpful in this regard. Consultation with solicitors dealing with applications for parental responsibility on a daily basis would be necessary to ascertain whether there are particular difficulties arising in relation to the granting of parental responsibility orders by the courts.
The primary concern in decisions about parental responsibility must be the best interests of the child. Children should have the right to separate legal representation in contentious proceedings
Ideally, of course, children have the right to family life with parents/carers/relatives with whom they have close personal ties pursuant to Article 8 ECHR and Article 9 UN Convention. The definition under the ECHR of family life does not relate solely to parents, but is much wider encompassing all those with whom the child has close personal ties. Children also have the right however, to be protected from harm and from interference with their family and private life. The position in relation to parental responsibility may be particularly complex in family situations where there has been domestic violence or abuse.
It is important that any change to the law on parental responsibility recognises that a balance must be struck and that there are effective safeguards to protect children in place.
In relation to the ECHR, we agree with the conclusion in the Explanatory Notes that the domestic law as it stands, which requires unmarried fathers to apply for leave from the court for parental responsibility or to draw up a parental responsibility agreement is not incompatible with either Article 6 or Article 8 ECHR. For unmarried fathers who wish to proceed with an application for parental responsibility, the mechanism of accessing a court and lodging an application under the Children (NI) Order 1995 is usually straightforward for an applicant although there may be issues in relation to entitlement of legal aid in this regard. The European Court when examining the issue of leave stated in the case of McMichael v UK;
"It is axiomatic that the nature of relationships of natural fathers with their children will inevitably vary from ignorance and indifference at one end of the spectrum to a close and stable relationship indistinguishable from the conventional matrimonial family based link at the other. The aim of the relevant legislation is to provide a mechanism for protecting the interests of the child and the mother. In the court's view, this aim is legitimate and the conditions imposed on natural fathers for obtaining recognition of their parental role respect the principle of proportionality.".
We do not have, however, any research as to the success or failure of such applications or difficulties in the court process itself encountered by unmarried fathers and as stated above it would be essential in terms of the equality debate for the Committee to obtain information about this, which would be relevant to Article 8 and Article 6 rights.
The acquisition of parental responsibility is not a matter which can be taken lightly. As stated by Ward L J in Re S (parental responsibility) 1993 1 FCR 85,
"It is wrong to place undue and therefore false emphasis on the rights and duties and the powers comprised in parental responsibility and not to concentrate on the fact that what is at issue is conferring upon a committed father the status of parenthood."
Parental responsibility gives a parent automatic rights in relation to decision-making processes in relation to their child's name, health, religion and education.
It is for this reason that we are concerned that proper consultation and debate takes place about the amendments to the acquisition of parental responsibility, which the Family Law Bill proposes. It is essential that women and women's groups, groups representing fathers and fathers themselves be properly consulted about the effects of the proposed changes. It is also essential that consultation take place with the legal profession dealing with these issues on a day-to-day basis.
Most importantly, however, we would like to see consultation with children and young people themselves about the important issues raised in this consultation document, about their views on family, responsibility and consent. We would have thought that the question of whether a legal relationship exists with their parents/carers would be secondary to the importance of the care, support and commitment they receive.
We recommend that consultation takes place with children and young people about their perception of family life, care, responsibility and consent.
We recommend that any decisions about the care of a child should be made in the child's best interests, using the welfare checklist at Article 3 Children (NI) Order 1995. The central issue in this Bill should be the appropriate care of and responsibility for children. In the context of any equality debate between fathers and mothers, which appears to be the basis for these proposals, the child's needs should be central and any decisions should be firmly grounded in the paramountcy principle.
We recommend that the child should have separate legal representation in contentious cases.
We recommend that a holistic approach be taken to support for a child's family life, with a review of family support services available for both parents with whom the child resides and non-residential parents.
The research referred to in the Explanatory Notes is in our view inconclusive and further research should be carried out as to the reason for the low numbers of parental responsibility orders and ways in which this could be helped. It may be that unmarried fathers do not have the information they need to apply for an order or agreement or may not be aware of the necessity to make an application. We recommend that some awareness raising should take place with unmarried fathers about the need to enter into a parental responsibility agreement or obtain a court order.
We recommend that a full impact assessment be carried out on these proposals for reform.
WRITTEN SUBMISSION BY:
With the passage of the Children Act 1989 in England and Wales and the Children (Northern Ireland) Order 1995, the legislature sought, amongst other things, to move from the old concept of "parental rights" to that of "parental responsibility" that is, that parents not only have rights over their children but also that they should have responsibilities and duties towards them. Few people would disagree with that as an ideal, upon which the family should be grounded.
We take it that some of the prime purposes of parental responsibility are to safeguard and protect the best interests of the children, to encourage parents to think and act responsibly towards their children and to realise that they have a duty to ensure that their children are properly brought up to be responsible citizens and parents.
By Article 6 of the Children (Northern Ireland) Order 1995 (hereinafter "the Order") "parental responsibility" means "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property".
By Article 5 of the Order unmarried fathers do not automatically have parental responsibility but can acquire it in one of two ways, laid out in Article 7. All mothers and fathers married to the child's mother at the time of the birth have parental responsibility.
By Article 7 of the Order the unmarried father can acquire parental responsibility, either, by entering into a "Parental Responsibility Agreement" with the mother, or, by making application to the Court and the Court acceding to that application.
It is also worthy of note that by Article 7(4), parental responsibility acquired by either means may be brought to an end by order of the Court made on the application of "any person who has parental responsibility for the child or, with the leave of the court, of the child himself".
All mothers and married fathers, automatically vested with parental responsibility, can only lose parental responsibility where the child is made the subject of an adoption order. There is no mechanism within the Order to divest them of it.
So the end result is that even where an unmarried father acquires parental responsibility it is not indefeasible, as the mother's and married father's is. At any time, application can be made, most probably by the mother, seeking to take away that was given by her or granted by the court. Where the unmarried father may well have had to go through the demeaning process of process of proving to the Court that he was a father suitable to acquire parental responsibility, he may well have to go through the process a second time to ensure that he does not lose that which was so dearly acquired. The thoroughly unworthy married father (or, for that matter, mother) does not have to face such a prospect.
On any reading of the Order, unmarried fathers are treated differently to the mothers of their children on the grounds of gender.
Equally, unmarried fathers are treated differently to married fathers on the grounds of their marital status.
Perhaps most importantly, the children of unmarried parents are treated differently to legitimate children on grounds, which are completely beyond their control, namely their parents' lack of marital status.
We are of the view that this is threefold discrimination, which has no reasonable justification.
Any legislative body enacting legislation and any court interpreting that legislation must now ensure that it is acting compatibly with the European Charter on Human Rights and Fundamental Freedoms, as given effect to by the Human Rights Act 1998.
Within the area of family law it is primarily the Article 8 - "Everyone has the right to respect for his private and family life, his home and his correspondence" - that is of concern.
"Family life" has been considered by the European Court on many occasions and it is clear that an ever widening interpretation is being given to it.
In Soderback -v- Sweden  an unmarried father and his child were found to enjoy "Family Life", notwithstanding the fact that they have never lived together or had had regular contact. In Boughanemi -v- France  the Court held that "the concept of family life, on which Article 8 is based, embraces, even when there has been no co-habitation, the tie between a parent and his or her child, regardless of whether or not the latter is legitimate".
In X, Y and Z -v- UK, a case relating to a transsexual couple, the Court said that "when deciding whether a relationship can be said to amount to 'family life' a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means".
The European Court of Human Rights recently considered the issue of parental responsibility in the case of B -v- UK . In that case, an unmarried father was seeking to compel the return of his child from Italy, whence the mother had gone. He failed before the domestic courts, considering the case before the Human Rights Acts was in force, because, as an unmarried father without parental responsibility, he did not have "rights of custody".
On appeal to the Strasbourg Court, it concluded that "the different treatment under domestic law of the applicant and a father with parental responsibility does not disclose an appearance of a violation of Article 14 in conjunction with Article 8 of the Convention". Put simply, had "B" been married to the mother and therefore vested with parental responsibility, the Court would have required mother and child to return to the United Kingdom; since he was not a married father, he had to be treated differently but, by some sleight of hand, this different treatment was not discrimination, nor a denial of his Article 8 right to "family life".
In coming to this decision the Court said it "has considered that the relationship between unmarried fathers and their children varies from ignorance and indifference to a close stable relationship indistinguishable from the conventional family-based unit". It is unclear on what basis the Court came to make this statement but any experienced family law practitioner or judge would, we are sure, agree that the characteristics of paternity described by the Court are as commonly found in married as unmarried fathers.
The decision in B -v- UK is manifestly wrong and we are by no means alone in that view. If it is a correct interpretation of the law and that incorporating the European Charter on Human Rights and Fundamental Freedoms, we have to ask why the Northern Ireland Assembly is seeking to amend Article 5 of the Order at all? Further, we are led to believe that an identical amendment is being effected to the Children Act 1995.
If we are correct in concluding that Article 5 of the Order is discriminatory and in breach of Article 8 rights to private and family life, does the proposed change to be effected by the Family Law Bill remedy things?
That change proposed by the Family Law Bill and contained in Article 1(2) is that an unmarried father acquires parental responsibility "if he becomes registered as the child's father"; (the existing means of acquisition, namely by parental responsibility agreement or application to the Court are preserved).
At present, registration of birth has no great significance, save that it is a statutory requirement. If the law is amended in this way, the new importance of registration will have to be brought to public attention and kept there. Thus, both prospective unwed mothers and fathers will have to be aware that the act of jointly registering the birth of their child has consequences for them and they will have to be in agreement on that.
If the mother, knowing that the father will acquire parental responsibility, refuses to allow joint registration or goes behind his back and registers the child herself, has the position of the unmarried father been improved to any degree? Before this amendment, he had to get her consent to enter into a "parental responsibility agreement", after it, she has to consent as described above. Either way, the unmarried father is dependent on the consent of the mother as to whether or not he can have parental responsibility for his child.
Since the legislation will not have retrospective effect, all manner of anomalies are created - the pre-amendment unmarried father who does not have parental responsibility, the pre-amendment unmarried father, who jointly registered the birth with the child's mother but still does not have parental responsibility, the post-amendment father, who does not register the birth, is prevented by the mother from registering the birth or is otherwise unable to register the birth and, therefore, does not have parental responsibility and so on. Perhaps worst of all, the unmarried father of a number of children, who has always registered the births of his family, some of those children being pre-amendment and some post.
Where the Courts now deal with an application for the acquisition of Parental Responsibility, the test is threefold, firstly, is there a degree of attachment between the father and the child, secondly, has the father shown a commitment to the child and finally, is there evidence of any improper motive on his part. This is a demeaning process for any father, as he is really being asked to prove to the Court that he is a worthy parent. The married father, no matter how awful a scoundrel, has nothing to prove - his marriage vows somehow invest him with all that is desirable as a parent - this is palpable nonsense, as any practitioner in our family courts or judicial officer will testify.
At present, on unmarried fathers' applications to the Courts for Parental Responsibility, the chief objection raised by mothers is that this will be used as a means of objectionable interference with the way in which they bring up their children.
This has not proved to be the case with married fathers, who automatically have parental responsibility, and where there is inappropriate meddling by any parent, the Courts are well equipped to deal with the same by way of Specific Issues Orders and Prohibited Steps Orders.
We are satisfied that the amendment to the Order contained in Article 1(2) of the Family Law Bill is an unfortunate half-way house, which fails to rectify a flaringly discriminatory piece of pre-Human Rights Act legislation.
We are quite satisfied that the legislation should be amended to give parental responsibility to both fathers and mothers, whether married or otherwise and equally to amend the Children (NI) Order to allow the Courts, on application of either parent, to divest a parent, whether father or mother, of the same.
Clearly it is undesirable that the convicted rapist should be clothed in parental responsibility for the child, which his offence created; should it not be equally so for the mother (or father) who abandons the children and takes no further interest in them, instead setting up home with another partner and often that person's family? Do any deserve to have the privilege of Parental Responsibility?
The present state of the law on parental responsibility and this proposed amendment discriminate not only against unmarried fathers but also their children. The child of a married couple has two parents, who are "parentally responsible", an illegitimate child has only one. Surely that is unjust and out of step with the rationale of the Children Order, which tries to minimise state intervention in the family ("the No Order principle") and place the responsibility for children on their parents, both of them.
We suspect that the law, as it stands and as it may become in this Bill, breaches Article 7 and 8 of the United Nations Convention on the Rights of the Child 1989.
By Article 1(3) of the Bill "a child's step-parent shall acquire parental responsibility for the child if the court, on application of the step-parent, orders that he shall have parental responsibility for the child".
We are divided as to this amendment.
Some of our numbers welcome it as conferring parental responsibility on married partners who have entered into their marriages, accepting not only the responsibility of their new partner but also of that person's child or children. Frequently, such new married partners are fully deserving of being vested with parental responsibility; equally clearly, there will be exceptions.
Others take the view that this is an inherently dangerous route to take. Practitioners and judges are all too familiar with the scenario where the parent with residence of the children will seek to marginalize the other parent in favour of the new partner.
We take the view that applications by stepparents under this provision will be made with the full support of the natural parent, with whom the children are living. The opposition is most likely to come from the non-resident parent but he or she is not going to be best-placed to challenge the united front of the step-parent and spouse, with whom the children are resident.
There is also a real possibility of ridiculous anomalies. The unmarried mother, having residence of the children, marries and her new partner, the stepfather applies for parental responsibility. At the same time, the unmarried father, not having parental responsibility, applies for contact with his children and parental responsibility. Not having "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child", has he a right to object to the step-father's application? The only person with those is the mother and she is consenting to her new husband's application. The unmarried father without parental responsibility might well find himself being no more than a notice party to such proceedings - an interested but impotent spectator to a process, which further undermines his position as the children's father.
If the courts apply the same tests to the granting of step-parental responsibility, as those previously established, then few of these applications can fail. In the cited example above, doubtless the mother will give glowing testimony as to his credentials. We only have to wonder how we can hope to establish the children's wishes and feelings on the matter and whether such applications will be in their best interests?
On balance we, as a body, are opposed to this amendment.
In conclusion, both of these proposed amendments to the Children (Northern Ireland) Order 1995 are flawed.
The first fails to recognise that very significant numbers of people are choosing not to marry and that of those who do, the failure rate, by way of separation and divorce, is growing year upon year. It seeks to suggest that those who make a public gesture of recognition of their children, namely registration of birth, are in some way more responsible and committed than those who, for whatever reason, do not. In doing so, it simply adds to the list of the discriminated unmarried fathers.
Where the legislation being amended sought to give some greater status to those who went through a ceremony of marriage, now largely without religious significance, and all to often without any degree of permanence, this amendment fails to meet the challenge of a changing society.
The Northern Ireland Assembly has an opportunity in this Bill to meet that challenge and to assert that both the parents of a child are entitled to be regarded equally as parents, irrespective of protocol or bureaucratic actions.
The second amendment, whilst having superficial attractiveness, has all the potential for proving that the unmarried father is truly a second-class citizen and not worthy of our further consideration. It compounds the injustice done by Article 5 of the Order and its present proposed amendment and lends itself to supplanting the natural father, whether married or not, with the mother's latest choice of mate.
DESMOND PERRY, RM
WRITTEN SUBMISSION BY:
WHAT IS THE COMMITTEE ON THE ADMINISTRATION OF JUSTICE (CAJ)?
CAJ is an independent non-governmental organisation which is affiliated to the International Federation of Human Rights (IFHR). CAJ monitors the human rights situation in Northern Ireland and works to ensure the highest standards in the administration of justice. We take no position on the constitutional status of Northern Ireland, seeking instead to ensure that whoever has responsibility for this jurisdiction respects and protects the right of all. We are opposed to the use of violence for political ends.
CAJ has since 1991 made regular submissions to the human rights organs of the United Nations and to other international human rights mechanisms. These have included the Commission on Human Rights, the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, the Human Rights Committee, the Committee Against Torture, the Committee on the Rights of the Child, the Committee on the Elimination of Racial Discrimination, the Special Rapporteurs on Torture, Independence of Judges and Lawyers and Extra judicial, Summary and Arbitrary Executions, the European Commission and Court of Human Rights and the European Committee on the Prevention of Torture.
CAJ works closely with international NGOs including Amnesty International, the Lawyers Committee for Human Rights and Human Rights Watch.
Our activities include publication of human rights information; conducting research and holding conferences; lobbying; individual casework and legal advice. Our areas of expertise include policing, emergency laws, children's rights, gender equality, racism and discrimination.
Our membership is drawn from all sections of the community in Northern Ireland and is made up of lawyers, academics, community activists, trade unionists, students and other interested individuals.
CAJ was awarded the Council of Europe Human Rights Prize in 1998 in recognition of our work in defence of rights in Northern Ireland. Previous recipients of the award have included Medecins Sans Frontieres, Raoul Wallenberg, Raul Alfonsin, Lech Walesa and the International Commission of Jurists.
CAJ welcomes the opportunity to comment on the Family Law Bill. We commend the extension of the right to acquire parental responsibility to step-parents. We are concerned however that in seeking to clarify and facilitate the acquisition by unmarried fathers of parental responsibility the Bill may not provide adequate protection for children and women. We believe that the text as proposed fails to take account of the range of situations which need to be addressed in what is a complex and sensitive area.
In particular we have some serious concerns about the consultation process and the potential impact of certain clauses in the Bill. Most of these reflect the apparent failure to consider the impact the Bill is likely to have on the rights of women and children. In this regard we are concerned that, according to the explanatory notes to the Bill, while the consultation process took into account the views of men's groups, there is no mention either of women's or children's groups. Such an omission, in the context of a consultation process on a piece of family legislation is unfortunate.
Clause 1 of the Bill proposes to amend the Children (NI) Order 1995 (the Order) to facilitate the acquisition of parental responsibility by unmarried fathers. The explanatory notes state that this is the "primary purpose" of the Bill.
Article 6(1) of the Order defines parental responsibility as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." These are clearly considerable powers of control over a child's life.
CAJ would welcome efforts to ensure that unmarried fathers who have agreed to found a family are not disadvantaged in their legal position vis a vis married fathers. However the Bill proposes no mechanism to distinguish between persons who have agreed to found a family (whether married or unmarried) and those who have not. To protect the rights of women, it is essential that they are not effectively forced to found a family where there was no agreement to do so. This could potentially constitute discrimination (Article 14, ECHR) in relation to the unmarried mother's right to found a family (Article 12, ECHR) and/or infringe her right to privacy and family life (Article 8, ECHR). The absence of a mechanism to consider the circumstances and the potential for abusive partners to force women to co-operate in jointly registering the child's birth could infringe her right to a fair hearing (Article 6, ECHR).
McMichael v UK (1995) 20 EHRR 205 is relevant in this regard. In this case the applicant, an unmarried father, complained that he had been discriminated against contrary to article 14 of ECHR taken together with article 6 (right to a fair trial) and article 8 (privacy and family life). The court held that there was an objective and reasonable justification for the difference in treatment between married and unmarried fathers as follows:
"It is axiomatic that the nature of relationships of natural fathers with their children will inevitably vary from ignorance and indifference at one end of the spectrum to a close and stable relationship indistinguishable from the conventional matrimonial based family unit at the other. The aim of the relevant legislation is to provide a mechanism for identifying 'meritorious' fathers who might be accorded parental rights thereby protecting the interests of the child and the mother. In the Court's view this aim is legitimate and the conditions imposed on natural fathers for obtaining recognition of their parental role respect the principle of proportionality."
CAJ believes that the new mechanism proposed - that the father would register the birth with the mother is not capable of providing protection to the mother and certainly not the child. There is no requirement whatsoever for the unmarried father to provide or intend to provide any emotional or practical care to the child or the mother in order to acquire joint authority with her over the child. This does not address the disadvantageous position of women in relation to stereotypical gender roles and may place unmarried women in a more subordinate position than is the case at present within their families. Equality is not being promoted if a women carries all the burden of caring for the child but only half of the authority to take decisions in relation to him or her. (See Appendix)
Nevertheless, in circumstances where the partners have agreed to found a family, there does seem to be a discrepancy in the rights of married and unmarried people, which would usefully be addressed. In relation to adult heterosexual relationships, the Mental Health (NI) Order 1986, article 32, accords unmarried partners the status of 'next of kin' for the purposes of decisions regarding compulsory detention of a partner if they have been living together for a period of six months. It may be useful to explore whether a similar residency period with the mother and child would be sufficient to protect the child's interests and establish the unmarried fathers parental rights automatically at the same time and in the same way as both adult partners acquire responsibility for each other in respect of mental health issues. The potential impact of this and any other proposal would, however, need to be properly researched to ensure that there was no foreseeable negative impact on the rights of the mother and child.
This does not deal with circumstances where an unmarried father does not live with the child's mother but would wish to contribute to the child's upbringing and development. Nor does it deal with the situation where an unmarried father does not live with the child's mother but is equally involved in caring for him or her. These are complex matters and the legislation in this area needs to be sufficiently flexible to deal with them. For example it may be useful to consider drawing a distinction between promoting contact and kinship relationships and acquiring control.
Article 3 of the UN Convention on the Rights of the Child stipulates that the best interests of the child shall be "a primary consideration" in all actions concerning children. We do not believe that the automatic granting of parental responsibility to an unmarried father who plays no constructive role in caring for the child is necessarily in the best interests of the child. The Convention also asserts that control should only be exercised over a child to the extent necessary to provide him or her with necessary care and support and should diminish as the child develops and is able to take his or her own decisions independently. No one should have a right to a say in matters affecting him or her and government must ensure that law and policy do not make a child more vulnerable to abuse. (See Appendix)
The concepts of care and control need to be closely allied in order to protect the child's best interests, particularly in private law cases (that is, disputes between individuals). We are concerned that no link has been made in the Bill between the acquisition of parental responsibility and caring for the child.
A fundamental issue is that although the term 'parental responsibility' is used, what is being described is parental authority. The law does not require a person with parental responsibility to be engaged in any way in the child's social and emotional life. An absence of malice is presumed. Those who acquire parental responsibility automatically (ie married parents and unmarried mothers) retain it permanently regardless of their behaviour towards the child. There is no distinction made between people who provide care and those who simply exercise control, once they have the legal right to do so. There are no criteria for the courts to use in deciding who shall acquire parental responsibility. Higgins, J (in Re E (T26/99/OCP) notes that case law in England and Wales refers to the fact that the welfare of the child is the court's paramount consideration and
"suggest that three factors are relevant, but they are not an exhaustive
Elsewhere in his judgement, however, he states that
"For my part, I doubt very much whether a court when considering whether or not to make a parental responsibility order is determining any question with respect to the upbringing of a child."
CAJ accepts that Mr Justice Higgins is probably making an accurate observation about the current decision making process in the courts. It is, however, difficult to see how courts can be acting in a child's best interests if decisions about who acquires control are not based on an examination of whether the person needs authority to provide care and contribute to the child's upbringing. On such sensitive family matters, courts can usefully be provided with appropriate criteria, which would resolve these matters on the basis of applying the relevant international standards.
Finally, while we commend the extension of a right to acquire parental responsibility to stepparents, it will be important that the child's best interests are the primary consideration, that the stepparent is providing care for the child; and that the child's wishes and feelings in the matter have been given due weight. This can usefully be made explicit - preferably in the Bill, but if not, then in the rules of the court accompanying them.
TESTS FOR DETERMINING PARENTAGE
This is a very specialist area and CAJ has no expertise in the potential impact of the legislation proposed. It would be important, however, to ensure that the best interests of the child be a primary consideration in decisions to make such a test. This stipulation could easily be added to the Bill. The child's view and that of the mother should be sought although no child should be forced to express a view. Decisions should then be taken within the context of the child's best interests.
The explanatory notes suggest that the costs of implementing the Bill will be minimal. CAJ believes this to be unrealistic. According to the explanatory notes approximately 4000 unmarried fathers annually, who do not currently have parental responsibility for children, will acquire it in respect of those children whether or not they intend providing any care and support to them. There are likely to be a substantial number of applications for removal of parental responsibility in cases where the mother is the sole carer and/or in other circumstances where she believes it is not in her or the child's interests that the natural father have a control over the child's life. Therefore it is likely that there will be an increase in the workload of the legal aid department, the court and the social services with consequent strains on financial and other resources.
1. Research should be carried out into the current situation and the impact of any proposed changes.
2. The principles set out in international standards should underpin the legislation. For example, the best interests of the child should be a primary consideration in all matters affecting him or her. Children's wishes and feelings should be taken into account and given due weight in matters affecting them.
3. The Assembly should reconsider its proposal to automatically grant parental responsibility to unmarried fathers and replace them with proposals which take account of the range of situations which exist.
4. The law in relation to the concept of parental responsibility should be reviewed to ensure that no one exercises control over children's lives, except to the extent necessary to provide care and contribute constructively to their upbringing.
5. It may be useful to make a distinction in law between promoting contact and kinship and acquiring or retaining control. The concepts of care and control need to be closely linked to protect the child's interests. This is not currently the case.
6. Unmarried fathers do need to be facilitated to provide care and support to their children. This should be done in such a manner as to recognize the rights of the mother and the children as well as those of the father. This matter could usefully be further explored in conjunction with women's and children's rights groups as well as men's and professional groups.
7. In relation to mental health issues, the law accords unmarried partners the status of 'next of kin' for some purposes if they have been living together for a period of six months. It may be useful to explore whether a similar residency period with the mother and child would be sufficient to protect the child's interests if it established the unmarried fathers parental rights automatically thereafter.
8. Courts can usefully be provided with specific criteria to use in relation to determining who should acquire parental responsibility and when they should lose it.
relevant international human rights standards
In addition to the European Convention on Human Rights the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979 and the UN Convention on the Rights of the Child (UNCRC) 1989 have specific relevance.
The UK government is signatory to both Conventions. CEDAW asserts that signatories acknowledge that despite various international instruments "extensive discrimination against women continues to exist". It also sets out some important commitments and rights in relation to gender equality and family life. These are as follows:
Signatories are ". Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women.".
"State Parties condemn discrimination against women in all its forms." (Article 2)
"State parties shall take all appropriate measures:
a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on the stereotyped role for men and women;
b) to ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children; it being understood that the interest of the children is the primordial consideration in all cases." (Article 5)
"1. State Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:.
d) "the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children, in all cases the interests of the children shall be paramount,".
f) "the same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount." (article 16)
In light of the above the Assembly should in formulating legislation:
Article 3 - Best interests of the Child
This article requires that "In all actions concerning children . the best interests of the child shall be a primary consideration ." and that government " .shall ensure the child such protection and care as is necessary for his or her well being."
The best interests principle must underpin consideration of all other rights and responsibilities set out in the Convention. No one should acquire or continue to exercise parental responsibility unless it is in the child's best interests that they do so. Similarly no one should seek to establish that a person is or is not a biological parent unless this is in the child's interests. The 'best interests principle' has been omitted from key clauses of the bill and is not discussed in the explanatory notes.
Article 12 - The Child's Opinion
Government ".shall assure to the child who is capable of forming his or her own view the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child ."
Although most of the children who would be affected by the Bill in relation to acquisition of parental responsibility are too young to express a view, this may be less certain in relation to paternity testing. In both instances, all children who are able to express an opinion should have their views taken into account in the matters affecting them. No law should force children to express opinions on any matter when they do not wish to do so. The current experience of children in various sorts of families could reasonably be taken into account in considering the impact of current law and the potential impact of changes to it. Children who cannot express a view require additional protection.
Article 19 - Protection from Abuse and Neglect
Government ".shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment or exploitation including sexual abuse while in the care of parent(s), legal guardian(s), or any other person who has care of the child."
Government cannot ignore the potential for people who should provide care and protection to a child to abuse the child. The Assembly should be reasonably satisfied that the law does not facilitate persons who currently exercise parental responsibility in using this status to act maliciously, irresponsibly or abusively towards the child.
Nor can they give control over a child's life to people who do not provide care to him or her unless they can be reasonably sure that such persons can be relied upon to act in the child's interests.
Other articles in UNCRC have specific relevance in considering the raising of children in families and in communities.
State Parties must ".use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern." (article 18)
The equality principle is reiterated here in the context of both parents engaging in caring for and raising the child and acting in the child's best interests.
A child has a ".right to know and be cared for by his or her parents." (article 7)
While most of this article deals with the child's right to a name and nationality, this part of the article seems to go some way to recognising the importance of kinship and biological connection. It must, however, be read in conjunction with the general principles outlined above. This applies equally to all parents.
Government is also required to ".respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians, or other persons legally responsible for the child in a manner consistent with the evolving capabilities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the convention." (article 5)
The rights and responsibilities of parents and others to control the child's life should only be exercised in a manner which is consistent with the child's own evolving capacity to take his or her own decisions. The importance of the contribution of the child's extended family and community are also recognised.
In short, to comply with UNCRC the Assembly should in formulating legislation:
a) Ensure no child is disadvantaged because of the marital status of the child's parents.
b) Ensure the child's best interests are a primary consideration in all matters affecting him or her.
c) Give due weight to the child's views when he or she can express them.
d) Ensure the child's protection and safety, whether or not he or she is able to express a view.
e) Respect the importance of parents, extended family and community to the child and help the child maintain kinship connections where possible.
f) Promote the principle of equality in both parents caring for and raising their child.
g) Ensure that control is only exercised, by any person, to the extent necessary to provide care for the child and not when the child's developing capabilities enable him or her to take decisions for him or her self.
WRITTEN SUBMISSION BY:
1. Acquisition of parental responsibility by father or step-parent:-
It is noted that the Family Law Bill amends the Children (Northern Ireland) Order 1995 and provides that an unmarried father who jointly registers the birth of his child with the child's mother shall have parental responsibility for that child. Further, that the Bill provides that a step-parent may apply to a court for an order conferring parental responsibility on a step-parent in relation to a child of his or her spouse. The Bill provides for parental responsibility to be terminated only by court order.
It is stated in the Memorandum supplied with the Draft Bill that
"[t]these proposals go further than the present law which uses marriage or the seeking of a parental responsibility agreement or order as the means by which a father demonstrates commitment to his child. The new law requires all fathers to take some step, either by marriage, by jointly registering the child's birth, or by making a parental responsibility agreement or applying for a parental responsibility order."
First, it is noted that any amendments made to the Children (Northern Ireland) Order 1995 are minor. The law appears to take a very conventional view of family life allowing for putative fathers or married step-parents only being those who are envisaged as acquiring parental responsibility. This portrays a most conservative and conventional vision of family life.
Society is rapidly changing as is the composition of the family.
There may be many family units in which the main carers for a child would not be in a position to acquire a parental responsibility order pursuant to Article 7 of the Children (Northern Ireland) Order (as amended).
However, this can often be remedied by application for a residence order and with reference to Article 12(2) of the Children (Northern Ireland) Order 1995
"Where the court makes a residence order in favour of any person who is not the parent or guardian of the child concerned that person shall have parental responsibility for the child while the residence order remains in force".
Providing, of course, that the provisions of Article 10 of the Children (Northern Ireland) Order 1995 are met.
It is also noted that under Article 6(4) of the Children (Northern Ireland) Order 1995 remains unaltered The fact that a person has, or does not have, parental responsibility for a child shall not affect -
(a) any such obligation which he may have in relation to the child (such as a statutory duty to maintain the child); or
(b) any rights which, in the event of the child's death, he (or any other person) may have in relation to the child's property.
However, it is often argued by Counsel that maintaining a child demonstrates a commitment to that child in keeping with in D-v- Hereford & Worcester County Council  Fam 14,  1 FLR 205: see also Re C and V (Parental Responsibility)  Fam Law 583, whereby, in cases where one can demonstrate commitment, attachment and no improper motive a parental responsibility order is generally granted.
It is noted that the Memorandum provided to accompany the Draft Bill states that there are few applications brought for a written agreement with the child's mother which is registered in the High Court or by order of the court.
The majority of applications for parental responsibility are made in the Family Proceedings Court (Magistrates level). Parental responsibility applications regularly and frequently accompany private law contact applications. It is the norm for these applications to be made, and granted, in accordance with arguments consistent with D-v-Hereford & Worcester County Council. Such applications are normally granted.
2. Presumption of parentage:-
It is noted that the Bill introduces a statutory presumption of paternity in certain cases, namely if (a) a man is married to the child's mother; or (b) he has been registered as the child's father in the Register of Births.
This proposal merely puts a common law presumption into statutory form and does not substantively alter the present situation in law. This appears to be a modest reform in the current legal situation.
3. Tests for determining parentage:-
It is noted that the Bill amends the Family Law Reform (Northern Ireland) Order 1977 and extends the power of the court from directing the taking of blood samples alone to the taking of bodily samples.
This appears to be a sensible extension of the power of the court in keeping with advances in scientific methods of determining paternity. Further, with regard to recent advances in DNA testing and non-intimate samples such testing may prove less distressing for the child who is subject matter of a parentage dispute rather than the taking of blood samples.
Wednesday, 7 March 2001
Belfast Family Proceedings Standing Court Committee
Wednesday 21, March 2001
Office of Law Reform
Ms Christine Archbold
Wednesday 7 March 2001
"when deciding when a relationship can be said to amount to family life a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having the children together or by any other means."
"the different treatment under domestic law of the applicant and a father with parental responsibility did not disclose an appearance of the violation of article 14 in conjunction with article 8 of the convention."
"the relationship between unmarried fathers and their children there is from ignorance and indifference to a close stable relationship indistinguishable from the conventional family-based unit."
"a child's step-parent shall acquire parental responsibility for the child if the court, on application of the step-parent, orders that he shall have parental responsibility for the child."
The Chairperson: There is a lot of detail in your document, which is very important. I would appreciate it if you could give us, in your own words, the main points in the Bill that you object to or have difficulty with.
43.Ms Bowman-McAlister: If you look at the third page of the document, you will see in the second, third and fourth paragraphs that unmarried fathers are treated differently from mothers on the grounds of their gender; that unmarried fathers are treated differently from married fathers on the grounds of their marital status; and that children of unmarried parents are treated differently from legitimate children on grounds of their parents' marital status, which is completely beyond their control. These are our three points.
74. Ms Ramsey: I want to follow up Mr McFarland's point. I am shocked that the Belfast Family Proceedings Court Standing Committee did not have any input into the consultation exercise.
"In Soderback v Sweden  an unmarried father and his child
were found to enjoy family life notwithstanding that they had never lived together
or had had regular contact"
"unmarried fathers are treated differently to the mothers of their children.on the grounds of gender."
It also says:
"the mother, knowing that the father will acquire parental responsibility, refuses to allow joint registration or goes behind his back and registers the child herself".
Are we talking about cases involving unmarried parents who have been together up until the children's births, or are we dealing with cases in which the fathers do a runner, after finding out that their partners are pregnant and, having left them to register on their own, come back on the scene later? Is that what we are talking about?
MINUTES OF EVIDENCE
Wednesday 7 March 2001
Clause 2 (Presumption of parentage)
"any presumption under this section may be rebutted by proof on a balance of probabilities".
Clause 2 agreed to.
Clause 3 (Tests for determining parentage)
Clause 4 (Commencement)
Clause 4 agreed to.
Clause 5 (Short title)
Clause 5 agreed to.
MINUTES OF EVIDENCE
Clause 1 (Acquisition of parental responsibility by father or step-parent)
"the authority which by law a parent of a child has in relation to the child and his property".
The Scottish definition mentions nothing about property.
Members indicated assent.
Clause 1 referred for further consideration.
|Home| Today's Business| Questions | Official Report| Legislation| Site Map| Links| Feedback| Search|