FAMILY LAW BILL

EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

1. This Explanatory and Financial Memorandum relates to Family Law Bill. It has been prepared by the  Department of Finance and Personnel in order to assist the reader in understanding the Bill and to help  inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.  
2. The Memorandum needs to be read in conjunction with the Bill. It does not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

3. Under the Children (Northern Ireland) Order 1995 unmarried fathers may acquire parental responsibility for their children in a number of ways. Parental responsibility is defined in that Order as "all the rights, duties, powers and responsibility and authority which by law a parent of a child has in relation to the child and his property". This definition does not list or enumerate all the decisions which may lawfully be taken by a person with parental responsibility for a child. Such decisions would include, for example, the right to determine a child's education or make other decisions about a child's welfare. The principal mechanisms by which an unmarried father may acquire parental responsibility are (1) by written agreement with the child's mother which has been registered in the High Court and (2) by Order of the Court. These mechanisms are rarely used. In 1998 only 162 Parental Responsibility Orders had been made by a Court conferring parental responsibility on an unmarried father. At the time of consultation, it was found that since 1996, when the relevant provisions of the Children (Northern Ireland) Order 1995 were brought into operation, fewer than 30 parental responsibility agreements had been entered into by the unmarried father and mother of the child.
4. The low take-up of the existing mechanisms whereby an unmarried father may acquire parental responsibility for his children must be set against recent demographic trends in Northern Ireland. According to the most recent report of the Registrar-General for Northern Ireland, in 1998 there were 6743 live births outside of marriage which represents 28.5% of all live births. The proportion of live births outside marriage has been increasing steadily since the early sixties when the proportion of children born outside marriage was only about 3 per cent.
5. It is clear then that given the large number of live births outside marriage each year in Northern Ireland and the low take up of the existing legislative mechanisms there is a significant number of unmarried fathers who do not have parental responsibility for their children. Or to put the issue from a child-centred perspective there are many children in Northern Ireland who have no legal relationship with their fathers.
6. Supporting family relationships is an important social policy aim in all societies. Of all live births outside marriage in 1998 some 4348 were jointly registered by the mother and unmarried father (approx 64%). Recent research has indicated that many unmarried parents believe that by jointly registering the child's birth (a public acknowledgement that the unmarried man is the father of the child) a legal relationship between father and child is established. This is not at present the legal position.
7. The primary purpose of this Bill is to facilitate the acquisition of parental responsibility by unmarried fathers. The Bill also updates the law on scientific tests to determine parentage and thirdly, introduces a statutory presumption of paternity in certain cases.

CONSULTATION

8. A Consultation Paper entitled "Parental Responsibility for Unmarried Fathers and Court Procedures for Determining Paternity" was published by the Office of Law Reform in July 1999. The consultation period ran from 30 July 1999 to 29 October 1999. Copies of the Consultation Paper were sent out to 185 individuals and organisations throughout Northern Ireland representing local community and voluntary groups, the health boards and trusts, other government departments, men's groups, the main churches, the legal profession, academics, the judiciary and the political parties. By the end of the consultation period, and following the sending out of a reminder letter, a total of 34 substantive replies were received. The quality of response was generally very high. Following the close of the consultation period the responses to the issues raised were analysed and that analysis has informed the development of policy which this Bill implements.

OPTIONS CONSIDERED

9. The Consultation Paper put forward three options for reform and views were invited on each, along with a number of subsidiary questions.

(1)     The first option put forward for consideration was that all unmarried fathers should automatically have parental responsibility for their children. This would put unmarried fathers in exactly the same position as all mothers of their children and all married fathers.

(2)     The second option discussed was that those unmarried fathers who jointly register with the mother the birth of the child should automatically acquire parental responsibility for those children. Given the figures quoted above this would establish a legal relationship between an unmarried father and his child in almost two-thirds of live births outside marriage each year in Northern Ireland. The reasons for adopting this approach are detailed below. 

(3)     The third option considered was that there should be no change to the law. It was  considered whether perhaps the existing mechanisms had not yet had sufficient time to bed in, and that greater publicity about existing mechanisms through which an unmarried father could acquire parental responsibility would suffice at present.

10. The Consultation Paper also suggested that the law on the use of scientific tests to determine parentage should be updated to reflect advances in technology and that a statutory presumption of paternity should be introduced. Both of these suggestions are now incorporated in the Family Law Bill. Other measures suggested in the Consultation Paper are now contained in the Child Support, Pensions and Social Security Bill.

OPTION SELECTED

11. Having considered the response to the consultation paper it has been decided that the best way forward is to confer parental responsibility on unmarried fathers who jointly register the birth of the child with the mother. This was the option put forward which commanded the greatest degree of support from those who commented on the consultation paper. This 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. The Bill will also deal with the ancillary question of the aquisition of parental responsibility by step-parents.

COMMENTARY ON CLAUSES

Clause 1: Acquisition of parental responsibility by father or step-parent

This Clause 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. It also provides that a step-parent may 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.

Clause 2: Presumption of parentage

This Clause 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. In other circumstances a court may have made an order on the basis that a man is the father of a child. In those circumstances the existence of a court order would constitute evidence of paternity. The presumption that a man is the father of his wife's children already exists at common law and (a) above simply puts this in statutory form.

Clause 3: Tests for determining parentage

This Clause amends the Family Law Reform (NI) Order 1977 and will enable courts to direct the taking and testing of bodily samples for the purposes of resolving questions of parentage. At present courts are confined to directing the taking and testing of blood only. Other amendments to this legislation are contained in the Child Support, Pensions and Social Security Bill.

Clause 4: Commencement

This Clause provides that the Department of Finance and Personnel may bring into operation the provisions of the Bill on such day or days as it may by order appoint.

Clause 5: Short title

This Clause provides for the short title to the Bill.

IMPACT ON EMPLOYMENT AND COST TO BUSINESS

12. None.

FINANCIAL EFFECTS OF THE BILL

13. Since all births must be registered under the Births, Deaths and Registration (NI) Order 1976 there will      be no additional registration functions carried out by the Registrar-General. However, some resources will have to be made available for the production and distribution of information detailing the    nature and legal effect of jointly registering a child's birth and providing information on what it means to have parental responsibility for a child.

IMPACT ON RELATIONS, CO-OPERATION OR COMMON ACTION ON A NORTH/SOUTH OR EAST/WEST BASIS

14. No adverse impact.

IMPACT ON TARGETING SOCIAL NEED

15. The proposals contained in the Family Law Bill, if approved, will significantly strengthen family relationships in Northern Ireland by creating a legal relationship between children and their unmarried fathers and by emphasising that unmarried fathers have just as much responsibility for the care and welfare of their children as do married fathers. Unmarried fathers already have a financial obligation to their children.

EFFECTS ON EQUAL OPPORTUNITY

16. The impact of these proposals has been assessed in accordance with section 75 of the Northern Ireland Act 1998. These proposals will continue to distinguish between married men and unmarried men as regards the acquisition of parental responsibility for their children. These proposals would also maintain a similar distinction in relation to mothers of children who automatically have parental responsibility for their children and unmarried men who must take steps to acquire it.
17. Section 75 of the Northern Ireland Act 1998 requires due regard to be given to the need to promote equality of opportunity between inter alia persons of different marital status and men and women generally. This obligation to give due regard is more onerous than a duty merely to have regard to but does not require equality of opportunity to be made an overriding consideration. The issue of parental responsibility for unmarried fathers is a difficult one, requiring decision-makers to balance the needs, rights and duties of mothers, fathers and their children in a wide range of circumstances. The law on parental responsibility for unmarried fathers must balance the need for equality of opportunity with the need for protection of mothers, fathers and children. The law should also ensure legal mechanisms which are appropriate to the wide variety of family circumstances in Northern Ireland. The law should also recognise that the majority of fathers want to play a role in their child's life at the same time giving the court the ability to decide difficult cases. The present proposal meets these requirements.

HUMAN RIGHTS ISSUES

18. Various provisions of the European Convention on Human Rights and the United Nations Convention on the Rights of the Child are relevant in considering whether the law should take greater measures to facilitate the acquisition of parental responsibility for unmarried fathers, in particular Articles 6, 8 and 12 read in conjunction with Article 14 of the European Convention on Human Rights. The Office of Law Reform has undertaken a rigorous analysis of the case law of the European Court of Human Rights which has commented on this matter before and believes that no Convention rights of either a child or an unmarried father will be breached. The current substantive law on parental responsibility for unmarried fathers has been held to comply with the European Convention on Human Rights by both domestic courts and the European Court of Human Rights. We are satisfied with that analysis but are conscious that this is an area which needs to be kept under review, and that the European Convention is an evolving document.

In McMichael v UK, the Westminster government argued that the non-automatic granting of parental rights to unmarried fathers was a justified interference with family life in order to protect the rights of others, namely women and children, from unmeritorious fathers. 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 such 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. Any differential treatment between these categories and between fathers and mothers within ECHR Articles 8 and 14 is objectively and reasonably justifiable with reference to the aims of providing appropriate mechanisms for the wide variety of family circumstances in NI, and the need for protection for mothers, fathers and children. The proposal is proportionate to those aims.

SECRETARY OF STATE'S CONSENT

19. The Bill touches on reserved matters in so far as it extends the powers of courts under Article 7 of the Children (Northern Ireland) Order 1995 and Part III of the Family Law Reform  (Northern Ireland) Order 1997.  Matters touching upon courts are reserved by virtue of paragraph 15 of Schedule 3 to the   Northern Ireland Act 1998.  The Secretary of State has consented under section 10(3)(b) of the Northern  Ireland Act 1998 to the Assembly considering the Bill.

LEGISLATIVE COMPETENCE

The Minister of Finance and Personnel has 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."