From ‘absent objects of blame’ to ‘fathers who want to take responsibility’: reforming birth registration law

Abstract

Unmarried fatherhood has long been seen as presenting a problem to be managed by government, with intervention necessary either to enforce men's (financial) responsibilities or, alternatively, to support and enable the relationships with children that men want, deserve and are unfairly denied. This most recent of a long chain of governmental initiatives in this regard is the reform of the Births and Deaths Registration Act (1953), proposed as part of the Welfare Reform Bill (2008–2009), which aims to increase the proportion of unmarried fathers who are named on birth certificates. Beyond a critical exploration of this specific reform proposal, this paper draws on the reform process to illustrate a number of dominant assumptions regarding fatherhood which resonate more generally across current family law and policy. Specifically, the paper identifies a ‘geneticisation’ of understandings of fatherhood; a commitment to equality between mothers and fathers and a particular vision of what this entails; an emphasis on independent, unmediated relationships between men and their children; a conflation of men's and children's interests, expressed in appeals to child welfare; an understanding of fatherhood as implying active engagement with children rather than a (merely) disciplinary or breadwinner role; and significant ‘policy optimism’ both about the desire of fathers to be more involved with their offspring and the likely success of initiatives in parenting as a means of addressing broader social problems.

Keywords:

• fatherhood
• parenthood
• unmarried fathers
• birth registration
• Welfare Reform Bill (2008–2009)
• Births and Deaths Registration Act (1953)

Acknowledgements

My discussion of general trends in how fatherhood is perceived extends ideas which were initially developed jointly with Richard Collier (Collier and Sheldon 2008) and I am grateful to Richard for permission to draw on our co-authored work here. I am also grateful to Claire Martyn for her helpful research assistance, to the DWP for sharing the consultation responses to the Green Paper; to Margaret Harris (Head of Births, Deaths and Adoptions at the General Register Office) for information regarding enforcement of sanctions under the 1953 Act, and to Julie McCandless, Helen Reece, Michael Thomson and Julie Wallbank for comments on an earlier draft of this paper.

Notes

1. Compare the lack of discussion of married fathers in intact family units, who until recent years, have been relatively invisible (Collier and Sheldon 2008, Ch. 4).

2. B v. UK [2000] 1 FLR 1 at 5. Note that I do not include those few cases where the genetic father has donated sperm for the use of another in line with the requirements of the Human Fertilisation and Embryology Act (2008) and whose parental status is accordingly severed.

3. One such distinction has been retained in the Human Fertilisation and Embryology Act (2008), which retains a presumption that a mother's husband (but not her unmarried partner) will acquire the status of legal father of a child conceived following the use of regulated technologies (for more detail see McCandless and Sheldon forthcoming).

4. At the time of submitting the final draft of this paper (August 2009), the Bill has completed its Committee Stage in the House of Lords and is awaiting its Report and Third Reading. All references in this paper are to the most recent draft of the Bill available, as published on 8 July 2009. For a summary of the Bill's progress, with links to related documentation and parliamentary debates, including the version of the Bill cited in this paper, see: http://services.parliament.uk/bills/2008-09/welfarereform.html.

5. Amounting to 7% of the total number of births registered annually.

6. S. 1(1) Child Support Act, 1991; s. 50 of the British Nationality Act 1981, as amended.

7. S. 4, Children Act (1989), as amended by Welfare Reform Bill (2008–2009), Sch. 6, Part 2, para. 21. The parameters of the rights and responsibilities included within PR are considered in detail in the contributions to Probert et al. (2009).

8. This applies only to those cases governed by s. 41 of the Human Fertilisation and Embryology Act (2008).

9. This amendment to the 1953 Act and the others noted below are proposed in the Welfare Reform Bill (2008–2009), Sch. 6, Part 1.

10. A new s. 4(1A) is to be added to the Perjury Act 1911, broadening the definition of ‘information concerning a birth’ so that this includes the information required under the new s. 2B of the 1953 Act regarding the identity of the father and statutory exemptions.

11. The Welfare Reform Bill amends s. 36 of the Births and Deaths Registration Act (1953) by extending existing sanctions to failure to give information required under the new ss 2(C), 2(D), 2(E), 10(B) or 10(C). The detail of how the new sanctions will work will be set out in regulations which are still under consideration at the time of writing. Penalties for failure to give information, under s. 36 of the 1953 are set at a fine at level 1 on the standard scale (as detailed in the Criminal Justice Act). According to Margaret Harris, Head of Births, Deaths and Adoptions in the General Register Office, parents are rarely prosecuted for failure to register a birth (email on file with the author).

12. The responses to an earlier consultation also reflected major concerns with the possibility of penalizing a mother for failure to register the father's name (DWP 2007a, p. 32). According to Harris, ‘Mistakes in information provided are far more common that mendacious misinformation therefore prosecutions are rarely brought [under the Perjury Act]’ (ibid.).

13. I am grateful to Mavis MacLean for this account of the genesis of the reform proposal. MacLean attended the meeting described below as a Trustee of One Parent Families. The proposals relating to the reform of birth registration were initially carried forward as part of the process of child support reform (DWP 2006, 2007a, 2007b).

14. Garfinkel is Professor of Contemporary Urban Problems at the University of Columbia.

15. Including: low qualification levels, low proportions receiving antenatal care, low numbers having someone else present at the birth (suggesting isolation), strong links to social housing tenure, high rates of smoking and low rates of attempting to breastfeed. Around 40% of sole birth registrants were aged 20 or younger. Three years after the birth, the natural father was present in the household in only 17% of cases, and only one-quarter of this group were in paid work (Graham et al. 2007). See Wallbank (2009) for a sustained consideration of how this reform can be read through the prism of class.

16. Various such measures are now contemplated, including: a targeted information campaign about registration; improving accessibility of registrars; simplification of registration procedures and ways of making a declaration of paternity (DWP 2008a, Ch.4).

17. For lesbian civil partners where the mother conceives via ‘artificial insemination’ (whether or not in a clinical setting), from October 2009, both women can be recognised as the child's legal parents. For non-civil partners both to be so recognised, treatment must be obtained in a licensed clinic: ss 42–43, Human Fertilisation and Embryology Act 2008.

18. As Kitty Ussher, then Parliamentary Under-Secretary at the DWP, explained: ‘The purpose is not that fathers will then be chased by the Child Support Agency, because, to be blunt, that can happen anyway. The mother simply tells the CSA the father's details and the procedure is kicked off. The father need not be on the birth certificate for that to happen.’ HC Deb Vol. 488 Col. 254 (3 March 2009). See also Baroness Crawley, HL Debs Vol. 712 Cl GC182: ‘Child maintenance liability is completely unrelated to birth registration…’. The government's assessment of the impact of the proposed changes to birth registration does not suggest savings will be achieved from reduced state benefits to lone mothers (DWP 2008b).

19. Citing the sensitivity of attempting to link the issues of child maintenance and paternal contact (DWP 2007b, para. 10). As such, the possibility of reforming birth registration law was explored in a separate Green Paper (DWP 2007c) and, subsequently, advanced in a White Paper which proposed that unmarried parents should be required jointly to register births of children, unless it is ‘impossible, impractical or unreasonable to do so’ (DWP 2008a).

20. S. 15, Child Maintenance and Other Payments Act (2008) repealing s. 6, Child Support Act (1991).

21. This same paragraph is identified by Bainham (2008) as setting out the ‘key objectives’ of the reform.

22. Intriguingly, while not discussing any of the extensive empirical research conducted in the UK, the DWP cites two further US studies regarding the impact of paternal involvement on child outcomes (2008a, para. 25).

23. Focusing on the interests of just one individual may also be contrary to the Human Rights Act (1998) requirement to balance the rights of all parties (Choudhry and Fenwick 2005, Herring 1999).

24. This omission was also noted by some respondents to the DWP's consultation (DWP 2008a, Annex A, para. 11).

25. Additionally, as Julie McCandless has suggested to me, the fact that a small number of men have waged such a visible campaign of ‘rights’ demands in relation to genetic children might have translated into an assumption that all men must want similar rights. On demands for fathers' ‘rights’, see generally the contributions to Collier and Sheldon (2006).

26. The right to know the identity of one's genetic parents is also strongly advanced in the parliamentary discussions of this reform: e.g. Munn, HC Deb Vol. 487 Col. 55 (10 February 2009); HC Deb Vol. 487 Col. 85 (12 February 2009) and Meacher, HL Debs Vol. 712 Col. GC186. The right to ‘genetic truth’ has also been strongly advanced in the name of donor conceived children (Collier and Sheldon 2008, pp. 92–95).

27. Re L (A Child) (Contact: Domestic Violence) [2000] 2 FCR 404, para. 43, per Thorpe LJ.

28. For example, it is now a strategic requirement that all Children's Services in England and Wales consider the inclusion of fathers as users of services provided for parents (DES, 2007).

29. The equality argument is made still more explicitly elsewhere, e.g. (DWP 2008a, para. 25).

30. As the Fatherhood Institute suggested in its submission, cited by the DWP (2008a para. 19).

31. Welfare Reform Bill (2008–2009), Sch. 6, Part 2, para. 21, amending s. 4 Children Act (1989).

32. Although it should be noted that the re-registration rules only apply to sole birth registrations, which might reflect a concern with disrupting the family unit of a child with two registered parents. Welfare Reform Bill (2008–2009) Sch. 6, Part 1, para. 13. See further: McCandless and Sheldon (forthcoming). McCandless (2008).

33. An alternative historical reading might cite the significant obstacles in the path of anyone seeking to rebut the pater est presumption as powerful evidence of a policy imperative that a woman's husband should be seen as the child's legal father, which is irreducible to a belief in marriage as a reliable proxy for a genetic link: see Cretney's detailed account of the relevant jurisprudence (2003, pp. 533–536). The decisions to allow for a new birth certificate to be issued following gender reassignment and to name intending social parents rather than gamete donors on birth certificates would also suggest that birth registration has been about a statement of social roles as well as recording historical ‘fact’: Gender Reassignment Act (2004); Human Fertilisation and Embryology Act (2008). For a different reading of the existence of a child's right to information regarding its genetic heritage, see Fortin (2009), Marshall (2008, 2009).

34. Although it should be noted that the case which forms the focus of Reece's study involves a father acquiring PR by court order, whereas the changes to birth registration law involve fathers automatically acquiring PR. Automatic PR is more difficult to remove than that achieved through court order and must rather be managed, for example, through Prohibited Steps Orders.

35. Cf. Reece (2009). S. 3(1) of the Children Act, defines PR as ‘all the rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and his property’. This includes, for example, the right to take important decisions regarding where a child will live, how he or she should be educated, in what religion he or she should be raised, and what non-essential medical treatment he or she should receive. PR also accords the right to be heard regarding a child's proposed adoption or emigration, and to appoint a guardian for her following one's death. See Eekelaar (2009) on the strangeness of the construct of PR and the contributions to Probert et al. (2009) for a sustained attempt to trace the meaning of PR.