The first thing you should consider is whether the father has parental responsibility.
What is Parental Responsibility?
Section 3 of the Children Act 1989 defines this 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.”
What Does this Mean in Practical Terms?
This means that all persons with Parental Responsibility should have input in relation to important decisions in relation to the child. For example this will include:-
- Choice of name or future change of name;
- Medical treatments;
- Holidays (particularly abroad)
However, having Parental Responsibility does not automatically entitle a parent to have contact with a child. The right to enjoy a relationship with their parent(s) lies with the child. However, the responsibility to make decisions and safeguard a child lies with the parent(s). Does a Father have Automatic Parental Responsibility?A mother will automatically have Parental Responsibility. However, this is not the case for fathers.
A father will have Parental Responsibility if:
- He is named on the birth certificate (post 1st December 2003);
- He is married to the mother at the time of the birth (this is not lost upon any subsequent divorce).
A natural father will also gain Parental Responsibility by virtue of marrying the mother (this does not apply to step-parents). However, it is little known to many parents that it is necessary to re-register the birth under the Legitimacy Act 1976 with the Registrar General. Section 9 states:-
- It shall be the duty of the parents… to furnish to the Registrar General information with a view to obtaining the re-registration of the birth of that person within 3 months after the date of the marriage.
- The failure of the parents or either of them to furnish information as required by subjection (1) above in respect of any legitimated person shall not affect the legitimation of that person.
- Any parent who fails to give information as required by this section shall be liable on summary conviction to a fine not exceeding £2.T
his appears to be an issue in relation to matters of inheritance. Parents may be advised that if they do not re-register the birth after marriage, should they go on to have further children in their marriage, such children have more ‘rights’ when it comes to inheritance of the estate on death.
However, this does not appear to necessarily be the case. Point two above clearly states that the failure to re-register will not affect the legitimisation of that child.
If you die without leaving a Will, and your children were to inherit under the intestacy rules all children of the parent who has died intestate will be able to inherit equally from the estate under the Family Law Reform Act.
Therefore, it would appear that the only situation where the legitimacy of a child may affect their inheritance is if a parent were to specifically write in to his or her Will a clause which only allows legitimate children to inherit to avoid any “secret” children being able to inherit, or if only specific children were named, but even then a child may still be able to argue that they should be able to make a claim upon the estate. In any event, any child born prior to the marriage (illegitimate) would become legitimised by the marriage of their parents, whether or not they re-register.
There are no known cases to us here at McCarthy Bennett Holland where a parent has incurred the £2 fine set out above.
It should be noted that there are other ways that a father may gain Parental Responsibility’ which are:-
- Having his name registered on the birth certificate if his name is not already registered or re-registered for example if the child was born pre – 1st December 2003;
- Entering into a Parental Responsibility Agreement with the mother;
- Making an application to the Family Court for and obtaining:-
- A Parental Responsibility Order;
- A Residence Order;
- A Child Arrangements Order and being named as the resident parent.
If you require any further information or assistance, please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.