BBC tv show, Bump, follows the journey of Oly, a 17-year-old high school student in Australia who unexpectedly goes into labour at school. In one episode, Oly faces the decision of putting her child's father's name on the birth certificate; a situation many mothers find themselves in. This show has highlighted an important question about the registration of the father's name on a child's birth certificate, who decides, and the legal implications associated.
Adding the father to the birth certificate: The practicalities of registering a birth
When a child is born in Scotland, the birth must be registered at a Registration Office within 21 days. Many people do not know that there are different rules for registration, based on whether parents are married or not. If the parents are married or in a civil partnership, both parents' names must be registered.
However, if the parents are not married or in a civil partnership, the mother does not have to give the details of the father on the birth certificate and the father cannot register his name, unless the mother agrees.
If the father is not married or in a civil partnership with the child's mother, he can only sign and be named on the birth certificate as a parent if:
i) both parents sign the register together, or
ii) the child's mother gives agreement by signing a declaration form (known as a Form F27, available at the registrar's office).
Whether or not a father is registered on a birth certificate will have an enormous bearing on his ability to exercise parental rights and responsibilities (PRRs); if a father is not named on the child's birth certificate he will not have PRRs unless a court grants them, or he and the child's mother form a written agreement.
The position of the unmarried father
A child's mother automatically has parental rights and responsibilities in relation to her child; it does not matter that she has never been married to the child's father. A child's father, on the other hand, only automatically obtains PRRs in two scenarios
i) if he is or was married to the child's mother at the date of the child's conception or any time subsequently or
ii) if he is presumed to be the child's father because he was registered as the father on the child's birth certificate. The second scenario only came in force with the enactment of the Family Law (Scotland) Act 2006 and is only available where the birth certificate was registered on or after 4 May 2006.
If an unmarried father is not named on the birth certificate, he will not have an automatic right to act on the child's behalf, be consulted on which school the child attends or which medical treatment the child receives and much more.
The legal position
There has been a lot of legal commentary on the position of unmarried fathers in relation to the obtaining of PRRs. In 1992, the Scottish Law Commission proposed to reform the law in this area to grant all biological fathers automatic PRRs. It was thought that this system would end all emphasis on marriage (and by extension the legal status of 'illegitimacy', a concept which has been widely eliminated in Scottish family law) and entirely focus on the parent-child relationship.
There are, however, several issues surrounding the automatic granting of PRRs based on paternity, including in situations of domestic abuse or rape, where the automatic granting of PRRs to fathers may risk the safety of mothers and children. Furthermore, there would also be issues in how to deal with cases of assisted reproduction with sperm donors automatically gaining PRRs; an outcome which would be objectionable to all parties involved.
Food for thought
The Scots law position remains that married and unmarried fathers are treated differently when it comes to registering the birth of their child. This is despite the fact that many cohabiting couples choose to have children without ever getting married or entering a civil partnership. Some commentators have argued that the legal position as it stands does not reflect the society that we live in. However, a viable alternative position which takes account of issues such as domestic violence and assisted reproduction, has not yet been explored or identified by the Scottish Law Commission or the Scottish Government.
Contributor
Senior Solicitor
