Fathers' rights: a new UK postcode lottery?

Those who deal routinely with family law will be aware that, for dads, parental rights and responsibilities in respect of a child can be acquired in Scotland in one of three ways:

1. by being married to the mother of the child at the time of conception or thereafter;
2. by entering into a “section 4 agreement” with the child’s mother;
3. by means of judicial intervention.

It is a common public misconception that parental rights and responsibilities may also be acquired by fathers by jointly registering the birth of their child with the mother. At present, this is not the case in Scotland.

It has, however, been the case in England and Wales since 1 December 2003, the date on which section 111 of the Adoption and Children Act 2002 came into force.

The Scottish Executive’s White Paper on family law reform, Parents and Children, placed before the Scottish Parliament on 14 September 2000, suggested that the reform just implemented in England and Wales should be law in Scotland. Three and a half years on, legislation to that effect has not been enacted.

It is noteworthy that, for the purposes of proceedings under the Children Act 1989 (the English precursor to our Children (Scotland) Act 1995), unmarried fathers who have jointly registered the birth of their child in Scotland in accordance with the Registration of Births, Deaths and Marriages (Scotland) Act 1965 will have “parental responsibility” (the equivalent term in England and Wales). It would appear, however, that the same father would not be deemed to have parental rights and responsibilities in respect of the same child were he to raise proceedings under the Children (Scotland) Act 1995.

The Scottish Executive makes clear in its recent consultation paper on Civil Partnership Registration (at para 3.9) that same-sex couples should not be subject to a postcode lottery in respect of their rights and responsibilities towards each other. Why, then, is this presently the case for unmarried fathers?

Fiona Gavin, Associate, Family Law Team, Morton Fraser