Suggested answer

Here we are asked to advise Rose, the mother of 6-month-old John, born as the result of a brief affair with Fred.

First, Rose’s mind can put at rest to some extend by telling her that as the mother of an illegitimate child all parental responsibility currently vests in her alone (s.2, Children Act (CA) 1989). Fred, however, obviously wants to be recognized as John's father: we are told that he keeps asking to see him and that he wants to be actively involved in the child's upbringing. Rose, on the other hand, is now planning to marry Simon and wishes to forget about Fred (at least so far as active-fatherhood ambitions are concerned). But can she do this? What, if anything, can Fred, as an 'unmarried’ father, do. There are a number of options open to him, though whether he would be successful in any application remains to be seen. The paramount objective is the welfare of John and any order made must be in his best interests. The 'non-intervention' principle will also apply so the court will only make an order if it thinks that to do is better for the child than making no order at all.

Before Fred can acquire any legal status in relation to John, the relationship has to be established and paternity will have to be proved, particularly as Rose has told Fred that he might not be John's father anyway (though this was said; we are told, in the heat of the moment and to try to make Fred go away). The Family Law Reform Act 1969 empowers a court to require the use of genetic tests in any civil proceedings involving an issue of paternity. Each individual's DNA is unique and provides a 'generic ' fingerprint of identity. It is inherited from one's parents and by elimination it is possible to determine precisely which characteristic must be inherited from the disputed parent, DNA testing could here determine beyond any reasonable doubt whether Fred is John's father, i.a. positive test (Re A (A Minor) (Paternity: Refusal of Blood Test) [1994]), not mere probability. The Family Law Reform Act 1987 now gives courts a general power to direct the use of scientific tests to ascertain parentage, as DNA testing can be carried out not just on blood but on other bodily fluids and tissue.

Once fired has proved that he is John's father then he can apply to the court for a number of orders. However, it should be noted here that if Rose opposed his application for blood or DNA tests, Fred may be stopped in his tracks at this point, like the natural father (if such he was) in Re F (A Minor: Paternity Tests) [1993] Fam Law 163. The court may decide as it did in that ease, that there is no realistic prospect of Fred succeeding in his application for parental responsibility or contact, as it would not be for John’s benefit, and that consequently to establish who John's natural father is no real difference. An order for blood tests might disturb the stability of the family unit and should therefore be refused. However, it will in fact be in Rose's interests for paternity to be established if a claim is to be made on Fred's father's estate, or should child support become an issue. Moreover she should be advised that the court generally prefers the truth to come out (Re H (Paternity: Blood Test) [1996] 2 FLR 65) were Ward LJ said that 'every child has the right to know the truth unless his welfare clearly justifies the cover up’, citing art. 7 of UNCRC 1989, which refers to the 'right to know one's parents. Now, in Re H and A (Children) [2002] EWCA Civ 383, a test was ordered despite the husband's statement that he would leave the wife and children were it show that he had not fathered them (If the court is not impressed by Rose's argument that DNA testing might destabilized her family unit with Simon, it would not be to her advantage to refuse to supply her and John's samples, as it would allow the court to presume Fred's paternity under s. 2.1(1) of the FLRA 1969.) To ensure integrity, such court-ordered rests can only he administered by an accredited body.

Assuming that paternity is proved, what is available to Fred? Two options can be quickly dismissed as unrealistic: a s. 4 parental responsibility agreement (as Rose will obviously not agree to Fred acquiring equal parental responsibility) and a s. 8 residence order (as on the facts, the welfare of the child would dictate that John should remain with Rose). Fred could, however, apply for a s. 4 parental responsibility order (PRO) and/or as. 8 contact order. The effect of the PRO - although it can be rescinded - would be to equate Fred's legal position, at least during its tenure, with that of a married father. The court, applying the welfare principle (s. 1, CA 1989) must be satisfied that it is appropriate so to do. The court will look at how the PRO is likely to benefit John; what relationship Fred has with John and why he is applying for parental responsibility; how committed he is and whether the PRO would be likely to destabilize John's family unit (Re H (Illegitimate Children: Father: Parental Rights) 1991). Fred would obviously be applying for a PRO because he genuinely wants to be actively involved with the child's upbringing and Rose should be advised that he could well succeed. In Re C (Minors) (Parental Rights) [1992] 2 All ER 86, it was held that a PRO may be granted even though there may be a problem enforcing the rights which arise - that can be resolved by a s. 8 order. Even acrimony between the parties need not be fatal (Re P (A Minor) (Parental Responsibility Order) [1994] nor even violence (Re J-S (Contact: Parental Responsibility) [2003].

In any event, Fred as father could apply for a contact order (s. 8, CA 1989). However, despite Baker P's statement in S v O [1977] 3 FLR 15 that 'children, whether born in wedlock or not, need fathers' it is arguable whether John's welfare would be served by having contact with Fred whose only real claim here is that he is the natural father. There is no meaningful father/son relationship here, and Rose does not want to be reminded of their brief affair, particularly now that she intends to marry Simon. On the other hand, Rose should be cautioned that maternal intransigence is not self-fulfilling in law; in Re H (A Minor) (Contact) [1994] 2 FLR 776, Butler Sloss LJ said that there should not be 'a selfish parents' charter'. Here, indirect contact - in Re O (Contract: Imposition of Conditions) [1995] 2 FLR 124, the mother was required to supply the father with updates on the boy's progress - might be the answer. Rose must be advised that imprisonment for contempt may await those who persistently defy court orders and that in Re H (A Minor) (Parental Responsibility) [1993] 1 FLR 484, the Court of Appeal held that although the mother's new relationship might preclude a contact order, a PRO would not be ruled out. Another possibility, also with reference to reluctant resident parents, might be 'supervised' contact as in F v F (Contempt: Committal) [1998] 2 FLR 237 where the mother was ordered to hand over the children to the person in charge of a Contact Centre – and was made subject to a committal order. If the court is minded to order contact, it must first consider the nature of parent's hostility (the term 'parental alienation syndrome^’ has had a mixed reception in this context) and, second, address the enforcement problem.

The last issue needing to be discussed is that Fred's father has died leaving his estate to be divided equally between all his grandchildren. One assumes from this that there is a will, in which case by s. 19, FLRA 1987, all words such as children, or re grandchildren, are to be construed as including illegitimate children unless a contrary intention appears. In the absence of such a contrary intention, John will in fact have a claim on Fred's father's estate, provided of course that the relationship can be proved.

 

Sources:

1. Nigel Lowe, Gillian Douglas. Bromley's Family Law. Tenth Edition. - Oxford, 2006.

2. Mary Welstead, Susan Edwards. Family Law. - Oxford, 2006.

3. Mary Hayes, JP, Catherine Williams. Family Law. Principles, Policy and Practice. Second Edition. - Oxford, 1999.

4. Blackstone's statutes Family law. 14-th editions. Edited by Mika Oldham. Oxford University Press, 2005.

5. Eekelaar and Nhlapo (eds). The Changing Family. Hart Publishing, 1998.

6. C. Hamilton, K. Standley and D. Hodson. Family Law in Europe. London/Dublin/Edinburgh, 1995.

7. W. Pintens (ed.). Family and Succession Law, International Encyclopedia of Laws. The Hague, 1997.

8. Eekelaar and Nhlapo (eds). The Changing Family. Hart Publishing, 1998.

9. Fortin. Children's Rights and the Developing Law. Butterworths, 1998.

10. Silva and Smart (eds). The New Family. Sage Publications, 1999.

11. Swindells, Neaves, Kushner and Skilbeck. Family Law and the Human Rights Act 1998. Family Law, 1999.

12. Wasoff and Dey. Family Policy. The Gildredge Press, 2000.