As indicated above, the procedures for birth registration differ depending on whether the parents of a child are married to each other. Where the parents are married, the notification of birth must gives details of the date and place of their marriage. The names and ages of any other children of the marriage must also be notified. Although technically the obligation to register is imposed on both parents it may be fulfilled by either parent completing the prescribed form.
For the parents of an ex-nuptial child there is no such joint obligation. The father of an ex-nuptial child has no duty to effect registration. Indeed, unless the mother is dead or missing, an unmarried father has no right to register the birth of his child without the co-operation of the mother or a court order. This seems inconsistent with the policy of the Children (Equality of Status) Act 1976, which sought to equate the treatment at law of ex-nuptial children and those born within marriage and to simplify the grounds on which paternity could be established.
The assertion has been made in a number of complaints received by the Commission and the Registry that the statutory provisions are discriminatory in that unmarried parents must go through a different registration process from those who are married. There is also discrimination in denying fathers the same rights as mothers in the registration of the births of their children. At present a single mother may register birth particulars without involving or even naming the father of the child and there is no requirement that she justify or explain her decision not to involve the father. However, if the mother does wish to register the name of the child's father, she must obtain his concurrence first, or a court order.
To some this constitutes an unjustifiable exclusion of the father, who is otherwise conferred significant entitlements and obligations by the law. It equates the father who lives in a stable but de facto relationship with one who merely fathers a child in a casual liaison, and it does not distinguish between the father who wishes to assume, or is prepared to accept, all the responsibilities of a parent and the one who does not. Others, however, are prepared to accept the law as it stands. They see it as a necessary protection for men against being falsely named as the father of a child, and as a means of excluding a disputed record of paternity from the register. The Principal Registrar has expressed the view that both parents should be required to sign the form of information. Where one parent is unavailable or the parties cannot agree the Principal Registrar would prefer to have the matter referred to an independent arbiter or tribunal. One of the Principal Registrar's main concerns is to protect the unmarried mother from spiteful or mischievous claims of paternity. He regards the woman as the person who is often less able financially to defend false claims which might be made if her consent were not needed to the registration.
The Commission is of the tentative view that a man who formally acknowledges his paternity, or who can prove cohabitation with the mother in circumstances giving rise to a legal presumption of paternity, should be entitled to the same rights as a married father. That is, he should be able to notify the birth without proving the active assent of the mother, and he should have his role as father acknowledged in any registration effected by the mother alone. The penalty against furnishing information containing material that is known to be false or misleading should adequately protect all parties, just as it does where a child's parents are married to each other.
If the mother disputes paternity she has the opportunity, under the Children (Equality of Status) Act, of having the acknowledgment annulled. The possibilities of annulment and/or prosecution for false notification, combined with the potential financial burden of maintenance which may result from an acknowledgment, lead the Commission to believe that there is already sufficient disincentive to the making of a false acknowledgment of paternity to allow the right to register to be extended to the unmarried man who acknowledges paternity. An acknowledgement of paternity should be sufficient to allow registration of a man as father of a child. The Commission recognises, however, that until annulment by the Supreme Court the registration of such an acknowledgement gives rise to a presumption of paternity in favour of the man making it. We seek an expression of views on whether our proposals accord with the policy of the Children (Equality of Status) Act.
In the previous section of this paper the issue of the amount of information notified on birth registrations was raised for discussion. An important question was whether the prescribed form of information should require disclosure of details indicating whether the child's parents were married to each other at the time of birth. This issue is canvassed further later in the paper. At this point the Commission wishes to make the limited point that even if information concerning the marital status of parents is to be sought, the existing system requiring the use of different forms for the two groups should be abandoned. Details of the marriage of a child's parents should be sought simply as part of the range of information requested in the form of notification. The Commission also suggests that birth certificates which omit reference to marriage should be available on request.
