Suspension and the subsequent delay in birth registrations may put new father’s rights at risk

30 July 2020

The impact of COVID-19 has seen a halt in the usual functioning of society, which is only now returning to a new kind of ‘normal'. One manifestation of this has been that during lockdown, birth registrations were suspended, and as the registration offices are now re-starting their processes, they are dealing with a backlog of registrations into the tens if not hundreds of thousands.

This will likely impact the rights of unmarried fathers who are not yet registered as such on their child’s birth certificate. Until the birth is registered, and the father is named on the birth certificate, these fathers will not have the legal right to make decisions on behalf of their child. This can include the right to consent to the medical treatment of the child; to determine where it should live or the school it should attend; or even its name. All of these rights and duties are known as having Parental Responsibility (PR) for a child.

When both parents have parental responsibility neither parent has greater rights over the child than the other. PR can be "exercised” jointly (together) or separately. The bigger the decision, the more a court would expect the decision to be taken by both parties together.

How Parental Responsibility can be obtained

Parental responsibility is obtained automatically by the mother but only a married father has this same automatic right. Otherwise, he can gain PR by being named on the child’s birth certificate, or by way of an agreement lodged with the court, or by an application to the court for a Parental Responsibility Order. To be named on the birth certificate, an unmarried husband must also attend at the registrar’s office to give formal consent to being named. A married parent does not have to – as registration as the father does not require his consent.

Same-sex couples - two female parents

The position is slightly different in relation to same-sex couples. If a child has been born to two female parents on or after 6 April 2009 (for example by fertility treatment), the mother carrying the child automatically has PR. If the other female parent is the spouse or civil partner of the mother at the time of the fertility treatment, then she has PR automatically, much like a husband does.

If the second female parent is not the mother’s spouse or civil partner at the time of the fertility treatment, but both parents consent in writing at the time of the treatment, to her being the second parent, then she can acquire PR in the same way as an unmarried father through registration on the birth certificate. This is providing the mother is not married or in a civil partnership with another person who is treated as the second parent.

Same-sex couples – two male parents

Where a child is born to two male parents, the position is different again. If one of them is the biological parent, he can acquire parental responsibility much like an unmarried father by being included on the birth certificate.

Parental Orders can also be made by a court to reassign parentage to the intended parents after birth, which would then ensure that both parents have PR. Furthermore, children with multiple potential parents are complex cases, and the exact position as to parenthood will be dependent on the circumstances of every case.

Birth Registrations

By law a child must be registered within 42 days of its birth. By that stage the parents will have agreed on its name. In Suffolk, appointments for the registration of births are currently being dealt with for babies born up to and including 31 May 2020. In Essex, registration offices are encouraging parents not to make an application for registration at this time if their child was born after 30 May 2020. This leaves a gap in registration for babies born after these dates, and the applications which are being made, are being delayed because of the backlog.

Further, in some areas of East Anglia, there are restrictions as who can attend a registration appointment. As an unmarried father must attend to be named on the birth certificate, this can cause difficulties or will lead to further delays until both parents can attend, because of lockdown and childcare restrictions. Until the baby’s birth is registered, it does not legally “exist” and this may impact on entitlements to benefits including Child Benefit. In Cambridgeshire unmarried parents are being advised to book an appointment for August 2020.

Until a baby is registered parents cannot apply for a passport. This is now causing problems for families desperately seeking to go on holiday following the lifting of the lockdown. 

For further guidance on when and how to register a birth, please visit the website for your local authority. If you require legal advice in relation to your parental rights or any ancillary family matter, please contact Molly Barker or another member of the Birketts Family Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2020.