Putative Fathers In English Law

Summary

1. INTRODUCTION

Although English family law has become increasingly sensitive to human rights issues, putative fathers’ right to respect for family life with their biological children remains insufficiently protected. This observation rests on the law’s approach to several key aspects of family life: first, the hurdles to the recognition of paternity, which is a prerequisite for the exercise of parental rights; in particular, the judicial treatment of applications for a declaration of parentage, and the issue of whether genetic tests should uncover biological truth; second, the failure to assign parental responsibility to fathers who re-register the birth unilaterally, relying on the declaration of parentage, by contrast with the automatic acquisition of parental responsibility following registration with the mother’s consent; finally, the absence of a statutory duty for the mother to identify the putative father, and for local authorities to make inquiries when mothers request the confidential placement of babies for adoption without notice being given to the natural fathers. I will argue that, in all these respects, the law interferes with putative fathers’ enjoyment of their rights in a manner that cannot be deemed ‘necessary in a democratic society … for the protection of the rights and freedoms of others’, within the meaning of Article 8 of the European Convention on Human Rights (ECHR).

2. MEANING OF ‘RESPECT FOR FAMILY LIFE’ AND THE IMPORTANCE OF GENETIC LINKS

According to well-established Strasbourg jurisprudence, Article 8 ‘makes no distinction between the’ legitimate ‘and the’ illegitimate ‘ family’, ‘[t]he family life of the parents with their children is not absolutely linked with marriage’, and ‘[t]here … exists between the child and his parents a bond amounting to family life even if at the time of his or her birth the parents are no longer co-habiting or if their relationship has then ended’.