For most, the birth of a child is a time of unbridled joy and excitement shared between both parents their extended families and friends. Sadly, however, for some, the separation of unmarried parents before the birth can cast a shadow over the welcoming of the new addition and can unfortunately lead to a dispute over registration of the child’s birth. Similar issues can arise in situations where the new parents were never in a committed relationship at all. Our family law solicitors have noticed a rise in enquiries from new parents enquiring about their options in situations where they face being omitted from the registration process, and what ramifications this can have on their ongoing relationship with their child. Here, Lynsey Brown outlines the options available to a parent who finds themselves in this distressing situation and answers some frequently asked questions on the issue.
I’m married but have separated from my spouse. Our child has just been born. Can she refuse to register me as the father?
No. In cases where the biological parents are married, both names require to be registered.
My ex-partner has just had my baby, but she is threatening to register the birth without me. Can she do this?
In a word, yes. The unmarried mother of a child does not require to give details of the father on the birth certificate.
What can I do if my ex-partner says she doesn’t want to name me on our child’s birth certificate?
Every birth in Scotland must be registered within 21 days of the birth. An unmarried father cannot be named on the child’s birth certificate unless the biological mother agrees, or unless the court issues an order declaring that he is the father. It can take time to obtain such an order, and so, if the mother’s agreement cannot be obtained in a short timeframe then it is likely that the child would be registered without you being named in the first instance. Attempts can be made to try to obtain her agreement to either go with you to register the child’s birth within the 21 day period, or sign a formal declaration to prove that she agrees to your name being added. If she does not agree within the 21 days, and registers the child without naming you as the father, your name can still be added to the certificate after the initial registration. Again, however, you would need to attend the registration office together or obtain a declaration from the mother to allow for ‘re-registration’, or, failing that, an order from the Court, discussed below.
My ex-partner has registered our child’s birth without me and refuses to sign a declarator for re-registration. What are my options?
If the child’s mother will not agree to sign a declaration allowing for re-registration of the birth and have your name added to the certificate, you can raise an action at your local Sheriff Court or the Court of Session asking for an Order declaring your parentage. If your ex-partner defends this action on the basis that you are not the father, evidence would require to be put to the court to support your position that you are. This could come in the form of evidence of your relationship at the time of conception, corroborated by witnesses who could affirm that, but the most straightforward route to certainty, and arguably with the most evidential value, would of course be a DNA test to prove scientifically that you are the father. There is presently no rule of law in Scotland which can compel a mother to consent to the taking of a DNA sample from her child, however her failure to do so may draw an “adverse conclusion”. In order words, the Sheriff may assume that she is refusing to allow the DNA test because she knows it would return a positive result. The Scottish Government recently considered whether to introduce mandatory DNA testing in such cases, however it considered that the current discretion afforded to Sheriffs to draw inferences from refusals to participate in testing is sufficient.
I recently gave birth to a child but my ex-partner is refusing to register the birth with me or sign a declaration confirming he is the father. What can I do?
Of course, the converse of what is discussed above also applies in cases where unmarried fathers refuse to cooperate with the registration. If he does so, an unmarried mother also has recourse in the courts to ask for a declarator of parentage. The ex-partner will most likely be asked by the Sheriff to provide a DNA test in that context, and if he fails to provide a sample, an ‘adverse conclusion’ can similarly be drawn.
What difference does it make whether I am on the birth certificate or not? How does it affect my parental rights?
In respect of children born after 4 May 2006, an unmarried father who is named on the birth certificate acquires full parental rights and responsibilities, which he shares with the child’s mother. These include (but are not limited to) the right to have the child living with you, or, if he/she does not live with you, to maintain direct regular contact with him/her. Your consent would be required to remove the child from the UK, and you would have liabilities in terms of supporting the child financially as well as providing direction and guidance throughout their childhood. Being named on a child’s birth certificate therefore brings with it very important legal rights and responsibilities.
Is the situation different for same-sex female couples?
If the child’s mother conceived the child by fertility treatment or donor insemination after 6 April 2009, and is in a civil partnership with or married to another woman who is the child’s ‘legal parent’, then, like married opposite-sex couples, both parents’ names will require to be registered on the birth certificate. The second legal parent will acquire full parental rights and responsibilities along with the birth mother. If the birth mother and her partner are not married or in a civil partnership (and conception occurred on or after 6 April 2009 via fertility treatment or donor insemination), but the partner is the child’s legal parent, they can register, or re-register, the birth together to include the partner’s name. The rules applying to intended second legal parents under the Human Fertilisation and Embryology Act 2008 can be complex, however, and should be discussed fully with a specialist family law in the context of your particular circumstances at the earliest opportunity.
Get in touch
At Harper Macleod, our Family law solicitors have a wealth of experience in assisting clients who encounter difficulties in relation to registration of births, and the very serious legal implications this can have on the parent-child relationship. If you require advice on options available to you, please do not hesitate to contact a member of our family law team by telephone or by submitting an online enquiry for a confidential and free chat. Our solicitors are available across the country to help:
- Glasgow Head Office call 0141 227 9545
- Edinburgh Office call 0131 247 2556
- Inverness & Highlands Office call 01463 795 035
- Shetland Office call 01595 480759
- Elgin Office call 01463 795 035
divorce & separation