Children (Scotland) Bill: Sec 19 Births Registered Outside the UK
The Children (Scotland) Bill and proposals to change the law on the conferral of parental responsibilities and rights on parents when a birth is registered outside the UK.
This is the fourth post of our series on the new Children (Scotland) Bill. We are not covering every section of the Bill and our posts are not in chronological order, but there are some sections that leapt out at us and that we thought merited bieng highlighted. Section 19 was an obvious one to start with, not least because it was not subject to proposed amendment at the Stage 2 meeting of the Justice Committee today. So, what would section 19 of the Children (Scotland) Bill do, if it becomes law?
During the consultation period in advance of the Children (Scotland) Bill, there was much discussion about reform of the law in relation to parental responsibilities and rights. Statutory responsibilities and rights were introduced by the Children (Scotland) Act 1995 and were acquired automatically (at birth) by the child’s mother. The child’s father acquired such rights by marriage to the mother, or if not married, by entering into a written agreement with the mother (usually called a ‘Section 4 Agreement’). Where a mother would not (or could not) agree, this left unmarried fathers requiring to go to court to seek an order granting them such responsibilities and rights.
When family law was overhauled in 2006, automatic parental responsibilities and rights were extended to unmarried fathers who were registered as the child’s father on the birth certificate. This reform had wide support. Since 2006 the proportion of children born to unmarried parents has continued to grow and is now more than 50%.
Many have argued that it is time for the law to go further, by extending parental responsibilities and rights to all fathers, whether by automatic acquisition from the simple fact of parentage or by means of a legal requirement on all parents to jointly register their child’s birth. The Scottish Government has resisted such calls, although we can expect this to be subject to further debate as the Bill progresses through parliament.
What is proposed in section 19 of the Bill?
There is, however, some reform of parental responsibilities and rights within the Bill. Section 19 of the Bill makes provision for fathers of children who are born outside the UK to acquire parental rights and responsibilities without recourse to court. The law as presently framed only allows for the acquisition of responsibilities and rights where a birth is registered in the UK. No such rights are acquired in respect of a whose birth is registered outside the UK. Thus, a ten year old child in Glasgow who was born in the UK to unmarried parents will likely have two parents with legal responsibilities and rights, while a classmate born to unmarried parents outside the UK who has lived in Scotland for the past 9 years may not.
Section 19 of the Bill will amend the 1995 Act to allow Scottish Ministers to make Regulations which allow parental responsibilities and rights to be conferred on fathers where a birth has been registered overseas and the father has “acquired parental duties, rights or responsibilities in relation to the child through a process specified in the regulations” and the mother has consented to that acquisition. This will potentially allow fathers who would have parental rights in the country of the child’s birth to have those rights in Scotland as well. However, until the details of any consequent regulations are seen – and in particular what the “process” is to be - it is not possible to know how significant this change will be in practice. It seems likely that what the Scottish Government have in mind is an “approved list” of countries where registration of birth will give rise to automatic responsibilities and rights in Scotland (this was how we dealt with overseas same sex relationships that were to be deemed to be civil partnerships for Scots law, for example).
One particular area that might be impacted by this change is surrogacy arrangements. Many such arrangements take place outside the UK. In such cases, although the child’s biological father is often one of the intended parents, and is registered as such on the overseas birth certificate, he will not have parental responsibilities and rights in Scotland. This can result in a situation where, pending the granting of a Parental Order, neither of the intended parents who are caring for the child have legal responsibilities or rights. Limited recognition of the overseas birth certificate for the purpose of acquiring parental responsibilities would address this unsatisfactory situation.
NOTE: For simplicity this article refers to fathers. Similar provisions apply to second female parents.