Archers fans may be reeling with the death of Nic Grundy, but there’s another issue that’s been exercising the minds of family lawyers in recent weeks. How are Pip Archer and Toby Fairbrother going to manage as parents? And how much of their legal responsibility they have yet come to terms with?
The position for Toby is potentially the most contentious. An unmarried father may not realise that they don’t automatically have any rights when it comes to seeing or having contact with their children and may not always be entitled to involvement in their life.
The first question is one of Parental Responsibility (PR). Luckily for Toby this is set out by law in the Children Act 1989. It is defined as “all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
Will Toby Fairbrother have parental responsibility?
The mother of the child automatically acquires parental responsibility on giving birth. A father will acquire it automatically if he’s married to the mother, before or after birth of the child.
Unmarried fathers used to have a rough ride and never acquired parental responsibility automatically. This issue was largely addressed by the introduction of the Adoption and Children Act 2002. This act gives unmarried father’s automatic parental responsibility if the child was born on or after 1 December 2003 but only if the father is named on the birth certificate.
So, Toby needs to make sure he get’s his name on that birth certificate!
For children born before this date and/or the father is not named on the birth certificate then PR is not acquired automatically, and the unmarried father would have to enter into a Parental Responsibility Agreement with the mother or apply to the court for an order.
What does having parental responsibility mean in real life?
It is difficult to define precisely because it does not actually have any bearing on day-to-day decisions but what it essentially means is that you have a say in major decisions during the life of your child. A non-exhaustive list includes:
• Education
• Religious upbringing
• Surnames
• Medical treatment
• Taking the child abroad
If an unmarried father does not have parental responsibility, then the mother can make unilateral decisions without the need for consent from the father. It will be interesting to see how things pan out with Toby and Pip and whether for example he presses to have the baby take his surname.
What financial support can Pip expect from Toby?
Whether Toby secures parental responsibility or not he will still potentially be required to offer financial support as in law the main carer of a child is entitled to child support from the other biological parent known as the paying parent.
The amount of child support payable depends on the earnings of the paying parent and is calculated by a formula set down by the Child Maintenance Service (formerly CSA). Child maintenance is payable regardless of whether the paying parent has contact with their child. It is always better and conducive to a healthy relationship between parents if the parties can agree child support. A formal written agreement is not required but can be entered into by the parties if they wish to have a formal record.
Will Toby be allowed to see his child?
Child arrangements and liability for maintenance are mutually exclusive. Any argument over contact is not subject to payment of child support or indeed the existence or otherwise of parental responsibility as that is the right of the child.
Issues which can commonly cause unmarried parents to go into battle, leaving their children in the middle, are objections to a new partner, one party wanting to relocate or disagreements in parenting style. These often result in problems with contact arrangements, and it tends to be the unmarried father who sees less of his child. I can only imagine there will be pressures on Pip and Toby’s relationship, what with his reputation as a bit of a lady’s man as well as the likely interference of Pip’s family. We can only hope that they remember to put their child at the centre.
If things do go wrong and Pip and Toby can’t agree amongst themselves on the arrangements for the care of their child, they might end up appealing to the courts for a decision in the form of a Child Arrangements Order. Court action should however always be a last resort. Let’s just hope the script writers know the law and avoid things like ‘custody’ which no longer exists.
So, what action should Toby take? I would certainly recommend to all unmarried fathers that when their child is born and assuming they intend to be a responsible father actively involved in their child’s life that they are placed on the birth certificate first and foremost to acquire parental responsibility. They would then be recognised in law as the parent of that child and have all the rights and obligations that go with it.
Other than obtaining parental responsibility, any other children issues which may arise are not discriminatory and fathers generally have the same rights regardless of their status as a married or unmarried father.
Nick Wiseman
Divorce & Family Lawyer, Norwich
