Registration of Births

Wednesday 23rd March 2016 Westminster Hall

16:03

[Stella Creasy (Walthamstow) (Lab/Co-op)]

I beg to move,

That this House has considered the registration of births of children of deceased people.

I am conscious that our debate may be interrupted at any moment by the sound of the Division Bell. I will start, but I presume that the sitting will be suspended for 15 minutes.

I called for this debate following a number of cases that had come to my attention. I want to make a simple request to the Government about freedom. Since I became an MP in 2010, we have had many debates about equality, and many of us were proud to support legislation to enable same-sex marriage, but many equality battles remain, and this is one. It is about bringing legislation on the registration of births into the 21st century.

16:03

Sitting suspended for Divisions in the House.

16:35

On resuming—

[Stella Creasy]

As I was saying before we were interrupted by high-speed rail, this debate is about equality and freedom, because the law on equality is ultimately about the freedom for people to live their life as they wish. The freedoms we are talking about today are freedoms held in one of the most tragic circumstances possible: a mother losing a loved one just as she is bringing a new life into this world. Today I will talk about the way in which, perhaps inadvertently, our legislation discriminates against people in those circumstances.

[Mrs Madeleine Moon (Bridgend) (Lab)]

The freedom that my hon. Friend is referring to exists in Germany and Switzerland, both of which have the sensible rule that parental information is taken when the baby is first introduced to the midwife and maternity system and the father acknowledges paternity. The legal situation is clarified at that point, rather than at the point of the baby’s birth.

[Stella Creasy]

My hon. Friend, like me, has such cases in her constituency, hence her concern to get the law right. The legislation does not make sense in the 21st century, and our concern is that it inadvertently discriminates against women. It makes a value judgment about the mothers in question and therefore enshrines an outdated attitude towards women in the process.

I have some examples, and I am grateful that one of the people tragically affected is here with us today. My constituent, Joana, is a young mum from Walthamstow, and she already had one child with her partner, David, when he tragically had a stroke shortly before the birth of their second child, Eira. Having his role in Eira’s life recorded was therefore an important part of the grieving process for the family, and doubly important for Eira because it gives her the same rights to David as her sister. Joana has described to me the dehumanising process of trying to get David’s role in Eira’s life recorded on the birth certificate. She described turning up at the register office only to find that the registrar had no idea what to do, and she then found out that she had to go to court to prove that David was the father. She had been in a long-term relationship with this man. She shared a mortgage with him, and he had been at the National Childbirth Trust classes. He had been an integral part of the preparations for the birth of their second child. They were clearly in a committed relationship, but alas, the law includes no ability to recognise that and does not give the registrar the ability to record David’s part in Eira’s life, because of the simple fact that Joana and David were not married.

Joana is not alone. Penny’s partner Nathan sadly died two weeks after their son was born. Their son was conceived using IVF, so Nathan was clearly the father. Again, purely because Nathan and Penny had chosen not to marry, they were not able to record Nathan’s role in their son’s life on the birth certificate. Penny told us:

“Babies don’t come from wedding rings.”

There is also Rebecca, who already had a child with Mark before he tragically died in a paragliding accident when Rebecca was just 17 weeks pregnant.

All three women faced the same scenario in which their word, and even the basic evidence they could provide for the long-standing, committed relationships they were in with the fathers of their children, was not enough, so they had to go to court. They faced a court fee of £365 and possible further fees for DNA tests to prove that their partner was indeed the father. In fact, in Joana’s case, David’s father had to come to court. They had to take DNA not just from Eira but from her sister and from a family member to prove that most basic relationship, which was obvious to the outside world.

The situation was very different for Kate, who also lost her partner in tragic circumstances shortly before the birth of their son. Three weeks before he passed away they married in a hospital intensive care unit. The £27 licence meant that not only was she able to register her child’s father with no further questions asked—even though, just as in the cases of Joana, Penny and Rebecca, he was not present at the registration process—but she was entitled to a bereavement allowance of £2,000 and an ongoing widowed parent’s allowance of £510 a month.

There is a simple question at the heart of this matter. I wanted the debate because as a society we have not yet considered these issues, even though they affect how people live today. In securing the debate, the first thing I wanted to do was put this matter on the Minister’s list of things to resolve. The situation still exists only because nobody has really looked at it in the 21st century. Why do we treat Kate differently from Penny, Rebecca and Joana?

I pay tribute to the organisation Widowed & Young, which has been helping equally all four of the women I mentioned. It recognised the iniquities in the existing system. When those women’s partners were alive, all four couples were treated equally with regard to taxation. It is only in death that we see the inequality in people’s treatment. By having that marriage licence, Kate did not have to go through the indignity of having to try to prove her child’s paternity in the way the other three did.

The Births and Deaths Registration Act 1953 is truly from another time. I say for the avoidance of doubt that I think everyone understands that because legal rights come with parenthood, there must be a process for registering children. That process must withstand scrutiny and nobody, either male or female, should be registered if they are not a parent. But the Act is designed to protect fathers from having an illegitimate child registered. I would caution that the term “illegitimate” in itself speaks volumes of the 1950s, not the 21st century in which we live.

The existing law requires the courts to verify parentage when the parents are not married, as if marriage in and of itself verifies the truthfulness of what a woman says. There is, though, already a process in place for a birth certificate to be amended to add a name. We already recognise that it is right for a registrar to have the discretion to amend a certificate in certain circumstances—they can use their professional judgment and respond to the person in front of them—without requiring people to go to court, which can cost families thousands of pounds at the most tragic of times.

We do not, though, have the ability to correct an absence. There is no way to allow a registrar to look at the evidence that Joana could have so easily presented, at the time, of the sincere and committed relationship she was in with David, and to act accordingly. At the most difficult and sensitive time for a family, the law stands firm. It does not see the lives that people had, but simply makes the judgment that they were not married. We must change that. Turning up with a father is in itself no guarantee that he is the father, just as turning up without him does not mean that he can be verified by DNA testing alone.

Will the Minister consider ending the inequality and making sure that this part of the law does not judge those who choose not to marry, just as we seek to support those who do choose to marry? In not giving registrars the same power to correct an absence as to make an addition, we persist with the inequality of saying that some women will lie and that marriage is what makes them truthful. Why treat women who choose not to marry as somehow untrustworthy? Why not enable registrars to seek evidence, act and use their professional judgment? We are seeking a small change in the law, but it would be a big injustice for the families if we did not drag the legislation into the 21st century.

I appreciate that this might be the first time the Minister has considered the matter. As my hon. Friend the Member for Bridgend (Mrs Moon) pointed out, there are different processes in place in other countries. We want the Government to commit to looking at how they can make a change happen, and to recognise that this is an injustice that needs resolution. It is now too late for Joana—she has managed to record David’s role in Eira’s life through other means—but we know that many more families out there are suffering the same experience and hope the Government will act accordingly.

16:44

[The Parliamentary Under-Secretary of State for Women and Equalities and Family Justice (Caroline Dinenage)]

It is a great pleasure to serve under your chairmanship, Mr Hollobone. I congratulate the hon. Member for Walthamstow (Stella Creasy) on securing this important debate on such a vital issue.

We are here because of the tragic death of the hon. Lady’s constituent, David. At the outset, I pay tribute to him, to his partner, Joana, and to all the other women she mentioned—Penny, Rebecca and Kate. Joana and the others have shown incredible bravery in utterly devastating circumstances. I was deeply moved when I read Joana’s account of her family’s experience. I acknowledge the courage and determination she has shown by speaking out publicly on this issue. It cannot have been easy for her.

The hon. Lady makes a compelling case for addressing the issue at hand, which is the lengthy and complex process that Joana had to undertake to put the name of her baby’s father on her birth certificate after he tragically and unexpectedly died before the child was born. Of course, nothing can undo the devastation of these terrible circumstances, but recognising a deceased father on a birth certificate is an important step in honouring their memory.

I understand utterly the sense of frustration when the system appears to make things very difficult. It has been very valuable to listen to the points that the hon. Lady has made today, all of which I have taken on board. I hope that I can explain how the law operates and why, and how the law, the courts and the registration process provide for the recognition of fathers in such tragic circumstances, but I will also consider all the suggestions that the hon. Lady has made.

Moving away from the specific details of this case, I will lay out the general position on parentage. The two key principles in English law in this regard are the “presumption of legitimacy”, which assumes that a child born to a married woman is the child of her husband, and genetic fatherhood, whereby evidence can be used where necessary to prove paternity.

The law presumes that a married man is the father of his wife’s child, so his registration as the child’s father is automatic. The law does not give the same recognition to unmarried fathers, because currently there is not any legal framework that presumes their paternity. In ordinary circumstances, an unmarried father will consent to his registration as the father of the child and usually he will attend the registration of the child’s birth with the mother, but the registrar can also recognise the father’s entitlement to be registered if he has a parental responsibility agreement, a parental responsibility order or another suitable form of court order. However, where that is not possible, in tragic cases such as that of Joana, the law provides an alternative way for a deceased father to be recognised as a child’s father, and then to be recognised through the birth registration process.

The Family Law Act 1986 allows a court to make a declaration of parentage, and anyone can apply for a declaration to the High Court or the family court, and the final order of the court will be a declaration that a person named in the application was the parent of the child. The Registrar General is then responsible for authorising the re-registration of the birth to include the name of the deceased father, under the Births and Deaths Registration Act 1953. This process should not be lengthy or expensive, but unfortunately that does not appear to have been the experience of the hon. Lady’s constituent.

The hon. Lady rightly points out the necessary provision to prevent birth registration from naming someone falsely as a child’s father, because obviously a birth certificate could potentially be used to support a false claim for something such as nationality or the right to inherit property. Consequently, it is really important that a birth certificate generates a high level of confidence in the information that it contains.

However, a key intention of the provisions for family proceedings was to try to make the process simpler, so that people would not need legal representation, which should keep the costs down. The application form for a declaration of parentage explains all the information that is required and contains directions that enable the application to be completed successfully. However, in light of the experiences I have heard about today, I am very happy to look at the information available to people registering births and to consult with the General Register Office to see whether this process needs to be improved to make the position clearer for applicants, especially those unfortunate enough to have experienced the death of a partner shortly before the birth of a child.

In addition, I know that one of my ministerial colleagues in the Home Office is already looking at the registration process for marriage and I am more than happy to have a conversation with him to request that the registration of births is also covered. I will particularly ask that international examples are looked at to see whether they can be taken into consideration.

[Stella Creasy]

I thank the Minister for her comments. Nobody is suggesting that we do not need a robust process for registering births. However, what troubles me particularly in this instance is the difference between a registrar taking on that role and seeking a court intervention. She and I may differ on whether the cost of the court fees is excessive, but the principle that the court has to be involved at all is the challenge, especially when we allow registrars to amend a birth certificate. It is registering a name in the first place that is the challenge when the father is deceased and the parents are not married.

Will the Minister commit to examining why we presume a registrar can exercise their professional judgment to amend a registration when perhaps even married people might not have given the whole truth at the point of registering a birth, but, when it comes to adding the name of a person who cannot be there for a very reasonable reason—because they have passed away—we deny the registrar’s professional expertise? The simple resolution would be to extend the use of that professional expertise to both instances, rather than saying that only the courts can add a name, but that a registrar can amend a name.

[Caroline Dinenage]

Yes, as I have said, I will consider that, and also discuss it with my counterpart in the Home Office, who is already considering registrations of marriages, to see whether that scrutiny can be extended to registration of births as well, particularly in cases of this kind. I would like, in conclusion, to express my sympathy to Joana, who had such a terrible experience following the loss of her partner, and to her daughters, on the loss of their dad.

[Stella Creasy]

For clarity, may we have a timetable for the scrutiny of marriage licences, and for consideration of extending the registrars’ powers to add a name? Now that we have opened up the matter in debate, we know that several families are in the same position, and they would welcome clarity about when they will get answers.

[Caroline Dinenage]

Yes, that consideration is happening in the Home Office. As the hon. Lady will know, I am a Minister in the Ministry of Justice so I do not know the timetable, but I am more than happy to get back to her with that information as soon as I have it.

Question put and agreed to.