Jennifer Gallagher: Scotland offers justice for fathers

Published on 15/11/2012 00:00

One of the most gripping storylines currently running in Coronation Street centres on the battle between short-fused former policewoman, Kirsty, and her battered boyfriend, Tyrone, over custody of their newborn daughter, Ruby.

Having been subjected to domestic violence for a number of months, Tyrone’s desire for a parting of the ways has been thwarted by Kirsty’s decision not to put his name on Ruby’s birth certificate.

Although the story is set in England, any father resident in Scotland would face a similar dilemma. A change to the law in Scotland in 2006, gave an unmarried father the same parental rights and responsibilities as the mother provided he was named on the birth certificate. Unfortunately, the change in the law does not give a “Tartan Tyrone” automatic parental rights and responsibilities.

It is possible for an unmarried father to obtain parental rights and responsibilities by agreement with the mother. The agreement is in a statutory form that can be downloaded from the Scottish Government website. Both parents sign the document and register it for the future. Unfortunately, many couples who could enter such an agreement do not do so and the absence of parental rights for the father only becomes an issue if the couple separate. By that stage, the mother is unlikely to sign an agreement and more often than not, the father has to seek a court order.

Yet despite his absence from the birth certificate, things are not as bleak as they might seem for Tyrone. In Scotland, it is possible to apply to court for an order called a “declarator of parentage” if the mother denies paternity; in other words the court is shown to be satisfied that the man claiming to be the child’s father, more likely than not, is.

An unmarried father can also seek parental rights and responsibilities along with permission to see the child, known as a contact order. The legislation specifically requires the court to consider the impact of domestic abuse on the child so “Kirsty” – whether in soapland or real life – might not be in as strong a position as she thinks.

• Jennifer Gallagher is a partner in the family law team at Blackadders solicitors, Dundee.