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Welfare Reform Act 2009

Schedule 6: Registration of births

344.References to ‘the 1953 Act’ are references to the Births and Deaths Registration Act 1953.

345.Paragraph 2 amends section 1 of the 1953 Act. In the 1953 Act as it stands, section 1(2) of that Act sets out those persons who are qualified to give information about a birth, and includes (in section 1(2)(a)) ‘the father and mother of the child.’ But this provision is qualified by the opening words of section 10(1), which relates to unmarried fathers, and the relationship between the two is hard to follow.

346.Paragraph 2 amends section 1(2) of the 1953 Act so that it is clear that the mother of the child is a qualified informant in all cases and the father is a qualified informant either where he is married to the child’s mother (or, in the case of a second female parent, in a civil partnership with the child’s mother), or where he registers the child’s birth jointly with the mother and section 10(2)(a) of the 1953 Act applies, or where he has been identified as the father following a paternity test. Second female parents who are not in a civil partnership with the child’s mother but who are parents by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 (‘the HFE Act’) are treated in the same way as fathers who are not married to the mother of the child (except that the provision relating to paternity tests will not be relevant).

347.Paragraph 2(4) inserts an interpretative provision corresponding to that made by section 10(3) of the 1953 Act as it stands. The new section 1(4) provides that in Part 1 of the Act references to a child whose father and mother were, or were not, married to each other at the time of the child’s birth are to be read in accordance with section 1 of the Family Law Reform Act 1987. The HFE Act amended section 1(3) of the 1987 Act in order to give a child who has a parent by virtue of provisions of the HFE Act relating to treatment provided to a woman who is in or becomes a party to a civil partnership the same status as the child of married parents.

348.Section 2 of the 1953 Act places a duty on informants to give information about the birth to the registrar for births and deaths for the sub-district in which the child was born within 42 days of the birth. Paragraph 3 amends section 2(1) to refer specifically to the birth of a child whose mother and father were married to each other at the time of the birth. It also makes amendments consequential on those made to section 1(2). A new section relating specifically to births where the mother and father were not married at the time of the birth is inserted by paragraph 4.

349.Paragraph 4 inserts new sections 2A, 2B, 2C, 2D and 2E into the 1953 Act.

350.New section 2A relates to the registration of births in cases where the parents are not married. It places a duty on the mother – and on certain other qualified informants – to provide the registrar within 42 days with information concerning the birth of a child, and to sign the register. This is similar to the existing duty of married parents.

351.Where the father is a qualified informant, he can discharge the duty of the mother under new section 2A to sign the register and provide information and the duty of other qualified informants listed in section 1(2)(b) to (e) to sign the register and provide information in the event that the mother is dead or unable to act. However, the provision of information by the mother does not affect any duty imposed on the father by virtue of regulations made under section 2C or any duty by virtue of regulations made under section 2E.

352.In cases where an inquest finds a child to have been still-born, within the 42 day time limit for registration, the duty on the parents and on other qualified informants to provide relevant information ceases to apply since the information is provided to the registrar direct by the coroner. This is consistent with existing provisions for mothers and married fathers.

353.New subsection (4) extends the provisions relating to fathers in this section to women who are parents by virtue of section 43 of the HFE Act.

354.New section 2B relates to the duties of an unmarried mother when acting alone. Where the father’s details have not been given to the registrar under any one of paragraphs (a) to (g) of section 10(1) or by virtue of regulations made under section 2E, the child’s mother is required to provide prescribed information about him. The form and manner in which such information is to be provided may be prescribed under subsection (2). In practice the effect of requiring the mother to provide information is to enable the father to be contacted by the registrar, with the aim of entering his details on the register. Sole registration is, however, permissible where the mother states that one of the exemptions set out in subsection (4) applies. These are where –

  • the child has no father by virtue of section 41 of the HFE Act (namely because the child was conceived using donor sperm in a case where the HFE Act does not treat anyone else as the father);

  • the child’s father has died;

  • the mother does not know the identity of the father;

  • the mother does not know the whereabouts of the father;

  • the father lacks capacity, within the meaning of the Mental Capacity Act 2005);

  • the mother has reason to fear for her safety or that of her child if the father is contacted – either by herself or by the registrar.

355.In addition, subsection (4)(g) includes a power for further exemptions to be set out in regulations.

356.A mother is not required to provide information about the father in cases where either the birth was a still-birth or the child has died before the birth is registered. In these cases therefore, sole registration would take place unless the parents co-operate to register jointly.

357.In cases where a man comes forward independently of the mother and provides his details to the registrar in accordance with the procedure set out in section 2D, the duty on the mother to provide his details does not apply where she acknowledges that this man is the father. If she does not, then she must provide the true father’s details, unless one of the conditions for an exemption applies in respect of him.

358.Subsection (6) enables regulations to prescribe that the mother’s duty under new section 2A of the 1953 Act to sign the register will have effect as a duty to sign a prescribed declaration. The practical effect is that the mother will not have to return to the register office to discharge her duty to sign the register once the alleged father has been contacted and the prescribed time has been reached when the registrar can register the birth.

359.Subsection (7) provides that information given by the mother but relating to the father cannot be entered on the register merely because the mother has provided it, ensuring that there has to be some form of acknowledgement of paternity by the father.

360.The provisions relating to fathers also (where relevant) relate to women who are parents by virtue of section 43 of the HFE Act.

361.New section 2C relates to the confirmation of parentage information given by the mother. It provides for a power to set out in secondary legislation the process to be followed in cases where the mother provides the registrar with the father’s details but where the parents are not co-operating with each other in order to register. Consequently it is intended to be an exceptional process.

362.The process to be set out in secondary legislation will in particular allow for the registrar to require the man named by the mother to acknowledge whether or not he is the child’s father. If he acknowledges that he is the father then he will be required to provide his details to the registrar and his name must then be entered in the register. If the birth has already been registered (for example because the mother had come forward on or close to the 42 day limit for registering the birth, or because the birth had been sole registered for reasons of urgency) then it would be re-registered to have the father’s details added. Where the regulations provide for an unmarried father, acting separately from the mother, to sign a prescribed declaration, the regulations may provide that the signing by him of the declaration is to be treated as the signing by him of the register.

363.The provisions relating to fathers in this section also apply to women who are parents by virtue of section 43 of the HFE Act.

364.Subsection (4) provides that regulations made under new section 2C can prescribe the form or manner in which actions under this section are taken, require anything to be done in the presence of the registrar and set out the timescales within which steps taken under this section can or must take place.

365.New section 2D provides for a power to set out, in secondary legislation, a process for enabling a man who believes himself to be the father of a child, to be entered on the register as the child’s father, subject to acknowledgement by the child’s mother that this is the case. As in section 2C, this process would be followed in cases where the parents were not co-operating with each other to register jointly and should therefore be seen as an exceptional process. The process to be set out in secondary legislation will in particular enable a man who believes himself to be the father of a child, to make a declaration to that effect to the registrar, before the birth has been registered. The child’s mother will then be required to state whether or not she acknowledges that he is the father; where she does so, his name will be entered on the register. As in section 2C where regulations provide for an unmarried father, acting separately from the mother, to sign a prescribed declaration, the regulations may provide that the signing by him of the declaration is to be treated as the signing by him of the register. If the mother does not acknowledge the man to be the father, then his details will not be entered on the register.

366.The provisions relating to fathers in this section also apply to women who are parents by virtue of section 43 of the HFE Act.

367.New section 2E contains a power to make regulations relating to the use of paternity tests (‘scientific tests’) in connection with the registration or re-registration of a birth, providing that the child’s birth has not previously been registered or – if it has already been registered by the mother – no person is registered as the father.

368.Undertaking a paternity test is purely voluntary and a matter for the individuals concerned; no-one may be required to undertake such a test. A paternity test may only be used for the purposes of registration if the individuals concerned have agreed to the test being carried out and agreed to have the man’s details entered in the register if the results of the test show him to be the father.

369.Regulations made under this section may set out the way in which certain actions must be performed and set time limits on steps to be taken. They may also enable or require either parent to apply for registration (or re-registration) if the test is positive and impose obligations on the registrar in relation to registration or re-registration. Regulations may also provide that a man who applies for registration in this way following a positive result from a paternity test is treated as a qualified informant concerning the birth.

370.Under subsection (2), a scientific test must be performed by an accredited person and (under subsection (5)) it must indicate to a particular degree of certainty that the man concerned is the father. This degree of certainty will be prescribed in regulations.

371.The effect of subsection (7) is to prevent a man being registered as the father following a positive result from a paternity test if it appears to the registrar that, by virtue of any of the provisions of sections 35 to 47 of the HFE Act, the man is not the father of the child. For example, a man who donated his sperm anonymously under the provisions of the HFE Act is not under that Act to be treated as the father of the child.

372.Paragraphs 5, 6 and 7 contain amendments to the 1953 Act to remove the requirement for a superintendent registrar to take a declaration about a birth and sign the birth register in addition to the registrar where the birth is registered or re-registered after more than three months (but less than 12 months) have expired from the date of the birth. This requirement was introduced largely as an audit check at a time when births were not notified to registrars by the health service as they are today and registrars were paid a fee for each registration.

373.Paragraph 8 amends section 7 of the 1953 Act (registration after 12 months from date of birth) to remove the references to a still-birth. This change will mean that in those cases where an investigation or coroner’s inquest has prevented registration of a still-birth within 12 months, a late registration will be possible with the authority of the Registrar General.

374.Paragraph 9 is a minor consequential amendment to section 8 of the 1953 Act which removes the penalty for registering a birth more than three months after the event otherwise than under the provisions of the sections amended or repealed in paragraphs 5 to 7.

375.Paragraph 10 contains a number of amendments to section 9 of 1953 Act in consequence of new sections 2B, 2C, 2D, 2E, 10B and 10C. It ensures that regulations can provide that steps under these new sections that would usually need to be taken in relation to the registrar responsible for registering the birth can be carried out by a registrar for a district other than the one in which the birth took place.

376.Paragraph 11 amends section 10 of the 1953 Act, which deals with registration of a father where the parents are not married or of a second female parent where the parents are not in a civil partnership.

377.Sub-paragraph (2)(a) amends section 10(1) so that there are circumstances in which a father who is not married to the child’s mother will be under a duty to provide information to enable his details to be recorded in the register. The circumstances are where, under new section 2C, a mother indicates that he is her child’s father and he confirms this, or under new section 2E, where he consents to a paternity test under that section and the results show him to be the father.

378.Currently, where parents are not married to each other, section 10(1)(b) to (g) of the 1953 Act allow the mother or father to attend the register office alone and, in certain circumstances, to give information about themselves and the other parent so that the birth can be registered. Section 10(1)(b) and 10(1)(c) currently involve either the mother or father making a statutory declaration. Sub-paragraphs (2)(b) and (2)(c) amend section 10(1)(b) and (c) to allow an alternative form of declaration. It is intended that these alternative declarations may be witnessed by a broader range of responsible people.

379.Sub-paragraph (2)(d) inserts section 10(1)(h) so that a registrar can enter the name of a man as the father in accordance with regulations under section 2C (where father confirms paternity), 2D (where mother confirms paternity) or 2E (where the results of a paternity test show the man to be the father).

380.Sub-paragraph (3) makes similar amendments to subsection 10(1B) so that the changes relating to unmarried fathers in section 10(1) are extended to women who are parents by virtue of section 43 of the HFE Act. This includes allowing the use of an alternative form of declaration.

381.Paragraph 12 amends section 10A of the 1953 Act, which deals with re-registration of a birth where the parents are not married to each other or in a civil partnership, and no person has been registered as the father or other parent. It provides that the mother, father or second female parent, may re-register a child’s birth using the new alternative declaration. Further detail about the alternative declaration is given above.

382.The amendments to section 10A(2)(d) reflect the amendments made in paragraphs 5 to 7 and ensure that re-registrations which take place more than three months but less than 12 months after the birth do not have to involve a superintendent registrar as well as a registrar.

383.Paragraph 13 inserts new sections 10B and 10C into the 1953 Act. These sections confer new regulation-making powers which will be used to set out the processes by which a parent of a child whose birth has been the subject of a sole registration can initiate a process independently of the child’s other parent, with the aim of re-registering the birth so that the father’s details are added to the register. A re-registration would take place if the information given by one parent is confirmed by the other parent.

384.These sections apply only to births which have been sole registered. Therefore, they apply only to births where the parents were not married at the time of the birth and the father’s details have not been entered on the register and no woman has been registered as the parent of the child by virtue of section 42, 43 or 46(1) or (2) of the Human Fertilisation and Embryology Act 2008. They will apply to all births which meet these criteria, regardless of the date of initial registration.

385.The scope of the regulations and the processes they will prescribe are similar to those in new sections 2C (confirmation of parentage information given by mother) and new section 2D (declaration before registration by person claiming to be other parent). As with new sections 2C and 2D, the Government’s intention is for these processes to be treated as exceptional procedures to be used only where the parents are not co-operating with each other to re-register by section 10A (re-registration where parents neither married nor civil partners).

386.New subsections 10B(4) and 10C(4) extend the provisions relating to fathers in these sections to women who are parents by virtue of section 43 of the Human Fertilisation and Embryology Act 2008.

387.Under section 34 of the 1953 Act (entry in register as evidence of birth or death), if a birth is registered more than three months but within 12 months after the date of birth, the entry or a certified copy of the entry of the birth of the child in the register, or in a certified copy of the register, is not evidence of the birth unless the entry has either been signed by the superintendent registrar as well as the registrar or has been made with the authority of the Registrar General.

388.Paragraph 14 amends section 34(3) of the 1953 Act to take account of the repeal of section 6 of the 1953 Act. The repeal of section 6 removes the requirement for the register to be signed by both the registrar and the superintendent registrar if a birth is registered between three and 12 months after the birth. It has the effect that for births registered after 42 days but within 12 months, the registrar has to sign the register but not the superintendent registrar as well. Paragraph 14 therefore removes the requirement that, if a birth is registered after section 6 has been repealed and within 12 months of the birth, the superintendent registrar as well as the registrar must sign the entry for it to be evidence of the birth. It retains the requirement that the register is signed by both the registrar and the superintendent registrar in order for it to be considered evidence of the birth if the entry is made before the repeal of section 6.

389.Paragraph 15 amends section 36 of the 1953 Act (penalties for failure to give information, etc) by extending the existing sanctions to apply to the new processes that will be set up through regulations. It extends the offence for failure to answer any question put by the registrar in relation to the particulars required to be registered, or failure to comply with any requirement of the registrar made under the 1953 Act, to include questions and requirements made by regulations under section 2C, 2D, 2E, 10B or 10C. It also creates a new offence for refusal or failure (without reasonable excuse) to do anything within a particular time which is required by regulations under section 2C, 2D, 2E, 10B or 10C. Anyone who commits this new offence will be liable to the same penalty as for the other offences covered in section 36 (apart from the offence under section 36(c), which remains different). A person who commits any of the offences under section 36 of the Act, in respect of any requirement for information from the registrar relating to the birth, shall be liable on summary conviction for a fine not exceeding level 1 on the standard scale (currently a maximum of £200).

390.Under section 39 of the 1953 Act, the Registrar General, with the approval of the Minister, may make regulations prescribing anything in the Act which is required to be prescribed. Paragraph 16 amends section 39 to exclude from this section regulations made under sections 2B(1), (4) and (6), 2C, 2D, 2E, 10B or 10C of the 1953 Act. It is for the Secretary of State to make regulations under these powers.

391.Paragraph 17 inserts into the 1953 Act new section 39A which sets out the regulation-making powers of the Secretary of State, including power for the regulations to contain transitional provisions and savings. The power to make regulations is exercisable by statutory instrument, subject to the negative resolution procedure.

392.Paragraph 18 makes a consequential amendment arising from the amendments to section 39, which exclude from section 39 regulations made under sections 2B(1), (4) and (6), 2C, 2D, 2E, 10B or 10C of the 1953 Act. Paragraph 18 amends section 41 of the 1953 Act so that the definition of ‘prescribed’ (prescribed by regulations made under section 39 of this Act) does not apply to the sections excluded from section 39.

393.Paragraph 19 amends section 4 of the Perjury Act 1911 to widen the meaning of ‘information concerning a birth’. This is to reflect the widening of the information which may be requested by the registrar in relation to the registration of a birth and to ensure that the provision of this additional information will be subject to the provisions of the Perjury Act 1911.

394.Under the Population (Statistics) Act 1938, statistical information (such as the mother’s age) is collected at birth registration. Under the current legislation only married women are asked about how many births they have had previously and whether they have been married before. Paragraph 20 of Schedule 6 amends the Population (Statistics) Act 1938 to provide that all women will be asked about previous births and previous marriages and civil partnerships. The key purpose of the amendment is to collect better statistical information on previous births and previous marriages and civil partnerships, given that a large proportion of births now occur outside marriage.

395.Paragraph 21 makes amendments to the Children Act 1989. In section 4 of the Children Act 1989 (acquisition of parental responsibility by the father of a child who is not married to the mother) subsections (1)(a) and (1A) provide that a father shall acquire parental responsibility for the child if he becomes registered as the child’s father under section 10(1)(a), (b) or (c) (registration of father where parents not married) or 10A(1)(a), (b) or (c) (re-registration where parents not married) of the 1953 Act.

396.This paragraph amends section 4 of the Children Act 1989 so as to provide that a father acquires parental responsibility if he becomes registered as the child’s father by virtue of regulations under section 2C, 2D, 2E, 10B or 10C of the 1953 Act.

397.This paragraph further amends section 4 for cases where, before a father becomes registered under the 1953 Act or another of the enactments specified in 4(1A), a court has already considered an application by him to obtain parental responsibility for the child and did not make such an order or the father has previously acquired parental responsibility and a court has ordered that he was to cease to have that responsibility. The amendments ensure that in these cases the father does not acquire parental responsibility when he becomes registered as the child’s father.

398.Paragraph 22 amends section 4ZA of the Children Act 1989 (acquisition of parental responsibility by second female parent). It has the effect that a woman who registers as the other parent of a child by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 is treated in the same way as an unmarried father in respect of the acquisition of parental responsibility.

399.Paragraphs 24, 25 and 26 make consequential amendments to the corresponding legislation relating to parental responsibility for Scotland and Northern Ireland. They preserve the effect of registration as a parent in England and Wales on family law in Scotland and Northern Ireland.

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