Just a short time ago, I reported on the fact that both the European Union and the German Supreme Court had struck down that country’s system of depriving unmarried fathers of their parental rights. In a nutshell, an unmarried father must get the written consent of his child’s mother in order to qualify for parental rights. If she refuses, it’s his, and his child’s tough luck. As I pointed out at the time, that’s a frank and straightforward way of doing what we in the states and other countries do as well – place fathers’ rights in the hands of mothers.
In the U.S., mothers have to be somewhat more determined and sometimes sneakier than their German counterparts to entirely deprive a father of his child and his child of its father, but the principle is the same – mothers can still keep fathers from their children and there are seldom serious consequences for doing so. The German law has been invalidated and now it’s up to the German parliament to bring the rights of single fathers into compliance with applicable law. My guess is that they’ll do the absolute minimum for fathers and their children to comply with the EU Charter.
Now this article suggests that Scotland may be in much the same situation (The Scotsman, 9/20/10). Brian McKerrow has demanded that Scotland’s government produce evidence that the Family Law Act revision of 2006 complies with applicable provisions of the Charter of the European Union.
Mr McKerrow, 39, believes the Act, passed in December 2005, is not compliant with Scots law and contravenes the human rights of unmarried fathers towards their children…
Summaries of the legislation argue it does provide rights and responsibilities to unmarried fathers who can apply to court, in agreement with the child’s mother. But Mr McKerrow has been denied access, he says, because of the mother’s “intransigence” and the Act itself.
He argued that articles 3 (torture), 4 (servitude), 8 (privacy), 9 (conscience and religion) and 14 (discrimination) of the ECHR are breached by the Family Law (Scotland) Act.
Note that unmarried fathers can apply to a court for parental rights “in agreement with the child’s mother.” That strongly suggests that, just as in Germany, without her agreement, an unmarried father may not apply to the court to obtain parental rights. These explanatory notes regarding the Act of 2006 suggest the same thing. (Scroll down to the explanatory note for Section 23.)
The amendment in subsection (2)(b) gives parental responsibilities and parental rights to unmarried fathers who, in the future, register the birth of their child jointly with the mother.
Again, unmarried fathers can establish parental rights and responsibilities only “jointly with the mother.” If Mom refuses, he’s out of luck and so is his child. And of course that’s exactly what McKerrow means when he says the mother of his child has been “intransigent.” She holds the keys to the castle and she’s not sharing.
McKerrow has an e-petition online here whose goal is to get the appropriate governmental agency to cough up evidence that the 2006 Act complies with the human rights requirements of the EU Charter. So far they haven’t done so. I’m sure he’d appreciate your signature on his petition.
One last thing. None of the linked-to articles mentions the fact, but while fathers can only establish their rights via mothers’ consent, fathers’ parental duties can be coerced. That is, an unmarried father apparently can’t get a court order establishing his parental rights over the objections of the mother, but she can get a court order requiring his support whether he likes it or not. That is, his access to courts and judicial remedies for the deprivation of his parental rights is truncated; hers is not.