When a father dies before he can register his babys birth11-07-2018
A case I was involved in recently at James Legal reminded me of a seminal case I read involving a little girl named Willow Simone Pook whose father suddenly died from an acute infection in January 2015 two days after her birth. Because of his untimely death there was not sufficient time in which Mr Pook was able to register the birth of Willow with her mother, his partner, Ms Fare. Because Mr Pook and Ms Fare were not married, the law required them to both register the birth together.
Given the fact a DNA test proved Mr Pook was Willow’s father, it would be easy to assume Ms Fare would simply register Mr Pook as Willow’s father, albeit post mortem, on the birth certificate, however the law is not that straightforward.
Whilst modern day lawyers try to avoid Latin terms, there is one that sums up the different positions of birth registration when new parents are either married or unmarried, “Pater est quem nuptiae demonstrate” which means the father is he whom is married to the mother. This is not as clear with cohabitees who have children together. The established principle is, when married, the husband is the father of the child and either the mother or the father can enter the birth of their new baby with the registrar. When unmarried, both mother and father have to register the birth of their child.
The case of Re Pook highlights if an unmarried father dies before the chance to register himself as the father, there is no acknowledgment of his legal status to the child and his name therefore cannot be entered on the birth certificate even if DNA testing proves paternity.
Section 14 of the Births and Deaths Registration Act 1953 allows for a birth to be re-registered where the person has become a “legitimated person”. This, together, with section 55A of the Family Law Act 1986 provides that when the paternity of the legitimated person has been established by a Court by way of an Order, the re-registration can proceed by only one parent.
Ms Fare was required to apply for a Declaration of Parentage, even though DNA testing had proven Mr Pook was indeed Willow’s father. The Declaration was accepted and made by the Court and Willow was able to have a full birth certificate reflecting Mr Pook as her father.
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The short judgment in this case can be read here.