A new statute?
There are some potentially huge issues that need to be addressed, both in relation to PA and to family law generally. We look at some of them here. Perhaps some of these would need their own new Statute, perhaps not. Maybe some of the issues we look at could be subsumed into the Act, maybe not. These are questions for others. STOPPA is interested merely in highlighting some problems.
Automatic Parental Responsibility (‘PR’)
Obviously, a woman gets PR automatically. She has given birth to the child, so there can be little doubt that she is the child’s parent.
As a matter of fairness, then, all biological fathers should have automatic PR too, regardless of whether the parents are or were married at any point.
It seems to STOPPA that this is a fairly straight-forward point that doesn’t need to be laboured – so we won’t.
Automatic Rights to DNA Testing for Fathers
Of course, one problem that arises from the previous suggestion is that, whilst there is no doubt as to the identity of a child’s mother, there can be such doubt in the case of the father.
So fathers should be entitled to a DNA test to show one way or the other whether they are the child’s father. This will give fathers their rights as parents. Of course, this cuts both ways. Fathers have responsibilities, as well as rights, so mothers should also have the right to have fathers tested. If there is no doubt who the father is, there is no doubt who has a responsibility to maintain his child.
Of course, there are going to be big problems here. There will be objections (probably rightly) along civil liberties lines. STOPPA will leave that to others.
But.. something to think about…?
Making PA a Criminal Offence
In some countries, for example Brazil and Mexico, PA is a crime. It should be a crime in the UK too, and indeed everywhere.
Making PA a tort (civil ‘wrong’)
A ‘tort’ (from the French, meaning ‘wrong’) is a harm caused, which falls short of a criminal offence. The term includes such things as negligence, defamation, trespass and so on.
Because these ‘wrongs’ are civil rather than criminal, a lower standard of proof is required. In a criminal case the complaining party is the State, and the State has to prove that the defendant is guilty ‘beyond reasonable doubt’. A civil case on the other hand involves the lower standard of ‘on the balance of probabilities’ and so is easier to prove. Civil cases are usually brought by private individuals, or companies.
In PA, the AP has usually gone out of their way to wreck your relationship with your child. They might have done it negligently, but well…they usually do it deliberately don’t they? Either way, they should be held accountable. If the alienation has been done deliberately, they should be guilty of a crime and a tort. If negligently, or if you are to any extent to blame (contributorily negligent) you should still have redress through the civil courts.
Of course, you can sue now, but only the State, and only under the EHCR.
But you have no recourse against the AP.
A thought experiment….
Imagine if every potential alienator had to consider, before alienating, the possibility of being lumbered with a £20k lawsuit. Might make some think twice, no?
Finally, on this point, we know that American lawsuits tend to be much larger than those in the UK. This is partly because the amount of damages in the US is decided by juries, and juries are more generous than judges. But it’s mostly because, in the US, juries make awards not just for compensatory damages (which tend to be relatively modest) but for exemplary and punitive damages too, which are intended, respectively, to make an example of the defendant, and to punish him/her.
Interestingly, though, this is also possible in the UK – not for most cases, but some, like false imprisonment and wrongful arrest. These are seen as particularly ‘nasty’ torts where higher damages can be awarded. Could there be a nastier tort than PA?!
Continuing with the thought experiment, imagine that lawsuit now worth £200k, not £20k…Or maybe £2 million. PA would disappear overnight!