There is no doubt that more children are being registered as being fatherless. This phenomenon of ‘unknown fathers’ is being linked to benefit fraud.

Clearly, there is sufficient evidence that justifies this claim and, in fact, the system does allow mothers to claim benefits not only because the father is not paying maintenance but also when the father is not even known.

It is hard to believe that so many women cannot identify the man with whom they conceived a child. However, it would be too simplistic to say that this is merely a scheme to rip off the State.

Judging by my own experience as a lawyer, there are a number of legal issues that young single mothers may bring up to justify why they are not being totally honest when they register a new-born child.

One must keep in mind that a single mother, especially if she is a teenager, is most vulnerable when she is pregnant and eventually when she gives birth. There is shock when she, her boyfriend and family learn of an unplanned and unwanted pregnancy. This may, in turn, develop into tension between many of the parties involved.

The most common question expectant mothers put to lawyers when they seek advice is whether the father can take the baby away from them.

The Civil Code puts the responsibility fairly and squarely on both parents and makes no distinction between the two, whether married or unmarried.

Therefore, from a technical point of view, the reply is yes, a father can decide to take the child. However, in such situations, the court usually gives preference to the mothers, especially when the child is young.

The decision to declare the father to be unknown may indeed stem from this legal position. The fear, real or otherwise, that the father may claim the baby and demand and succeed in taking the child from the woman is a nightmare scenario of any single mother. After all, there would not be much in common between the parents apart from a few weeks or months of courtship, if it were not a one night stand. Therefore, it is not uncommon for unmarried parents not to trust one another.

There should be a legal presumption that a child should reside with the mother unless the parents jointly decide otherwise

To make matters worse, when there are incidents where the father exercises his legal right of parenthood over a baby and the mother reports the matter to the police, the first thing they are asked is whether she is in possession of a court decree showing she has been granted care and custody of the child. If she does not, the police will not intervene and she will be forced to take urgent court action requesting the baby to be returned immediately. This is an issue that may take days if not weeks to resolve.

I think that the law should reflect these concerns and, to my mind, there should be a legal presumption that the child should reside with the mother unless the parents jointly decide otherwise.

The police would, thus, be able to enforce this presumption by returning the child to the mother, without prejudice to the father’s right to have proper access. This would mean that the police would not require a court decree because the law would provide for such situations.

If the mother is not suitable to take care of her children, then government social agencies that exist should act, as, indeed, they do today. However, in a number of cases I have witnessed real fear that the father would be unreasonable and, so, a woman would prefer to declare she does not know who the father of her new-born child is in order to eliminate such a risk.

Yet, such a move is not foolproof because the father could still decide to recognise the child as being his too.

It is, of course, good and proper that our society demands that fathers assume responsibility of their own children. Therefore, it is not acceptable that a father should remain anonymous for monetary reasons.

However, the world and human nature being what they are, there will always be individuals who prefer to take advantage of the system rather than owning up to their social and family responsibilities.

There is a whole cat-and-mouse game, with social services forcing mothers to identify the father of their children and sue them for maintenance. I personally would prefer a system that would force the mother not to necessarily name the father but have the option to nominate a legal guardian instead, which would be responsible at law for the welfare of the child together with her.

If it is clear that the natural father does not want to have anything to do with the child – which is condemnable – the mother would have the right to nominate a legal guardian for the child. Such legal guardian could be a grandparent, a family member, a partner or a companion. Thus, although the father will be unknown, the child will not rely legally on one parent but would have one parent and a guardian.

There would be a support mechanism that in practice already exists but is not recognised as the system stands now.

Today, thanks to the close family network we are used to, single mothers are supported by their parents and family members.

This makes for restricted State intervention but, at the same time, children born out of wedlock will still be taken care of.

The real father may appear anytime, as he may do even today, but until that happens, a formal support system would be in place.

I feel that, unless such legal issues and others too are not addressed, the discussion on children born out of wedlock and having ‘unknown fathers’ will not be complete and any action taken will be half baked.

Malcolm Mifsud is a lawyer.