When the father is declared unknown
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When the father is declared unknown

In the not too distant past it would have been taboo for a girl to declare that the father of her newborn was unknown, thus carrying the stigma of being a single mother. However, nowadays we have moved on from such a taboo. But have we moved towards the other end? That is, towards the end where we positively know who the father is but we choose, for various reasons, not to declare it? Is it truly beneficial for the child not to know who his/her father is?

One might argue that the “unknown father” status is merely fiction, that is, the father is declared unknown on paper but is well-known and actually living with the mother and is in close contact with and has easy access to the child. One might even say that all this is done so to get the welfare benefits given to mothers where the father is unknown.

Let’s put aside the real cases where the father is truly unknown and let’s forget the welfare benefits for a moment.

Is it, at the end of the day, truly for the benefit of the child? What is so great about having the father declared unknown? Are there any possible benefits we have not seen?

The answer is simply no. There are no benefits and, at the end of the day, the child will bear the brunt. This has nothing to do with social stigma because, nowadays, this social stigma is certainly not so pronounced, if not eliminated completely.

What I am referring to is the future, when things might go haywire for the couple who have chosen to declare the father as unknown. That is, if the couple are living happily together all is well and good for the child; the child is not in need and the father is in close contact with the child. However, as soon as the couple decide to leave each other (unlike in the case of a married couple where there is presumption of paternity), who will provide maintenance for the child if the father had been declared unknown? How can an unknown father be made to provide maintenance?

The father, if he has truly an interest in the child’s life, can obviously acknowledge the child with the mother’s acquiescence. But what if the mother does not want to? He will have to file an application to be able to acknowledge the child and the same can be said of the mother. If the mother then wants to claim maintenance for the child, she will have to file a paternity suit to declare that the father is known. All this is cumbersome and expensive and could be done away with in the first instance if the child is acknowledged at birth.

What about succession? Does the child have a right to inherit his father?

Whether a child is born in or out of wedlock, the child has the right to inherit the father. However, this statement stands true only if the child born out of wedlock has been acknowledged by the father as being his.

That is, if the father dies intestate, in other words, without having made a will, the child has a right to inherit his father if the child has been acknowledged as his. However, on the other hand, if the father has been declared unknown and the father dies intestate, the child will have no right to inherit anything. Is that what we really want for the child?

By declaring a child’s father as unknown one is robbing the child of his/her paternal maintenance and inheritance. And what about the right of the child to know his origins?

Article 7(1) of the UN Convention on the Rights of the Child states that the child has “...the right to know and be cared for by his or her parents”. Article 8 lays down that: “States parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference”. These mean that the child has a right to know who the father and the mother are.

The question as to the identity of the mother is not really an issue because in Malta we follow the Roman dictum, “Mater semper certa est”, that is, the identity of the mother is always certain/known, for very obvious reasons. But what about the identity of the father? If a child is born in marriage the identity of the father is presumed to be that of the husband. However, if the child is born out of marriage then the identity of the father remains unknown until he acknowledges the child as his.

annmarie.mangion@gmail.com

The author is a lawyer and a published author with a special interest in family and child law.

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