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Who's the daddy?
 Article 
Author
Emma Wlling and Krishma Sangani
Date
30 September 2016

Who's the daddy?

In the latest instalment of Bridget Jones, Bridget is pregnant. The father? Either Human Rights Barrister Mark Darcy - her long term on/off love interest, or billionaire dating website founder Jack Quant, with whom she had a one night stand at a music festival. So, "Who's the Daddy?" and what are the legal considerations for Bridget, Mark and Jack?

Financial claims

Bridget's possible financial claims - known as claims under Schedule 1 of the Children Act - on behalf of, and after the birth of, Jones Junior, could be significant given the high level of financial security of both the potential fathers (albeit probably more considerable if Jack is the father).

In England, it is possible for an unmarried parent to bring financial claims on behalf of a child against the non-resident parent. Those financial claims can be for:

  • The payment of child maintenance;
  • Lump sum payments - for example to reimburse expenses connected with the birth, to meet future expenses such as the purchase of a car or the furnishing costs of a property;
  • An order for the payment of school fees and other educational expenses; and
  • For capital provision to provide a home for the child (although any housing provision would revert to the non-resident parent on the child's 18th birthday or the conclusion of their full time education if later).

If Bridget were to make an application under Schedule 1, the Court would take account of:

  • Bridget's income and the father's income, earning capacity and other financial resources which they had or were likely to have, together with their respective financial needs, obligations and responsibilities.
  • The financial needs of Jones Junior.
  • The income, earning capacity (if any) property and other financial resources of Jones Junior.
  • The manner in which Jones Junior could expect to be educated or trained.
  • The welfare of Jones Junior.

Bridget lives in a comfortable but small flat in Borough Market, London.  Insofar as housing provision is concerned, the Court is likely to accept that Bridget should be rehoused in a larger and more child friendly property. It would not be unreasonable for Bridget to argue that her home should be close to her current flat and / or her place of work and / or her friends/support network.  Further, the Court would accept that Jones Junior is entitled to be brought up in circumstances that bore some relation to the father's accommodation.

In terms of the level of child maintenance, the Court will take into account Bridget's income from her work as a television producer - after deduction of her childcare costs - in meeting Jones Junior's needs. However, the Court will also recognise Bridget's responsibilities and the sacrifices she will likely need to make - including potentially in respect to her work - as Jones Junior's primary carer.  In the case of a claim against Jack, Bridget's child maintenance is likely to be determined generously given his significant wealth. 

In ascertaining Bridget's claims for Jones Junior, the Court will place no great weight on the length or quality of the parent's relationship or the fact that Jones Junior was unplanned. Therefore, the fact that Jones Junior may have been conceived following a one night stand at a music festival will have no bearing on Jack's financial obligations to Jones Junior if he is found to be the father.

Paternity

However, the question still remains, "Who's the Daddy?" Is it Jack or Mark who is responsible for the child?

Bridget, Mark, and Jack could have avoided their awkward three way partnership during Bridget's pregnancy if she had completed an in utero DNA test to determine Jones Junior's paternity.  However, in England, the Court will not order pre-natal paternity testing.  

Following the birth of a child, if he or she has no legally declared father, it is possible for either parent - or the child itself, with the assistance of an adult or litigation friend during its minority - to apply for a Declaration of Parentage which would ordinarily be conclusively determined by DNA testing. 

In relation to an application for a Declaration of Parentage: 

What can Mark and Jack do?

If Bridget were to refuse a DNA test being completed on Jones Junior, Mark and/or Jack could apply to the Court requiring a DNA test to be completed to ascertain Jones Junior's paternity. The Court would usually make such an order on the basis that it would be in the child's best interests to know the truth of his or her paternity.

What can Bridget do?  

Bridget may herself be forced to apply for a Declaration of Parentage in order to establish whether Mark or Jack is financially responsible in the context of a Schedule 1 claim or in an assessment for child maintenance to the Child Maintenance Service or through the Court. Bridget may also need to establish paternity (or indeed Jones Junior may need to in due course) in the context of any dispute as to the child's inheritance rights. 

It is not possible for the Court to compel Jack or Mark to provide a sample for DNA testing.  So, if they both refused to co-operate what are the options? 

It would not be possible for Bridget to bring an application for a Declaration of Parentage against both Jack and Mark simultaneously. She would therefore need to decide which of them is more likely to be the father. If Bridget is confident in her decision, she could apply for a declaration against him. If it was impossible for Bridget to decide who the father is most likely to be, she might decide - for financial reasons - to seek a declaration that Jack is the father on the basis that he has a higher net worth.

This issue arose in a 1994 case where the mother of the child had been having sexual relations with three men, any of whom may have been the child's father. The mother brought a claim for maintenance against one of the men, a wealthy businessman. 

The man refused to accept that he was the father, but also refused to undergo a blood test which had been directed by the Court to conclusively determine whether he was. As a result of his refusal to engage with testing, the Court drew the inference that he was the father. Explaining its decision, the Court ruled that "if a mother made a claim against one of the possible fathers, and he chose to exercise his right not to submit to be tested, the inference that he was the father of the child should be virtually inescapable.  He would have to advance very clear and cogent reasons for his refusal to be tested."

So, once Bridget decides who to seek a Declaration of Parentage against, any refusal to undergo a DNA test would likely mean that the Court would make a Declaration of Parentage on the basis of an adverse inference (thereby allowing Bridget to make financial claims on behalf of Jones Junior). If a DNA test was subsequently completed which contradicted the Court's Declaration, an application could be made to the Court to set aside the Declaration.

Parental responsibility

Parental responsibility is a term that describes all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a particular child and his property. Essentially, when decisions have to be taken about the upbringing of a child, anyone who has parental responsibility for the child must be able to contribute to that decision.

If Bridget is not married to either Mark or Jack at the time of Jones Junior's birth, she will automatically have parental responsibility and Jack and Mark will not. However, one of them would have the ability to acquire it after Jones Junior's birth. The options open to Mark or Jack in order to acquire parental responsibility are:

  • To marry Bridget.
  • Become registered as Jones Junior's father on the register of births in the UK.
  • Enter into a parental responsibility agreement with Bridget.
  • Become formally appointed guardian.
  • The non-biological father to adopt the child.
  • Obtaining a parental responsibility Order from the Court.  In deciding whether to make a parental responsibility Order, the Court must be satisfied that making the Order would be better for the child than making no Order at all.
  • Obtain a Child Arrangements Order (which prescribes the time a child is to spend with both parents) from the Court.

Parental responsibility is a separate concept from Mark or Jack's ability to spend time with Jones Junior. If Bridget refused to agree suitable arrangements for the father to see the child he would be able to make an application to the Court for a Child Arrangements Order which would regulate the time the child spent with him. In making any such Order the Court's paramount consideration would be the child's welfare.

Beneath the surface of this complicated love triangle lie a myriad of legal issues that potentially need to be addressed. It would appear that Daniel Cleaver dodged a bullet here, for now at least…