David Hewitt, 'Illegitimate concern' (2013) 157(25) SJ 9
This article argues that the unmarried father of an adult patient is a relative for the purposes of s26, whether or not he had parental responsibility. However, the wording of s26 means that for its purposes an unmarried father is not a relative of an adult patient because it is not possible to have parental responsibility for an adult. It may be in future that the the courts are asked to adjudicate on whether or not the situation is compatible with the ECHR, in particular in relation to an unmarried father who used to have parental responsibility.
This article was first published by Solicitors Journal on 25 June 2013, and is reproduced by kind permission.
Where a person is, or is to be, detained under the Mental Health Act 1983 (MHA 1983), his or her 'nearest relative' can play a significant role - by vetoing detention, for example, or by discharging the patient or asking a tribunal to do so.
The nearest relative must be selected according to statutory criteria, which are set out in section 26 of MHA 1983.
But although they have existed for 30 years, those criteria can still seem obscure. That is particularly so when it comes to unmarried fathers.
Section 26 ensures that a patient's mother or father will often be his or her nearest relative (sub-section (1)). It also states, however, that an illegitimate person is to be treated as the legitimate child of her mother, but only of his or her father if he has 'parental responsibility' (section 26(2)).
There is often debate about the implications of this, especially in the case of an adult patient whose father did not have parental responsibility when she was a child.
One suggestion is that in such a case, the father will never, in fact, be the nearest relative, even after the child has attained her majority; that he will never be able to remedy a defect that set in much earlier. I'm afraid I disagree.
The requirements of section 26 are clear: when seeking to identify the nearest relative of an adult, it is necessary merely to ascertain whether that person has a 'father', and to construe that word in its broadest, biological sense.
More specifically, I do not think it is necessary to establish whether any such biological father once had parental responsibility for the person concerned. This is to be inferred from a straightforward reading of sub-section (1), in which, after all, the word 'father' is used without qualification.
It is perfectly true that sub-section (2) appears to state that someone who is 'illegitimate' is the child merely of his or her mother, and not of his or her (biological) father. I do not, however, consider that relevant: section 26(1) does not state that only the 'legitimate' father of an adult child can be her nearest relative. In short, there is nothing in that sub-section to which the apparent qualification in sub-section (2) can apply.
In any case, there is a general rule that relationships are to be ascertained without reference to whether or not a person's parents were married to one another. That rule is currently set out in section 1(1) of the Family Law Reform Act 1987. (See: Brenda Hale, 2010, Mental Health Law, fifth edition, page 83.) It is perfectly true that it applies "unless the contrary intention appears", but, for the reasons I have given, I do not consider the words of section 26(2) to be clear and unequivocal evidence of such an intention.
The position with regard to children is different. Section 26(2) makes it plain that in the case of an illegitimate child, the father will only be the nearest relative if he has parental responsibility for him or her. For present purposes, however, that is irrelevant, for parental responsibility will not endure beyond a child's 18th birthday. In that regard, it is noteworthy that sub-section (2) requires of a father who would be the nearest relative that he 'has', not 'had', parental responsibility.
This, again, suggests that what the sub-section says is only relevant in the case of a patient, or a potential patient, who is currently a minor; and that in the case of an adult, it is irrelevant that their father had (or did not have) parental responsibility for him or her.
Despite its antiquity, the Mental Health Act still has many mysteries to reveal. The solution to the problem discussed here need not, however, be among them. On any careful interpretation, the position seems clear: as far as the role of nearest relative is concerned, the father ceases to be illegitimate once the child has come of age.David Hewitt is a judge of the First-tier Tribunal and visiting fellow at Northumbria University and Bournemouth University. He is the author of The Nearest Relative Handbook