The Ministry of Justice (MoJ) recently rejected calls to expand the eligibility for bereavement damages that would have given all fathers of children who have died due to medical negligence the same right to compensation as their mothers.

In an extremely disappointing move, the MoJ found that no changes were required to the category of person eligible to receive an award of compensation, which currently excludes unmarried fathers of minors from being recognised as having suffered a loss.

Under the current legislation, bereavement damages can be claimed by the following in the event that the death of a loved one has arisen due to negligence:

• spouse or partner of the deceased
• partner of the deceased if they have lived together for more than two years 
• parents of a child where the parents are married at the time the child is conceived or born 
• the mother where the parents are not married at the time the child is conceived or born.

This means that the following are excluded and are unable claim bereavement damages:

• unmarried fathers of minors
• parents of adult children
• children who have lost a parent

I act for lots of families in relation to clinical negligence claims that have sadly resulted in the death of a child and in a large proportion of these cases, the bereaved parents of the child live together but are not married. Under the current legislation, the father of a child, who is not married to the child’s mother at the time the child is conceived or born, is not entitled to receive a share of the bereavement damages. Whilst in practical terms this may not make much difference as the parents may well share finances, to have to explain to a father who has lost their child, often in the most devastating circumstances, that as it stands the law does not recognise him as being entitled to a share of the bereavement damages is often a very difficult conversation to have.

It is of course accepted that in some circumstances it may not be appropriate for bereavement damages to be shared, but the law as it stands is out of touch with modern society and there needs to be a middle ground whereby unmarried cohabiting (including shared care) fathers who have lost their child due to negligence are not unfairly excluded.