Bereavement damages in England and Wales: Outdated, inconsistent and discriminatory – Forgotten dads call for a change in the law on compensation

What are bereavement damages? 

Bereavement damages are a form of compensation which is payable to certain limited categories of relatives following the unlawful death of a loved one, arising from a fatal accident, wrongful act and/or neglect. 

The award itself arises from the Fatal Accidents Act 1976, which has seen a number of changes on the amount of the award and to whom this is payable to. These are described as dependants in the Act..

Who is identified as a dependant and how much is the award?  

The current law in England and Wales identifies the following relatives can claim for a bereavement award:

• Only the spouse or civil partner of the deceased,
• A civil partner who was living with the deceased for at least two years  i.e. a cohabitee
• the parents of a deceased child under 18 years, and was never married or in a civil relationship -  or, if the child is ‘illegitimate’, the mother only.

Whereas in Scotland, spouses, children, grandparents and grandchildren are all entitled to claim for a bereavement award.

In May 2020, the Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020, increased the bereavement award for all deaths following 1 May 2020, from a fixed award of £12,980 to £15,120. 

The recent increase in award is a step in the right direction but many consider the award shouldn't be limited but rather assessed on a case by case basis as seen in Scotland, where similar awards have been paid as high as £90,000, six times the fixed amount in England and Wales.

Who isn't considered a dependant?

In England and Wales, the following relatives aren't entitled to claim for a bereavement award under the current law:

• An unmarried father of a child under the age of 18
• Parents of an adult child who is over the age of 18
• Children who have lost a parent
• Siblings
• Grandparents

APIL's campaign for change

The Association of Personal Injury Lawyers (APIL) has long campaigned for changes in the law on how bereavement damages are awarded. 

In April 2021, APIL issued a report entitled Bereavement Damages: A Dis-United Kingdom which called for changes in the law, to adopt the approach taken by Scotland where bereavement awards were recognised across all relationships without a rigid category, without discrimination and disparity.  In the report Sam Elsby, APIL president stated the current law was “rigid, discriminatory and woefully out of date.”

 The Unmarried Fathers 

In August 2022, APIL published its article Most Fathers Do Not Count in Law on Bereavement. The article refered to the Office of National Statistics (ONS) wherein data revealed more than half (51.3 per cent) of the babies born in England and Wales last year were born to parents who weren't married or in a civil relationship. 

Under the current law this means, nearly 320,500 unmarried fathers will be denied a bereavement award if their children were killed by an act of wrongdoing.

As a serious injury solicitor, I'm often instructed by the family members of those tragically killed in fatal accidents. It's always extremely difficult and heart-breaking to advise unmarried fathers that the law in England and Wales doesn't recognise their relationship and still describes their deceased child, born out of wedlock as “illegitimate.”  

The Fatal Accidents Act 1976 is now of course over 40 years old. It hasn’t kept up with the changes in modern society where many couples remain unmarried and have children. Even in cases where couples do marry, often it would involve a ceremony held abroad or at venues which aren't authorised by the UK Marriage Registrar - such as banqueting halls, hotels, and religious / inter-religious ceremonies held outside of a licensed venue. In these instances, the marriages aren't recognised in the UK.

In England and Wales, unmarried fathers aren't compensated in the same way a married father would be. Similarly, an unmarried father is not compensated the same way an unmarried mother is compensated.

Conclusion

I say, that while there have been some changes in the law over recent years, there remains discrimination and disparity in compensating unmarried fathers. 

The law needs to recognise these forgotten fathers and their right for compensation. John McQuater, President of APIL said in August 2022: “It has been 40 years since the law was passed and it shows in how out of touch it is with society. It is high time for reform.” 

I certainly endorse that sentiment.

Find out more about Irwin Mitchell's expertise in supporting people following a fatal accident at our dedicated fatal accident and bereavement support section.