The Government has signalled its intention to reform one of the most widely criticised aspects of fatal accident compensation law: the exclusion of certain unmarried fathers from statutory bereavement damages, although a timetable has not been set.
For many years, campaigners, claimant lawyers and bereaved families have argued that the law fails to reflect modern family life by treating parents differently based on their marital status. Recent ministerial comments suggest that change may finally be on the horizon.
A Step Towards Equality
The proposed reform follows sustained campaigning by the Association of Personal Injury Lawyers (APIL), which has long called for changes to the law governing bereavement damages. The issue was recently highlighted by APIL's immediate past president, Matthew Tuff, who challenged the Government's defence of the current legal position after a parliamentary response appeared inconsistent with previous commitments to reform.
In correspondence with APIL, Justice Minister Sarah Sackman KC acknowledged that there is a specific area of the law which no longer reflects contemporary expectations. The Government has now confirmed its commitment to addressing eligibility for bereavement damages where entitlement depends upon the marital status of a child's parents. Although no timetable has yet been announced, ministers have indicated that legislation will be introduced when parliamentary time permits.
The announcement is significant because it addresses a longstanding anomaly that has been criticised as unfair, discriminatory and fundamentally out of touch with modern family structures.
What Are Bereavement Damages?
Bereavement damages are a statutory award available under section 1A of the Fatal Accidents Act 1976 following a death caused by negligence, including cases of fatal clinical negligence. The award is intended to acknowledge the grief suffered by certain close relatives following the loss of a loved one.
Unlike other heads of compensation, bereavement damages are not calculated according to the individual circumstances of the claimant. Instead, they are paid as a fixed statutory sum and are only available to individuals who fall within a tightly defined category of eligible relatives.
In clinical negligence claims, bereavement damages are typically claimed alongside other losses, such as dependency claims, funeral expenses and claims brought on behalf of the deceased's estate.
The Historical Position: Why Were Fathers Excluded?
One of the most controversial aspects of the legislation concerned the death of a minor child, with unmarried parents.
Historically, where a child died because of negligence, both parents could claim bereavement damages if the child was regarded in law as "legitimate". However, if the child was deemed "illegitimate", only the mother was entitled to the statutory award. The father, regardless of the closeness of his relationship with the child or his involvement in the child's upbringing, was excluded entirely.
This distinction originated in an era when family law placed considerable emphasis on marriage. Over time, however, it became increasingly difficult to justify. Modern families take many forms, and parental relationships are no longer defined solely by marital status. As a result, critics argued that the law effectively punished fathers and children because the parents were not married.
For families affected by fatal clinical negligence, the consequences could be particularly distressing. An unmarried father grieving the avoidable death of his child could find himself denied even the limited recognition offered by the statutory bereavement award.
Previous Reforms to Bereavement Compensation
The law has undergone some modernisation in recent years, although reform has been incremental rather than comprehensive.
Most notably, the Fatal Accidents Act (Remedial) Order 2020 extended eligibility for bereavement damages to qualifying cohabiting partners who had lived with the deceased for at least two years. The change followed concerns that limiting the award to spouses and civil partners was incompatible with modern family relationships and human rights principles.
While this represented a welcome development, many campaigners noted that significant inequalities remained. In particular, the continued exclusion of certain unmarried fathers became an increasingly prominent example of the law's failure to keep pace with social change.
Why the Latest Announcement Matters
The Government's commitment to reform is important not only because of its practical effect, but because it represents an acknowledgement that the current law is outdated.
If implemented, the proposed changes would remove one of the most criticised distinctions within the Fatal Accidents Act 1976. Bereaved fathers would no longer risk being excluded from compensation solely because they were not married to the child's mother.
For claimant lawyers and families pursuing clinical negligence claims, the change would provide greater consistency, fairness and recognition of the realities of modern parenting. It would also bring the law closer to the principle that the value of a parent-child relationship should not depend on the legal status of the parents' relationship.
Is Further Reform Needed?
While the proposed changes have been widely welcomed, many practitioners regard them as only a partial solution.
APIL and other campaign groups continue to argue that the bereavement damages regime is overly restrictive. In England and Wales, only a limited category of relatives is eligible for the award, excluding many family members who may experience profound grief following a negligent death. Adult children, siblings, grandparents and other close relatives are generally unable to recover bereavement damages, regardless of the strength of the relationship.
There are also longstanding concerns about the fixed nature and relatively modest value of the award. Critics argue that the statutory scheme does little to reflect the emotional impact of losing a loved one and compares unfavourably with approaches adopted elsewhere, particularly in Scotland, where a wider range of relatives may seek compensation for grief and loss. Read Reforming The Law Around Bereavement Compensation for more information regarding the Scottish System.
The Justice Minister has indicated that a broader review of bereavement damages is not currently a Government priority, although the position will remain under consideration. Campaigners are therefore expected to continue pressing for more comprehensive reform in the years ahead.
Conclusion
The Government's commitment to extend bereavement damages to unmarried fathers marks an important and long-overdue step towards equality in fatal accident and clinical negligence claims. For decades, the law has contained a distinction that many regarded as discriminatory, preventing some fathers from receiving statutory recognition of their grief simply because they were not married to the child's mother.
Although the proposed reform will not resolve all of the criticisms directed at the bereavement damages regime, it represents a significant acknowledgment that the law must evolve to reflect modern families. For bereaved fathers affected by fatal clinical negligence, the forthcoming changes have the potential to remove an injustice that has endured for far too long
Quote from author.
Alpa Rana, Legal Director and Specialist Medical Negligence Solicitor from MDS, said
“The proposed changes are a positive development for bereaved families and demonstrate a growing recognition that compensation law must reflect modern society rather than outdated assumptions about family life.”
