Family Justice Modernisation Strategy

Part 8: Birth registration processes Background

8.1 The consultation on the review of the 1995 Act sought views on the following areas in relation to registration of births, and asked whether:

• a child with capacity should be able to apply for a change of name on their birth certificate themselves;
• a person with parental responsibilities who is applying to change a child’s name should seek the views of the child; and
• secondary legislation should be amended to allow a father who has a declarator of parentage and PRRs to re-register a child’s birth to show him on the birth certificate.

8.2 The consultation also noted that amendments would be required to the Births, Deaths and Marriages (Scotland) Act 1965 (the 1965 Act) to reflect that a second female parent may be married to the mother of the child.

Applying for change of name on a child’s birth certificate

8.3 A parent may ask for a child to be known by another name and does not need to apply to National Records of Scotland (NRS) for this to be changed officially (i.e. change of name, while statutory, is not mandatory). However, in some circumstances a parent may be asked for official documentation noting the change in name.

8.4 Currently, any person whose birth is registered in Scotland or who is the subject of an entry in the Adopted Children Register, the Parental Order Register or the Gender Recognition Register can apply to NRS to have a change of name recorded.^[50] There is no requirement in Scotland for a person to record a name change on their birth entry to be able to use or go by a new name.

8.5 Currently a person under the age of 16 cannot apply for a change to their own name. The application must be made by a person with parental responsibilities for that child. This person is known as the “qualified applicant” and is defined in section 43(9A) of the 1965 Act as where:

• only one parent has parental responsibilities in relation to the child, that parent; or
• both parents have such responsibilities in relation to the child, both parents; or
• neither parent has such responsibilities, any other person who has such responsibilities.

8.6 The form that is currently used for applications to record a change of name for a person under the age of 16 does not ask the applicants whether they have sought the views of the young person.

Registration of birth by unmarried fathers

8.7 Where the name and surname of the father of a child has not been entered into the birth register, the Registrar General may record that name and surname by causing an appropriate entry to be made in the Register of Corrections Etc. if in relation to the person:

• a court has granted a decree of paternity; or
• the mother has produced a declaration saying that the person is the father and the person has produced a statutory declaration acknowledging himself to be the father; or
• the person has produced a declaration saying that he is the father and a statutory declaration by the mother acknowledging that the person is the father; or
• if the mother is dead or cannot be found or is not capable of making the necessary declaration or statutory declaration, the sheriff orders the Registrar General to make an appropriate entry in the Register of Corrections Etc.

8.8 Where an unmarried father has a declarator of parentage that can be entered in the Register of Corrections Etc. This will result in an annotation on the birth register entry.

8.9 Section 20 of the 1965 Act also allows re-registration in the birth register if the unmarried father has PRRs (S.S.I. 2007/54 reg. 2(4)^[51]). However, S.I. 1965/1838 requires an informant as defined in section 14 of the 1965 Act to sign the re-registration entry. This excludes unmarried fathers. Therefore, S.I. 1965/1838

may need to be amended so that a father who has a declarator of parentage and has PRRs can re-register the birth showing him on the birth certificate.

Re-registration: reference to second female parents

8.10 Section 20(1)(d) of the 1965 Act provides: “the entry relating to the child in the register of births has been made so as to imply that the person, other than the mother, recorded as a parent of the child is so by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 and the mother and that person have subsequently become parties to a civil partnership with each other …”

8.11 The Marriage and Civil Partnership (Scotland) Act 2014 allows same sex couples to marry.

Aim

Applying for change of name on a child’s birth certificate

8.12 The Scottish Government considers that changing a child’s name is a major decision and therefore, under section 6(1) of the 1995 Act, the child’s views should be sought.

8.13 This view is supported by Article 12 of the UNCRC which provides that:

“States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”^[52]

8.14 The Scottish Government considers that a child with capacity should be able to apply to change their name themselves.

Registration of birth by unmarried fathers

8.15 The Scottish Government believes that where an unmarried father who has a declarator of parentage and has PRRs they should be able to re-register the birth showing him on the birth certificate.

8.16 This view is supported by Article 7 of the UNCRC which states that:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.”

Re-registration: reference to second female parents

8.17 Where an entry in the Register of Births shows a woman as being the other parent by virtue of the Human Fertilisation and Embryology Act 2008, and where they have since entered into a civil partnership, section 20(1)(c) of the 1965 Act allows the birth to be re-registered. This appears not to take account of the introduction of same sex marriage under which the other parent may subsequently have married the woman who bore the child.

Actions

Applying for change of name on a child’s birth certificate

8.18 The Registrar General will make regulations amending the form used to apply for a child’s name to be changed to require the individual with PRRs to tick a box saying that they have sought and taken into account the views of the child.

8.19 The Scottish Government accepts that there may be circumstances where the child is too young to give a view, or may have a severe learning disability and therefore is not able to give a view. This would be reflected in the wording of the box to be ticked. An option may be to introduce a caveat similar to that in section 1(2) of the Children (Scotland) Bill that a child’s views need not be sought if the child is not capable of forming a view.

8.20 If a parent ticked this box without having sought and taken into account the views of the child, or without applying the exemption, they would be liable to

prosecution in the same way as if they provided any other false information on the form.

8.21 Allowing a child with capacity to apply themselves to change their name on their birth certificate would require significant further thinking on how the capacity of the child could be measured. It is not currently clear whether assessing capacity could be done by a medical practitioner or a lawyer, especially as the involvement of the medical practitioner or lawyer with the child is likely to be brief and so it may be difficult to assess capacity. Any change would require primary legislation. The Scottish Government consider that more time is required to carry out significant further thinking on this.

Registration of birth by unmarried fathers

8.22 The Registrar General will consider making regulations that will amend the Registration of Births, Deaths and Marriages (Miscellaneous Provisions) (Scotland) Regulations 1965 to reflect that an informant may be an unmarried father with PRRs.

Re-registration: reference to second female parents

8.23 The Scottish Government proposes to use section 35 of the Marriage and Civil Partnership (Scotland) Act 2014 to make regulations adding a reference to a second female parent being married to the mother of a child (as well as in a civil partnership with the mother) in section 20(1)(d) of the 1965 Act.