Signing powers for councillors: guidance

Chapter 3

Written Declarations

This chapter deals with taking written declarations. In the context of this chapter, the Councillor is making a statement a matter within his personal knowledge and is responsible for the accuracy of this statement ( i.e. "I confirm by my signature that the applicant signed this form."). The declarations in this chapter are those made under the Statutory Declarations Act 1835.

This chapter offers guidance on Statutory Declarations in general and some particular examples of circumstances where Statutory Declarations are used. This is not an exhaustive list. If a Councillor is presented with a Statutory Declaration that is not dealt with here, the general approach suggested by the examples may be of assistance. If a Councillor is unsure about any form, he should consult the Legal Department of his Council.

3.1 General

The Statutory Declarations Act 1835 abolished the use of oaths and substituted Statutory Declarations for many subjects, and these have been added to over the years. A Statutory Declaration is a written declaration of facts. It is an offence punishable by up to two years' imprisonment and/or an unlimited fine to make a false statement in a Statutory Declaration.

The applicant is responsible for the contents of the declaration. The Councillor who takes the declaration and signs the form is only confirming that the form was signed by the applicant.

3.1.1 Statutory Declaration Procedure

The following procedure should be followed when a person makes a Statutory Declaration before a Councillor.

1. The person making the declaration should complete the statement of what is being declared. This may be done before the form is brought to the Councillor.
2. The Councillor should ask the person to confirm that they wish to declare what is stated in the Statutory Declaration.
3. The person making the Statutory Declaration should sign the form in the presence of the Councillor.
4. The Councillor should then countersign the form, adding the words "Member of a Local Authority" after their signature.

A general example of the style of a Statutory Declaration appears in Appendix B.1.

3.2 Passports

Sometimes, a person who is applying for a passport may have to use a Statutory Declaration to link the documents that they have to the details required on the application form. For example when the person uses a different name from that on their birth certificate. This section covers some examples of the Statutory Declarations that may be required.

3.2.1 Change of Own Name

A person seeking a Passport may use a name different from that shown on his birth certificate. This might happen, for example, when a person converts to a different religion. There is a procedure for obtaining a modified birth certificate from the Registrar of Births, Deaths and Marriages but sometimes it is not possible for that to be used. This could be because of urgency or it may be that not all of the Registrar's requirements can be met. In these circumstances the Passport Agency may accept a Statutory Declaration regarding the use of their name.

Councillors may be approached by an applicant either with a form supplied by the Registrar of Births, Deaths and Marriages, or just with a request to make a declaration, to enable the applicant to apply for a passport in their new name.

Examples of such a Statutory Declaration which can be made before a Councillor are given in Appendix B.2.

The Councillor should also have sight of the Applicant's Birth Certificate to check that the details on the Form are correctly completed.

3.2.2 Change of Child's Name

A parent or guardian may want to obtain a passport for a child in a different name from the one on the child's birth certificate. This might happen, for example, where the child's mother reverts to her maiden name or remarries following divorce. There is a procedure for obtaining a modified birth certificate from the Registrar of Births, Deaths and Marriages but sometimes it is not possible for that to be used. This could be because of urgency or it may be that not all of the Registrar's requirements can be met (for example, because the child's natural father cannot be traced to obtain his consent). In these circumstances the Passport Agency may accept a Statutory Declaration regarding the use of the child's name.

Councillors may be approached by an applicant either with a form supplied by the Registrar of Births, Deaths and Marriages, or just with a request to make a declaration, to enable the applicant to obtain a passport for their child with a name other than the name on the child's birth certificate.

Examples of such a Statutory Declaration which can be made before a Councillor are given in Appendix B.3. Note however, that the reference to a two year interval is not essential: if such a statement appears on the form then it must be true, but it need not appear on the form.

It is essential that the applicant can convince the Councillor that they are the appropriate person in relation to the child. Some means of identification should be sought by the Councillor, together with sight of the child's Birth Certificate.

3.2.3 Overseas Birth

A person who was born to British parents overseas may need to persuade the Passport Agency that they are entitled to obtain a British Passport. A Statutory Declaration by one or other parent may be accepted by the Passport Agency for this purpose. Examples of such forms are given in Appendices B.4 and B.5.

3.2.4 No Birth or Marriage Certificate

A Councillor may be approached to sign a Statutory Declaration by an applicant for a Passport who lacks a Birth Certificate or lacks a Marriage Certificate and whose place of origin is in India, Pakistan or some other overseas country. Examples of Statutory Declarations relating to such circumstances, which may on occasion be completed and presented to a Councillor for authentication, are attached at Appendix B.6 and Appendix B.7.

3.3 Births, Deaths & Marriages

There are a number of circumstances where a Councillor may be called upon to authenticate a declaration for the purposes of the Register of Births, Deaths and Marriages. Some of these are described here.

3.3.1 Declaration of Parentage by Father

If the father of a child is not married to the mother when the child's birth is registered then his name may not be entered on the child's Birth Certificate. It may be that the mother subsequently desires that the father's name should appear on the Birth Certificate. In these circumstances the father can make a Statutory Declaration that he is the father of the child. The mother must also complete a form (not a Statutory Declaration) confirming that he is the father. The father may approach the Councillor with a Statutory Declaration from the Registrar of Births, Deaths and Marriages.

The style of declaration should be in the form as laid down in Form DPF, a copy of which is attached as Appendix B.8.

The Councillor may also check the details on the child's Birth Certificate, if it is available, but there is no requirement to do so. It would also be prudent for the Councillor to have some evidence of the Applicant's identity.

3.3.2 Declaration of Parentage by Mother

If the father of a child is not married to the mother when the child's birth is registered then his name may not be entered on the child's Birth Certificate. It may be that the father subsequently desires that his name should appear on the Birth Certificate. In these circumstances the mother can make a Statutory Declaration that he is the father of the child. The father must also complete a form (not a Statutory Declaration) confirming that he is the father. The mother may approach the Councillor with a Form from the Registrar of Births, Deaths and Marriages.

The style of Declaration should be in the form as laid down in Form DPM, a copy of which is attached as Appendix B.9.

The Councillor may also check the details of the child's Birth Certificate, if it is available. It would also be prudent for the Councillor to have some evidence of the Applicant's identity.

3.3.3 Second Marriage Ceremony

Where a couple have married outside the United Kingdom, but there is doubt as to the validity of that marriage or they are unable to prove that they were validly married, they may wish to have a second marriage ceremony conducted in Scotland. In these circumstances they must make a Statutory Declaration about their putative (or reputed) marriage on a form for consideration by the Registrar of Births, Deaths and Marriages. A specimen of this form is shown in Appendix B.10.

3.3.4 Change of Name

There is a mechanism by which a person can have their name or their child's name, as it appears on their birth certificate, changed by the Registrar so that the new version is incorporated on the birth certificate. This is often done for the purpose of obtaining a passport in the name that is actually used by the person or child. The procedure for doing this does not require a Statutory Declaration. However, there may be circumstances where it is not possible to follow that procedure (for example, because the other parent of the child cannot or will not give their consent) or where there is not time to do so before applying for a passport. In such circumstances the Registrar may suggest that a Statutory Declaration is made for submission with the passport forms. Such declarations are dealt with in the Passports section of this document (subsections 3.2.1 and 3.2.2).

3.3.5 Other Declarations

Statutory Declarations may also be used to correct minor errors in the registration of births, deaths or marriages that do not change the substance of the entry in the register. These will be drafted by the Registrar on a case by case basis. Examples might include Birth Certificates where a child's name was misspelled (e.g. "Jane" rather than "Jayne") or where the forename and surname were transposed (e.g. "Richard Fraser" should have been "Fraser Richard"; a Death Certificate where the status of a parent of the deceased was wrong (e.g. deceased's mother was thought to be dead, but later was realised to still be alive); or a Birth Certificate where the registering parent signed with an "X" and now wishes to have their signature added. Substantive changes, for example changing the forename on a child's Birth Certificate from "John" to "Albert", cannot be made in this way.

3.4 Registrar of Companies

From time to time persons involved in the administration of limited companies may require to make various Statutory Declarations to the Registrar of Companies. For commercial companies, the declaration is likely to be made before a solicitor, who can charge a fee (unlike a Councillor), but some charities and voluntary organisations operate using a limited company. A Councillor may be approached to sign such a declaration.

There are numerous different declarations that may be required under company law. An example of one such a form that may be produced to a Councillor for signature is given in Appendix B.11.

3.5 Lost Insurance Policies

From time to time Councillors may be presented with documents from an insurance company about a lost insurance policy. The documents will most commonly be produced to the Councillor for signing by the person who has lost the policy and has been given a form from the insurance company to complete. The form generally not only states factually that a policy is missing or has been destroyed, but goes on to provide indemnity against all claims that may arise thereafter against the holder of the policy for the time being.

The form takes the nature of a Statutory Declaration and an example of the style is shown in Appendix B.12.

Such forms could be used by an impersonator to defraud the true policyholder or the insurance company. Particular care may therefore be necessary to confirm the identity of the applicant. Councillors should guard against anything the person may say which would lead the Councillor to suspect that any form of fraud is being perpetrated.

3.6 Building Societies

Building Societies may require a Statutory Declaration with regard to the transfer or handling of a deceased persons' account by their executors. An example of a style of such a form is given in Appendix B.13.

Such forms could be used by an impersonator to defraud the true policyholder or the insurance company. Particular care may therefore be necessary to confirm the identity of the applicant. Councillors should guard against anything the person may say which would lead the Councillor to suspect that any form of fraud is being perpetrated.

3.7 Registered Motoring Fines

Where a person has had a fine registered with the District Court in respect of a Fixed Penalty ticket, but they dispute their liability to pay, they may make a declaration of the reasons why they dispute the fine. There are three possibilities: they were unaware of the Fixed Penalty (for example, if the ticket had been removed from their windscreen), that they were not the owner of the vehicle at the time or that they want a court hearing to determine the matter.

Practice varies from place to place as to what form the declaration may take. In some areas a sworn declaration is required and this cannot be given before a Councillor. In other areas a simple signed declaration without any countersignature is deemed sufficient. However, sometimes a Statutory Declaration may be required and a Councillor may be asked to countersign this in the same way as any other Statutory Declaration.