Part 1 of the Children (Scotland) Act 1995: review

Part 12: Birth Registration

Introduction

12.01 This section of the consultation is on the topic of registration of births in Scotland. In particular, we are seeking your views on:

• Applying for a change of name on birth certificates;
• Seeking child’s views on changes of name on a birth certificate; and
• Registration of births by unmarried fathers.

12.02 We are also providing an update on changes we propose to make to section 20(1)(d) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (the 1965 Act).

12.03 A child’s mother or father has a duty to register the birth of any child born in Scotland. A father who is not married to the mother can only be named in the register as the father if:

• He jointly signs the register with the mother; or
• He and the mother sign declarations that he is the father; or
• A court declares that he is the father and the mother registers the birth.

12.04 A woman who is not married to, or in a civil partnership with, the mother can only register the birth and be named in the register as parent if the provisions of the Human Fertilisation and Embryology Act 2008 (the 2008 Act) apply to them and

• She jointly signs the register with the mother; or
• She and the mother sign declarations (these are available from the registrar) that she is the parent; or
• A court declares that she is the parent and the mother registers the birth.

Applying for a change of name on birth certificates

Background

12.05 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 ^[114] . 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.

12.06 If the person is under 16 years of age, 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;
• 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.

12.07 Only one change of forename and one change of surname may be recorded for a child under 16 years of age. For a child under the age of two, only a change of forename may be recorded.

12.08 Figures from NRS suggests that there are on average 1,400 applications each year by qualified applicants to record a change of name of a person under 16 in the birth register.

12.09 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 ^[115] .

12.10 We are considering whether young people under 16 with capacity should be able to apply to record a change of name themselves. If young people under 16 with capacity were allowed to apply, this could be instead of the current right of a person with PRRs to apply to record a change of name. Any child who is seeking to apply to record a change of name for themselves would be encouraged to seek the views of their parents and of anybody else who has PRRs.

12.11 The test of capacity could potentially be done, for example, by a practising solicitor or medical practitioner. Capacity in this context would be understanding generally what it means to record a change of name and understanding what it would mean to record the specific change of name that is being proposed.

12.12 A person with PRRs would retain the right to apply to record a change of name for a child who does not have capacity to make the application themselves. A person with PRRs seeking to apply to record a change of name for a child could be encouraged to obtain the views of the child where that child has sufficient age and maturity to express a view.

Pros/Cons

12.13 The main advantage of allowing a young person under the age of 16 who has capacity to record a change of name is they would be able to apply for the change themself rather than have to rely on another person. This would grant that young person greater autonomy.

12.14 This could also lead to a reduction in the number of court cases where one parent - if both have PRRs - is refusing to permit a change in a child’s name.

12.15 However, there would need to be further consideration of:

• Whether solicitors and medical professionals could be responsible for assessing whether a young person under 16 has the appropriate level of capacity to apply for a recorded change of name; and
• The degree to which any assessment would be binding on NRS, the body responsible for recording changes of name and appropriate mechanisms for sharing data on such assessments.

12.16 There may also be cases where one or both parents may not agree with the child’s decision to change their name on their birth certificate.

12.17 One view is that if people under 16 with capacity are allowed to apply to record a change of name, their view would prevail over any opposing view held by the parent(s) or by any other person with PRRs.

12.18 The form used by those under 16 with capacity could provide (non-binding) information on the views held by the parent(s) or by anybody else with PRRs. This could encourage the young person to consult with them.

Question 45): Should a person under 16 with capacity be able to apply to record a change of their name in the birth register?
Yes
No
Why did you select your answer above?

Seeking child’s views on the application for a change of name on a birth certificate

Background

12.19 As mentioned above, the form that is currently used for applying to record a change of name for a person under the age of 16 does not seek the views of the young person.

12.20 We are seeking views on whether the form should be modified to require the qualified applicant to seek the views of the child when applying to have a change of name recorded, so long as that child has sufficient age and maturity to express a view.

12.21 If young people under 16 with capacity are allowed to apply to record a change of name, then the applicant would only need to obtain the views of the child when the child lacks capacity to apply on their own behalf to have a change of name recorded.

Pros/Cons

12.22 The benefit of this option would be that it would further compliance with UNCRC and would ensure that the child’s views are sought on decisions that will affect them.

12.23 However, further consideration would need to be given as to what would happen if a child did not want to have their name changed, but the parent(s) wished to proceed.

Question 46): Should a person who is applying to record a change of name for a young person under the age of 16 be required to seek the views of the young person?
Yes
No
Why did you select your answer above?

Registration of birth by unmarried fathers

Background

12.24 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 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.

12.25 Therefore, 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 of the birth register entry.

12.26 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) ^[116] ). 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.

Question 47): Should S.I. 1965/1838 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?
Yes
No
Why did you select your answer above?

Re-registration: second female parent: marriage

12.27 We intend to amend section 20(1)(d) of the 1965 Act to refer to marriage as well as civil partnership. Section 20(1)(d) of the 1965 Act refers to:

“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 2008 Act and the mother and that person have subsequently become parties to a civil partnership with each other and…”

12.28 The Marriage and Civil Partnership (Scotland) Act 2014 allows same sex couples to marry. Following this, the 2008 Act was amended by the Marriage and Civil Partnership (Scotland) Act 2014 and Civil Partnership Act 2004 (Consequential Provisions and Modifications) Order (2014/3229) [see paragraph 18 of Schedule 5] to refer to a mother being either in a civil partnership or a marriage with another woman. Section 20(1)(d) needs to be amended to reflect this.