[2007]JRC151
royal court
(Samedi Division)
2nd August 2007
Before :
|
Sir Phillip Bailhache, Kt. Bailiff, (sitting
alone).
|
Between
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Elena Moran
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First Applicant
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And
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Gary Kemp
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Second Applicant
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And
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Deputy Registrar for the Parish of St Helier
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Respondent
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PLAINTIFFS SEEKING AN ORDER REQUIRING
THE RESPONDENT TO CORRECT THE REGISTER.
Advocate J. D. Kelleher for the Applicants.
Crown Advocate C. M. M. Yates representing HM
Solicitor General for the Respondent.
judgment
the bailiff:
1.
This is an
application for judicial review of a decision of the Deputy Registrar of St Helier (to whom I shall refer for convenience as
"the Registrar") to register an illegitimate child CR ("the
child") with the surname "Moran" being the surname of her mother,
the first applicant. This
application is made jointly by the first applicant and Gary Kemp, the second
applicant, who has acknowledged that he is the father of the child. Leave was granted by the Deputy Bailiff
on 6th November 2006. I shall refer for convenience to the
first applicant as "the mother", and to the second applicant as
"the father", and to them jointly as "the parents". Pursuant to an agreement dated 27th September 2006 and
made pursuant to article 5(1)(b) of the Children (Jersey)
Law 2002, the parents have joint parental responsibility for the
child. The parents seek an order
quashing the decision of the Registrar and a further mandatory order directing
that the Register be amended to show the child's surname as
"Kemp".
2.
The
parents are not married. They have
two children, a son born in 2003, and a daughter born in 2006 who is the
subject of these proceedings. The
application raises a narrow but important point of law. Are the parents entitled to insist that
the child be registered with the surname of her father notwithstanding the fact
that the child was born illegitimate? I wish to emphasise at the outset that
the Court is not concerned with social or moral imperatives. It is concerned only to ascertain what
is the law. I have to consider
essentially a narrow point of statutory construction.
3.
The
relevant statute is the Marriage and Civil Status (Jersey)
Law 2001 ("the 2001 Law").
There is no dispute that the relevant statutory provisions are to be
found in part V of that Law and in the Marriage and Civil Status (Forms,
Registration and Fees)(Jersey) Order 2002 ("the 2002
Order").
4.
The
relevant provisions of the 2001 Law are as follows. Article 49(2) provides that –
"In this Part, any
reference to the particulars of a birth ….. means such particulars as
shall be prescribed."
5.
Article 50
provides –
"Subject to this Part,
a registrar who is informed of the particulars of a birth …. shall
register the birth ….. in accordance with the prescribed
requirements".
6.
Article 10
of the 2002 Order provides –
"Duty to register
births and stillbirths
(1) Subject to this Order, a
registrar who is informed in accordance with the Law and this Order, of the
particulars of a birth shall enter, in the form set out in Part 1 of Schedule
3, in the register of births kept by him, the number of the entry being made,
the particulars of the birth and the date of registration and sign the entry so
made.
(2) …..
(3) Subject to this Order, the
particulars of a birth means the particulars required in the form set out in
Part 1 of Schedule 3 in columns 2 to 9 (other than the signature of the
informant)."
7.
Part 1 of
Schedule 3 to the 2002 Order contains a form setting out the required
particulars. The third column is
headed "Forenames and surname of child". There is no definition of
"surname" and the narrow issue which I have to decide is what
"surname" means in this context.
8.
The
Solicitor General, who appeared for the Registrar, submitted that a child
acquires its surname by operation of law.
If a father and a mother are married, their child takes the surname of
the father. If they are unmarried,
a child will take the surname of its mother. The Solicitor General submitted that
this was a rule of customary law.
9.
Mr
Kelleher, who appeared for the parents, advanced three principal
arguments. First, he submitted that
there was no such rule of customary law.
The parents were obviously free to choose the forenames of the child. They were equally free, he contended, to
choose the surname of the child, whether that was the surname of one of the
parents, or some completely different surname. Counsel submitted that the Registrar's
decision to register the child with the surname "Moran" was
accordingly ultra vires. There was no legal basis for it. Secondly, he submitted that if, contrary
to his primary submission, the Registrar did have a discretion in the matter,
she had exercised it irrationally.
Thirdly, counsel submitted that the decision was contrary to the parents'
rights under the European Convention on Human Rights in that it failed
to accord respect for their private and family life as guaranteed by article 8
of the Convention. The decision
also breached their Convention rights under articles 8 and 14 read
conjunctively, in that it discriminated against parents who were
unmarried. Convention jurisprudence
accordingly mandated the Court to interpret the relevant statutory provisions
as conferring a right upon the parents to give the child the surname they thought
fit. It is convenient to take first
the alleged rule of customary law advanced by the Solicitor General.
The Solicitor
General's contentions
10. The Solicitor General referred to In re
Langlois [1985-86] JLR 388.
That was a case where a mother, having divorced her husband, became
pregnant by a man named Langlois.
She changed her name by deed poll from her married name of
"Lawson" to "Langlois". When the child was born, she sought to
register her birth with the surname "Langlois". The Registrar refused to do so, and
registered the child with the surname "Smith" which was the maiden
name of the mother. The mother
unsuccessfully challenged that decision.
11. The case is not directly in point. It concerned provisions of the Loi (1842) sur l'Etat Civil which
was replaced by the 2001 Law, but the Solicitor General drew my attention to
certain passages in the judgment which, she submitted, were only consistent
with the conclusion that an illegitimate child acquired at birth the surname of
her mother. At page 400 of the
judgment, Tomes, Deputy Bailiff quotes an extract from Dalloz 3 Nouveau Répertoire, 2nd edition, Non – Prénom, paragraph
28 –
" 'Le changement d'état qui
résulte du mariage ne fait pas acquérir à la femme le nom
de son mari. Aucun texte
législatif ne prévoit, en pareil cas, le changement de nom. La femme mariée n'a en conséquence,
pas d'autre nom que son nom patronymique, son nom de jeune fille, qu'elle tient
de son père …. C'est pourquoi dans les actes civils et judiciaires
qui la concernent, elle doit être désignée par ce nom,
qu'une pratique constante fait suivre de l'indication de sa qualité de
femme mariée et du nom de son mari'
Whilst many of the statements
contained in that chapter of Dalloz have no application to Jersey,
we believe that para. 28 reflects the situation in Jersey
under common law."
This is of course reflected in conveyancing
practice where a married woman is described as, for example, Esther Le Brun,
wife of William le Marquand.
12. The Solicitor General contended that the notion
that a child of unmarried parents could acquire the surname of the father was
alien to the whole tenor of the customary law. In re T [1987 – 88] JLR 677
the Court stated at page 684 –
"The law of Jersey
has, from time immemorial, looked on a bastard as the child of no known body
except its mother: 'Ils n'ont aucun lien avec leur famille naturelle' (see Le
Gros, Droit Coûtumier de Jersey, at 439 (1943))."
13. There was no authority, the Solicitor General
submitted, suggesting that a parent had a legal right to choose the surname of
his or her child, nor that the Registrar had any discretion in the matter.
The parents'
submissions
14. Mr Kelleher contended that the proper
interpretation of the 2001 Law and the 2002 Order made thereunder was that the
Registrar was obliged to register the particulars relating to the child as
furnished by the parents. In order
to understand this submission it is necessary to look at the legislative
history. The predecessor to the
2001 Law was the Loi (1842) sur l'Etat
Civil ("the 1842 Law") which was the first statute to
regulate the system of registration of births, deaths and marriages. Counsel drew attention to the fact that the preamble referred to two
English Acts passed during the reign of William IV (1830-37) and that the
States had resolved that it was "utile d'adopter autant que possible les dispositions de ces
deux Actes de Parlement, en établissant dans ce pays un Registre
Général, Civil, et Public des Naissances, Mariages, et
Décès qui y ont lieu, sans exception, et en accordant aux
habitans toutes les facilités apportées par l'un des Actes
susdits à la célébration des mariages". Article 8 of the 1842 Law required each parish Registrar to inform
himself conscientiously of every birth taking place in the parish, and to
record in the Register of Births as soon as possible the particulars in
Schedule A to the 1842 Law. The actual text requires the Registrar to
register "les
particularités qui doivent être enregistrées
conformément à la formule A ….. mais le nom du père
d'un enfant illégitime ne pourra être enregistré." Schedule A required particulars in
relation to the child as to the date of birth, the forename, if there was one,
and the gender. In relation to the
parents, the required particulars included the forename and surname of the
father and the mother although, as stated above, there was an express
prohibition against recording the name of the father of an illegitimate child. The text of Formule A is out below.
FORMULE A
18 Naissances dans la
paroisse de ………………….. Ile de Jersey
|
No.
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Date de la naissance
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Prénom, s'il en a
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Sexe
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Nom et prénom du Père
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Nom de famille et prénom de la Mère
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Etat ou profession du Père
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Signature, description, et domicile de l'informateur
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Date de l'enregistrement
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Signature de L'Entregistreur
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Nom de Baptême, s'il a été
ajouté après l'
inscription de naissance
|
15. The prohibition against recording the name of
the father of an illegitimate child was removed by the Loi (1950) (Amendement No. 5) sur l'Etat Civil ("the
1950 Amendment"). Article 17A
was inserted in the 1842 Law in the following terms –
"
17A Lorsque la naissance d'un enfant
illégitime sera enregistrée, aucun nom ne sera inscrit comme
étant celui du père de l'enfant à moins que ce ne soit sur
la demande faite conjointement par la mère et par l'individu qui se
déclare être père de l'enfant, et dans ce cas la naissance
de l'enfant sera inscrite comme celle d'un enfant illégitime dudit
individu et de la mère, et, de plus, ledit individu et ladite
mère devront apposer leur nom ou leur merche à l'inscription de
ladite naissance en présence dudit Enregistreur, qui la
contresignera."
16. The 1950 Amendment also made provision for the
making of a declaration by the parents of an illegitimate child subsequent to
their marriage. By the customary
law of the Island, an illegitimate child is
legitimated by the subsequent marriage of his or her parents. The effect of the declaration was,
however, to allow the Superintendent Registrar to re-register the birth in the
Register of Births noting the declaration as to the legitimation of the
child. Such a declaration could
only be made by parents in respect of whom there was, at the date of the birth
of the illegitimate child, no legal inhibition to the marriage of the
parents. It was not until the
enactment of the Loi (2000)
(Amendement No. 13) sur l'Etat Civil that it was possible for a
declaration to be made in circumstances where, at the time of the birth of the
child, one of the parents was married to someone else.
17. In 1950 the States also enacted the Birth
Certificate (Shortened Form) (Jersey) Law 1950
("the 1950 Law"). The
1950 Law made provision for a shortened form of birth certificate in the
prescribed form. That form was duly
prescribed by the Birth Certificate (Shortened Form) (Jersey)
Regulations 1950. This
certificate included particulars as to the registered person's name and
surname, date of birth, name and surname of the father, and name, surname and
maiden surname of the mother.
Regulation 3(4) provided –
"(4) Opposite the words "Name and
Surname" in the form of short birth certificate, there shall be inserted
the registered person's name as recorded in the entry, and immediately
thereafter there shall be
(a) where
it appears from the entry that the registered person is legitimate, the surname
of his father as recorded therein;
(b) where
it appears from the entry that the registered person is illegitimate, the
surname of his mother as recorded therein."
It is to be noted that the surname of the
child or registered person was not recorded in the Register of Births, but was
included only in the short birth certificate.
18. The 1950 Law, and the regulations made
thereunder, were repealed by the Birth Certificate (Shortened Form) (Jersey)
Law 1979, ("the 1979 Law") but the statutory provision cited at
paragraph 17 above was re-enacted at Article 3(2) of the Birth Certificate
(Shortened Form) (General Provisions) (Jersey) Order 1980.
19. Both the 1842 Law and the 1979 Law were repealed
by the Marriage and Civil Status (Jersey)
Law 2001. The relevant
provisions of the 2001 Law and the 2002 Order have been cited above, and I
shall not repeat them. Mr Kelleher
submits that the new statutory regime has swept away any customary law rules on
the matter, and that the Registrar is under a duty to record the particulars
contained in the form set out in Part 1 of Schedule 3. There was no legal basis, counsel
contended, for the Registrar's refusal to register the child with the surname
"Kemp". There was no
provision in the 2001 Law which required an illegitimate child to take the
surname of the mother.
20. Counsel drew attention to the statutory regime
in England
where it is clear that parents (or the mother, in the case of an illegitimate child)
do have the right to select the surname of the child. The Births and Deaths Registration
Act 1953 requires the registration of the birth of a child within 42 days
of the birth. Regulations made
under that Act provide at Regulation 9(3)(b) –
"…… the surname to
be entered shall be the surname by which at the date of the registration of the
birth it is intended that the child shall be known".
In my judgment, the statutory position in England does
not assist the parents. It is clear
that in that country parents (or a mother as the case may be) do have a
choice. There is, however, express
statutory provision conferring that right upon parents. If the customary law position is that
put forward by the Solicitor General, it is perhaps significant that the States
did not make equivalent express provision in the 2001 Law.
21. What then was the position at customary law in
relation to the surname of an illegitimate child? Both parties submitted affidavit
evidence of the practice relating to the registration of births. Mr Robert Kerley, who has been the
Superintendent Registrar since 1st
April 1994, stated that he had searched the register for the Parish
of St Helier for the birth of an illegitimate child where the father's name had
been included in accordance with Article 17A of the 1842 Law which had been
introduced by the 1950 Amendment.
The first entry was made on 5th January 1953 and there appeared the words "Père naturel de l'enfant".
Those words, or in translation, the words "Natural father of the child"
appeared in every subsequent such registration. Mr Kerley was unaware of the origin of
these words. It seems to me likely
that they were employed after advice from the Law Officers of the day, who
might well have consulted the Dictionnnaire
de Droit compiled by de
Ferrière. In the 1787 edition the entry relating to "Bâtard" contains the
following passage at page 194 –
"Chez
les Romains, les enfans qui étoient nés ex soluto &
solutâ, c'est-à-dire qu'un homme libre avoit eus de sa concubine,
étoient appellés simplement filii naturales.
…………
Ainsi ces
bâtards, appellés enfans naturels".
A further passage at page 195
stated –
"Comme
le mariage est la seule voie légitime de la propagation du genre humain,
on distingue la condition des bâtards de celle des enfans
légitimes; & même on ne donne le nom d'enfans aux
bâtards, qu'en y ajoutant quelque épithète, comme d'enfans
naturels, ou autre qui les distinguent des enfans légitimes".
22. Mr Kerley further deposed that during the 1990s
the number of illegitimate births rose considerably and that there could be as
many as seven or eight such births recorded on a page of ten registrations. Confusion sometimes arose as to the
child's surname, particularly outside the Island,
where the term "natural father of the child" was not always
understood. Mr Kerley's evidence
was that the Etat Civil Committee of
the day deliberately included in Schedule 3 to the 2002 Order a requirement to
specify the surname of the child in order to avoid such confusion. It was not their purpose, on his
evidence, to allow parents a choice in the surname of their children.
23.
The
Solicitor General also filed an affidavit by Mr Simon Drew, a legal adviser in
the Law Officers' Department. Mr
Drew deposed that he had carried out research at the Jersey Archive and had
checked some 500 entries in the registers kept by the parish churches of
baptisms before 1842. His evidence
was of a consistent practice in the baptismal registers of giving the Christian
name of the child followed by the names of the mother in the case of an
illegitimate child, or the names of the father and the mother in the case of a
legitimate child. One example from
a register for the year 1805 was "Anne,
fille naturelle d'Esther Le Cras". The following entry for that year
was "Rachel, fille de Jean
Nicolle ……. et d'Anne Coutanche, sa femme".
24. After the close of oral submissions the
parents, with leave, filed a second affidavit sworn by the mother in response
to the affidavit of Mr Drew. The
mother deposed that she had not been allowed access to the pre-1842 registers
at the Jersey Archive on the ground that they were closed to the public due to
their fragile state. She did
however examine two post-1842 registers for the parish of St
Helier, including the register for the period 20th July 1848 to 29th July 1855. One entry in 1851 showed the name of the
father even though the child was recorded as being a "fille illégitime". Another entry in 1855 showed the
baptism of "Alfred Charles Le
Sueur, fils illégitime". His mother was recorded as Mary Mauger,
but no father was identified. The
mother drew the conclusion that "Le
Sueur" was the surname of the child's father. Other examples of this kind were
cited.
25. Unfortunately, it does not seem to me to be
possible to draw any definitive conclusions from any of this evidence of
baptismal registers. I take
judicial notice of the common practice in Jersey
families of using the surname of a relative as a "prénom".
The former Deputy Bailiff's judgment In re Langlois, cited above,
was given by Vernon
Amy Tomes, "Amy" being the surname of his mother. Many other examples could be cited. It is not therefore possible to know
whether "Le Sueur"
was the surname of the father of the illegitimate Alfred Charles Le Sueur or
not. It may be that the mother
wished to identify the father in that way, but it could be that "Le Sueur" was her own
mother's surname, or the name of some other relative. In any event, nothing seems to me to
turn on this speculation. In a
baptismal register the given names of the child are Christian names, or prénoms. They do not assist to
determine the question whether an illegitimate child takes the surname of the
mother by operation of law.
26. It sometimes happens that the more obvious a
proposition may be, the less easy it is to find authority for it. In my judgment, there is no doubt that
at customary law an illegitimate child takes the surname of his or her mother
by operation of law. It may be that
there is no express authority for that conclusion, but nearly all the available
evidence points in that direction.
The absence of any requirement in the 1842 Law for the surname of a
child to be given leads ineluctably, in my judgment, to the conclusion that
everyone knew that a legitimate child took the surname of his father while an
illegitimate child took the surname of his mother. None of the legislative
changes which took place until the enactment of the 2001 Law persuades me that
that conclusion is ill founded.
Indeed it seems to me that the reference in article 3(4) of the Birth
Certificate (Shortened Form) (Jersey)
Regulations 1950 cited at paragraph 17 above is compelling evidence in
support of it.
27. In the light of that conclusion it is
unnecessary to consider whether the Registrar's discretion to allow the child
to be registered with the surname of the father was unjustifiable or
irrational. In my judgment, the
Registrar had no such discretion.
28. The next question is therefore whether the 2001
Law changed that rule of law so as to confer upon the mother of an illegitimate
child the right to choose a different surname for the child from that which the
law has assigned. Counsel for the
parents submitted that the duty of the Registrar was to inscribe in the
register the particulars which had been furnished by the parents pursuant to
Article 10(1) of the 2002 Order. I
cannot accept that submission. If
it is the case that an illegitimate child takes the surname of the mother by
operation of law, it cannot be right that a duty to furnish particulars confers
a right to provide false or erroneous particulars. It would need clear words in the statute
to override a provision of customary law, and to confer a right upon a parent
to register a child under a different surname from that which the law has
given. A rule of customary law
cannot be abrogated by a side-wind of that kind.
European Convention
on Human Rights
29. I turn to consider whether the conclusions at
which I have provisionally arrived are consistent with the European
Convention on Human Rights.
Article 4(1) of the Human Rights (Jersey)
Law 2000 provides that –
"So far as it is possible to
do so, principal legislation and subordinate legislation must be read and given
effect in a way which is compatible with Convention rights".
The Human Rights (Jersey)
Law 2000 was not in force at the time of the decision in relation to which
complaint is now made. Nonetheless,
as counsel for the parents rightly pointed out, the Court is under a duty to
consider Convention rights (a) to resolve ambiguities in legislation; (b) in
considering the principles upon which the Court should exercise a discretion;
and (c) when the common law is uncertain. See Benest v Le Maistre [1998]
JLR 213 at 218.
30. Mr Kelleher contended that the registration of
the child under the surname of the mother constituted an unlawful interference
with two Convention rights, namely the right to respect for private and family
life under Article 8, and the right not to be subject to discrimination under
Article 14.
31. Article 8 provides –
"1. Everyone has the right to respect for
his private and family life, his home and his correspondence.
2. There
shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others".
32. Article 14 provides –
"The enjoyment of the rights
and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a national
minority, property, birth or other status".
33. It is possible to deal briefly with the
contention that the registration of an illegitimate child under the surname of
the mother constitutes a breach of Article 14. Counsel submitted that this was
discriminatory on grounds of birth.
He cited a decision of the European Court of Human Rights in Inze v Austria [1987]
10 EHRR 394. What was in question
in that case was the legality of a provision which gave preference to
legitimate children over illegitimate children in a matter of inheritance. The Court concluded that there was a
breach of Article 14.
34. That decision, and other decisions cited by
counsel in relation to rights of succession, seemed to me not to be in
point. Patrimonial or succession
rights are not affected by the surname of a child. The law ascribes the father's surname to
the child of parents who are married and the mother's surname to a child whose
parents are unmarried. It is open
neither to married parents nor to unmarried parents to choose the surname of
their child. There is no
discrimination on grounds of birth.
It is simply that different rules apply to legitimate children and to
illegitimate children. There is no
question of preference of one or other class of children. I accordingly reject the contention that
there is any breach of a Convention right under Article 14.
35. I turn to the contention that there is a breach
of the Convention right under Article 8.
Counsel contended that the parents and their children constituted a
"family" notwithstanding the fact that the parents were
unmarried. I accept that
submission. The question is whether
the assignation of the mother's surname to the children of unmarried parents
engages Article 8 and involves an interference with the right to respect for
private and family life.
36. Mr Kelleher cited the decision of the European
Commission of Human Rights in Burghartz v Switzerland App. No. 1623/90,
Commission Report 21/10/92. That was a case where the applicants had
married in Germany
and adopted, in accordance with German law, the surname of the wife as the
family name. Again in accordance
with German law, the husband had declared that, so far as he was concerned, he
would put his own surname of Schnyder before the family name of Burghartz. The applicants were however living in Switzerland and
when they applied to the Swiss Civil Status Registry to record the family name
as Burghartz and the husband's name as Schnyder Burghartz, the applications
were refused. On appeal, the
Federal Court held that the applicants were entitled to use the wife's maiden
name as the family name but the husband's appeal to use the name Schnyder
Burghartz was rejected. The
European Commission was told that there was a disconnection in the husband's
professional life in that his academic writings under the name of Schnyder
could not be associated with his new family name. The Commission found that the Civil Code
permitted a married woman to use her maiden name before the husband's surname,
but not vice versa. The Commission found that the complaints
in relation to rights under Article 8 and 14 were admissible. At paragraph 47 of their Report, the
Commission stated –
"The right to develop and
fulfil one's personality necessarily comprises the right to identity and, therefore,
to a name".
37. Counsel also cited the case of GMB and KM v Switzerland (App.
No. 36797, 27/9/01).
The applicants, who were Swiss nationals, were married and wished to give their
daughter the mother's surname.
Their request was refused on the ground that the Civil Code assigned the
family name, i.e. the surname of the father, to the child. The parents had not exercised their
statutory right to change the family name to the surname of the mother. The applicants argued that only the
parents' free choice of name for the child secured individuality without
discrimination. The Court found no
breach of the Convention rights of the applicants and declared the application
inadmissible. The Court
stated at page 8 –
"The refusal of the Swiss
authorities to allow the applicants to adopt a particular surname for their
child cannot, in the Court's view, necessarily be considered an interference in
the exercise of their right to respect for their private and family life, as
would have been, for example, an obligation for them to change the family
name. However, as the Court has
held on a number of occasions, although the essential object of Article 8 is to
protect the individual against arbitrary interference by the public authorities
with his or her exercise of the right protected, there may in addition be
positive obligations inherent in an effective "respect" for private
and family life (see the Stjerna v Finland judgment of 25 November 1994,
Series A no. 299-A, pp. 60-61, § 38).
The boundaries between the State's
positive and negative obligations under Article 8 do not lend themselves to
precise definition. The applicable
principles are nonetheless similar.
In both contexts regard must be had to the fair balance that has to be
struck between the competing interests of the individual and of the community
as a whole".
38. The Court found that there was little common
ground among Convention states and that the respondent state should be afforded
a wide margin of appreciation. It
was not the Court's task "to substitute
itself for the competent Swiss authorities in determining the most appropriate
policy for the attribution of family names to children in Switzerland,
but rather to review under the Convention the grounds adduced in respect of the
decisions taken in the present case".
39. Mr Kelleher relied upon a passage later in the
Court's judgment where it stated –
"Finally, the Court notes the
emphasis placed by the Government and the Federal Court on the importance for a
child to be united, by means of its name, with the family name, and that the
system chosen in Switzerland served the purpose of maintaining the unity of the
family. In this respect, the Court
recalls its case-law according to which 'the community as a whole has an
interest in maintaining a coherent system of family law which places the best
interests of the child at the forefront' ".
Counsel contended that it was difficult to
see how a refusal to allow a child to be registered with the surname of her
father could be in the best interests of a child. Such a refusal, counsel submitted,
served no purpose other than to stigmatize the child.
40. I have given careful consideration to all these
submissions, but have concluded that the rule of customary law which I have
found to exist does not in the circumstances of this case involve a breach of
any Convention right under Article 8.
If the mother had adopted the family name of the father by deed poll,
and had then sought to register the child under that family name, the parents
might have been on stronger ground.
However, on the evidence before me, there is no unified family
name. The mother has not sought to
change her name by deed poll to the surname of the father. On the contrary, she asserts (perfectly
properly) her own family name in contra-distinction to that of the father.
41. The law of Jersey
allows a wide measure of freedom for individuals of full age in the choice of a
family name. The restrictions to be
found, for example, in the Swiss Civil Code, by which the Court may only
grant a change of name "if there are
important reasons herefor" (Section 31) do not exist under our law.
It is open to the mother to change her name by deed poll to that of Kemp. It is equally open to her to change the
surnames of her children to that of Kemp by deed poll. What she cannot do, as the law now
stands, is to register the birth of any illegitimate children under the surname
of the father. It follows that the
application of the parents for judicial review of the decision of the Registrar
must be refused.
Postscript
42. I stated at the outset of this judgment that
the Court was not concerned with the social or moral aspects of the case, but I
will add this postscript in deference to some of the arguments ably advanced by
counsel for the parents. It is not
difficult, in these days, to agree that illegitimate children should not be
materially or socially disadvantaged in relation to legitimate children. No child has a choice in the matter of
his or her parentage, nor a voice in the decisions made by his or her parents. On the other hand to treat legitimacy
and illegitimacy as old-fashioned, irrelevant concepts is to question the
relevance of marriage. Marriage has hitherto been viewed by society as the best
means of ensuring that children are brought up in a stable environment. The fact that some marriages are
unstable, and some relationships outside marriage are by contrast stable, does
not detract from the established premise.
Marriage brings reciprocal legal rights and duties for the husband and
wife whereas a relationship outside marriage in general does not give rise to
those mutual obligations. The
reconciliation of the rights of children with parental freedom of choice and
with the interests of society as a whole is not always easy. As the jurisprudence of the ECHR shows,
there is no universal European norm.
Whether or not a mother should have the right to register her
illegitimate child with the surname of the father, or indeed any surname of her
choice, is a matter for mature and informed political debate.
Authorities
Children (Jersey)
Law 2002.
Marriage and Civil Status (Jersey) Law 2001.
Marriage and Civil Status (Forms,
Registration and Fees)(Jersey) Order 2002.
European Convention on Human Rights.
In
re Langlois [1985-86] JLR 388.
Loi (1842) sur l'Etat Civil.
Dalloz 3 Nouveau Répertoire, 2nd edition, Non – Prénom.
In
re T [1987 – 88] JLR 677.
Loi (1950) (Amendement No. 5) sur l'Etat Civil.
Loi (2000) (Amendement No. 13) sur l'Etat Civil.
Birth Certificate (Shortened Form) (Jersey) Law 1950.
Birth Certificate (Shortened Form) (Jersey) Regulations 1950.
Birth Certificate (Shortened Form) (Jersey) Law 1979.
Birth Certificate (Shortened Form)
(General Provisions) (Jersey) Order 1980.
The Births and Deaths Registration
Act 1953.
Dictionnnaire de Droit.Compiled by de Ferrière.
Human Rights (Jersey)
Law 2000.
Benest
v Le Maistre [1998] JLR 213.
Inze v Austria [1987] 10 EHRR 394.
Burghartz v Switzerland App. No.
1623/90, Commission Report 21/10/92.
GMB and KM v Switzerland
(App. No. 36797, 27/9/01).
Swiss Civil Code.