Legislation associated with the naming of children is a recurring theme; our first post was in 2014 and most recently, last September. In contrast to considerations of what names are, and are not, acceptable in law, the judgment Re T (A child) [2019] EWHC 1572 (Fam) concerned a child who had been given a name and surname, but whose father had “strenuously resisted” its formal registration, “notwithstanding that a failure to do so is, in a variety of practical ways, likely to serve as an impediment to the promotion of T’s welfare as well as to have an adverse impact on F’s own legal status” [6].

All births in England, Wales and Northern Ireland must be registered within 42 days of the child being born; this must be at the local register office for the area where the baby was born or at the hospital before the mother leaves (EW) or at any District Registration (NI). In Scotland, the registration must take place within 21 days and may be at any registration district in Scotland. More information is here.

Re T (A child) [2019] EWHC 1572 (Fam)

The reported case was the fourth judgment in the two-day hearing [1]. Mr Justice Hayden stated (emphasis added):

“[2]. … The child T, born in the Spring of 2019, is the subject of care proceedings. There is an interim care order in favour of London Borough of Tower Hamlets. The child and parents are presently subject to a Residential Assessment, under the aegis of Section 38 (6) Children Act 1989. The birth of T has not been registered. It is important to clarify that this is not by omission but by design. F is fundamentally opposed to registration for reasons which I will endeavour to explain below….whilst M is not prepared to register T’s birth herself, she is not opposed to somebody else registering it on her behalf. F is philosophically opposed in principle”.

The Father’s beliefs as to the legal framework are outlined at [3] and [4], and:

“[5]. It is in this context that when a birth is registered, F considers this to be the equivalent of an ‘entry into a ship’s manifest’, in which the child becomes ‘an asset to the country which has boarded a vessel to sail on the high seas.’ This facet of admiralty and maritime law is pervasive in F’s thinking. The essence of F’s objection is his belief that registration will cause his son to become controlled by a State which he perceives to be authoritarian and capricious.”

Mr Justice Hayden noted that C (Children) [2016] EWCA Civ 374 addressed restricting the parent’s choice of name, which was peculiarly offensive [i.e. “Cyanide”], as well as manifestly burdensome to the child. Having reviewed the applicable legal framework, King LJ concluded that the mother and father were under a legal duty to register the birth of their child as a facet of their parental responsibility.

The applicable legislation in the instant case was the Birth and Deaths Registration Act 1953 (BDRA), in particular S1(1) and (2), S2(1) and S4. Mt Justice Hayden stated:

“[10]. Section 4 BDRA provides that where, after the expiration of forty-two days, ‘the birth of the child has, owing to the default of the persons required to give information concerning it, not been registered…’, the Registrar can require any qualified informant to attend at a place appointed by the Registrar to give the required information and to sign the register in the presence of the registrar. (Section 6 BDRA 1953 makes a similar provision for circumstances in which, for whatever reason, the birth of a child has not been registered after three months but before the expiry of twelve months post birth)”.

He further stated:

“[14]. It is axiomatic that the effect of the making of a care order or interim care order, pursuant to section 33(3) CA 1989, grants a Local Authority Parental Responsibility. Section 33(3)(b) goes further, as it not only allows a local authority to share Parental Responsibility with a parent, but, additionally, gives it the power to:

‘determine the extent to which a parent may meet his parental responsibility for the child.'”

“[15]. That power is always subject to section 33(4) CA 1989 which states:

‘(4) The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.'”

Consequently, “A Local Authority is enabled, pursuant to section 33(3) CA 1989, to restrict the power of a parent to make decisions, across a broad spectrum, regarding a child’s life. The Local Authority may take over the reins, in the decision-making process in relation to a child in care subject to section 33(4) CA 1989 where there is a welfare or safeguarding imperative.”

Having concluded that the Local Authority had a statutory power to intervene pursuant to Section 33 (3) (b) CA 1989, “the Court of Appeal took the view that the seriousness of the interference with what it identified as ‘the Article 8 Rights of the mother’ demanded that the proposed course of action be brought before and approved by the Court” [18].

The instant case concerned with parental obligation to comply with a statutory duty as required by law. “This does not require…the oversight or approval of the Court. With respect to the father, it is a simple requirement in law. Nonetheless, in the light of the very disturbing history to this case and as there were various applications before the Court in any event, the Local Authority has chosen to seek the Court’s approval regarding the registration of T’s birth” [18].

One of the anomalies that came to light in Re C is the fact that Section 33 (3) CA 1989 provided a procedural route to the Court only in respect of surnames and not in respect of forenames. It was necessary to consider whether there was an alternative statutory route to redress this anomaly. This is the ‘locus classicus’ for the application of the inherent jurisdiction. In that case, King LJ concluded:

“In my judgment, the local authority took the correct procedural route when they made an application under section 100 CA 1989 seeking ” the intervention of the High Court in order to exercise its powers pursuant to section 100 Children Act (CA) 1989 and/or its Inherent Jurisdiction” (sic).”

Since in the instant case, the forty-two-day period for registration had ended, it was manifestly in T’s best interest for his birth to be registered, in order that he might be recognised as a citizen and entitled to the benefits of such citizenship. Furthermore, it was also in his interests that his father should, especially during the course of these proceedings, have Parental Responsibility for him. Although F’s previous behaviour towards HHJ Atkinson resulted in both he and his partner receiving a custodial sentence, “this does not prevent him from obtaining Parental Responsibility, it is an order that reflects T’s rights.”[20].

Mr Justice Hayden was “satisfied that the Local Authority may intervene to assert its own Parental Responsibility as a ‘qualified informant’ to register the birth and that the Interim Care Order embraces them as ‘any person having charge of a child within the meaning of s.1 (D) of Birth and Deaths Registration Act 1953’. In these circumstances the Local Authority is the institutional parent”.

Counsel for Tower Hamlets suggested that the Court may wish to augment this by making an order authorising the local authority to register the birth under Section 100 of the Children Act 1989; this “may in effect be a ‘safety net’ if the above reasoning is in doubt in some way.” However, Mr Justice Hayden said it required to be stated that “such an order is inconsistent with my conclusion [in London Borough of Redbridge v SNA [2015] EWHC 2140 (Fam) that Section 33 (3) CA 1989 is apt to address the requirement for registration”.