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Home > Publications > Selected cases — Parliamentary > Selected Cases and Summaries of Completed Investigations - November 1997 - April 1998 > C.654/96
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DEPARTMENT OF SOCIAL SECURITY
Mishandling of corrections to birth and marriage certificates
6.1 Mr and Mrs R complained about the way the General Register Office (GRO), which was part of the Office of Population, Censuses and Surveys, now the Office for National Statistics, had dealt with their application to correct the record of Mrs R's birth, their marriage, and their children's births.
6.2 The investigation began in July 1996 once the Parliamentary Commissioner's predecessor had obtained comments from the Deputy Registrar General after the Member had referred the complaint. I have not put into this report every detail investigated by the Commissioner's staff, but I am satisfied that no matter of significance has been overlooked. An appendix lists the abbreviations used in the report and their meanings.
Background
6.3 In 1971, GRO and the Government Social Survey Department merged to create the Office of Population, Censuses and Surveys, which became part of the Office for National Statistics on 1 April 1996. The office is supervised by the Director and Registrar General (the Registrar General). In accordance with section 1 of the Registration Service Act 1953 (RSA 1953) the Registrar General is appointed by the Crown to undertake duties conferred on him by statute. Section 5 of RSA 1953 stipulates that in every non-metropolitan county and metropolitan district, there shall be one or more registration districts, each with one or more sub-districts. For each district a superintendent registrar is appointed and for each sub-district a registrar. Local authorities appoint and pay the superintendent registrar and registrar but only the Registrar General can dismiss them from office.
6.4 The Births and Deaths Registration Act 1953 (BDA 1953) and the Marriage Act 1949 (MA 1949) specify how the national registration records in England and Wales are to be compiled. A statutory register entry is made of every birth, marriage and death occurring in England and Wales. Each quarter a certified copy of each register entry is sent to the Registrar General, who is required to make an index of those copy register entries and to provide searching facilities of that index to the general public. Section 30 of BDA 1953 and section 65 of MA 1949 entitle the public to search the indexes and, on payment of the statutory fee, to receive a certified copy of a register entry, commonly known as a birth, marriage or death certificate, identified from the index. The individual who gives the information and signs the register has responsibility for the content of that entry. The Registrar General does not have the authority to authorise amendments to the records except in the manner provided for by statute.
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6.5 At the time of Mrs R's birth in 1937, if a child was born to an unmarried mother, Regulation 27 of the Registration (Births, Stillbirths, Deaths and Marriages) Consolidated Regulations 1927 allowed the registrar to record the name of the father in the appropriate column of the register only if the father attended with the mother and they were both prepared to sign the entry. If not, no entry was made in that column.
6.6 Under section 1 of the Legitimacy Act 1926 (LA 1926), since repealed, a child born to unmarried parents who subsequently married each other was legitimated from the time of their marriage. The Schedule to LA 1926 allowed the Registrar General to authorise the re-registration of the birth of a legitimated person whose birth was already registered. The Schedule stipulated that ‘it shall be the duty of the parents of a legitimated person ... to furnish to the Registrar General information with a view to obtaining the re-registration of the birth of that person ... within three months after the date of the marriage.' If the parents failed to give the information in that time, the Registrar General could require the parents of a person he believed to be legitimated to attend at a registrar's office to give any information he required. More recently, under section 10A of BDA 1953, as inserted by section 25 of the Family Law Reform Act 1987 (FLRA 1987), a birth entry may be re-registered to add the name of a child's father whose parents are not married, but only if no person had been named as the father in the original entry. The section prescribes in detail the requirements for re-registration that either both parents must sign the register; or one parent must go to the register office with a statutory declaration of parentage made by the other parent or a court order naming the father. Regulation 33 of the Registration of Births, Deaths and Marriages Regulations 1968 and currently Regulation 25(b) of the Registration of Births and Deaths Regulations 1987 say that a copy of a superseded birth entry of a legitimated person shall not be supplied except with the authority of the Registrar General.
6.7 Section 56 of the Family Law Act 1986 (FLA 1986) as amended by section 22 of FLRA 1987 specifies that any person may apply to the court for a declaration that she has or has not become a legitimated person. Section 56(4) of FLA 1986 as amended says that the Registrar General shall be notified by an officer of the court if a declaration is made. When the Registrar General receives the declaration and it appears to him that that person's birth should be re-registered, he must give his authorisation for that as required by section 14A of BDA 1953, as inserted by section 26 of FLRA 1987.
6.8 Section 29(3) of BDA 1953 and Regulation 58 of the Registration of Births and Deaths Regulations 1987 (RBDR 1987) allow a superintendent registrar or registrar to amend an error of fact or substance in a birth entry by way of a marginal note. The amendment may only be made at the direction of the Registrar General and after the superintendent registrar or registrar has received a statutory declaration of the nature of the error and the true facts made by two ‘qualified informants of the birth', as defined in section 41 of BDA 1953 or, in default (usually the death of the qualified informant), by ‘two credible persons having knowledge of the truth of the case'. A credible person is not defined by statute but is interpreted by the Registrar General as a person having first hand knowledge of the truth. The Registrar General has discretion to refuse that person's evidence. When paternity is disputed, it is likely that evidence will be accepted only from a mother, father or putative father as a wider family member is not thought to have sufficient intimate knowledge of the circumstances of the case. Regulation 58 of RBDR 1987 provides wording for marginal corrections to birth entries. There is discretion for the marginal note to be written in that form ‘or such other form as the Registrar General may authorise in any particular case' but that discretion is only used in instances which involve the cancellation of an entry. In such cases no certificates will be issued from the entry. No question will therefore be raised over the validity of the marginal note. Section 13(1) of BDA 1953 provides that in limited circumstances a child's forenames may be changed in a birth entry but only within a year of the original registration. However, there is no statutory provision that allows the Registrar General to authorise any change to the record of an adult's forenames.
6.9 Section 61 of MA 1949 provides for the correction of errors in a marriage entry by the registrar of that marriage by a marginal correction witnessed by the parties to that marriage or, in the case of the parties' death or absence, by the superintendent registrar and two credible witnesses. Under Regulation 16 of the Registration of Marriages Regulations 1986, before the correction can be made, the registrar must follow any instructions given by the Registrar General to verify the facts. MA 1949 does not require any statutory declaration to be made or specify the wording of the marginal correction. GRO's 1974 internal guidance to staff on corrections said that a statutory declaration was the normal requirement when there was an application for the insertion of a name which appeared in a birth entry but which was not in use at the time of the marriage. By 1996 GRO's practice had evolved to the point that if a correction was offered to record one of the parties' name as ‘otherwise' or ‘formerly known as', GRO would first wish that party to make a statutory declaration. That policy was formalised in new internal guidance issued in April 1996. GRO's handbook for registration officers says that the instructions sent to them on correcting marriage entries will give the wording of the marginal note.
6.10 The Registrar General accepted the results of blood tests as evidence of non-paternity after provisions were made by section 20 of the Family Law Reform Act 1969 allowing the court to order such tests. Although section 23 of FLRA 1987 enabled the court to order DNA tests to show that a party to proceedings was not the father or mother of that person, that provision was not brought into force and directions for blood tests continue to be made by the court under section 20 of the Family Law Reform Act 1969. The first case in which a DNA tester was accepted by GRO as a declarant in a paternity case where conclusive DNA tests existed was in September 1992. Guidance to GRO staff on accepting a DNA tester as a credible person in an application to remove a father's details from a birth entry was then issued on 25 September 1992. Before that, precedent cases were consulted on the question of whether the DNA tests were acceptable evidence of paternity. The September 1992 instructions say that if there is good evidence of paternity such as DNA test results, and the necessary declaration by the parents is not forthcoming, staff may use their discretion in suggesting another suitable declarant, such as the DNA tester.
6.11 Regulation 2 of RBDR 1987 gives the statutory definition of a married woman's maiden surname as the surname under which she contracted her marriage. It follows that if a woman discovers after her marriage that her maiden name was neither the name of her mother nor father there is not necessarily an error in the marriage entry. However, GRO's handbook for registration officers says it is important for it to be possible in later years to trace the parents' marriage entry from a birth entry, to prove parentage and descent, for example for the purposes of inheritance.
Jurisdiction
6.12 Superintendent registrars and registrars do not act on behalf of any government department listed in Schedule 2 to the Parliamentary Commissioner Act 1967 and therefore are not subject to the Commissioner's jurisdiction. I refer to them only to place in context the actions taken by GRO staff handling Mrs R's case. Section 12(3) of the Parliamentary Act 1967 precludes the Commissioner from questioning the merits of a discretionary decision where that has been taken without maladministration.
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Investigation
6.13 1937: Mrs R was born on 3 January 1937. On 12 February her birth was registered in the name of Miss Q as the child of Miss K Q. The name of her father, Mr S, was not recorded.
1940: On 21 October 1940, Miss K Q married Mr T.
1948: On 3 February 1948 GRO received an application to re-register Miss Q's birth under LA 1926, purporting to have been signed by her mother and natural father, Mr T. The application claimed that she had been legitimated by their marriage. On 6 February Mr T signed a declaration required by the Registrar General to support the application declaring that he was Miss Q's natural father. The Registrar General authorised the re-registration on 12 March. The original entry was cancelled by a marginal note and a new entry was made in the birth register on 5 April. That showed Miss Q to be the child of Mr T and Mrs T, formerly Miss K Q. Mr T signed the register acknowledging that the details were correct. Miss Q was there after deemed to be Miss T, the legitimate child of Mr and Mrs T.
1958: Mr S died on 11 January 1958.
1960: On 28 March 1960 Miss T married Mr R at L Register Office. Their three children were born in July 1965, April 1968 and September 1970.
6.14 1976: Mrs R wrote to GRO on 4 February 1976 asking if an adopted person could obtain a copy of her full birth certificate without giving up the short version which gave only the surname of her adoptive father. She asked how the birth certificate of an illegitimate child was affected if the child's mother married a man other than the child's father and changed the child's name to his, or the child was adopted by him. She also asked whether in such circumstances GRO would need to contact a mother and adoptive father for their permission if the adopted child wanted a copy of her full birth certificate. The Adoption Registry replied to Mrs R on 12 February 1976 saying that such a person could have a full copy of a birth entry if it could be identified in the alphabetical birth index. That person would not need to give up any other certificate. After an adoption the original birth certificate did not change but ‘adoption' would be noted in the margin.
6.15 On 3 March GRO duly received Mrs R's application for a copy of her birth certificate. She gave her surname at birth as Q and her father's name as ‘not known'. On 12 March GRO replied that an entry had been found in the alphabetical birth index in the name of Q but that entry had been superseded by a later entry showing her natural parents as Mr and Mrs T. They asked her to confirm whether she wanted a certificate of the later entry. On 17 March Mrs R applied for certificates of both entries and asked for the dates when the entries were made. GRO sent the certificate of the later entry on 8 April and explained that, as it had been entirely superseded, a certificate of the original entry would be supplied only in the most exceptional circumstances. If she gave the reason for wanting it they would give her further advice. On 3 May GRO received a reply from Mrs R saying that she was fully aware of the circumstances of her birth and only wanted the certificate of the original entry to complete her personal historical documentation as one step in tracing her family history. On 18 May GRO replied repeating that a certificate of a superseded entry would be issued only in the most exceptional circumstances such as for legal purposes. As Mrs R had said she knew about the circumstances of her birth and the relevant particulars were in the later certificate, GRO felt that no useful purpose would be served by supplying a certificate of the original entry.
6.16 1989: There matters rested until on 4 September 1989 Mrs R wrote to GRO saying that she remained amazed that an original birth entry could be superseded and that the child had no right to see it. She asked, among other enquiries, when her birth had been re-registered; if she had been adopted; under what circumstances a birth entry could be superseded and a certificate of the superseded entry could be issued to the child, and why her letter of February 1976 had been sent to the Adoption Registry at Titchfield.
6.17 1990: GRO wrote to Mrs R on 6 October 1990 apologising the for extreme delay in replying if, as it appeared, her letter was more than a year old. They acknowledged that the policy of not supplying a certificate of the superseded entry had distressed her and offered to send a copy of the original entry. They added that ‘... any birth registration should be a true record of the natural parents of a child' and explained the circumstances of the re-registration of her birth. On 16 October Mrs R replied that she appreciated the understanding they had shown and confirmed that she wanted a certified copy of her original birth entry.
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6.18 When detailing her complaint for the Member, Mrs R said that she discovered from her mother the true identity of her natural father only in December 1990.
6.19 1991: Mr T died on 4 May 1991. In October Mrs R and her husband began search to trace her natural father's, Mr S's, family, after which she met and was acknowledged by his relatives.
6.20 1992: On 18 October 1992 Mrs R wrote to GRO enclosing a letter dated 23 September 1992 but not then sent, applying for the re-registration of her birth. Also enclosed was a declaration signed by her mother, Mrs T, naming Mr S as Mrs R's father. Mrs R explained that she had spent a year investigating her family history and had enough information to correct the errors which had worried and distressed her for many years. She wanted the 1948 re-registration of her birth to be rescinded, the records naming Mr T as her father to be expunged, her original birth certificate to be superseded so that Mr S was shown as her father, her third forename ‘E' (an alias of Mr S) to be changed to ‘S', and for the indexes to be amended accordingly. She further argued that her marriage and her children's birth certificates were incorrect; they should give her maiden name as Q because otherwise genealogical research into the T line would lead to wrong conclusions. Family members could confirm that Mr T was not her father. She suggested that the hospital which he had attended might give GRO the details of Mr T's blood group: she had been refused that information. Mrs R asked for a copy of the 1948 application to re-register her birth. She said she was surprised that the Registrar had accepted it as it had not been made until seven years after the marriage. The national records of births, deaths and marriages were an important source of historical data. As an amateur genealogist she was distressed that false information had been filed about her. She asked for her case to be treated sympathetically as it was extremely important for her family. She explained that she had delayed sending her letter to wait for her solicitors' comments. They had advised her that the declaration signed by her mother which she had enclosed would not suffice and that it would need to be supported at least by a statutory declaration signed by Mrs T, the only person directly involved who could now give the irrefutable evidence that GRO would need. Mrs R explained that, since her father had been buried, it would be possible to arrange DNA testing but that it would be extremely upsetting for the family.
6.21 A senior officer (whom I call officer A) replied on 6 November explaining that there was no time limit for re-registering a birth under the Legitimacy Act 1926. Mr and Mrs T had signed an application saying Mr T was her father. The re-registration had relied on that. As a birth entry was a legal document, it could only have been rescinded if GRO could have been satisfied by statements from both Mr and Mrs T, or by DNA tests, that he was not her father. After that they would also have needed both Mr and Mrs T to have provided statutory declarations. As that was not possible, Mrs R's only option was to apply to the Court for a declaration of parentage under section 56 of FLA 1986 as amended by FLRA 1987 (paragraph 6.7). Because she was an adult, it was not possible to change her forename from ‘E' to ‘S' (paragraph 6.8). T was the name she was using when she married so there was no error in her marriage certificate and it could not be amended (paragraph 6.11). Similarly, there was no error in her children's birth certificates as T would be the name needed to trace her marriage entry for future genealogical research. Officer A asked for Mrs T's written permission to send Mrs R a copy of the 1948 application. GRO received that and on 20 November sent a copy to Mrs R.
6.22 1993: On 21 January 1993 Mrs R's solicitors (the solicitors) wrote to GRO saying that the letter of 6 November 1992 first implied that Mrs R's birth could be re-registered if she gave them irrefutable scientific evidence and a statutory declaration from Mrs T but went on to say that Mrs R must apply to the court for a declaration of parentage, which would greatly increase the costs. Mrs R had arranged for DNA testing. They would also be able to provide sworn affidavits with exhibits from Mrs R and Mrs T. The evidence would therefore be as complete as that needed by the court for a declaration of parentage. They asked for confirmation that, if such evidence showed clearly that Mr T could not have been Mrs R's father, re-registration of the original entry and cancellation of the 1948 re-registration could be made without the need for court proceedings. On 10 February officer A replied that sworn affidavits and DNA testing would not satisfy the requirements of section 10A of the BDA 1953 (paragraph 6.6). In any event provision for re-registration applied only when a father was not named in the entry. Mr T was shown as her father and so GRO were unable to correct the entry. Mrs R's only option was to apply for a declaration of parentage. In April Mrs R received the result of a DNA analysis on herself and Mr T's sister which was fully consistent with Mr T's sister being unrelated to Mrs R. In August Mrs R received the results of DNA analyses on herself and two daughters of one of Mr S's sisters which were consistent with those two daughters being distantly related to Mrs R, for example cousins.
6.23 1994: On 3 May 1994 Mrs R applied to the court for a declaration of parentage, citing as evidence her mother's sworn affidavit and the DNA test results. On 26 October the court declared that Mrs R was Mr S's child and had not been legitimated under LA 1926 by the marriage of Mr and Mrs T.
6.24 1995: The solicitors wrote to GRO on 5 January 1995 saying that the declaration of parentage had been granted. They asked about the procedures to achieve the corrections that Mrs R wanted to her birth, marriage and children's birth certificates and enclosed her instructions setting out the form of corrections that she proposed. GRO wrote to the solicitors on 1 March 1995 asking for certain further particulars for the new registration of Mrs R's birth. The solicitors replied on 14 March. They enclosed a letter dated 8 March in which Mrs R gave GRO the information they had asked for and repeated the corrections she had proposed to her marriage and children's birth entries. Mrs R also asked for two copies of each corrected certificate to be sent to her. The solicitors suggested that GRO should in future contact Mrs R direct to reduce costs and delay.
6.25 On 23 March GRO instructed the registrar at M register office to re-register Mrs R's birth. They instructed that Mrs R should be told when the new certificate was available. However, Mrs R was not told when her birth entry was re-registered on 24 March. On 16 May Mrs R wrote to GRO referring to telephone calls she had made to them and to M register office the previous day. She complained that neither of them had notified her when her birth was re-registered or sent her copies of the certificate. She and her family were now worried about the corrections to her marriage and the children's birth entries which still showed her as the daughter of Mr T. GRO had implied that there could be problems with the necessary corrections. However, the corrections must follow from the re-registration of her birth as there would otherwise be no way of connecting her new birth entry with the record of her marriage and birth of her children: it was as if the person shown on the marriage and children's birth certificates had never been born. That was not satisfactory for her family or for the national records. She asked why the corrections section of GRO had not dealt with the problem and what she should do. Mrs R received copies of her new birth certificate in late May, which she returned to M register office immediately as they contained errors. On 1 June GRO wrote to Mrs R apologising that M register office had not told her when her birth was re-registered and for the mistakes in the new certificate. Her birth would be re-registered again and replacement certificates sent to her. After that the papers would be sent to the corrections section so that the associated changes to her marriage and children's birth certificates could be considered. Mrs R acknowledged GRO's letter on 5 June and asked that the replacement certificates be written in presentable script: she said the handwriting on the previous copies was awful. On 19 June Mrs R's birth was re-registered again.
6.26 On 23 August Mr R telephoned the corrections section to check on their progress. An officer explained the procedure for correcting a marriage certificate, including that Mrs R would be required to make a statutory declaration. He also explained that because of the legal definition of a maiden name (paragraph 6.11), he did not think the children's birth entries could be amended. Mr R told the officer that he thought they had been dealing with the amendments since March. The corrections section wrote to Mrs R on 6 September about Mr R's telephone call. They explained the procedure for corrections to the marriage entry and gave the proposed wording. They also enclosed a form of words for the statutory declaration and said that the Registrar General would prefer Mr and Mrs R to attest to the facts before the correction was made. Mr and Mrs R replied on 10 September saying that that would lead to more expense. They were shocked that the parental declaration (paragraph 6.23) was not enough for the correction to the marriage certificate. They asked the Registrar General to reconsider whether a statutory declaration was necessary. They added that if the marriage entry could be corrected by a marginal note, then logically, so could the children's birth entries. They asked for confirmation that all the corrections would be cross-referenced in the national index. They said they would be instructing their solicitors again.
6.27 On 20 October the solicitors wrote to the corrections section. They said that the information in the register entries for Mrs R’s marriage and her children’s births had been unwittingly derived from an illegal deception. If the entries were not changed the records would be incorrect. That could not have been the intention of Parliament. Mrs R was worried that her family were committing an offence by using the certificates knowing them to contain false information. They suggested that Regulation 58 of RBDR 1987 (paragraph 6.8) allowed marginal notes to be made to correct the errors in the children’s birth entries. On 20 November Mr and Mrs R wrote to the Registrar General direct, asking for his personal intervention. They questioned whether officer A had given them correct advice about the need for a declaration of parentage. Taking the matter to the High Court had involved a huge amount of time and energy and had cost about £12,000. It seemed illogical that Mrs T’s statutory declaration had been deemed inadequate to allow Mrs R’s birth entry to be corrected yet the High Court ruling, which had been deemed essential for that, was now held to be inadequate without a further statutory declaration if the consequential amendments to the marriage and children’s birth entries were to be made. It was a year since the declaration of parentage had been made. That was an unreasonable delay. The circumstances were not adequately covered by existing regulations and should have been treated as exceptional. They asked the Registrar General to use his discretion to have the records amended as they had asked so that they would be accurate and consistent.
6.28 On 23 November the corrections section wrote to the solicitors saying that the Registrar General was prepared to authorise the correction to Mrs R’s marriage entry by a marginal note without a statutory declaration. The children’s birth entries could also be amended by marginal notes but statutory declarations would be needed. They gave the wording for the marginal notes. Mrs R wrote to the Registrar General on 27 November saying that she did not like the proposed wording of the marginal corrections as it failed to show that the 1948 re-registration had been illegal. She suggested alternative wording for all the corrections and reserved the right to make the statutory declaration in her own words. She also asked for an answer to her question about cross-referencing the corrections. On 28 November Mrs R wrote to the corrections section enclosing a copy of her letter to the Registrar General. She said that she was no longer instructing the solicitors. The corrections section replied on behalf of the Registrar General to Mrs R’s letter of 20 November on 29 November saying that she had been given correct information about the need to make an application for a declaration of parentage. The Registrar General could only act within the law.
6.29 On 12 December the corrections section replied to Mrs R’s letter of 27 November. They said that the wording for the marginal note to the marriage entry was defined by the Registration Consolidated Regulations 1954 and although Mrs R’s proposal was undeniably clear, it was beyond the Registrar General’s remit within current legislation. The wording for the marginal notes to the entries for the children’s births was also laid down by statute. The Registrar General did not have discretion. They explained that the correction to the marriage entry had to be witnessed by Mr and Mrs R but the corrections to their children’s birth entries needed a separate statutory declaration for each entry although not the parents’ attendance. After the corrections had been made the indexes would be amended to give a reference for the entries under all the relevant surnames.
6.30 1996: Mrs R wrote to the corrections section on 9 January 1996 saying that she and her family were disappointed that their wording could not be used for the marginal corrections. They thought the legislation was behind social trends. She asked for the three forms of statutory declaration. On 29 January the corrections section wrote to Mrs R asking her to arrange to go to L register office with her husband to witness the correction of their marriage entry. They said that the Registrar General would accept statutory declarations for the corrections to the children’s birth entries in the wording she wanted. They enclosed forms of declaration and gave the wording of the marginal notes. Mrs R returned the statutory declarations to the corrections section on 21 February. She said that after checking with N register office (where her first child’s birth had been registered), she had amended a minor error in an entry number in one heading. On 8 March the corrections section wrote to the superintendent registrars in the N and O sub-districts (where Mrs R’s second and third children’s births had been registered) enclosing the statutory declarations for the correction to the children’s birth entries and asking them for copies of the corrected entries. The birth entries were corrected on 14 and 19 March and the corrections section notified Mrs R on 26 March. They explained that full certificates would include the marginal notes. On 28 March Mr and Mrs R witnessed the correction of their marriage entry.
6.31 When giving the Commissioner’s staff her initial comments on the complaint, the Deputy Registrar General said that there could be no justification for the delay in replying to Mrs R’s letter of 1989 (paragraphs 6.16 and 6.17), which left the office open to a finding of maladministration, as to a lesser extent did other errors. She said that, although GRO had sought to be helpful, too many mistakes had been made and, as a whole, GRO’s performance had been poor. She recognised Mr and Mrs R’s frustration and asked for her profound apologies to be passed on to them. She added that Mrs R had inevitably incurred expense because of the length of time that had passed before she had found out about the false declaration of 1948 coupled with the legal requirements governing corrections. However, she could not at present see how the expense to Mrs R had been increased by GRO’s handling of the case.
6.32 In giving more detail, the Deputy Registrar General said that the primary legislation for the correction of errors in birth entries was section 29 of BDA 1953 (paragraph 6.8). The Registrar General had been unable to apply the legislative procedure to correct Mrs R’s birth record or to re-register her birth naming Mr T as her father because Mr T and Mr S had died and there was no medical evidence of paternity. Officer A had been correct to tell Mrs R that her birth entry could only be amended by way of a declaration of parentage. The wording of the marginal note on the correction of the entries for the children’s births was prescribed by Regulation 58(2)(b) of RBDR 1987 (paragraph 6.8) and the Registrar General had no power to waive or vary it. The wording used for marginal notes in correcting marriage and birth certificates needed to be consistent with the wording that would have been recorded at the time of the original registration because the way the information was recorded and interpreted changed over time. Any deviation from the wording in the original regulation would leave the entry open to misinterpretation and suspicions that it had been interfered with. Delay had arisen because work on correcting errors to the re-registration of Mrs R’s birth entry should have proceeded in parallel with work by another section to correct Mr and Mrs R’s marriage and children’s birth certificates but did not. The Deputy Registrar General said that there were other occasions when action could have proceeded faster but the case was complex and GRO were not staffed to deal with correspondence at very high speed except in cases of substantial urgency. Apologies had been sent to Mr and Mrs R at the time of the delay.
6.33 The Deputy Registrar General said that GRO had misdirected Mrs R in that they should not have asked for a statutory declaration in respect of her marriage entry (paragraph 6.26). There was no statutory requirement for such a declaration and, as GRO had all the necessary information, the officer handling Mrs R’s case should have exercised discretion. GRO had made two other errors: one in the instructions sent to M register office in March 1995 (paragraph 6.25) to re-register Mrs R’s birth and the other in the entry number on one of the statutory declarations sent to Mrs R in January 1996 (paragraph 6.30).
6.34 The Deputy Registrar General said she rejected any suggestion that GRO did not attach proper importance to the records being correct; GRO’s objective had been that the records should be correct as required by law. Mr and Mrs R were anxious that future generations would be able to trace Mrs R’s origins from the information in the relevant certificates. That was a consideration for the Registrar General but not necessarily a determining one. Eventually GRO had agreed to changes to the entries that made clear the links between them so the question arose as to why that had not happened earlier. The answer was that GRO’s policy had moved forward in recent years from strict adherence to the letter of the law to flexibility within the law to accommodate reasonable wishes. The Deputy Registrar General acknowledged that GRO’s replies to Mrs R in 1976 (paragraphs 6.14 and 6.15) looked indefensibly negative by today’s standards and said that the letter of 6 November 1992 (paragraph 6.21) would almost certainly have been more constructive if written currently.
6.35 The Deputy Registrar General confirmed that a certificate from the superseded birth entry of a legitimated person would be supplied only in exceptional circumstances. A note of the re-registration was reproduced on any full certificate of the superseded entry which effectively made the certificate invalid for official purposes. GRO had a policy of caution in supplying such certificates, to protect families from the possible misuse of the certificate or the information it contained. In 1976 Mrs R had told GRO that she knew about the background to her birth but was interested in tracing her family history. The officer had decided not to send the certificate to her as GRO thought it would not have added to her knowledge and the reason given was not exceptional.
6.36 The Deputy Registrar General explained that Mrs R had had no statutory right to see the 1948 application to re-register her birth. Such applications were treated in confidence and the GRO’s policy was not to release any individual’s statement without their permission. However, if Mrs T had died, Mrs R would probably have been allowed a copy since it was unlikely that any other person would have objected.
Findings
6.37 The Deputy Registrar General has explained why GRO had decided not to send Mrs R a certificate of her superseded birth entry in 1976 (paragraph 6.35). That was a discretionary decision and I do not intend to comment further other than to note that GRO replied more sympathetically to Mrs R in 1990 and sent the certificate when her distress was evident.
6.38 The Deputy Registrar General has apologised (paragraph 6.31) for the long delay in replying to Mrs R’s letter of 4 September 1989 and indeed GRO apologised at the time. I observe that Mrs R did not complain about the delay in 1989 or ask for an earlier reply and I make no further comment.
6.39 At the heart of Mrs R’s complaint is the handling of her letter dated 23 September 1992 and sent on 18 October to GRO (paragraph 6.20) and the correspondence which followed. That letter showed the depth of Mrs R’s distress about the re-registration of her birth in 1948. She was surprised that her birth could be so easily re-registered more than seven years after Mr and Mrs T’s marriage. However, there is no reason to doubt that the correct procedures (paragraph 6.6) were followed at that time. Mrs R asked both for the birth entry showing Mr T as her father to be rescinded and expunged, and for her original birth entry to be superseded so that Mr S was recorded as her natural father. Officer A replied on 6 November 1992 (paragraph 6.21) that Mrs R’s only option was to apply for a declaration of parentage. That was correct if Mr S was to be named in Mrs R’s birth entry. The more limited possibility of only rescinding and expunging the re-registration was not explored at that stage. However, when the solicitors wrote on 21 January 1993 (paragraph 6.22) they offered sworn affidavits from Mrs T and Mrs R and, most importantly, said that DNA test results were being obtained which they expected to provide evidence that Mr T could not have been Mrs R’s father. The solicitors specifically asked if Mrs R’s birth entry could be re-registered in the original entry, cancelling the 1948 re-registration, without the need to start court proceedings. GRO correctly explained that section 10A of BDA 1953 did not apply (paragraph 6.6) but did not explain that for the partial solution of restoring the original registration the Registrar General had discretion to accept a statutory declaration from two informants who could include a DNA tester (paragraphs 6.8 and 6.10). Instead they explicitly stated that they were unable to correct the entry to remove Mr T’s name.
6.40 In her letter of 23 September 1992, Mrs R asked for a copy of the application to re-register her birth in 1948. The Deputy Registrar General has said (paragraph 6.36) that GRO’s policy is not to release an individual’s statement to a third party without their permission. I recognise that confidentiality is an important consideration but I am pleased to note that the Deputy Registrar General has accepted that GRO would probably have sent Mrs R a copy in the event of Mrs T’s death. It would seem to me unreasonable to prevent an individual from having information about her past, particularly when one of the objectives is to make sure that the records are correct.
6.41 The Deputy Registrar General has acknowledged that GRO contributed to further delay and error by sending incorrect instructions to the M register office. That carelessness was particularly reprehensible in view of the meticulous efforts Mrs R and the solicitors had made to secure accurate corrections to the records. It is not for the Commissioner to investigate the actions of the M register office (paragraph 6.12). However, there can be no doubt that Mrs R’s sense of frustration was exacerbated by the failure to notify her immediately of the re-registration of her birth and by her finding that the new certificates, when they arrived, contained errors and were in poor-quality handwriting.
6.42 1. As Mrs R said on 16 May 1995 (paragraph 6.25), after the re-registration of her birth it was as if the person named on her marriage and children’s birth certificates had not been born. I can well understand that Mrs R found it perverse that the correction of her birth entry did not lead automatically to consequential corrections to her marriage and children’s birth entries, although that was indeed the statutory position. In the event it was only Mr and Mrs R’s tenacity that caused the alleged requirement for a statutory declaration for the correction of their marriage entry to be dropped and saved them from incurring further costs. The Deputy Registrar General has explained why at the time GRO did not consider that corrections to Mr and Mrs R’s marriage and children’s birth certificates were essential (paragraph 6.34). I do not dispute the statutory basis for GRO’s view but I am pleased that the policy on applying the legislation has since changed to a more flexible approach.
6.43 The initial comments made by GRO in November 1992 about correcting the children’s birth entries implied that, because of the statutory definition of a maiden name, the Registrar General had no discretion to authorise corrections whereas GRO’s internal guidance recognises that it is important for an individual to be able to prove parentage and descent (paragraph 6.11). Mr and Mrs R persisted with their application but even as late as 23 August 1995 GRO were still saying that they did not think it was possible to amend the entries (paragraph 6.26). Mr and Mrs R suggested correction by way of a marginal note. They said they would be re-instructing their solicitors. That caused to them to incur further costs. The solicitors wrote on 20 October suggesting that Regulation 58 of RBDR 1987 authorised the Registrar General to allow a marginal correction to the children’s birth entries. GRO replied substantively on 23 November, apologising for the delay and saying that the Registrar General was prepared to authorise a correction to the marriage entry without the need for a further declaration, and that it would be possible to correct the children’s birth entries in a similar manner subject to statutory declarations by Mr and Mrs R. GRO had earlier taken the view that there was no error to correct. On a strict application of the law that was, and remains, the case. However, in the light of the agreement to re-register Mrs R’s birth and the arguments she and her solicitors had advanced for consequential changes to the records, such a response lacked the flexibility that was called for. Although the more flexible approach adopted in November 1995 is to be welcomed and Mr and Mrs R finally received the benefit of a more ‘customer friendly’ approach by then being developed by GRO, I find that if Mr and Mrs R had not had the benefit – and expense – of legal advice, and had not been so persistent, the corrections that were so important to their family would almost certainly not have been achieved.
6.44 GRO were right to tell Mrs R that the legislation (paragraph 6.8) did not give the Registrar General authority to change the registration of her third forename from ‘E’ to ‘S’. However, while I acknowledge that uniformity, as well as clarity, is an important consideration so that users of the record are not led to suspect irregular tampering, I am not convinced that the Registrar General’s discretion in the wording of the marginal corrections of the children’s birth entries was necessarily as constrained as GRO have said (paragraph 6.32). It seems to me that Regulation 58(2)(b) of RBDR 1987 (paragraph 6.8) could have been interpreted more flexibly at the outset. I note that no form of words is specified for marginal notes to marriage entries by section 61 of MA 1949 (paragraph 6.9).
6.45 GRO then made a numerical error in a heading of a draft statutory declaration to correct one of Mr and Mrs R’s children’s birth entries (paragraph 6.30). Although that was a minor error, Mrs R had to make yet another telephone call to get it put right and, in the context of the catalogue of earlier mistakes, that becomes more significant. GRO’s failure to reply to Mr and Mrs R’s enquiry in September 1995 (paragraph 6.26) about the cross-referencing of the indexes after the corrections until she had written to them again in November (paragraph 6.28) was another example of poor service.
6.46 I am satisfied that GRO have now recognised that their past procedures were inflexible and have taken steps to update their guidance to accommodate reasonable requests made by members of the public. The Deputy Registrar General has said that this case was complex (paragraph 6.32). However, there was a piecemeal rather than a coordinated approach to Mr and Mrs R’s application. No aspect was handled well and I criticise GRO’s performance as generally slow, inflexible and inefficient. That inevitably led to errors such as asking Mr and Mrs R for an unnecessary statutory declaration and a failure by officers to give complete and accurate information. Mr and Mrs R only achieved their aims because of their tenacity. Less persistent individuals would have failed. Mr and Mrs R had to re-instruct solicitors, make telephone calls and write letters themselves to persuade GRO that corrections should be made to their marriage and children’s birth entries. They were so frustrated with the service they received from GRO that they wrote directly to the Registrar General, although they did not get a personal reply.
6.47 I accept that to meet the statutory requirements Mrs R did need a declaration of parentage from the court if she was to secure the recording of Mr S as her natural father, entailing substantial costs. However, it is clear that, by the time of her solicitors’ letter of 21 January 1993, Mrs R was considering settling for the more limited change of deleting Mr T’s name from her birth entry. I accept that the evidence which she then expected to acquire would not necessarily have been sufficient for GRO’s purposes to accomplish that partial solution: she would also have needed a statutory declaration from the DNA tester that the tests conclusively excluded Mr T from paternity, which might not have been forthcoming. However, she could and should have been advised that the partial solution did not necessarily depend on a court declaration, and have been told what the minimum requirements were to achieve that objective. Instead she was given to understand that her options were all or nothing. I find that she was misdirected. When I put those points to the Registrar General he told me in reply that he doubted that a DNA tester would have felt able to make a statutory declaration which specifically excluded from paternity a person who had not been party to the tests. With Mrs R’s permission I sent him copies of the results of the DNA analyses. The Registrar General said that having studied them, his staff had concluded that it was most unlikely that any DNA tester would have been willing to make the statutory declaration which would have been necessary even for the partial solution of removing Mr T’s name from the registration. Given the importance of that question to GRO’s response to my findings they had contacted the DNA tester (from whom they had had a number of declarations in paternity cases). She had told them that she would not have felt able to have made a statutory declaration in Mrs R’s case. It followed that Mrs R would have needed to have sought a declaration of parentage in order to secure any change at all. However, the Registrar General said that he did not wish to dispute my criticism of GRO for not setting out the possibility of a partial solution in the letter of 10 February 1993.
6.48 The Registrar General said that he accepted the implication of my findings that Mr and Mrs R were put to additional trouble as a result of GRO’s handling of the case. He was prepared to offer them an ex gratia payment of £1,500 by way of compensation for that.
Conclusion
6.49 I regard the Registrar General’s offer of ex gratia payment of £1,500 to Mr and Mrs R as a suitable outcome to a justified complaint.
10 December 1997
Summary
Appendix
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Abbreviations and their meanings |
| BDA |
1953 Births and Deaths Registration Act 1953 |
| FLA |
1986 Family Law Act 1986 |
| FLRA |
1987 Family Law Reform Act 1987 |
| GRO |
General Register Office |
| LA |
1926 Legitimacy Act 1926 |
| MA |
1949 Marriage Act 1949 |
| RBDR |
1987 Registration of Births And Deaths Regulations |
| 1987 |
(SI 1987 2088) |
| RSA 1953 |
Registration Service Act 1953 |
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