Publication - Publication

Review of Children (Scotland) Act 1995 consultation: analysis

Published: 22 May 2019
Directorate:
Legal Services (Solicitor to the Scottish Government)
Part of:
Law and order
ISBN:
9781787818163

This report provides an analysis of the consultation responses from the consultation on the Review of the Children (Scotland) Act 1995.

209 page PDF

1.1 MB

209 page PDF

1.1 MB

Contents
Review of Children (Scotland) Act 1995 consultation: analysis
13 Birth Registrations

209 page PDF

1.1 MB

13 Birth Registrations

13.1.1 Both the main consultation document and the young persons’ survey sought views in relation to:

  • Allowing children to apply for a change of name on birth certificates; and
  • Seeking the child’s views on changes of name on a birth certificate.

13.1.2 The main consultation also asked respondents to consider registration of births by unmarried fathers.

13.2 Change of Name in the Birth Register by Under 16s

13.2.1 The Scottish Government invited views on whether young people under 16 with capacity should be able to apply to record a change of name themselves.  Respondents to the main consultation were asked whether a person under 16 with capacity should be able to apply to record a change of their name in the birth register, while the young persons’ survey asked whether children should be able to ask to change their name on their birth certificate themselves.

Q45. Should a person under 16 with capacity be able to apply to record a change of their name in the birth register?

Number Percentage
Yes 82 32%
No 76 30%
No response 96 38%
Total 254 100%

13.2.2 Respondents to the main consultation were split in their opinions, with 32% agreeing this should be possible and 30% indicating that it should not.  The remaining 38% did not give a response.

YP14. Should children be able to ask to change their name on their birth certificate themselves?

Number Percentage
Yes, at any age 23 8%
Yes, but only if they understand what this means 133 45%
No 32 11%
Don’t know 6 2%
No response 101 34%
Total 295 100%

13.2.3 Over half (53%) of respondents to the young persons’ survey, however, felt that children should be able to change their name on their birth certificate, although most of these respondents felt this should only be possible if they understood what this means (45% compared to 8% who felt that those of any age should).  One in ten (11%) felt that children should not be able to do this, while 2% did not know and 34% did not give a response.

Increasing Personal Choice/Autonomy for Young People

13.2.4 Several individuals and organisations to the main consultation suggested that allowing children with capacity to change their name on their birth certificate would provide greater choice and autonomy for young people, as well as promoting the rights of the child.  Indeed, several individuals and organisations noted that the current system allows a child’s name to be changed by a parent without the child being consulted.  As such, the proposed change was considered to minimise the risk of parents misrepresenting the wishes of children, and more accurately reflect the child’s position:

“I see this proposal as one that expands the autonomy of older children, and also one that reduces the tendency of parents to believe that their decisions in relation to the child are more important than those of the child him- or herself.”  (Individual)

“This will keep the young person at the centre and give that young person more autonomy.”  (Local Authority)

13.2.5 It was noted by a few individuals and several organisations that young people under the age of 16 can withhold consent for adoption, make wills, instruct a solicitor, and consent to medical treatment.  Therefore, allowing children to apply to change the name on their birth certificate was considered to provide consistency with these other issues of civil law.  Some organisations also suggested that the change was required to align with children’s rights in terms of the UNCRC, and with existing Scots law on legal capacity.

13.2.6 It was also suggested by young people that a child should have some say/make the decision if they don’t like their name/want to change it as they have to live with it.  Two noted that they had known as young as 8 years old that they wanted to change their name.

Removing Links to Absent or Abusive Parents

13.2.7 Young people who felt a child of any age should be able to change their name on their birth certificate typically suggested that they should not be forced to keep the name of an absent or abusive parent (or a name they do not like).

13.2.8 This was also an important factor for individuals and organisations in the main consultation.  It was felt that children who no longer wanted to be linked to, or identify with abusive and/or absent parents should be permitted to change their name on their birth certificate.  Indeed a few suggested this can be helpful in improving the child’s safety and was part of the ‘healing process’ for some.

13.2.9 Similarly, several respondents (generally organisations) suggested this would be a positive step for children in care who wish to distance themselves from their birth family and/or who wish to change their name to match that of their long term carers (although it was suggested that advocacy support may be required to support young people in such situations).

13.2.10 Also, where a child had been living with a different name for some years, or had made repeated requests over a significant time period, several individuals felt they should be afforded the right to legally change their name. 

Requires Capacity to Make the Decision

13.2.11 Some young people who were supportive of children being allowed to change their names when they understand what this means suggested it was important that the child understands the consequences and to ensure that they have good reasons for seeking the change, and are not simply changing it because they can/for fun:

“Too young and they would change it to something silly without understanding the 'severity' of their actions. However, it should be assessed how strongly the child feels and how much thought has been put into the decision as some young children are wise beyond their years for a variety of reasons.”  (Young Person, Age 13-16)

13.2.12 Although a child’s capacity was incorporated into the proposal given to respondents in the main consultation document (i.e. they were not asked to decide whether capacity was required or not), some specifically mentioned the need for capacity in their response.  Some felt that young people could be supported to ensure they understood the decision and consequences, but where a child showed such capacity, it was generally felt that an application should be allowed:

“If a child has capacity, then they should be able to make this decision for themselves, ensuring that their view is the view truly being heard and held.”  (Individual)

Identity and Transgender Reasons for Allowing Children to Apply

13.2.13 A few young people, individuals and organisations also noted that there may good reasons for a child wishing to change their name, for example if they identified as transgender and had adopted a new name in line with their gender identity.  In particular, it was highlighted that transgender children/young people can already change other documentation, but not their birth certificate, meaning that official documents will conflict.  However, it was also considered important to allow changes to their sex on the birth certificate to ensure both match a young persons’ identity, otherwise, it was felt there may not be much uptake from trans young people:

“Currently, with parental consent, transgender children and young people can already change their name and gender identity on school records, medical records and for their passports. However… their birth certificates still remain unchanged, conflicting not only with the child or young person’s own identity but also with any of their other identifying documentation. This can cause significant distress for children and young people.”  (LGBT Organisation)

Need for Greater Clarity/Detail

13.2.14 A few respondents, who were generally supportive of the proposal, suggested that greater detail was required around how the proposals would operate in practice.  For example, what would the definition of capacity entail; who would be responsible for judging whether a child had the capacity, and what skills and training would they require; what would happen in a situation where a child doesn’t want to change their name but a parent does, can the parent still proceed with an application or do they lose this right once the child has capacity;  what if one parent agrees and the other does not, or both parents disagree with the child’s choice, who decides? 

Children Should Not Change Their Name on a Birth Certificate

13.2.15 Across both the main consultation and the young persons’ survey, several respondents suggested that children were not mature or responsible enough to make such a decision.  It was felt that parents should retain responsibility for this or the child should wait until they are an adult:

“Children are very malleable and changeable, so they shouldn't have the option until they are a lot older.”  (Young Person, Age 17-18)

13.2.16 Similarly, individuals and organisations in the main consultation also suggested that children younger than 16 may have been influenced, encouraged or pressured into the change by an adult, or that it may be used as a tactic for parental alienation:

“I believe that children could be too easily influenced by others to change their name and that having autonomy might put further pressure on a child.”  (Individual)

13.2.17 Several also felt that there was no need to change the current arrangements as it was already possible to be known as/use another name, and then if a person wished they could then legally change this at age 16.

13.2.18 Other issues mentioned by a few individuals and/or organisations each included:

  • that 16 seemed an acceptable/reasonable age to confer such responsibilities (although a few also suggested this needed to be raised to 18);
  • that the proposed changes risked the children making decisions and changing their name without discussing this with their parents/those with PRRs; and
  • that it should not be possible to change a name on a birth certificate at all.

13.3 Seeking the Views of a Young Person when Applying for a Change of Name

13.3.1 It was suggested in the main consultation document that, the applicant would only need to obtain the views of the child when the child lacks capacity to apply on their own behalf, provided that young people under 16 with capacity are allowed to apply to record a change of name themselves.

Q46. Should a person who is applying to record a change of name for a young person under the age of 16 be required to seek their views?

Number Percentage
Yes 150 59%
No 11 4%
No response 93 37%
Total 254 100%

13.3.2 Over half (59%) of the respondents to the main consultation document indicated that an adult applicant should be required to seek the views of the child, compared to only 4% who felt this was not necessary.  A further 37% did not provide a response.  Of those that felt such a change was not necessary, only one was an organisation, with the rest being individuals.

13.3.3 Respondents to the young persons’ survey were also asked whether parents applying to change a child’s name should ask the child’s views.  

YP15. When a parent applies to change a child's name should they ask the child's views?

Number Percentage
Yes, a child of any age should be asked 82 28%
Yes, but only if they understand what the change of name means 106 36%
No 1 0%
Don’t know 4 1%
No response 102 35%
Total 295 100%

13.3.4 Nearly two thirds (64%) of the respondents to the young persons’ survey felt that parents applying to change a child's name should have to ask the child's views.  Over a third (36%) felt they should ask but only if the child understands what the change of name means, while 28% felt that a child of any age should be asked.  Only one respondent felt that a child should not be asked, while 1% said they did not know, and 35% did not give a response.

Respecting Children’s Rights

13.3.5 Many organisations and several individuals (including young people) suggested it was important to seek the child’s views because a name was considered to be a significant part of a person’s identity.  They should, therefore, have some input to the decision.  As before, it was suggested that the child was central to the issue, and that their rights and views should be respected and protected:   

“It is their identity which will be affected. A child's name is something they understand from a very young age therefore the subject should be discussed before anything is finalised.”  (Young People, Age 13-16)

“…it is the child's name and therefore their views ought to be sought as it will have an effect upon them practically and emotionally.”  (Individual)

“Our names are major components of our identities... Regardless of age, any person should be consulted if a change of name is being considered.”  (LGBT Organisation)

13.3.6 A few individuals, however, thought that both parents and the child should have to agree before any change could be made.  Similarly, one organisation felt that the reasons for the change of name needed to be understood with any differences of opinion explored before final decisions were made.  These steps were considered important to ensure that the change is what the child wants, that the child is not being coerced by one parent, and to identify/limit this as a tool for parental alienation.    

13.3.7 It was suggested by young people and individuals that some children may not want to change their name while others may not like the new name picked for them, and so it would be advantageous to discuss this with the child in advance to understand their views and wishes.  Some respondents (including young people, individuals and organisations) also felt that the child should make the final decision, and that (where a child is deemed to have understanding of the situation) no change of name should be approved without the agreement of the child.  Where a child is deemed to lack capacity it was still considered important to seek the views of the child, but any decision must be made (and documented) in the best interests of the child. 

13.3.8 A number of respondents (both individuals and organisations) also highlighted the need to comply with the UNCRC in respecting children’s rights to express their views in matters that affect them.

Only Seek Views When Children Understand

13.3.9 Those young people who felt that children should be asked only where they understand what the change of name means either suggested that there was no point in discussing the issue with those who were too young to understand, or that those old enough to understand the situation and implications of a name change should be consulted as it was an important and lasting decision:

“You can't reason with a child who cannot speak, but if it's going to affect them i.e. school, friends, then they need to have a say.”  (Young Person, Age 17-18)

“Because it will probably be the child’s name until they die or if they change it again.”  (Young Person, Age 8-12)

13.3.10 Again, while respondents to the main consultation were not prompted to consider whether a child needed to understand the situation, a few individuals and organisations (typically from the legal profession) did suggest that a presumption should be made that those aged 12 and over have the capacity to hold views on potential name changes and their identity and, therefore, their views should always be sought.  Others specified that sufficient age, maturity and capacity were all required for views to be sought/considered:

“…provision would have to be made for taking into account the age and level of understanding of the child.”  (Legal Profession)

Need for Greater Clarity/Detail

13.3.11 Again, a few respondents (who were generally in favour of the change) identified a need for greater clarity or detail in relation to the proposals.  For example, how are children’s views to be evidenced; who would assess the capacity of the child or determine sufficient age and maturity; what would happen if a child did not want to have their name changed, and who would be responsible for making the final decision if there was a disagreement; and how does this proposal sit with the possibility of children making their own applications where they have capacity and/or where they are deemed not to have capacity.

No Legislative Changes Needed

13.3.12 The one organisation who indicated that seeking a child’s view was unnecessary, and one in support of this requirement questioned the sense in seeking children’s views within the current system.  It was highlighted that the Registrar has no power to refuse to register the name change based on the views of the child, and therefore, there would be little point in seeking their views and making them known to the Registrar.  Rather, they suggested that parents should be encouraged/ prompted to seek the views of the child prior to making an application, and perhaps to confirm to the Registrar that view have been sought but not disclose what these views are, but that little more would be possible within the Registrar’s current role.

13.3.13 Similarly, a few individuals and organisations noted that no change was required to legislation, as Section 6 of the 1995 Act notes that anyone with PRRs making a major decision (which they considered a name change to be) is required to give the child the opportunity to express views and to take account of those views in the light of the child’s age and maturity.  However, it was suggested that perhaps parents are unaware of these requirements and therefore an express requirement may reinforce the need to seek the child’s views.

No Requirement to Seek a Child’s Views

13.3.14 The one young person who indicated that it should not be necessary to seek a child’s views did not provide an explanation for their answer.  However, several individuals in the main consultation felt there was a risk of coercion of the child’s views and/or that this could be used as a tactic in parental alienation.  A few also felt that those under the age of 16 were too young to understand/provide informed views.

13.3.15 A few respondents also acknowledged and identified some, limited, situations where it may be necessary to change a child’s name without their views/permission being sought.  This was where it was in the best interests of the child, and largely due to safety and protection issues.  However, even in such circumstances, some felt it was important to ensure children understood the reasons it was happening.

13.4 Re-Registering Births to Add the Father

13.4.1 The main consultation document also outlined the current practices that allow fathers (including unmarried fathers) to be added to the birth certificate of their child retrospectively.

Q47. Should S.I. 1965/1838 be amended so that a father who has a declarator of parentage and has PRRs can re-register the birth showing him on the birth certificate?

Number Percentage
Yes 130 51%
No 14 6%
No response 110 43%
Total 254 100%

13.4.2 Half (51%) of the respondents agreed that S.I. 1965/1838 should be amended, while only 6% disagreed.  The remaining 43% did not provide a response.  It should be noted that only two organisations (one from the legal profession and one local authority) disagreed with the amendment, with all others who disagreed being individuals.

Child’s and Father’s Right

13.4.3 Of those who felt that it was important that a father’s name appeared on the birth certificate and that there was a process to allow this to be added retrospectively, many suggested that it was a legal/factual document, and that it could benefit the child in the future by clarifying parentage and providing information about the child’s identity.  It was also suggested that, sometimes, fathers are not included on the birth certificate at the original point of registration due to the personal difficulties between the mother and father, therefore it was used as a tool/weapon in disputes:

“A birth certificate is a factual document that holds legal significance for the child. The content of the certificate should not be determined by the emotions of the mother and her personal feelings towards the father.”  (Individual)

“A birth certificate is the best evidence of genetic identity.  It should be full and accurate.”  (Other Organisation)

13.4.4 Some organisations considered that allowing re-registration to show a father’s name was in the best interests of the child and supported the child’s rights, particularly where PRRs had been granted by a court:

“It is generally in the child’s best interest to have both parents registered on their birth certificate.”  (Family Support Organisation)

“…it should be in the interests of the child for that to be so [for a father’s name to be added], if such a declaratory and imposition of PRRs is in place.”  (Legal Profession)

13.4.5 Several individuals also felt that a father had a right to be on the child’s birth certificate:

“If he is the genuine father he has a right to be on the birth certificate.”  (Individual)

13.4.6 Several felt that the process should be automatic, and should not require the mother to be responsible for the paperwork/to provide a signature.  The requirement for the mother to be involved in the process was considered, in some circumstances at least, to provide a further barrier - a few cited instances where courts had granted fathers PRRs and declarator, but the mother still refused to have the birth certificate amended:

“…it is not unheard of that an unmarried father has PRRs and declarator and the mother still refuses to re-register the birth to reflect he is the father on the birth certificate.”  (Individual)

13.4.7 Several (including both individuals and organisations) also felt this was an equality issue, both in relation to gender and marital status.  A few organisations suggested that the current use of the Register of Corrections may be against the Equalities Act and risks contravening Article 8 of the EHRC, while one individual felt that the proposed change would not accord with the UNCRC.  It was also suggested that the rules needed to be amended further to accommodate same sex couples on a child’s birth certificate:

“A father who has declarator of parentage and PRRs should be named on the birth certificate.  It would be discriminatory not to do so.”  (Legal Profession)

Conditions/Exclusions

13.4.8 A few respondents suggested that the child’s view should be sought and that births should be re-registered only where it is considered to be in the best interests of the child.  Other conditions and exclusions were also identified by individual respondents, including:

  • In rape cases it was felt there should be no parental rights following conviction;
  • No PRRs or rights should be conferred on fathers with serious criminal convictions (such as serious domestic or sexual abuse);
  • Births should be re-registered only where they were considered to be a fit father/have the best interests of the child at heart; and
  • Births should be re-registered only with the consent of any child with capacity.

Reasons not to Amend S.I. 1965/1838

13.4.9 Those who felt that S.I. 1965/1838 should not be amended gave varying reasons.  A few respondents felt that there was little/nothing to be gained by re-registering the birth, that there was no consideration of the child’s rights/welfare in the decision; and that a father would be able to change the birth certificate without the mother’s consent.

13.4.10 A range of other reasons were given by individual respondents, including:

  • The father’s name could be added later with the child’s consent;
  • The father could then apply for a passport and abduct the child;
  • May impact negatively on immigration rules;
  • Raises complex issues around parentage and legal parental status, the purpose of the birth certificate, and more detail would be needed;
  • Should only happen if they are the parent with most residency; and
  • Would be complicated given that someone else has existing rights on the birth certificate.

Contact

Email: family.law@gov.scot