D. v B. (otherwise D.) (Surname: Birth Registration)
Reference: D. v B. (otherwise D.) (Surname: Birth Registration)  Fam 38
-  3 WLR 573
-  1 All ER 92
Court of Appeal (Civil Division)
25th May 1978
No 8434 of 1976
Before (the judges sitting on the bench)
Counsel (the barristers representing the parties)
- Mr Ian Davies (instructed by Messrs Penningtons, London agents for Messrs Wild, Hewitson & Shaw) appeared on behalf of the mother, D.B. (otherwise D.D.), and P.A.B. (the Appellants, and the original Respondent and Co-Respondent respectively).
- Mr John Samuels (instructed by Messrs Jacques & Co.) appeared on behalf of the father, J.D. (the Respondent and original Petitioner).
- Miss Shirley Ritchie (instructed by the Treasury Solicitor) appeared on behalf of the Official Solicitor as guardian ad litem.
Lord Justice Stamp —
I will ask Lord Justice Ormrod to deliver the first judgment.
Lord Justice Ormrod —
This is an appeal from an order which was made on the 10th April of this year by Mrs Justice Lane in a case which has caused a great deal of difficulty and trouble. It is a singularly unfortunate case. The difficulties arise because an issue of substance, not in itself of any great complexity, has become entangled with formalistic considerations which have led to a great deal of litigation.
The human situation between these two parties, the father and the mother, is such as to lead inevitably to severe emotional reactions by each side. That each should feel very strongly about the situation is all too easy to understand. The tragedy is that these feelings have been exacerbated to a point which is almost unbearable by, as I think, purely formalistic considerations which have led to this litigation.
The substantive issue in the case is whether or not the father should have access to a very young boy. The formalistic issues rotate round the question as to the name by which this boy is to be known, and it is a great pity that the formalistic issues have come to overshadow the real issue of substance — which in fact has been resolved by an earlier decision of the learned judge.
The judge’s order which is under appeal should be read in full insofar as the operative parts are concerned. (Perhaps I should say at this point this is a case which clearly should be reported only under initials). The first paragraph of the order is that the mother “do within 14 days of today execute the statutory declaration in the unamended form” contained in a certain exhibit “to the affidavit of the petitioner” the father’s affidavit. “(2) that the [mother] do within the said period execute a fresh deed poll in such terms as will be necessary to cancel a deed poll executed by her in September 1975.”
Paragraph (3) reads that “the respondent” — that is the mother — “be on notice that if she neglects to obey the above directions by the time therein limited, she will be liable to process of execution for the purpose of compelling her to obey the same,” and then there is a stay pending a possible appeal.
The inclusion of the third paragraph in the order is most unusual. It was put in, I think it is right to say, at the express direction of the learned judge and it constitutes the plainest possible threat to the mother; a threat of committal proceedings in the event that she does not obey the two directions. That, of course, inevitably provoked her to take every possible step that is open to her to challenge those directions, and, in the view that I have formed, she was fully entitled to challenge them both. But it does indicate the relationship between these parties that by April of this year it was necessary, or thought to be necessary, for the father to be adopting that sort of attitude towards the mother with the result which, in my experience, always follows. Committal proceedings in family disputes are almost always disastrous and in this case, of course, they are futile in the nature of things.
The facts of the case can, I think, be stated even more shortly than usual because they have been dealt with in much more detail by the learned judge in her judgment which is now reported. The case is reported under the name D against B (otherwise D) and it is reported in 1977 Family Division Reports at page 145. Very shortly, these are the essential facts. The husband and the mother were married in July, 1970. They were both 22 at the time. The father is now a lawyer, and I do not specify any further than that, and the mother is a school teacher. For almost the first five years of the marriage there were no children, but a child was conceived early in 1975. Before that the marriage had run into difficulties, the details of which are quite unknown to us and are irrelevant to any question we have to consider. All that is relevant is that by the Autumn of 1974 the mother had formed an attachment to the man to whom she is now married and it is common ground, I think, that that association had not reached the sexual stage until the Spring of 1975. Some attempts had been made by the father to effect a reconciliation with his wife and those steps may or may not have progressed. What is clear is that sexual intercourse took place between the father and the mother early in 1975 as a result of which a child was conceived, and the child is the subject of these present proceedings. He is called M and he was born on the 23rd November, 1975.
At a time when it is not clear whether the mother knew or did not know that she was pregnant, she resumed the association with Mr B, and for the first time had intercourse with him. Then her pregnancy became apparent and, of course, a situation of the most acute difficulty inevitably arose for all three adults. It was plainly an emotional situation of the utmost intensity for all. The mother made the decision in the course of the Summer, 1975, that her marriage was at an end, that it was not capable of being repaired, and so she took the decision to set up house with Mr B and steps were taken to find accommodation, and when the accommodation was found she left her husband — by now, of course, six months or so pregnant and thereafter she and Mr B have lived together.
Almost immediately after she left, which was in September 1975, she executed a deed of deed poll changing her name from “D” to “B”. The deed poll is, of course, in the usual form. By this time, as the correspondence between herself and her husband clearly indicates, both sides were under great stress and in a very confused state of mind as to what the future was to be. It is easy to understand the father’s desperate anxiety that he was going to lose the child, his only child, which may have been conceived, perhaps, with considerable difficulty, one does not know. Equally it is extremely easy to understand the mother’s feelings that this child was going to be born into a new family which she and Mr B were establishing; the father would have little or no contact with this child, and to her as she referred in at least one letter — adoption by her and Mr B seemed, to her at any rate, to be a sensible solution. It is easy to understand that the father would take a very different view of it. So the situation became increasingly difficult.
When the child was born the mother felt that it would be better if the father did not see the child or attempt to develop any relationship with the child. The father, understandably, took exactly the opposite view. So the battle lines were drawn, and the only issue of substance, in my judgment, in this case is which of them was right in relation to the question of access.
The father, unfortunately — being a lawyer perhaps — took great exception to the fact that the mother intended the child to be known by the name of “B”, and it is at this point that the first unusual fact arises in this case, because when the child was born the mother — who was the informant — registered the child in a very unusual way. It is necessary just to look briefly at the actual birth certificate. The birth was registered in the sub-district of Cambridge and, reading the form, the date and place of birth of the child is given as “Twenty-third November 1975. Maternity Hospital, Cambridge.” In space 2: “Name and surname” of child, the entry is “MB male.” Then in space 4, under the heading “Father” appears “JD” and his place of birth and occupation are given. In space 7, under the heading “Mother” appears “DB otherwise DD” and her place and birth and her maiden name are given, and she signs it as the informant mother in the name of DB.
An enormous amount of effort has been expended in this case on the question as to whether or not that entry in the registry of births, first should and, secondly could be amended. It is necessary at this point, I think, to say that the form of registration is wholly irrelevant to any real issue in this case, because the real issues are human issues and not legal ones. It is unfortunate that so much effort has been put into trying to resolve the legal issues.
It will be necessary, unfortunately, in this case to look rather closely into these legal issues, and the reason for that, in my view, is this, that unless we can disentangle the formalistic aspects of this case from the substantive aspect this family is never going to have any peace at all. Fortunately, as a result of some further instructions which Mr Samuels received just before the court rose last night, the father felt able to make a constructive contribution to the solution of these problems that must have come as a very agreeable surprise to the mother. It is to be hoped that from now on the issues between these two parents can be resolved in real terms and not in formalistic ones. It is necessary, however, in view of the history of this litigation, to deal with the matter in some detail.
The matter began immediately after the parties were divorced — and, just to complete the record, the decree nisi was pronounced on the 19th November, 1976, and on the 13th December, 1976, the matter came first before Mrs Justice Lane. She had two main issues to resolve: the first, as I have already mentioned, is the substantive issue of access, which she resolved in favour of the father, the mother taking the line — which I can understand perfectly well, just as I can understand the father’s line — that it would be better if the father did not attempt to play any role in this child’s life. It was inevitable that Mr B should be the father figure in this child’s life, that was unavoidable, and the mother thought it would only complicate the issue if there was another male adult involved in this child’s life from an early age. Whether she was right about that or not is a matter of opinion. The father was clearly entitled to put his case, and put it as forcibly as he could to the court, to point out the advantages which he felt the child would enjoy by establishing contact with him from an early stage, and, as I have already said, the learned judge resolved that issue in his favour.
But right in the forefront of his mind in 1976 was this issue of the registration of the child’s birth. The first paragraph of the notice of application dated the 10th June and amended on the 26th November, 1976, asked for an order that “the child of the family, now known as MB, be henceforth known as MD and that the respondent do concur in an application to the Superintendent Registrar of the Registration District of Cambridge to make such alteration to the Register of Births as may give effect to the said change of name and/or that the Respondent do take such other steps to ensure that the said child is known as MD as the court may direct.”
“2. The petitioner” — that is the father — “be afforded reasonable access to the said child of the family, to be defined by the court.”
“3. The Respondent [mother] and/or the Co-Respondent may be ordered to pay the costs of this application.”
“4. That the court should consider whether the arrangements for the said child are satisfactory or the best that can be devised in the circumstances” and fifthly asking for an order that custody of the child should be given jointly to the father and the mother, the intention being, of course, that care and control should be with the mother.
That was supported by an affidavit by the father which leads directly into the controversial issues over the name of this child.
The problem over the name of this child I must deal with separately.
The first question is whether or not the order of the learned judge, made originally in December, 1976, and reaffirmed in her recent order of April, 1978, was an order which the court was competent to make, namely the order directing the mother to take all the necessary steps to alter the deed poll and to effect a change in the register of births. The person who appears to have appreciated the legal difficulties best, curiously enough, in this case is the mother. So far as the deed poll is concerned, we asked at an early stage in the hearing of this appeal, during the argument, what change it was suggested the mother could make in the deed poll, and how she was supposed to do it. I emphasise that the order is a mandatory order on her, combined with the threat of enforcement proceedings, to execute a fresh deed poll in such terms as would be necessary to cancel a deed poll executed in September, 1975. What she was supposed to do under that term of the order was quite unclear from the order itself and in fact Mr Samuels himself was unable to suggest any answer to the question what she was required to do. The answer is she can do nothing. Her present name is B, but in order to keep one’s mind clear it is, perhaps, worth observing that the name B is here purely by convention, she has married Mr B and it is the normal convention in this country but it is no more than that — that she takes the name B and is thereafter known as B. The deed poll had simply stated that that was how she wished to be known. It is common ground that a surname in common law is simply the name by which a person is generally known, and the effect of a deed poll is merely evidential, it has no more effect than that. So that part of this order is unenforceable and, therefore, should not have been made.
I think the learned judge may have been misled by certain matters which were referred to in this respect at the earlier hearing. In the report of the judgment in 1977 Family Division at page 148 there is a long reference by the learned judge to some regulations, which are entitled the “Enrolment of Deeds (Change of Name) Regulations” and the learned judge quoted extensively from these regulations. The upshot of them is that a married woman cannot enrol a deed poll relating to change of name unless she complies with the requirements of those regulations, and among other requirements are that the deed should state whether she is single, married, widowed or divorced; that she must produce her marriage certificate and show that notice of her intention to apply for enrolment of the deed has been given to her husband, and she is required to demonstrate that either he has consented or that there is good reason why his consent should be dispensed with. No doubt the learned judge felt that since the mother had complied with none of those formalities, this deed poll could be amended or disposed of, in some unspecified way as being contrary to the regulations.
But that, with respect, is a complete misunderstanding. There are no regulations governing the execution of deeds poll. The regulations only apply to the enrolment of such deeds poll, and the purpose of enrolment is only evidential and formal. A deed poll is just as effective or ineffective whether it is enrolled or not; the only point of enrolment is that it will provide unquestionable proof, if proof is required. No more. So that the deed poll in this case is not vitiated in any way by failure to comply with those enrolment regulations. It simply means that the deed cannot be enrolled. The regulations in fact go on to provide that no deed poll which purports to change the name of a child can be enrolled without the specific consent of the Master of the Rolls. So quite clearly no attempt was made in this case, and no attempt was required to be made, to enrol that deed poll and so there is no more to be said about that aspect of the case. There is nothing that the mother can do to comply with that part of the order.
The other part of the order relating to the register of the child in the register of births and deaths is more complicated. There are only two provisions in the Act relating to effecting changes in the register. It is necessary to look, first of all, at section 1 which simply provides that the birth of every child born in England and Wales shall be registered in accordance, with the Act. Section 2 provides that in the case of every birth it shall be the duty of the father and mother of the child to give to the registrar information and particulars required to be registered concerning the birth, and to sign the register. But that is subject to a proviso that the giving of information and the signing of the register by any one qualified informant shall act as a discharge of any duty under this section of every other qualified informant. So that either parent can give the necessary information and sign the register.
Then there is a provision in section 13 relating to the alteration of the name of the child. Subsection (1) of section 13 provides: “Where before the expiration of twelve months from the date of registration of the birth of any child the name by which it was registered is altered, or, if it was registered without a name a name is given to the child, the registrar,” (upon delivery to him at any time of a certificate in the prescribed form, and upon the payment of the appropriate fee shall) “without any erasure of the original entry forthwith enter in the register the name mentioned in the certificate as having been given to the child.”
It is not necessary to examine section 13 in detail because the period of twelve months had elapsed in any event before the learned judge’s order was made. Moreover, whether that section relates to changing the surname of the child is a matter which, in my opinion, might require further consideration. But since it does not arise in this case I say no more about it.
The only other section which gives any power at all to correct an entry in a register of births or deaths is section 29, and the form of this section is important. Subsection (1) reads: “No alteration shall be made in any register of marriage, births, stillbirths or deaths except as authorised by this or any other Act.”
Subsection (2) deals with clerical errors. Subsection (5) deals with errors of fact and reads thus: “An error of fact or substance in such register may be corrected by entry in the margin without any alteration of the original entry by the officer having the custody of the register upon” payment again, and so on, “and upon production to him by that person of a statutory declaration setting forth the nature of the error and the true facts of the case made by two qualified informants of the birth or death with reference to which the error has been made or, in default of two qualified informants, by two credible persons having knowledge of the truth of the case.”
So it will be observed that it is essential to the operation of this subsection that there should have been an error, and that the statutory declaration should set forth the nature of the error and the true facts of the case. The question then arises as to whether there was any error in the entry of this child’s birth in the register at Cambridge.
The only error that can be suggested is an error relating to the surname of the child. But when one comes to look at the statutory regulations, which is S.I. 1968 No 2049 — the Registration of Births, Deaths and Marriages Regulations — one finds that the requirement is that so far as the surname of the child is concerned, the entry shall represent the “name by which the child is intended to be known.” It is regulation 18, sub-paragraph (3) which is the relevant one. It reads: “With respect to space 2” — name and surname — “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,” and if a name is not given, the registrar shall enter the surname preceded by a horizontal line. It may be surprising to some — certainly it was a surprise to me — to find that definition of “surname” in the regulations. Here, of course, it is perfectly plain that the mother, when she registered this child’s birth, did intend that the child should be known by the name of B. It seems, therefore, clear to me that there was no “error” by her. She may have acted in a way of which many people would disapprove and in a way which may be, in moral terms, open to criticism, but so far as making an error is concerned, it seems to me to be plain that she made no error at all.
It was suggested that the words “it is intended” should refer to the intention of both parents, but, speaking for myself, I find it very difficult to extract that construction from the relevant provisions. So I think the mother was entitled to take the point which she took herself, that there was no error on her part and that, consequently she was in extreme difficulty in complying with the order of the court to make a statutory declaration in the necessary terms. In fact when a statutory declaration was submitted to her by the father’s solicitors for her signature in compliance with the judge’s order of December, 1976, she amended it — and I am looking at exhibit JD.6 to the father’s affidavit. Paragraph 5 of the draft statutory declaration reads: “At the date when the birth of the said child was so registered as aforesaid, I the said D B, wrongly believed that I was entitled to register the surname of M as B. I now know that the surname should have been registered as D,” and in paragraph 6: “In consequence of the above circumstances, the entry on the said Register is wrong and the correct entry of the said child’s name should be MD and we the said DB and the said JD make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declarations Act 1835.”
The mother, receiving that draft, amended it by striking out in paragraph 5 the word “wrongly” before believed, so that it now read, “I the said DB believed that I was entitled to register the surname of M as B,” and then she struck out the words “have been” so that it now read, “I now know that the surname should be registered as D,” and in paragraph 6 she deleted the words conscientiously believing the same to be true and presumably because she did not conscientiously believe the same to be true.
Of course, in its amended form the declaration was useless for effecting the purpose of amending the register and that led to this second round of this dispute. What then happened was that the father’s solicitors took out a summons asking for further directions as to the manner of effecting the re-registration of the child, and the mother issued a cross-summons asking for a variation of the learned judge’s order in relation to the certificate of the register of births and the deed poll. Those were the two matters which came on before Mrs Justice Lane on the 10th April. It was agreed that the mother’s summons should be heard first asking for the variation, and it is right to say that this point was not taken specifically before the learned judge. Nor is it taken in the notice of appeal. But since the threat of committal is overt in this case, this court has felt bound to examine all aspects of this order, first of all from the jurisdictional point of view and secondly, to see whether it was in fact possible for the mother to comply with it. She was thought to be being recalcitrant over the matter, but the view I have formed of it is that her view was right that she could not properly execute or sign the necessary statutory declaration. That, of course, reduces those two paragraphs of the order of the 10th April to nothing, so that in respect of those two parts of the order, in my judgment, the mother is entitled to succeed on this appeal.
The learned judge did not in fact deal with the other part of the mother’s summons when she was seeking a variation of what one might call the more substantive part of the earlier order of the learned Judge, that is in relation to the practical questions relating to this child’s name as opposed to the legal ones. The original order — and I will just quote it — had required that: “until the child attains the age of 18 years the mother do not cause or permit the said child to be known by any other surname than that of the father, without the written consent of the father or further order of the court.” That part of the order was also subject to the mother’s application in April, 1978, for a variation. She was asking the judge to reconsider that part of the order, in other words, what was she to do about this child’s name. The learned judge did not deal with that in her order because, I suppose by implication, having made the order I have already recited it followed that she was not prepared to vary that part of the 13th December, 1976, order, and we have to deal with that because that issue is raised in the notice of appeal. Mr Samuels is perfectly entitled to say that so far as the grounds of appeal set out in the notice of appeal are concerned, they all deal with what I might call the merits of the situation.
I am sure everyone understands that the question of the surname of a child is a matter of great emotional significance, particularly to fathers. If the name is lost, in a sense, the child is lost. That strong patrilineal feeling we all to some extent share. But this has to be kept within the bounds of common sense, in my judgment. It is not very realistic to be litigating over how a child of 2½ should be called, so far as its surname is concerned. A child at that age is quite unaware of its surname, even though it will acquire later on, fairly quickly perhaps, some idea of what his name or her name is. But what matters is whether the child identifies with the father in human terms. I suspect that children are much better at distinguishing between reality and formality than adults. If the child knows that Mr D is his father, he may be confused later on if he is known by the name B, but I would doubt it. He is certain to be confused if everybody insists on calling him D when all the people he lives with are called B. But this is, as one appreciates all too clearly, a very sensitive issue. Fathers feel very sensitive about it. Mothers feel that it is a plague on a day-to-day basis: they have to explain to schools; people have to make special notes in records, and so on, about the name. The matter is one which, in my judgment, ought to be capable of being resolved by two sensible adults who bear in mind that they are dealing with a child, and a child who sooner or later — and probably sooner — will make some decisions for himself in the matter. Pressure, I would have thought, is more likely to produce unwanted results than anything else.
I cannot help reiterating the Official Solicitor’s advice in this case at the conclusion of his report which was prepared for the hearing in December. The passage is on page 94. At the very end of the Official Solicitor’s report — which had recommended, I should say, that access between the child and the father should be started at the earliest moment, although at that time the child was very young indeed — the report concludes with these words: “For to be known as D when his mother and P” — that is Mr B — “are called B could cause him some embarrassment particularly when he attends school. The mother and might well have children of their own and this in itself could cause some distress insofar as will be the only one in the family unit with a different surname. In the circumstances, should the court decide that the father should have access to M, and the Official Solicitor recommends that he should, the father might consider that it would be in M’s best interests for the future not to insist on his being known by his real surname of D.” If I may say so with great respect to the Official Solicitor, that passage seems to me the best statement of good sense that I have read in this context for a long time. It seems to me human, sensible and practical. Any other solution seems to me inhuman, impracticable and bound to lead to trouble. The one thing that one should try to avoid in these cases is giving hostages to fortune, weapons to parties to quarrel with when the real issue between them is something quite other.
Nothing is more depressing than to have a mother brought back to the court over some infringement of this requirement, such as registering the child in a particular play group under the name B when it ought to be D. Fortunately, at the end of the day, the father, I think, has realised that substantive issues are what matter to children and formal issues can be left to look after themselves. If they are forgotten about nobody will worry about them. I can understand the father, in the early stages of this case, taking steps about the registration and, indeed, steps about the deed poll, because it must have seemed, in the Autumn of 1976, as if the mother had laid her plans pretty well. She had changed her own name to by deed poll so that she could say, “Now I am properly known as B,” and she had registered the child in the name of B so that she could say, “But the child’s real name is B,” and one can understand that the father’s tactics should direct an attack on those two points. It is bad enough for him that both of them have proved abortive. But neither of them are real. What is real is that the father and the child should know one another, that the child should, in course of time, come to recognise the fact that Mr D is his natural father, and so long as that is understood names are really of very little importance, I think, and they only become important when they become a casus belli between the parents.
Having said that, I can only hope that from now on these young people — and they are still quite young, under 30 — will direct their attention to the issues about this child which matter and not about formalistic things that do not much matter. A vast amount of money has been spent on this case which is little short of a disaster and should have been avoided, and could have been avoided, by a little good sense.
I would, therefore, allow the appeal. Just what form the order should take is not very easy. So far as the first two points are concerned — that is the deed poll point and the register of births point — all that will be necessary is to delete those two paragraphs of the order, which will in effect eliminate the order appealed against. But some order will have to be made — and it will be a question of deciding the appropriate form — to deal with the variation of the December 1976 order in relation to the practical use of names, and perhaps that is a matter which can be left for discussion later. I would therefore allow the appeal and substitute an order in such form as proves to be appropriate.
Lord Justice Stamp —
I agree. Out of respect to the learned judge in the court below, because we are differing, I would have delivered a judgment of my own, but having heard the wav Lord Justice Ormrod has put it I do not wish to do so. I entirely agree and would now invite submissions on the order as to which Lord Justice Ormrod spoke.
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Orders of the court
Order of 10th April, 1978, discharged.
Order of 13th December, 1976, varied by consent to enable child to be henceforth known under surname B.
No order as to costs in Court of Appeal nor as to hearing of 10th April, 1978, before Mrs. Justice Lane.
Legal aid taxation for the mother.