Mother settles case over refusal to register son with his father’s surname

An asylum seeker who became pregnant following a relationship with a security guard at a direct provision centre has settled a High Court case over a refusal to register her son's surname as that of his father on his birth certificate.

The father's surname has since been registered on the child's birth certificate. The case was initiated earlier this year because An tArd Chlaraitheoir, the Registrar General, refused to register the father's surname after the father refused his consent to that.

The mother came here in 2014 having fled her native country in 2010. She had been married but divorced her former husband before coming here. She was for a time in a relationship with the security guard, which ended before the boy was born in 2016, and also had a maintenance order in which the security guard was named as the father of their child.

She sought to register her son with his father’s name for reasons including she did not want the child to have the surname of her ex-husband as that would not reflect the boy’s true origins.

The woman claimed, when she attempted to register the surname at the Registry of Births, Deaths and Marriages on a number of dates in 2016 and 2017, she was informed, unless the father attended in person and consented to the registration, the child would have to use her surname.

She then obtained assistance from the Citizen's Information Services. The CIS in July 2017 asked An tArd Chlaraitheoir for details and legislation which requires a father to attend the registry office as the CIA was unable to find it. A representative of An tArd Chlaraitheoir informed the CIS it was unable to cite the relevant legislation.

In August 2017, the CIS asked An tArd Chlaraitheoir to exercise its discretion to give the boy his father’s surname because of the exceptional circumstances in the case, she claimed.

In a reply, An tArd Chlaraitheoir said there was no provision in the Civil Registration Act 2004 to allow the mother register her son’s birth using any other surname than her own one.

Arising out of the refusal, the woman and her son, represented by Feichin McDonagh SC and Brendan Hennessy BL, instructed by solicitor Eileen McCabe, secured leave from the High Court earlier this year to bring proceedings against An tArd Chlaraitheoir.

They sought an order compelling registration of the boy’s surname as that of his father’s in accordance with the 2004 Act. The woman, who cannot be identified for legal reasons, claimed the refusal was fundamentally flawed, in excess of the power of An tArd Chlaraitheoir and breached fair procedures.

It was also claimed the refusal was irrational, lacked proportionality and irrelevant considerations, namely the father’s refusal to consent, were taken into account. The boy had a right to have his surname recorded where there was admissible evidence about the father’s identity, it was also claimed.

When the matter returned before the High Court this week, Mr Justice Michael McGrath was told the case had been resolved and could be struck out.