A mother who registered her son's birth under her own name three years ago was given leave by the High Court yesterday to challenge a decision allowing the child's father, from whom the mother is estranged, to reregister the boy's birth under his surname.
Mr Justice Kelly granted the woman leave to seek, by way of judicial review, an order quashing the re-registration of the birth made by the father on February 4th. The order is directed against the Superintendent Registrar of Births and Deaths for Dublin.
Mr Dermot Kelly SC, for the woman, said his client had registered the child's birth in 1997 and he had been known by the mother's surname. The father had obtained a District Court order in July 1998 appointing him and the mother joint guardians of the child.
The child was known and clearly identified by the mother's surname and to change its name would cause embarrassment and difficulty for the boy in future years, counsel said.
The registration provision was to enable the father to be identified as the father, but not to interfere with the name by which the child had become known and established. On the District Court order, the child was identified in the mother's surname.
Last February the father gave his own surname when re-registering the child and had described the mother as "full-time mother", counsel said.
But this was not the case, and the mother had an occupation, Mr Kelly said. She did not find out about the change until the father called to her mother's house on an access visit.
The mother went to the registration office seeking an amendment and to restore the child's surname to her own. A letter from the General Register Office had informed the mother that, when the boy was originally registered, no paternity details were recorded.
Under the Status of Children Act, 1987, the letter stated that a birth entry might be reregistered showing paternity details on production of a certified court order naming the person as father of the child.
There was no provision in the Act which would require that an applicant must show confirmation that the other parent had agreed to re-registration or to the particulars to be recorded in the new entry.
The letter added that the Registration of Births Act, 1996 (which came into effect in October 1997) required the registration of any former surnames of the father, the address and occupation of the mother and "most significantly a surname must now be assigned to the child . . .".
The registrar added that he was not in a position to amend the birth registration to the mother's surname at present but was seeking legal advice.
Mr Kelly said if the birth had been registered in the mother's surname after the coming into effect of the 1996 Act, it would not have been open to register a change without the consent of the two parties. The mother and child could not be in any different position simply because the birth was registered after the introduction of the 1996 Act.
Mr Justice Kelly, who requested that nothing be published which would identify the child, said that at the time the father had sought re-registration, he had succeeded in having the boy registered with his surname.
The mother was claiming that if such a fundamental change was to be brought about, she should have been notified.