N (A Child) (Registration of Birth), Re

The applicant in the main proceedings is Kent County Council wherein Care Orders are sought in respect of N. The matter was initially before the Court on the 1^st November 2024, which hearing the mother and N’s father did not attend, nor were they represented. The Local Authority sought an Interim Care Order, supported by the Guardian. The Court at that hearing being satisfied that the mother had received notice of the hearing, proceeded in her absence and granted the Interim Care Order, approving the interim care plan of separation of N into foster care. At that hearing the Court indicated, as is recorded in the Order, that if the mother was prepared to go into a mother and baby placement, and such placement could be made safe for N, then the Local Authority should offer the mother that opportunity. The Local Authority made such enquiries but ultimately the mother communicated that she did not wish to be placed in a mother and baby placement. The Court also made a Recovery Order at that hearing.

The matter returned to court, before me, on the 19^th November 2024 for a Case Management Hearing at which time the mother was present and represented, having instructed solicitors in the interim. At that hearing directions were set down progressing the matter to an Issues Resolution Hearing, including paternity testing of the putative father of N.

It was at the hearing on the 19^th November 2024 that the mother’s solicitors indicated that the mother opposed the registration of N’s birth, on the basis that the mother did not wish N to be part of the state. The Court was informed that the mother intended to make an application seeking an order preventing the Local Authority from registering N’s birth. I therefore invited the Local Authority not to register N’s birth pending such application being considered to ensure that the issue was not pre-determined, and the Local Authority duly complied with that request. In light of the impending application, which I directed to be filed by the 22^nd November 2024, and in order to avoid any further delay for N in light of the six week period following N’s birth having already passed, I listed a hearing to consider the same, on the 2^nd December 2024.

The mother’s solicitors made the aforementioned application as directed, on the 21^st November 2024, and it is that application that I consider in this Judgment. The application is opposed by the Local Authority and the Guardian. By way of the helpful Skeleton Argument prepared by Mr Flood on behalf of the Local Authority I was informed that the mother’s solicitor had notified the Local Authority on the 26^th November 2024 that he was no longer instructed by the mother. The reasons for that dis-instruction are not known by myself, nor the other parties, as of course is correct, such matters being confidential.

The mother did not attend the hearing before me listed to consider her application, and nor was she represented. I am however satisfied that she was aware of the hearing. Firstly, the date was provided to her solicitors at the time they were instructed and prior to the application being made. Secondly, I am aware from the social worker that the hearing was discussed at the mother’s contact with N on Friday, this hearing taking place on the Monday thereafter, at which point the mother confirmed she would be in attendance at this hearing. In light of the mother’s non-attendance today, which was unexpected given that it was her application and her strength of feeling in respect of the issue, the social worker made several attempts to contact the mother this morning via telephone and text message, for which I am grateful, however none of the calls were answered nor responses received to the messages sent. Through an abundance of caution in case the mother had been unavoidably delayed I waited for 30 minutes after the listed time of the hearing before commencing, however the mother did not attend and nor did she arrive at any time thereafter. The reasons for her non-attendance are not known to me, nor it would seem any of the other parties. But in circumstances where I was satisfied that she was aware of the hearing and I was not provided with any reason why the mother was not in attendance nor any request to adjourn, I proceeded to consider the application in the absence of the mother pursuant to rule 27.4(4) of the Family Procedure Rules 2010, in light of the fact that the mother had filed sufficient evidence previously in the form of her witness statement.

In light of the nature of the issues in this application I was requested to publish my Judgment, to which request I acceded. In light of the time estimate of the hearing not affording the opportunity to provide a written judgment immediately, combined with the need for a decision one way or another to be made at the hearing for N’s benefit, I decided to hear submissions from those parties who were present at the hearing and then give my decision, with my reasons being contained within this Judgment to be handed down at a later date.

Turning to the law on this issue, section 1(1) of the Births and Deaths Registration Act 1953 (BDRA 1953) states:

“Subject to the provisions of this Part of the Act, the birth of every child born in England and Wales shall be registered by the registrar of births and deaths…by entering in a register kept for that sub-district such particulars concerning the birth as may be prescribed” my emphasis added.

Section 1(2) BDRA 1953 sets out those qualified to provide the necessary information to the Registrar, referred to in the BDRA 1953 as qualified informants:

Section 1(1) could be said to oblige the registrar to register the birth, and section 1(2) merely convey qualification to give information to those listed, however when dealing with timescales section 2(1) BDRA 1953 provides that:

“(i)

in the case of every birth it shall be the duty – (my emphasis)

(a)

Of the father and mother of the child; and

(b)

In the case of death or inability of the mother of father, of each other qualified informant,

To give the registrar, before the expiration of a period of forty-two days from the date of birth, information of the particulars required to be registered concerning the birth, and in the presence of the registrar to sign the register:

Provided that –

(i)

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…”

The period of forty-two days from the date of N’s birth ended on the 15^th November 2024. Section 4 BDRA 1953 provides that:

“Where, after the expiration of forty-two days from the date of the birth of any child…the birth of the child has, owing to the default of the persons required to give information concerning it, not been registered, the registrar may by notice in writing require any qualified informant-

(a)

To attend personally at the registrar’s office, or at some other place appointed by the registrar within his sub-district, before such date (being not less than seven days after the receipt of the notice nor more than 12 months after the date of birth)… as may be specified in the notice; and

(b)

To give information to the best of the person’s knowledge and belief of the particulars required to be registered concerning the birth; and

(c)

To sign the register in the presence of the registrar:

Provided that any such requirement shall cease to have effect if, before the date specified in the notice and before the person to whom the notice is given complies with it, the birth is duly registered.”

In Re C [2016] 3 WLR 1557 King LJ stated at paragraph 53:

“As set out at [23] above, by section 3(1) CA 1989 parental responsibility is defined as the ‘rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child.’ Further, as already noted, under section 2(1) BDRA 1953 a parent is under a statutory duty to provide the required information to the Registrar within 42 days. It is hard to see how the duty to register the birth of a child under section 2(1) BDRA 1953 can be viewed as other than a “duty” which, by “law, a parent has in relation to a child” under section 3(1) CA 1989 and therefore as an act of parental responsibility. Such a conclusion would also accord with the view of the Court of Appeal in Re D, L and LA.”

I pause momentarily to note that in light of the fact that the parents are not married and N’s birth has not been registered, N’s father does not have parental responsibility for N, thus such a duty would not apply to him. Indeed this is emphasised by section 10(1) BDRA 1953 as follows:

I am not informed that any of those exceptions apply in this case. However it is clear from the wording of sections 1(1) and 1(2) BDRA 1953 that such a duty does apply to the mother, this being the mother’s application that I am considering, King LJ concluding in Re C as follows:

“i)

the choosing of a name (forename and surname) for a child by a parent with parental responsibility; and

ii)

thereafter the act of complying with the duty of the mother and the father to give the registrar “information of the particulars required to be registered concerning the birth, and in the presence of the registrar to sign the register” (section 2(1) BDRA 1953) are each acts of parental responsibility.”

It does not appear to be in dispute, as there is no mention of the same within the mother’s application or witness statement, that the Local Authority would fall within section 1(2) BDRA 1953 as a qualified informant as a person having charge of the child. But for the avoidance of any doubt I find that to be the case in light of the fact that N is currently in the charge of the Local Authority in foster care and is also subject to an Interim Care Order conveying parental responsibility for N to the Local Authority. This accords with the view of Mr Justice Hayden at paragraph 20 of London Borough of Tower Hamlets v T (A Child) [2019] EWHC 1572 (Fam) wherein he stated:

“I am satisfied that the Local Authority may intervene to assert its own Parental Responsibility as a ‘qualified informant’ to register the birth and that the Interim Care Order embraces them as ‘any person having charge of a child within the meaning of s.1(D) BDRA 1953.’ In these circumstances the Local Authority is the institutional parent.”

Indeed in light of the High Court’s determination that registration of the birth is a duty owed by the holder of parental responsibility, it could be argued that the Local Authority is not simply able to act as a qualified informant, but indeed obligated to do so.

The Mother’s Position

The mother’s witness statement attached to her application is a two-page document which sets out her objections to the Local Authority registering N’s birth in five short, concise paragraphs. Had she attended the hearing I would have asked her to expand upon and clarify some of the contents thereof in light of some of the more unusual elements discussed. However in the absence of the mother I was unable to do so and I therefore simply have the statement as it was written, which I have considered, and sought to interpret the points being made by the mother. The five points the mother makes in support of her application are as follows:

“1.

The birth certificate is property of the state and as such if I were to register my living son’s birth in this way and sign this birth certificate as it request, it would mean my living son will then also be property of the state.

2.

The birth certificate is a capitalised document that is recognised as a form of joinder by the state, and issued by the state, for the purpose of corporations and legal entities to track and use how they wish.

3.

I have full parental responsibility over my living son and as such wish to allow my living son the privilege of no joinder or contract with the state that would be placed upon my living son, by the birth certificate.

4.

My living son will not require a state registered birth certificate to use as identification of who he is, because the state registered birth certificate cannot be used as evidence of identity.

Taking the arguments in turn, in respect of the first paragraph, whilst it may be the case that the Registrar General would be the legal owner of the birth certificate, it in no way would mean that N would be the property of the state. Indeed it is arguable that the making of the Interim Care Order and the resulting conveyance to the Local Authority of parental responsibility of N gives ‘the state’ more ‘control’ over N than any registration or subsequent birth certificate would do, and that still does not mean that N is in any way property of the state.

In respect of the second paragraph, I am unclear as to what the mother means by reference to a ‘capitalised document,’ the closest I can surmise is that she meant a capitalization document, i.e. a collective term which I believe is used in the USA for company documents such as Articles of Incorporation. The mother’s objection within the second paragraph would seem to be relevant in relation to companies as capitalization documents could possibly be said to be capable of being used in such a way as to ‘track’ companies and use as they wish. This does not apply in this case as a birth certificate is not such a capitalization document and does not entitle corporations, or anyone, to track a child or use as they wish. It is also not a form of joinder by the state.

Insofar as the third paragraph is concerned, the mother is correct that she has parental responsibility for N, or indeed ‘full’ parental responsibility as the mother puts it. But even if I disregard the impact of section 33(3)(b) Children Act 1989 and the potential curtailment of the mother’s parental responsibility in light of the Interim Care Order made in favour of the Local Authority, the mother’s parental responsibility does not give her the ability to ‘allow’ N ‘the privilege of no joinder or contract with the state’ that would be placed upon N by the birth certificate. Irrespective of the mother’s intended meaning of ‘joinder or contract with the state’ and whether correct or not, the parental responsibility the mother refers to has the exact opposite effect, rather than giving her the ability to make the decision on behalf of N, it compels her to register the birth for the reasons I have given in this Judgment. This is reinforced by the comments of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999quoted with approval by Sir James Munby P in Re H-B (Contact) [2015] EWCA Civ 389 and Mr Justice Hayden in Tower Hamlets:

“I wish to emphasise this, parental responsibility is more, much more than a mere lawyer’s concept or principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child.”

In respect of the fourth paragraph the mother’s assertion that a birth certificate cannot be used as evidence of identity is fatally flawed, N’s birth certificate would be the only evidence of identity N could have at this stage in life, and would either be needed to apply for most other official documents and authorisations, or at the very least would be needed to apply for a passport, which could then in turn be used for such purposes. Without a birth certificate N would be severely restricted in life and may well be restricted in applying for things such as child benefit, nursery and school places, accessing healthcare or opening a bank account. In Tower Hamlets Mr Justice Hayden acknowledges the same:

“It is manifestly in T’s best interest for his birth to be registered, in order that he may be recognised as a citizen and entitled to benefits of such citizenship.”

In respect of the fifth paragraph, I am unsure as to whether the capitalisation of the ‘A’ in the word Act was deliberate or not, as if it was intended that the word Act meant an Act of Parliament then the fifth paragraph defeats itself by arguing that the registration of a child’s birth is an Act, not a law, as an Act (of Parliament) is a law. In any event I give the mother the benefit of the doubt and assume the capitalisation is an error and she meant to state that the registration of the birth was an act, or action, not a law. As I have set out in this Judgment, I find that it is a law which is required to be complied with.

As such, for the reasons I have given I dismiss the mother’s application and approve the Local Authority’s plan to register the birth of N.