Marriage & Civil Status (Amendment No. 2) (Jersey) Law 200- Choosing baby's surname.

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A decision made (17/04/2008) regarding: Marriage & Civil Status (Amendment No. 2) (Jersey) Law 200- Choosing baby's surname.

Decision Reference: MD-HA-2008-0023
Decision Summary Title :	2008 04 07 Marriage & Civil Status (Amendment No 2)		Date of Decision Summary:	Monday, 07 April 2008
Decision Summary Author:	Heidi Sydor Executive Officer		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	written		Person Giving Oral Report:
Written Report Title :	Marriage and Civil Status (Amendment No 2) report		Date of Written Report:	Monday, 14 April 2008
Written Report Author:	Senator W Kinnard		Written Report : Public or Exempt?	Public
Subject: Marriage and Civil Status (Amendment No 2) (Jersey) Law 200- - Choosing baby’s name
Decision(s): The Minister approved the draft Marriage and Civil Status (Amendment No 2) (Jersey) Law 200- for lodging ‘au Greffe’ and for debate by the States on June 3rd 2008. The Minister signed the relevant Statement of Compatibility confirming that the provisions of the draft Law were compliant with the Human Rights (Jersey) Law 2000.
Reason(s) for Decision: The proposed amendment to the Marriage and Civil Status (Jersey) Law 2001 allows parents, both those who are married to each other and those who are not married to each other, to choose the surname of their children. It is intended that the choice should be limited to either the maiden surname of the mother, the surname of the father or a combination of the two.
Resource Implications: The costs of additional staff and resources will be met by the Parish of St. Helier and be offset by a re-registration fee. The precise re-registration fee will be discussed with the Connétable of St. Helier before the amendment comes into force, but it is likely to be in the region of £50.
Action required: The Executive Officer, Home Affairs, to request the Greffier of the States to arrange for the draft Law to be lodged ‘au Greffe’ and to be taken into consideration by the States on June 3rd 2008
Signature:		Position: Minister for Home Affairs
Date Signed:		Date of Decision (If different from Date Signed):

Marriage & Civil Status (Amendment No. 2) (Jersey) Law 200- Choosing baby's surname.

Report:

AMENDMENT TO THE MARRIAGE AND CIVIL STATUS (JERSEY) LAW 2001

This amendment to the Marriage and Civil Status (Jersey) Law 2001 allows parents to choose the surname of their children, selecting either the maiden surname of the mother, the surname of the father or a combination of the two. This applies both to parents who are married to each other and to parents who are not.

Where the two parents do not jointly make a choice of one of the above options, then the default position prevails, as follows. When parents are married to each other the child is registered in the surname of the father. When parents are not married to each other the default is that the child takes the maiden surname of the mother.

This legislation is of social importance. The Home Affairs Minister received several representations from parents who wish to register their children as set out above but who are currently prohibited from doing so. This will enable them to choose either the maiden name of the mother or the surname of the father or a combination of the two in the order chosen by the parents.

Other jurisdictions have different rules which vary across Europe. In England and Wales and Northern Ireland parents may choose any surname they wish when registering the birth of a child although parents are discouraged from choosing surnames that differ from either that of the mother or the father. In contrast there are different approaches elsewhere in Europe. Thus, in Switzerland a child of a married couple can only take the father’s surname.

Whilst the English approach has simplicity there are important public policy issues to be considered, in that in England the surname chosen could be unrelated to the surname of the father or the maiden name of the mother. In some circumstances this could cause embarrassment to the child or others particularly in a small community. The amendment to the Marriage and Civil Status (Jersey) Law 2001 has been prepared on the basis that the surname of the child should be linked to the child’s mother or father.

A number of European jurisdictions impose restrictions on the parent’s right to choose a surname. The English approach is at one end of the European continuum. The European Court of Human Rights has considered the Swiss approach in the case of GMB and MK v Switzerland (27th September 2001). In that case it was decided that the prohibition on the child of a married couple taking the mother’s surname was compatible with Article 8 – the right to respect for private and family life – and Article 14 – the right not to be discriminated against. This proposed legislation will adopt a middle position, giving parents freedom of choice to choose a name linked to one or both of them.

The proposed amendment has been under consideration since before the matter became the subject of a court case. The case of Moran and Kemp v Deputy Registrar for the Parish of St Helier ([2007] JRC 151) is of importance because it does highlight the need for the amendment, although at first instance the court ruled against the parents application for review of the Registrar’s decision and revision of the register entry.

The amendment is to be retrospective to 1st May 2002 when the Marriage and Civil Status (Jersey) Law 2001 came into force.

The opportunity has also been taken to make a minor amendment which reduces the number of working days between a request for a marriage licence and the marriage being solemnized.

Financial and Manpower Implications

It is not possible to estimate how many parents might wish to take advantage of this amendment; however, the costs of additional staff and resources would be met by the Parish of St. Helier and be offset by a re-registration fee. The precise re-registration fee will be discussed with the Connétable of St. Helier before the amendment comes into force, but it is likely to be in the region of £50.

European Convention on Human Rights

In accordance with the provisions of Article 16 of the Human Rights (Jersey) Law 2000, and in the view of the Minister for Home Affairs, the provisions of the Draft Marriage and Civil Status (Amendment No 2) (Jersey) Law 200- are compatible with the Convention Rights.