Elizabeth Mitrow is a Solicitor at KOD Lyons specialising in the areas of human rights, immigration and asylum law. Here she reports on the recent High Court decision of Caldaras and Stancu (a minor) v An tArd Chlaraitheoir. Elizabeth and KOD Lyons acted for the applicants in this case.
The President of the High Court, Mr Justice Nicholas Kearns, recently ruled upon an important case concerning the respective rights of a parent and child to have the correct identity of the mother recorded on the child’s birth certificate.
The mother in the case, Ms Maria Caldaras, was illiterate and had been known by a Roma pet name for most of her life. She had given the wrong name for herself as "mother" when the details for her daughter Sara Stancu’s birth record were being recorded in April of 2000 in St Munchin’s Hospital in Limerick. The name she gave, Sorina Cirpaci, came from a birth certificate she had been given when she left Romania as a teenager - but it was not her birth certificate.
In 2001, when trying, for the first time, to apply for a Romanian passport, Ms Caldaras discovered, through contact with her mother, that her real or true name was Maria Caldaras, not Sorina Cirpaci, who had been another child living in the encampment. Ms Caldaras’ own birth certificate was located by her mother and she was granted a Romanian passport in her true name in 2002. The name on all of her Irish documentation (GNIB card etc.) was then changed to her true name without any difficulty at that time. She had 5 more children in Ireland and her true name was used on each of the birth certificates.
In 2006, Ms Caldaras experienced difficulty getting an Irish passport for Sara because her birth certificate identified Sorina Cirpaci to be her mother, not Maria Caldaras.
On 4 January 2007, Ms Caldaras applied to the Registrar’s Office to have the mother’s name changed on the birth entry. This application was considered to be a request to the Registrar General (Civil Registration Service) to amend the birth record to correct an error pursuant to s65 of the Civil Registration Act 2004. The Registrar General eventually refused the application in July of 2012 following the issue of a first set of judicial review proceedings seeking an order of mandamus (an order to another body, eg the Registrar General, to perform an act). The Registrar refused to amend the birth certificate on the basis that Ms Caldaras by her own account believed her true name to be Sorina Cirpaci at the time of Sara’s birth, and the birth record, a historical document, was therefore correct and could not be amended. In effect, he said that because the error was the mother’s own error and not that of his office, the wrong name was the name she was using and should remain on the Register.
In the judicial review of the decision, Kearns P found that both the parent and child have a right to have the correct identity of the parent recorded on the child’s birth certificate and that the Registrar had failed to have regard to these rights.
The judge said that the ‘double construction’ rule requires that statutory provisions such as s65 of the Civil Registration Act 2004 be given an interpretation which allows for personal rights of individuals such the mother and child in this case be respected. Furthermore, s2 of the of the European Convention on Human Rights Act 2003, provides that in interpreting an applying any statutory provision, the Court must do so in a manner compatible with the provisions of the European Convention on Human Rights (ECHR).
In the context of this case, the applicants’ legal representatives had stressed that there was both a personal right to know the true identity of one’s mother (specifically identified in I. O’T v B [1998] 2 IR 321) protected by the Constitution and a private life right under Article 8 ECHR to know one’s ascendants (identified in decisions such as Gronmark V Finland 17038/04 and Odievre v France 42326/98, Mikulic v Croatia 53176/99 and Znamenskaya v Russia 77785/01). These submissions were accepted by Kearns P.
The judge also said that the mother’s mistaken belief as to her real name "could not change a fact". It was never a historical fact that the mother’s name was Sorina Cirpaci.
The case was distinguished from the case of Foy v. An t-Ard Chlaraitheoir (No.2) [2007] IEHC 470, where Mr Justice McKechnie held in the High Court that the provisions of the Civil Registration Act, 2004 that allow for the correction of 'errors' could not be interpreted to require the Registrar General to amend the Register in the case of a transgender person who had been registered in a different gender based on observable biological characteristics at the time of birth. Judge McKechnie held instead that the relevant provisions of the 2004 Act were incompatible with the ECHR because they did not provide for amending the Register in the case of transgender persons.
The decision of the Registrar to refuse to amend the register was quashed and an order made to amend the Register. While the judge warned that the costs of remedying such mistakes as providing the wrong name should normally lie with the person supplying the mistaken information, he found that an unexplained delay of 5 years had occurred in making a decision and, in the circumstances, the applicants must be entitled to the full costs of the judicial review.
Click here to view the Caldaras and Stancu decision.