From earliest times the common law has allowed complete freedom of choice in the name by which a person wishes to be known. At common law a name is acquired by usage and reputation; its legality does not depend upon the making of a deed or registration. People are free to choose their own names and those of their children including the surname. However, this freedom has not been reflected in Registry practice. The Registry has imposed restrictive conditions on the registration of a name. Because at common law use of a name does not depend upon registration, and because the register is not conclusive evidence of a person's lawful name, in adopting these rules of administrative convenience, the Registrar does not regard himself as denying individuals the right to choose a name.
Although there is no statutory power to do so, on occasions the Principal Registrar has refused to register a chosen forename. There are cases where it may be appropriate for the Principal Registrar to regulate the registration procedure. It may be proper, for example, to reject for registration a name comprising a string of obscenities, a list of numbers or a very long list of names, but the discretion should be narrowly defined. For instance, the Principal Registrar suggests that it would be reasonable to limit registration to at most six forenames.
Current practice requires the parents to notify a surname for their child and the Registry imposes restrictions on the parents' freedom of choice which do not exist at common law. The Registry's Form of Information sets out its requirements for the registration of a surname. Where the parents have the same surname the child must be registered in that surname. Where a child is born outside marriage, the child must be registered in the mother's surname unless paternity has been acknowledged. Where the parents use different surnames and jointly request it, the Registry has since 1979 allowed registration of a surname formed by combining the surnames of both parents, with or without a hyphen.
At present these practices are rigid. Although provision is made for a change of name to be recorded within 12 months of birth, to ensure that the register reflects the name by which the child has become known, initial registration must accord with established practice. The Registry will not accept a surname which is different from the parents, even if the variation is only in the spelling.
This does not mean that the Registry has been unable to respond to the needs of many ethnic groups. Where a group's naming practices do not produce a traditional surname, the Registry will permit a name to be registered which is the result of a combination of the parents' surnames or of their surnames and forenames. For instance, this practice accommodates cases where the child's name is derived from the surname of the grandfather, because in those cases the father usually carries the grandfather's surname as his forename. The Registry is even flexible enough to allow children in the same family to bear different surnames, so long as they are derived from those of their parents.
Some believe these practices are desirable to ensure that the child is linked with its family. Any other practice, it is said, would unduly complicate the work of future genealogists and family researchers. The Commission's view is that the administrative restrictions imposed are unfortunate. They discriminate against those groups whose traditional naming practices do not involve the passing of surnames through generations. They also prevent registration of surnames which have been anglicised or varied in some other way, although the result may be a name which is lawfully chosen by the parents for their child.
The major option for reform in this area is to allow parents total freedom in the choice of a surname. This would include the choice of a surname which is different from that currently used by either parent. A variant on this option would limit the right to register different surnames for siblings of the same parents. The Commission seeks views on whether these options are acceptable. Alternatively, we seek views on whether the Principal Registrar should continue present practice and restrict the choice to the surname of either or both of the parents, or a hyphenated version thereof.
