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Complaints against the General Register Office

Maladministration and Adverse Affect

The Ombudsman Act 1980, lists certain actions or inactions, which, if they adversely affect a person, may be construed as maladministration. The list includes actions which are:

(i) taken without proper authority,

(ii) taken on irrelevant grounds,

(iii) the result of negligence or carelessness,

(iv) based on erroneous or incomplete information,

(v) improperly discriminatory,

(vi) based on an undesirable administrative practice, or

(vii) otherwise contrary to fair or sound administration

My primary role as Ombudsman is to investigate actions of this nature. In carrying out this role my objective is not only to rectify any wrong done to a complainant but also to use the lessons learned to assist public bodies in their efforts to reach the highest standards in carrying out their administrative functions. My Office's Guide to Standards of Best Practice for Public Servants (Appendix 1) contains a checklist for use by public bodies in their efforts to provide a better service to their clients. The Guide is based on my Office's experience of dealing with individual complaints over the years. It has always been my view that public bodies should strive for the highest standards of administration in their dealings with people so as to ensure that people are dealt with properly, fairly, openly and impartially. The evidence from the cases, which form the basis for this report suggest that the GRO treatment of the complainants fell somewhat short of these standards.

Ms A

When Ms A wrote to the GRO about the re-registration of her daughter's birth she pointed out that the re-registration had taken place without her knowledge. She was advised that the re-registration had been carried out in accordance with the requirements of the governing legislation, in this instance, the Status of Children Act 1987. The GRO further advised her that there was no provision in the Act

"that would enable an tÁrd-Chláraitheoir to require an applicant to show that the other parent (either the mother or the father) has agreed to the re-registration, or to the particulars to be recorded in the new entry."

While this may have been the case it is also true that there was nothing in the legislation which would have prevented the GRO from seeking to have the mutual consent of both parents before assigning a surname to the child. Interestingly, when a case involving the re-registration of a birth in circumstances similar to that applying in the case of Ms A was the subject of judicial review and was settled in the High Court, (the terms of settlement were not disclosed), new procedures were actually introduced by the GRO to ensure that the consent of both parents was sought prior to re-registration.

It seems to me that a request to re-register a birth unilaterally, while it may have been permissible under legislation, would have had immediate and lasting implications for all the individuals concerned, but especially for the other parent and the child. In this context the GRO, given its specialised experience in this area should have been aware of the need to have some form of mechanism in place to ensure that all parties were treated fairly.

In this instance the mother had originally registered the child's birth and the child had been known and identified by the mother's surname. The alteration of her surname was always likely to cause confusion and difficulty in future years. Accordingly, I feel that there should have been procedures in place, similar to those introduced after the court case referred to earlier, so as, at the very least, to inform the other parent, of the existence of the application for re-registration. This would have given time to the other parent to consider all the options available prior to the re-registration taking place and would have worked, to some degree, to ensure that the interests of all parties was safeguarded.

In the course of my examination of this complaint, I obtained a copy of legal advice received by the GRO. The legal advice concerned the High Court case referred to earlier and any implications it might have in relation to Ms A's case. In the event, the advice was that the case settled in the High Court could not be used as a precedent to decide similar cases.

However, the advice also commented on Ms A's case. It concluded that the authorisation to re-register the birth of the child to include a surname was ultra vires. I asked the GRO whether, in the light of this advice, the validity of the re-registration was open to question. The response I received was that while the validity of the re-registration may be open to legal challenge, any action taken by An tÁrd Chláraitheoir to nullify or alter the re-registration details could equally be open to challenge and being declared ultra vires.

I subsequently obtained my own legal advice which indicated that there was clear evidence that the re-registration of the child's birth to include the surname of the father was ultra vires. On 15 June 2006, I requested that the GRO review the matter with a view to having the error amended. The GRO decided to seek additional legal advice on the case and as a consequence I only received its definitive response in March 2007.

In its response the GRO acknowledged that the re-registration carried out was ultra vires and that it intended to conduct an enquiry into the details now contained in the entry with a view to having the entry corrected and/or completed. Arising out of this response I have found it necessary to undertake further enquiries with the GRO in respect of a number of issues. These enquiries are on-going.

It is now more than three years since Ms A approached the GRO about the re-registration of her daughter's birth without any prospect of a resolution being achieved.

Ms B

Ms B wished to have the birth of her son re-registered. She was advised that the Registration of Births (Amendment ) Regulations set out the manner and form in which a birth had to be re-registered. The Regulations state that the particulars to be entered in the birth register were as follows:

• date and place of birth
• sex of the child
• forename(s) and surname of the child
• mothers forename and surname, address and occupation
• any former surname(s) of the mother,
• the father's forename and surname, address and occupation
• any former surname(s) of the father

The mother's objective in having the original birth re-registered was to have all the factual details, which pertained at the time of his birth, entered on the Register of Births and she advised the GRO of this in August 2003. She explained to the Registrar that she felt she owed it to her son to have the circumstances of his birth accurately recorded and, accordingly, she wished to have her occupation and address at the time of his birth included in the register The GRO took the view that the there was no provision for the inclusion of a former occupation or address in the register and advised the complainant of this in September 2003.

At this point I took the case up on behalf of Ms B. Following protracted correspondence the GRO advised me, in February 2005, that it had reviewed the matter and had decided that the entry in the register could be amended to record the details relating to her occupation and address at the time of birth as requested by Ms B.

Although the GRO eventually complied with Ms B's wishes it took from August 2003 until February 2005 and the combined efforts of my Office, the complainant and her solicitor to resolve the matter.

Mrs C

In this instance two mistakes were made by the Registrar in recording the entry in the Register of Births of Mrs C's son. Under Section 27 of the Births and Deaths Registration Act (Ireland), 1880, where a mistake is made in registering a birth, the error is corrected by entering, in the margin of the register entry, the nature of the error and the true facts pertaining to the case. However there is no provision allowing for an alteration to the original entry in the register.

In circumstances such as those applying in Mrs C's case a reference to the existence of errors is made in the margin to the register but the register itself retains the original incorrect entries in respect of the date of birth and the sex of the child. The marginal entries state that the errors were corrected on the production by Mrs B of statutory declarations.

It seems to me inappropriate that, in a case like this, where an incorrect entry is made by the Registrar in the register, something which is totally outside the control of the parent, that there should be no mechanism to allow the actual entry to be corrected. I fully appreciate that this may not be permissible under existing legislation but I feel that this prohibition should be looked at in any review of existing legislation. I would also suggest that, as an alternative, if, for example, the parents of a child are given a copy of the draft entry in the register for approval before the actual registration takes place this would allow them to have any errors amended before the formal registration details are entered in the register. I put this proposal informally to the GRO but was advised that the GRO is of the view that this would be unworkable and that, in any event, it is not provided for in legislation. I do not share the view that the proposal would be unworkable and while it may not be provided for in legislation equally there is nothing in the legislation to prevent this or some similar arrangement being adopted

In this particular case, Mrs C turned to her public representative for help, but having contacted the GRO, the advice he was given was that it was open to Mrs C to have the constitutionality of the legislation tested in the High Court. This seems to me to run contrary to the concept of good customer service and utterly dismissive of the mother's concerns to offer this possibility as the only means whereby a mistake made by the registration services could be corrected.

Mr & Mrs D

All citizens are entitled to expect that services provided by the public sector are made available through the Irish language to them when requested. In this particular case, the complainants sought a copy of their marriage certificate in the Irish language. This was achieved after waiting two years and three months. They then, rightfully, sought compensation for the time and trouble taken to ensure that their entitlements were satisfied. This issue took a further two years and six months to resolve.

Any undue delay in dealing with enquiries from the public in respect of services is contrary to the basic acceptable standards of good administration and quality customer service and is unacceptable. In essence Mr and Mrs D had made a reasonable and a relatively simple request to the GRO. It would seem that the GRO, in its handling of the request, completely lost sight of what should have been the focus its actions in service provision i.e the client.

Mr E, Ms F, Ms G, and Ms H

The complaints centring on the issue of the recognition of foreign divorces all involved actions on the part of the GRO which had adversely affected the complainants who approached my Office. Under Section 5 (1) of the Domicile and Recognition of Foreign Divorces Act 1986 (Appendix 1) a divorce obtained abroad is recognised if granted in the country where either spouse is domiciled. For the purposes of the Act 'domiciled' was deemed to mean domiciled at the date of the institution of divorce proceedings. This Act came into operation in October 1986. In the case where the divorce was granted before 1986 obviously this law could not apply. However the Supreme Court, in the case of W. v W. (1993), determined that the rule governing the recognition of such foreign divorces should be the same as that applying under Section 5 (1) of the Domicile and Recognition of Foreign Divorces Act 1986

In relation to the examination of these complaints I have to say that I fully acknowledge that the issues surrounding the recognition of the foreign divorces are of necessity legally intricate and complicated. I also acknowledge that An tÁrd Chláraitheoir is, in cases involving divorced persons seeking to re-marry, obligated to investigate the circumstances of a foreign divorce in detail in order to satisfy himself that there is no lawful impediment to a marriage. The determination as to the status of an individual's domicile is a matter of law and ultimately a matter for the Family Courts to decide. However, as with the cases involving register correction, there were issues which involved matters of procedure and administrative practice which caused the individuals concerned to be adversely affected. These issues included delay, failure to respond, lack of sensitivity to the plight of the complainants and failure to provide them with clear and definitive information.

Mr E

When Mr E wrote to me the Circuit Court had already made an order recognising his divorce. He had made an application to the Court because of his imminent intention to re-marry and following a decision by the GRO not to give its assent to his proposed marriage on the grounds that his divorce, obtained in England could not be recognised. He had submitted an affidavit from his former wife swearing that, on moving to London in 1988, it was her intention to remain in England and obtain a domicile of choice in that country. The GRO advised that while his former wife had been habitually resident in England from 1988 until 1996 she did not appear to have relinquished her Irish domicile and that on this basis his proposed marriage should not take place. In its response the GRO did not give any advice as to what alternative evidence, if any, might be acceptable to enable the divorce to be recognised.

In a letter, dated 28 May 2004 to the GRO, Mr E raised a number of questions relating to his case. By July 2004, he had still not received a reply and he then wrote to me. I sought a response from the GRO and finally received this on 9 November 2004 after many reminders. In this response the GRO said that the evidence required for the recognition of a foreign divorce had to

'clearly and unequivocally point to the conclusion that either party to the divorce had the required domicile in the jurisdiction that granted the divorce'

The GRO did not elaborate any further as to what type of evidence might meet this standard.

Ms F

Having received what she considered was unclear advice from the GRO regarding its decision not to recognise her partner's divorce, Ms F wrote, in January 2004, seeking additional clarification. This followed a prolonged period during which Ms F's public representative had been in contact with the GRO seeking clarification as to what evidence was required to have the divorce recognised. By 10 May 2004, not having received a response and acting on advice she received from her public representative, she wrote to me. When contact was made by my Office with the GRO, Ms F received a reply dated 18 May 2004. According to Ms F this letter merely re-stated the position which had previously been outlined to her by the GRO.

Following an interview with Ms F and having carried out detailed research and analysis of the concept of 'domicile' and relevant court cases in which 'domicile' was a central issue, my Office wrote to the GRO in September 2004 asking that her case be reviewed. Despite numerous written and telephone reminders a reply was not received until 15 April 2005. In its reply the GRO said that while the observations contained in my Office's letter had been considered, An tÁrd Chláraitheoir did not feel that he was in a position to change his previous decision but that he would be happy to revisit the application if additional information became available. The GRO did not indicate what 'additional evidence' would be required to enable the position to be 'revisited'. Following further communications from my Office, the GRO indicated, that only an affidavit from Ms F's partner's ex-wife, could confirm her acquisition of a domicile of choice in Australia at the time of the divorce proceedings. However as Ms F's partner was no longer in contact with his former wife he was unlikely to be able to be in a position to provide such an affidavit.

In the course of my examination, it became apparent that Ms F's partner's ex-wife had, at the date of the institution of the divorce proceedings, made such a sworn statement in an Australian court to the effect that, at the time of the commencement of the proceedings, she

• had ordinarily lived in Australia and had lived there for 12 months immediately prior to the application.
• was an Australian citizen,
• regarded Australia as her home; and
• intended to live there indefinitely.

I suggested to the GRO that this appeared to formally confirm that Ms F's partner's ex-wife was compliant with the requirements for acquiring a domicile of choice in that country. I therefore asked the GRO to undertake a further review of the matter. However, having carried out a review the GRO concluded that this evidence would not satisfy the requirements of Irish law regarding domicile.

Ms G

For five years Ms G had had been trying to get clarification of the status of her second marriage. While the GRO did respond to her correspondence, she was unable to get the clarification she had requested in relation to the status of her marriage and the question of the recognition of her husband's divorce. She said that while the GRO was responding to her enquiries, it gave no clarification as to how her difficulties could be resolved.

In relation to this and other related complaints received, my staff met with GRO personnel and discussed the issues involved. Ms G subsequently contacted my Office to say that she had later received her certified marriage certificate. She advised that the GRO had simply sent the certificate to her solicitor under cover of a compliments slip with no explanation.

Ms H

Ms H wrote to the GRO in March 1999 when permission for her to marry her partner was refused. In the absence of a reply, Ms H contacted my Office, in July 1999. When I contacted the GRO I was advised that it had not been possible to trace the correspondence. My Office contacted Ms H and asked her to forward copies of the documentation to the GRO. Following this, in August 1999 the GRO sent a detailed response to Ms H outlining the reasons why her divorce could not be recognised.

Following receipt of the letter from the GRO, Ms H again contacted my Office indicating that she was dissatisfied with the contents and asked that an examination be carried out on a number of issues raised by her in her correspondence with the GRO. My Office later wrote to the GRO, following detailed research on these issues, in July 2000, seeking clarification on a number of issues. It was only after issuing the GRO with a series of written and telephone reminders that I received a response in October 2000. This response outlined the instances where Ms H had been asked to submit any evidence supporting the acquisition of domicile of choice so as to enable her divorce to be recognised and indicated that she had not availed of the opportunity to provide additional information.

Ms H then applied to the GRO seeking access to her records. Reading these, she said made her angry and upset as to the manner in which decisions appeared to have been made with regard to her future. In the meantime Ms H's health deteriorated and she decided that she had no option but to apply to the court for recognition of her divorce on the basis that her ex-husband, whom she had not seen in twenty years, could have a claim on her home. In July 2005, while undergoing medical treatment for her illness, Ms H's divorce of 1981 received recognition in the Family Court and Ms H re-married in September 2005.

Conclusion

Each of the complainants to which this report relates had important, but relatively straightforward needs - the correction of what they considered to be errors which had been made in the Register of Births/Marriages or information in relation to the recognition of foreign divorces. In most of the cases involving register amendments, these were sought to correct errors made to the register by the GRO. In this regard

• Ms A was told that the registration was in accordance with governing legislation;
• Ms B was told that there was no provision in the legislation for inclusion in the Register of the information reflecting the facts and events pertaining at the time of her son's birth;
• Mrs C was told that the original incorrect entry in the register could not be changed but that it was open to her to make application to have this reviewed in the High Court ;
• Mr and Mrs D did not get any response when they sought to have their Irish language marriage certificate amended;
• Mr E, Ms F, Ms G, and Ms H were all given explanations with regard to the reasons why recognition could not be given to the divorces, they were told that the law of domicile was complicated and that clear and unequivocal evidence was required that the party or parties to the divorce had the necessary domicile to ensure that the divorce could be recognised.

In summary, it can be said that in their communications with the GRO, the objective of all of the complainants was to try and bring about a resolution to matters which were very personal and important to them. While it may not have been possible, because of legislative complications, to effect resolutions in all of these cases, the responses received were unhelpful and did not assist them to any degree in moving towards a resolution of their difficulties. It is clear that a more client-focused and empathic involvement by the GRO with the complainants' concerns would have helped the complainants in dealing with the anxiety and stress they experienced. Where legislative impediments existed to the achievement of resolutions to the issues raised by the complainants, it was incumbent on the GRO to have these examined and, where appropriate, brought to the attention of the Department of Health & Children for review

With regard to the recognition of foreign divorce cases, when the complainants submitted documentation which was deemed unacceptable, they were never told what might be regarded as clear and unequivocal evidence which might facilitate the recognition of the divorce. In this regard it is reasonable to expect that cases where evidence not acceptable to the GRO for the purposes of recognising the divorce had later been accepted by the courts for the purposes of recognition of the divorce, might subsequently, in this context, have been relied upon as precedents by the GRO. This would have helped in subsequent cases where recognition of divorce was an issue. There is, however, no evidence that this had been done.

In the course of the examination of these complaints it became apparent to me that the quality of service provided to my Office was, in many instances, of a very poor standard. There were instances of long delays in the receipt of reports, phone calls were not always returned and, when received, the content of the reports was often deficient. While I acknowledge that the period during which some of these examinations were conducted, coincided with the decentralisation of the Office to new premises in Roscommon, this cannot excuse the failure to provide timely and comprehensive reports. In October 2001, my staff had occasion to meet with officials from the GRO in connection with delays experienced in obtaining reports relating to complaints received. Following this meeting the GRO was presented with a document which detailed liaison arrangements in respect the processing of complaints against the GRO. (These are set out at Appendix 3). The GRO was advised that if a further meeting was required to agree the arrangements this would be accommodated. In the event no further meeting was sought by the GRO.

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