I gave my son my brother’s last name

Dear Mrs Macaulay,

I have a son who is now nine years old. When he was born, his father and I weren’t communicating well. My brother, who is living abroad, had decided that he was going to send for my son or take him to the embassy so things could be much better. At first, we – my brother and I – registered my son in my brother’s surname so that it would be easier for my son to go abroad.

My brother and I share the same father but have different mothers. But now I want to change his name back to his original father’s surname because my son has been registered in school by his original father’s surname. Please inform me how to go about this matter.

What a mess! You and your brother intentionally and knowingly gave false information to the registrar while providing the particulars necessary for the report of the birth of your son for registration purposes. This is an offence under the Registration (Births and Deaths) Act.

You both, for the reasons you stated, passed off your brother as the father of your child.

Your son you say is now nine years old. You must hurry to have his name altered before his 10th birthday as it will be difficult after. In addition, the name and particulars designating your brother as his father must also be rectified.

You did not state how your son came to be registered in school with his father’s surname. Did communication recommence between you both? Did he consent for his surname to be used? Will he swear a declaration about his paternity or go with you to the registrar and admit to being your son’s father and provide his full name and particulars for your son’s registration to be altered?

The Act makes provision for the correction of errors in registers of births and in registration form books. It provides, inter alia, that any error of fact or substance may be corrected by making an entry in the margin of the registration book, without altering the original entry.

This can be done by the relevant officer, when the person who requires the correction, pays the prescribed fee and produces to the officer a statutory declaration stating the “nature of error” and the “true facts of the case”. This statutory declaration must be made by those who are required by the Act to give information about the birth of a child. These are the father and mother of the child. It is only when they fail that the duty falls on others.

You and your son’s biological father should make the statutory declaration under this section of the Act or if he cannot be found, you and/or two credible witnesses to the birth.

Your brother will have to apply to the court for an order to remove his name and any other particulars relating to him as the father of your son from the entry in the register. There must of course be full disclosure to the court by both of you in such an application. You must clearly state how and why your brother came to be registered as the father.

If the application is granted, the court will direct the registrar general to have his name and particulars removed from the register and have the certificate you have been given back for cancellation, and a new certificate will be issued without any entry relating to your brother.

I would also suggest that the real father also apply to the court for a declaration of his paternity. Such a declaration of paternity constitutes sufficient proof for the registrar general to permit the entry in the register of the father’s name and any other particulars of the father, which he has supplied. This can only occur, of course, if your brother’s name and particulars have been removed from the register and hopefully you had also obtained the other orders, which I have mentioned to enable a new certificate being issued.

I had mentioned the age of 10 years. There are provisions in the Act, which say, inter alia, that the name by which a child was registered cannot be altered after 12 months after the registration, without the written permission of the registrar general.

It goes further and provides that the registrar-general shall not give such a written authority for the alteration, after any child is 10 years of age, unless good and sufficient reasons are proved to account for the delay.

The bottom line is that you should go into the registrar general’s office and honestly relate what you and your brother did in registering the birth of your child. You both, of course had committed the offences prescribed through the substitution of your brother for the real father. However, the Act also provides that any indictment for an offence committed under the Act must be done within three years after the offence was committed.

So, you need not fear that you and your brother will be prosecuted. Once you relate fully your son’s circumstances to the registrar general, they will assist you as to which course under the Act would best rectify your son’s situation.

Again, in all of this, I hope you now have your son’s biological father’s full agreement or you have a declaration of his paternity and that he is playing an active part in his son’s life and contributing to his maintenance. Margarette May Macaulay is an attorney-at-law and a women’s and children’s rights advocate. Send questions and comments via email to allwoman@jamaicaobserver.com or fax to 968-2025. We regret we cannot supply personal answers.

Good luck