Comment from the

I name this child ... whatever I want

JUST as some of the quirks of Island life are what makes it worth living here, there are others which simply smack of injustic eand if repeated outside the Island would cause jaws to drop.

Take the case of Dr Elena Moran, her partner, Gary Kemp, and their inability to choose Mr Kemp's surname for their baby daughter.

The Royal Court has ruled that their daughter must take Dr Moran's surname because that is the way that the court interprets the customary law which is place.

There were changes in legislation put in place in 2001, but according to the court these did nothing to change the customary stance that an illegitimate child should takes its mother's name.

The first and most obvious point to make is that if this is going to be the judgment of the court on this matter given the current standing of the law, the law needs to be changed.

If laws are not changed to reflect the society which they are put in place to serve, they are rendered archaic and can become subject to ridicule. Society really has moved on from a position which not only undermines the parents' right to choose, but also fails to recognise that although marriage may still be the norm, it is not the choice that every couple want to make.

Giving his judgment on the case, the Bailiff, Sir Philip Bailhache, said that it would be up to the mother to change the child's name by deed poll if she so wished, but under the law as it stands she cannot register the birth of her child under the surname of the father.

Although he did not say it, presumably what he means is that she cannot register the birth under any name other than her own; to assume otherwise would make a nonsense of the judgment.

The Bailiff went on to say that the court could not concern itself with the social or moral aspects of the case and that the rights of the mother to register the birth of an illegitimate child under the father's surname would be 'a matter'for mature political debate'.

I was not actually in the court room when the case came up in March, so there may have been nuances that I have missed in the case that Dr Moran and Mr Kemp brought, but between the reports at that time and the judgment last week, I am finding it difficult to actually see where the stumbling block is, because to some extent the two sides seemed to be coming from the same place - in that there doesn't seem to be a sentence which says 'yes' or 'no'.

So it comes down to custom - but that changes, doesn't it?

Dr Moran, Mr Kemp and their counsel, Advocate John Kelleher, argued that their was no legal reason why they could not choose Mr Kemp's name. The Solicitor General, Stéphanie Nicolle, on behalf of the deputy registrar of St Helier, argued that the lawmakers would not have envisaged that the statute would be interpreted as giving parents the right to choose a surname.

In as much as Miss Nicolle was interpreting the statute according to the slant which it would be given by customary law, I have no gripe with her point.

But - and it's a huge but - no one seemed able to point to any sentence anywhere which actually prevented them from registering their child by any name they want.

In March, despite the Bailiff's comments in his judgment, some time was spent on the sideline of 'inappropriate' naming. It was a sideline which utterly missed the point of the case. The point was that, whether it is kind or appropriate or not, in Advocate Kelleher's submission there is no law that categorically states that you cannot do so - no matter how is is interpreted by customs which are (again a sideline) utterly out-moded anyway.

Taste should not be an issue here. It is absolutely not the court's call as to whether calling a child Mickey Mouse is appropriate or not.

I sincerely hoped in March that Dr Moran and Mr Kemp would win their case, because it would have shown a willingness to move ahead and make decisions which relate to how life is lived this century. It was not to be, and that being the case, it is now imperative that something is done to clarify the law to make sure that unmarried parents - actually, any parents - have the right to name their child.

This is not a radical step that Jersey would be taking alone. Most of the civilised world has actually caught on to this one.

published 11/08/07

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