Investigation Report

Published  October 2007

An investigation report on Complaints against the General Register Office.

Emily O'Reilly
Ombudsman
October 2007

Contents

It is a legal requirement in Ireland that a record is kept of each birth, marriage and death that occurs in the State. It is evident therefore, that the civil registration process impacts directly on all citizens of the State throughout their lives - from the point where an individual's birth is registered to the registration of his/her death. In between, registration is an essential requirement for persons who wish to marry or re-marry. During our lives we are regularly required to invoke the services of the registration process to provide certificates in relation to issues which affect the way in which we organise our lives - education, social welfare, health, employment and even holidays.

The General Register Office (GRO) is responsible for the administration of the civil registration service in Ireland. It is an Executive Unit of the Department of Health and Children and operates under the aegis of the Department with funding provided for in the Department's annual budget. The day-to-day registration service is primarily delivered by the Superintendent and District Registrars who are officials of the Health Service Executive (HSE). The present system for civil registration is over 150 years old and, in that time, there have been many changes in our society and this has been coupled with increased expectations by its citizens about how public services should be delivered. However, until recent times there had been little change in the basic registration procedures. The registration system had been largely paper-based, and the Department of Health and Children had acknowledged that registration methodology, which was overwhelmingly manual in nature, was inefficient and cumbersome and caused difficulties in the provision for clients of the highest standards of quality customer service.

In the context of the implementation of government policy aimed at improving the functioning of the civil and public service, a programme for Civil Registration Modernisation, a joint project by the Department of Health and Children and the Department of Social and Family Affairs, was launched in October 2003. The programme is being introduced on a phased basis and involves legislative reform, design and development of new processes and procedures and the introduction of modern technology. The objective is to deliver of a modernised service which meets the needs of 21st century Ireland.

As Ombudsman, I enthusiastically welcome the Civil Registration Modernisation programme and look forward to the establishment of a service which will, hopefully, meet the citizen's needs and expectations. While I acknowledge that the vast majority of interactions between the citizen and the registration service are completed in an efficient and satisfactory manner, my experience in dealing with complaints from the public relating to the GRO has convinced me that the administration of the present system can, in certain circumstances, lead to individuals being harshly and insensitively treated.

I have chosen, in this report, to highlight a number of these cases where I feel that the actions of the GRO have adversely and seriously affected individuals. While these cases exemplify instances where the quality of service provided was below the standard which might be expected from a public service organisation, it is not my intention to use the report solely to as a means of articulating criticisms of the GRO. It is my hope rather, that these cases will give insight to those who are concerned with the quality customer service improvement process, both within the GRO and the Department, and assistance in meeting the expectations of members of the public using this important service in the future.

In the interests of fairness and balance I have made a copy of the draft report available to the GRO to enable it to have an opportunity to comment on its contents. The response of the GRO to the report is published in full at Appendix 1

Emily O'Reilly
Ombudsman

October 2007

Complaints received in my Office concerning the GRO have tended to centre on issues involving the correction or amendment of entries in the registers and the recognition of foreign divorces prior to re-marriage of divorced persons. The cases which are the subject of this investigation were received in recent years from the following complainants:

Cases involving the correction or amendment of entries in registers

Ms A

Ms A, a single parent, had registered the birth of her daughter in March 1996. At the time of the birth, Ms A was estranged from the father of the child and no paternity details were included in the register entry. The daughter's surname, as entered on the birth certificate which Ms A received at the time of the birth, was that of her mother. In 2003, Ms A discovered that, five years earlier and without her knowledge or consent*, the father of the child had re-registered the birth of the child. The re-registration included paternity details and, as a consequence, the father's surname became the registered surname of her daughter

* Since 2001, it is the practice of the GRO in situations like this, to notify the other parent of the proposed re-registration and to allow 21 days for the receipt of the other parent's observations.

Ms A did not wish to have the father's surname assigned to her daughter and asked the GRO to make the appropriate arrangements to reinstate her daughter's original surname. The GRO advised that this could not be done and that the re-registration of the birth had been undertaken in accordance with the governing legislation. It added however, that if Ms A could secure the co-operation of the father and provide relevant documentation, the surname could be amended. However, Ms A was unable to secure the co-operation of the father for this purpose and the registered details remained unaltered.

Ms B

In this instance Ms B had, in October 1970, given birth to a son who was adopted eight months later. In August 2000, she was reunited with her son and decided to have his original birth certificate amended, so as to have all the factual details, which pertained at the time of his birth, entered on the Register of Births. The relevant documentation was submitted to the GRO in April 2003. However, on the form which she had to complete for this purpose, she found that her current address and occupation were required and not her address and occupation which applied when her son was born. Her current address and occupation were included in the re-registered entry.

She was dissatisfied with this as she felt that her son's new birth certificate did not record all the details in an accurate and true manner. She contacted the GRO to see if the register could be amended to include her address and occupation which applied when her son was born. She was advised that there was no provision currently in legislation which would allow for the inclusion of former addresses or occupations and that the re-registration had been carried out in accordance with the governing legislation. (I understand from the GRO that new procedures are now in place to ensure that, in respect of all registered events, the actual details applicable at the time of the event are recorded in the register).

She contacted my Office in November 2003 and, following my examination of the matter the GRO agreed, in February 2005, to amend the re-registered entry to record Ms B's address and occupation which applied when her son was born .

Mrs C

Mrs C gave birth to her son on 25 December 1979. When he needed a passport for a school trip, his mother obtained a copy of his birth certificate only to discover that his date of birth was recorded in the register as 24 December 1979 and his sex was entered in the register as female. Through her public representative she sought to have the original entry in the register amended. The public representative spoke with the Registrar General and was advised that a marginal correction had been made to the register but that a complete renewal of the register entry could not be made. The public representative said that he was advised that the mother could, if she so wished, have the constitutionality of the governing legislation tested in Court.

Mr & Mrs D

This complaint concerned the failure of the GRO to issue a corrected version of the couple's Marriage Certificate in the Irish language. They finally received the amended certificate two years and three months after the application was made and after protracted correspondence and the involvement of my Office. The couple then wrote to me seeking compensation for the time and trouble taken in seeking the copy of the certificate in Irish. I took this matter up with the GRO, a process which involved a further lengthy period of extended communications. Two years and six months after the matter had been broached with the GRO, it finally agreed to compensate the complainants.

Recognition of foreign divorces prior to re-marriage

These complaints revolve around the concept of domicile. Under the Domicile and Recognition of Foreign Divorces Act, 1986, a foreign divorce could be recognised in Ireland if at least one spouse was domiciled in the State that granted the divorce when the proceedings commenced.

Domicile is a complex legal concept based upon the notion of the individual's permanent home. Generally speaking an individual is born with a domicile known as his domicile of origin. A domicile cannot be lost by a mere abandonment. It can only be lost by the positive acquisition of a domicile of choice. A domicile of choice is the domicile which a person can acquire by a combination of residence and intention. To acquire a domicile of choice an individual must establish a physical presence in the new jurisdiction and have an intention to reside there indefinitely. A domicile of choice can, in turn, be abandoned. This involves either the acquisition of a new domicile of choice or the revival of the domicile of origin.

In the cases which are the subject of this report the divorced person was living in Ireland and the recognition of the divorce depended on whether the domicile of the ex-spouse was in the State which granted the divorce, at the time the divorce proceedings were initiated

Mr E

Mr E and his former wife had separated in 1985. She subsequently left Ireland to live in the UK - he remained in Ireland. She applied for, and was granted, a divorce from Mr E by the High Court in London in 1996. In March 2003, he wished to remarry in Ireland but before he could do so, it was necessary for him to have the divorce recognised under Irish law. For this to happen the GRO required evidence that his ex-wife was domiciled in the UK at the date of the institution of divorce proceedings

The complainant submitted what he considered was relevant evidence to effect recognition i.e a signed affidavit from his ex-wife regarding her intention to remain in England permanently at the time of the divorce. However the GRO did not consider the evidence was sufficient for the divorce to be recognised under Irish law. The reasons for this was that although she had signed an affidavit that it was her intention to remain permanently in England, she took leave of absence from her job and returned to Ireland in 1996 to look after her mother who had become ill. In May 1997 she decided to remain in Ireland.

With no other option open to him, Mr E was obliged to apply to Circuit Court to have the divorce recognised. The Court was presented with the same documentary evidence which had been submitted to the GRO. Mr E advised that the issue was dealt with in the Court in a matter of minutes and the judge made an order directing that the divorce be recognised in Ireland. Mr E was aggrieved that he had to incur considerable expense in applying to the Circuit Court for recognition of the English divorce when, as he saw it, the GRO had sufficient evidence to enable it to recognise the divorce.

Ms F

Ms F's partner was a divorced person. He had married a French national in 1986 and emigrated to Australia in 1991. The couple had two children there and became Australian citizens in 1995. The marriage broke down in 2000 and Ms F's partner returned to Ireland in 2002. Later that year divorce proceedings were finalised by the Family Court of Australia.

In 2003 Ms F and her partner applied to get married. Her partner sought to have the divorce, granted by the Family Court of Australia, recognised in Ireland. He was advised by the GRO that his divorce would be recognised in Irish Law if, at the date of the institution of the divorce proceedings, he could establish that his then spouse, was domiciled in the jurisdiction of the foreign court which granted the decree, i.e Australia.

The GRO said that it would accept as evidence of domicile in the jurisdiction of the foreign court which granted the decree, an affidavit or sworn statement in the matter. Ms F's partner submitted a sworn court document, stamped with the seal of the Family Court of Australia and witnessed by a qualified Justice of the Peace of the Australian State Department of Justice formally confirming that her partner's former wife was compliant with the requirements for acquiring a domicile of choice in that country i.e that she regarded Australia as her home, ordinarily lived in there and intended to live indefinitely there. However the GRO refused to accept the sworn statement as meeting the requirements for recognition of the divorce.

Ms G

Ms G married in July 1994. Her previous marriage had ended in divorce in the UK six years earlier. Six months before the date of her second marriage she completed the relevant forms and sent these with papers relating to her previous marriage and divorce to the local Registrar. A year later she needed to get a copy of her marriage certificate for Social Welfare purposes and applied to the local Registrar. A copy of the certificate was issued to her. Later she needed to get a further copy of the certificate for a mortgage application. On this occasion she was advised by the Registrar that her marriage was not valid and she was referred to the GRO. The GRO advised that she should have sought a direction as to whether her UK divorce was recognised in the State. For the next five years she and her solicitor sought clarification on the status of her marriage. When she wrote to me, she said that the delay in the receipt of clarification about her marriage had caused her extreme distress. She said that registering the births her two children had been problematic and she feared that if anything happened to her, her husband might not be recognised as her spouse.

I took up the matter with the GRO. It indicated that it had advised Ms G and her solicitor what was required in order for the marriage to be validated. The complainant submitted additional material and the GRO subsequently issued the marriage certificate to her solicitor seven years after she had originally been referred to the GRO.

Ms H

Ms H married in Birmingham in 1976 but the marriage ended in divorce in 1981. In 1983 she returned to Ireland with her daughter. In 1998 she advised the GRO of her intention to marry her partner but was advised that her divorce was not recognised. Ms H sought clarification on the matter but found it difficult to obtain any from the GRO. Her solicitors advised bringing the matter to the High Court for judicial review but she decided to pursue other avenues to see if the matter could be resolved. She went to her public representative in 1998 but he did not receive any response until 1999 This response reiterated the position as previously outlined to Ms H.

In 2004 when the matter still had not been resolved, Ms H was diagnosed with a serious illness. She decided to apply to the Courts to have her divorce recognised as she was concerned that as things stood, her ex-husband could have a claim on her home in the event of her death. In July 2005, the divorce was recognised in the Family Court in Ireland. In granting recognition the judge apologised to Ms H for what she had been through. She married her partner two months later. The costs incurred by Ms H in pursuing the matter through court amounted to €7,400.

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.

The GRO is an organisation which, because of the nature of the service it provides, has a high level of interaction with the public. Public bodies are obliged to have Customer Service Action Plans in place to assist in the achievement of the highest standards with regard to the provision of these services. In the case of the GRO however, the Customer Service Action Plan (which can be viewed at www.groireland.ie) is not, as might be expected, tailored to suit its unique and varied core activities. It has rather, adopted a generic plan which has been devised by the Department of Health and Children and is applicable to all bodies under the aegis of the Department. In addition, given that the plan was meant to cover the period 2003 - 2004, it is now clearly out of date.

In the cases which are the subject of this report it is evident that there were problems associated with responding to complainants and in providing information. The adverse affect deriving from these actions was exacerbated by the fact that the issues in respect of which information and clarity were being sought from the GRO were of an extremely sensitive and deeply personal nature. This was clearly brought home to me by the complainants who felt that in their dealings with the GRO, the focus was not directed on dealing with their individual concerns, but on justifying and defending the stand taken by the GRO in relation to the issues of concern.

The core function of my Office is to protect individuals who avail of public services from unfair, unsound and unjust actions on the part of those who are entrusted to deliver those same services. In order for me to carry out my statutory role, I expect that public bodies will co-operate fully with my Office, to comply with agreed liaison arrangements and give every assistance in relation to the examination and investigation of complaints. In the cases referred to in this report there are instances where the GRO has failed to meet these standards and this failure has impacted detrimentally on my Office's capacity to carry its statutory functions in relation to the complaints received. In addition as a consequence if the actions of the GRO, the individuals who complained to me have experienced a great deal of stress and inconvenience, in, for example, not being able to record the correct details relating to the birth of their children, having doubts cast upon the legitimacy of their marriages and not being able to marry their partners when they wished to do so.

As I said in my introduction to this report, I fully acknowledge the importance of the role played by the GRO in the administration of the civil registration service and that, in the vast majority of cases, this service is delivered in an efficient and competent manner. However, based on my experience from the examination of these complaints I find that there were shortcomings in the service provided by the GRO to these complainants through its

  • failure to respond promptly to enquiries
  • unwillingness to provide clarity or helpful informations in its responses
  • lack of sensitivity to the needs of the complainants
  • failure to learn from those decisions of the courts in cases, where evidence not acceptable to the GRO for the purposes of recognising a divorce had later been readily accepted by the courts
  • unwillingness to raise legislative issues for review by the Department of Health and Children
  • failure to observe agreed liaison arrangements with my Office

Progress in relation to developments under the Civil Registration Modernisation Programme is ongoing. A significant event in the Programme was the enactment of the Civil Registration Act, in February, 2004. One of the key provisions in the Act is at Part 8, Section 60 of the Act, (Appendix 4) which enables the Minister for Health and Children to make regulations in relation to the establishment of an appeals mechanism and the procedures to be followed in relation to the processing of appeals. However, at the time of writing, no such regulations have been made.

I recommend that,

  • in relation to those complaints referred to in this report where issues remain unresolved, the GRO engages positively with my Office with a view to resolving outstanding issues and bringing the cases to a speedy conclusion;
  • the GRO draws up a comprehensive statement for those individuals, who are required to provide acceptable evidence supporting the recognition of divorces obtained abroad, outlining precisely what evidence is required in such circumstances and advising them how they might go about obtaining such evidence;
  • the GRO undertakes a detailed review of cases where it had considered that insufficient evidence was available for the purposes of recognition of divorces obtained abroad but which were subsequently recognised by the courts on the basis of the same evidence. The objective of this review will be to create a database of precedent cases which would facilitate fast-tracking the process and making it less cumbersome in the future;
  • the GRO considers the incorporation, in its procedures, of an arrangement whereby the parent(s) of children whose births are to be entered in the Register of Births is/are given a copy of the proposed register entry in sufficient time to enable she/he/them to bring any errors in the proposed entry to the attention of the Registrar before formal registration;
  • the GRO undertakes to create and implement its own Customer Service Action Plan as soon as possible;
  • the GRO puts in place, on an administrative basis, a suitable appeals mechanism to deal with complaints relating to the provision of its services, pending the establishment, under regulation, of the appeals mechanism envisaged in the Civil Registration Act 2004;
  • the GRO undertakes to adhere to liaison arrangements with this Office with immediate effect.

Appendix 1

Response of the General Register Office to the Report of the Ombudsman

Before commenting on the individual cases, it is important to be aware of the general business and legislative environment within which the General Register Office (GRO) and the wider Civil Registration Service operates in. Until the 2002, the GRO had had no significant reform or investment since its establishment in 1845 and essentially operated a system of civil registration firmly rooted in the nineteenth century. This was a totally paper-based system, operated in accordance with legislation unsuited to the needs of a modern society. In 1996, the Government established a project to computerise all the registration records going back to the beginning of registration in 1845. This project involved assembling, photographing and digitising 26.7 million registration records. This was a difficult, painstaking, repetitive task accomplished over nine years involving considerable challenges.

In 1999, the Government approved an extension to the modernisation programme to encompass:-

  • Design and development of new business processes and procedures, and enhanced management structures
  • Introduction of modern technology
  • Reform of legislation to underpin the delivery of a modernised service to meet the needs of society and facilitate the wider eGovernment agenda.

This programme culminated in the computerisation of the entire registration process, passing of electronic data from/to other agencies, reorganisation of service delivery and the passing of the Civil Registration Act 2004, thereby replacing all of the old legislation governing civil registration. In parallel, the Government established an interdepartmental committee to oversee reform of the marriage law. The recommendations of this committee have been incorporated into the marriage provisions of the Civil Registration Act 2004.

The technical solution underpinning the new process includes:-

  • The creation of a national event database which facilitates the on-line seamless searching and retrieval of both historic and new registration records
  • The capture and storage in electronic format of historic records (the first of its kind worldwide)
  • On-line registration of life events (the first in Europe)
  • Use of electronic pads to capture signatures as part of the registration record
  • An interoperability framework for inter-agency transfer of data, thus enabling enhanced delivery of other public services

The computerisation project was awarded winner in one category and overall bronze medal from the Wall Street Journal (European Innovation Awards) in 2003, and received the Computerworld Honours Commemorative Medallion in 2004. In addition, the project has been exhibited at national and international conferences.

The success of the modernisation programme is a credit to all involved and represents a huge contribution to the culture and heritage of this country. It has also facilitated the wider modernisation agenda and has led to a massively improved service to the public.

Response to Ombudsman’s Observations on Individual Cases

Ms A

In this case the birth was registered in 1996 and no father's details were registered. In January 1998 the father obtained a court order under the Guardianship of Infants Act 1964, naming him as father and granting him access to the child. In March 1998, the father applied to have the birth re-registered to include his name as father. Re-registration in these circumstances was provided for under Section 7A of the Births and Deaths Registration Act (Ireland) 1880 (as inserted by the Status of Children Act 1987). There is no doubt that the father had the right to have his details added to the birth registration under these provisions. At the time the birth was originally registered, there was no provision for entering a surname on a birth registration. This changed with the passing of the Registration of Births Act 1996. Section 1(2) of this Act requires a birth re-registered under the Act to have a surname.

This Office proceeded to re-register the birth on foot of the application by the father and, in addition, added a surname and certain details pertaining to the mother. Legal advice was received by this Office in 2004 which stated that (a) this Office acted ultra vires, (b) the previous case could not be used as a precedent, and (c) that there was not any statutory provision, as the law then stood, to correct the error. (It should be noted that a certificate of baptism shows the child's surname to be that of the father. This is part of the evidence this Office would have relied on to effect the re-registration.) On the basis of the legal advice, this Office was not in a position to take any action within the law as it then stood.

When the relevant provisions of the CRA were commenced in December 2005, the matter was re-visited and updated legal advice was sought. In summary, the legal advice is to the effect that:-

(a) The court order obtained by the father shows that the court was satisfied that he was the father

(b) The re-registration effected by the GRO validly inserted the father's details

(c) No other details should have been entered at that time, and to alter the details of the mother and child was ultra vires.

This Office has been advised that the changes to the birth registration, other than the insertion of the father's details, were invalid and that these changes should be deleted. An enquiry under Section 65 of the Civil Registration Act should be undertaken in relation to the surname of the child. As this Office is in agreement with the legal advice given, this Office does not have any course of action open to it, other than to follow that advice.

It should be noted that since 2001 it is the practice of this Office to notify the other parent where one parent seeks to have a birth re-registered on foot of a court order, and to allow 21 days for receipt of the other parent's observations.

Ms B

This case involved the re-registration of the birth of a child to include the father's details. The address and occupation recorded for the mother on re-registration were current, rather than at the time of the birth. These errors were subsequently rectified under the provisions of Section 27 of the Births and Deaths Registration Act (Ireland) 1880. Since February 2005, it is the policy of this Office to record the details as they pertained at the time of birth. This is made clear in all forms and documentation issued, and registrars are instructed to make every effort to ensure that these are the details registered.

Mrs C

In this case, two errors were made in the registration of a birth. The birth date was registered as 24 December instead of 25 December, and the child's sex was incorrectly registered as female. In the Ombudsman’s report it is stated that the errors were made by the Registrar. While this may be true, it is also possible that the information supplied by the qualified informant was incorrect.

The procedure that was followed in this case was the only legally permissible course, given the legislative provision in force at the time. Section 27(3) of the Births and Deaths Registration Act (Ireland) 1880 provided that an "…error of fact or substance may be corrected by entry in the margin (without any alteration of the original entry)…". However, the register would only be accessible to a registrar, so no other person would have access to the incorrect data. Also, Section 6 of the Vital Statistics and Births, Deaths and Marriages Registration Act 1952 provides that regulations may be made for the issue of abridged (so-called clear) birth certificates. These regulations provide that the birth certificate would show the entry as corrected, and would not include marginal notes or the incorrect original data. The correction of errors would, therefore, not be disclosed to any individual or organisation which requested sight of the birth certificate.

Since the events in this case, the law has been updated and the process of registration has been computerised. Part 3 of the Civil Registration Act 2004 (CRA), which was commenced on 5 December 2005, governs the registration of births and stillbirths, and replaces all the old legislation. Sections 63 and 64 provide for the correction of errors. Section 63 provides for the correction of a clerical error, or an error of fact on application to a Superintendent Registrar by a person having an interest in the matter. Where the correction is in respect of a birth registered electronically, the incorrect or missing data are simply corrected or entered by a registrar. There is no provision for a marginal note, nor is one necessary. The computer system will, however, maintain an audit trail of such corrections. Where the correction is in respect of a birth registered using the old manual system, a new entry is created in the electronic database with a link to the original entry.

When application is made for a birth certificate in respect of a register entry which has been corrected under the manual (marginal note) procedure, the record is updated to create a new electronic record to reflect the corrections, and the certificate is issued from the electronic entry. This new electronic entry is linked to the original for audit purposes.

Another significant change in the new legislation is that the birth must be registered by the parents. The birth notification is received from the hospital and entered in the electronic database. When the parents present at the registrar's office, their identities and marital status is checked. The registrar then takes them through the data supplied by the hospital to ensure it is correct. Any additional data is entered in the electronic register and checked before the parents sign the register electronically.

Mr & Mrs D

In this case, certain errors were made when a manual marriage certificate was issued. Under the old manual system, certificates were transcribed from the original register, or from certified copies of the register, depending on where the certificate was issued. This process was tedious and labour-intensive and prone to errors for a variety of reasons, including poor legibility. In this case, the issue was compounded by the fact that the entry in the parish register differed from that which was returned by the parish to the registrar. As part of the computerisation project, all register entries were photographed and captured electronically. Were this certificate to be issued now, the original digitised photograph of the register entry would be transposed onto the form of certificate by the electronic print programs. This process eliminates the need for transcription in most cases, thereby ensuring that what was originally registered is what is reproduced on the certificate.

Recognition of Foreign Divorces

Before commenting in detail on these cases, it is important to set out the legal framework within which such cases are considered. The legislation governing recognition of foreign divorces is the Domicile and Recognition of Foreign Divorces Act 1986. Section 5 of the Act provides that a divorce shall be recognised if granted in the country where either spouse is domiciled. Where neither spouse is domiciled in the State, a divorce shall be recognised if, although not granted in the country where either spouse is domiciled, it is recognised in the country or countries where the spouses are domiciled. Whether or not to recognise a foreign divorce is a serious matter with significant implications for all parties involved and, in some instances, for third parties.

The question of domicile is crucial to the recognition of foreign divorces. In its consideration of this question in relation to individual applications for recognition of divorce for the purpose of marriage in the State, the GRO relies on the common law as determined by the Courts. Lambert –v- An tÁrd Chláraitheoir is the key case in this regard. In his judgment, the trial judge made a number of determinations which are of relevance to the GRO in this regard:-

(a) "…recognition of such divorces must be resolved as a question of Irish Law with respect to whether or not one of the parties to the divorce was domiciled in the foreign jurisdiction granting the divorce." (emphasis added)

(b) "…the most important piece of evidence in regard to the domicile…is her own sworn evidence that she had established her permanent home in England prior to making her divorce application."

(c) "The determination of…domicile in this case is dependent on the weight which is to be attached to her own sworn evidence." (emphasis added)

(d) "…an uncontradicted declaration of intention which is consistent with a party's actions may be regarded as evidence of an acquisition of a domicile of choice."

In CM –v- TM (No 2) 1990 IR 52, Barr J states:-

"The domicile of origin of a person continues until it is proved to have been intentionally and voluntarily abandoned and supplanted by another – see judgment of Black J in re Joyce; Corbet –v- Fagan 1946 IR 277 at page 301 which is quoted with approval by Griffin J in T –v- T 1983 IR 29 at page 35. The latter judgment is also an authority for the well settled principle that the burden of proving a change of domicile from a domicile of origin to a domicile of choice is on the person who asserts it. It is accepted by Counsel for the wife that the burden of proof is an onerous one where the domicile to be displaced is a domicile of origin, see Henderson –v- Henderson 1967 P 77 at [age 80 and Holden –v- Holden 1968 NI 7."

It is apparent from the above that the burden of proof of acquisition of a domicile of choice is onerous, that it must be proven as a matter of Irish Law, that the burden of proof lies with the person asserting acquisition of a domicile of choice, and that an uncontradicted declaration which is consistent with a party's actions may be regarded as evidence of an acquisition of a domicile of choice.

In all of the cases mentioned by the Ombudsman, the central question to be determined is whether the party asserting acquisition of a domicile of choice has provided evidence of that.

Mr E

In order for a foreign divorce to be recognised where one party is domiciled in this State, one of the other parties to the marriage must have been domiciled in the jurisdiction which granted the divorce at the time the divorce proceedings were initiated. Mr E is domiciled in Ireland, having been born here (domicile of origin) and lived here all his life. The crucial question, therefore, is in respect of the domicile of Mr E’s wife. Mr E’s wife was born in Ireland and therefore has a domicile of origin in Ireland. Mr E’s wife claims that she acquired a domicile of choice in England. The onus of proof is on the person claiming acquisition of a domicile of choice and the burden of proof is onerous. It is a mixed question of intention and fact. While Mr E’s wife may have had the intention to abandon her domicile of origin, her subsequent actions in returning to Ireland clearly showed that she had not done so.

The application for recognition of the foreign divorce was made to this Office in March 2003. On 9 May 2003, Mr E’s solicitor provided an affidavit from Mr E’s wife. Some days later, on 15 May 2003, this Office responded to Mr E’s solicitor setting out in some detail the legal requirements for recognition of a foreign divorce and explaining why the evidence provided was not sufficient to prove acquisition of a domicile of choice by Mr E’s wife. (The affidavit of Mr E’s wife did not make any reference to her intention to "…obtain a domicile of choice in that country.") Therefore, this Office had not been provided with material to satisfy the evidential requirements (which had been outlined to Mr. E’s solicitor) and was not in a position to recognise the divorce.

Mr E subsequently obtained a declaration under Section 29 of the Family Law Act 1995 that the divorce was entitled to recognition in this jurisdiction. It should be noted that this is not a judicial review of the decision taken by this Office under the Domicile and Recognition of Foreign Divorces Act 1986.

Mr F

In this case, Mr F had been married in England in 1986. He and his wife moved to Australia in 1991. Mr F left Australia in 2000 and divorce proceedings were initiated by his wife in Australia in 2002. Mr F took up residence in Ireland in 2002. His whereabouts between 2000 and 2002 are not indicated.

Mr F was born in the England, so that is his domicile of origin. If he has not acquired a domicile of choice in Ireland, his domicile is England. His domicile at the time the divorce proceedings commenced is unknown, as he left Australia in the year the proceedings were initiated and his whereabouts between then and his coming to Ireland in 2002 are not known to this Office. If Mr F’s domicile is England, his Australian divorce would be recognised there. However, under Section 5(4) of the Domicile and Recognition of Foreign Divorces Act 1986, where neither party is domiciled in Ireland, the divorce must be recognised in the country where both spouses are domiciled. This is why the questions concerning the domicile of Mr F’s former wife arise, as the divorce must also be recognised in the country where she is domiciled.

In gathering the information necessary for this Office to decide on a recognition of divorce application, questionnaires are required to be completed by, or on behalf of, each of the parties to the divorce. The questionnaire in respect of Mr F’s wife was completed by him. In this case, Mr F stated that the intentions of his former wife concerning permanent residence were unknown. The Office of the Ombudsman supplied this Office with a photocopy of an application for a divorce made by Mr F and his former wife to the Australian court in 2002.

In the Lambert case, Kinlen J stated that "…an uncontradicted declaration of intention which is consistent with a party's actions may be regarded as evidence of an acquisition of a domicile of choice." This is the basis for the request for direct evidence from Mr F’s former wife.

Ms G

Ms G married in Ireland in 1994, having been previously married and divorced in England. Both Ms G and her former husband had a domicile of origin in Ireland. Ms G returned to live in Ireland after her second marriage. Doubt was cast on the validity of the second marriage as, for some reason, her divorce had not come to the attention of the registrar prior to the marriage.

This case first came to attention in January 1996. On 31 January 1996, this Office wrote to Ms G enclosing the standard questionnaires and asking her to complete and return them. When no reply was received, a further letter issued from this Office dated 14 January 1997. The questionnaires and a copy of the divorce decree were received on 25 March 1997. On 21 April 1997, this Office wrote to Ms G stating that in order to provide evidence of his acquisition of a domicile of choice in England and Wales, her former husband should provide an affidavit indicating the circumstances in which the decision to reside permanently in England and Wales had arisen for him, and an indication from his conduct, behaviour and actions that he had definitively determined to reside permanently in that jurisdiction. The GRO did not receive any further evidential material from Ms. G until 2001 when her former husband provided an affidavit, the contents of which constituted independent, uncontradicted evidence that he had acquired a domicile of choice in England. Upon receipt of this evidence, and the divorce could be recognised.

Ms H

Ms H married in England in 1976. A divorce was granted in England in 1981. Ms H served notice of intention to re-marry in Ireland in 1998. Ms H had a domicile of origin in Ireland and lived in England from 1976 to 1983. Ms H’s husband had a domicile of origin in Ireland, but his whereabouts and intentions as to his current domicile could not be established at the time of the intended re-marriage of Ms H. This meant that independent, uncontradicted evidence, as required by law, as to his acquisition of a domicile of choice in England could not be provided.

Conclusion

It is acknowledged that in dealing with some of the cases mentioned by the Ombudsman, certain actions were taken and delays incurred which should not have happened. In relation to cases not involving recognition of foreign divorces, there were legislative obstacles and operational deficiencies associated with a manual registration system that caused frustration for members of the public. However, most of the issues raised have been addressed through procedural change, legislative reform and investment in technology, and it is unlikely that instances such as these will arise in the future.

The position regarding recognition of foreign divorces is more problematic. The Domicile and Recognition of Foreign Divorces Act 1986 was enacted at a time when divorce was not allowed in this country, and was designed to provide for the recognition of foreign divorces while ensuring that the constitutional prohibition on divorce was not undermined. Section 29 of the Family Law Act 1995 does provide a mechanism whereby persons affected can pursue a remedy.

While the 1986 Act provides a way to recognise foreign divorces, the definition of "domicile" is a matter of common law. This Office is therefore reliant on case law to define domicile. As the circumstances of each case differ, it is an uncertain and complex process to determine whether apply the precedents can be applied to each in all and every set of circumstances which come before the Office. In addition, this Office must be extremely careful in applying the law, as the consequences of making the wrong decision would be far-reaching for all concerned. A wrong decision would have the effect of calling into question the validity of one, or possibly two, marriages, with possible "knock-on" implications for the legal status of other parties ; would cause distress to the parties affected and could lead to expensive and lengthy litigation, thereby exposing the State to claims for compensation and damages.; and would cause distress to the parties affected.

In an attempt to assist persons affected, it has been the policy of this Office for some time to tell them that we require direct evidence, in the form of an affidavit, from the person claiming the acquisition of a domicile of choice, to the effect that that person had, prior to instituting divorce proceedings, definitively determined to reside permanently in the jurisdiction which granted (or recognised) the divorce, the circumstances which caused this decision, and confirmation that the person continues to reside there. As each case is different, and as the GRO will normally only have limited information available to it, it can be difficult to be more prescriptive.

In relation to the court cases referred to, applications under Section 29 of the Family Law Act 1995 are held in camera and the GRO is a stranger to the proceedings. No judgments are issued. It is therefore not possible for the GRO to rely on these cases as precedents. It should be noted that this Office deals with about 1,500 divorce recognition clearance applications a year, the vast majority of which are without incident.

It should be noted that under EU Council Regulation (EC) No 2201/2003 (commonly known as Brussels II A) divorces granted after 1 March 2001 in EU Member States (with the exception of Denmark) are entitled to automatic recognition in all Member States.

In its dealings with members of the public, the GRO must act in accordance with the law and take all necessary steps to ensure that the rights of all parties are upheld. The lessons of the cases highlighted by the Ombudsman have been learned and this has led to changes in legislation, procedures and processes. However, we have to be mindful of the fact that society is changing rapidly and that the Civil Registration Service has to be able to adapt to evolving conditions. There is now in place a programme of continuous improvement and investment, and the report of the Ombudsman is a valuable input to that process. I welcome the recommendations of the Ombudsman and give every assurance that they will be given very careful consideration and that appropriate measures will be taken to implement them.

While there have been difficulties with the cases mentioned in the Ombudsman’s report, it has to be acknowledged that the reform programme undertaken over the past number of years has resulted in a paradigm shift in the way civil registration services are delivered. The new legislation, introduction of modern technology and reorganisation of services has resulted in a much more responsive and flexible environment for members of the public and registration personnel alike. This is evidenced by the very positive feedback received from members of the public in recent years across the full spectrum of civil registration services.

Kieran Feely

Registrar General

Appendix 2

Public Bodies and the Citizen - The Ombudsman's Guide to Standards of Best Practice for Public Servants

Public bodies should strive for the highest standards of administration in their dealings with people. And public servants should ensure that people are dealt with properly, fairly, openly and impartially. The following checklist, although not exhaustive, is a guide to standards of best practice for public servants. I hope that public bodies will find it useful in their efforts to provide a better service to their clients.

Dealing "properly" with people means dealing with them -

  • promptly, without undue delay and in accordance with published time limits;
  • correctly, in accordance with the law or other rules governing their entitlements and published quality standards;
  • sensitively and by giving reasonable assistance, having regard to their age, to their capacity to understand often complex rules, to any disability they may have and to their feelings, privacy and convenience;
  • helpfully, by simplifying procedures, forms and information on entitlements and services, maintaining proper records, and providing clear and precise details on time limits or conditions which might result in disqualification;
  • carefully, where more than one public body is concerned, by ensuring proper communications between the bodies to prevent a person's needs being overlooked;
  • courteously, including communicating in Irish (both written and oral) where it is clear a person wishes to do so;
  • responsibly, by not adopting an adversarial approach as a matter of course where there may be a fear of litigation and by being prepared to explain why an adverse decision has been given.

Dealing "fairly" with people means -

  • treating people in similar circumstances in like manner;
  • accepting that rules and regulations, while important in ensuring fairness, should not be applied so rigidly or inflexibly as to create inequity;
  • avoiding penalties which are out of proportion to what is necessary to ensure compliance with the rules;
  • being prepared to review rules and procedures and change them if necessary;
  • giving adequate notice before changing rules in a way which adversely affects a person's entitlements;
  • having an internal review system so that adverse decisions can be looked at again and reviewed by someone not involved in the first decision;
  • informing people of how they can appeal, co-operating fully in any such appeal and being open to proposals for redress including apologies, explanations and payment of appropriate compensation;
  • making appropriate redress which puts the person back into the position he/she would have been in if the public body had acted properly in the first place;
  • adopting a policy for dealing with the small number of people who act in a vexatious manner or in bad faith, which strikes a balance between the interests of the public body, its staff and the person concerned.

Dealing openly with people means -

  • putting people in contact with the officials of the public body with responsibility for dealing with them and, if appropriate, referring them to alternative sources of assistance;
  • making available and keeping up to date, comprehensive information on the rules and practices which govern public schemes and programmes;
  • giving people full information on the reasons for a decision which adversely affects them including details of any findings of fact made in the course of the decision;
  • ensuring people know what information is available, where to get it and know of their right to access it in accordance with Freedom of Information legislation and otherwise;
  • assisting people, where necessary, to prepare their requests for access to information;
  • providing accessible public offices and using information and communications technologies to ensure maximum access and choice in service delivery.

Finally, dealing "impartially" with people means -

  • making decisions based on what is relevant in the rules and law and ignoring what is irrelevant;
  • avoiding bias because of a person's gender, marital status, family status, sexual orientation, religious belief, age, disability, race, membership of the Travelling Community, language, attitude or reputation or because of who they are or who they know;
  • ensuring, where a service is based on a scheme of priorities, that the scheme is open and transparent; being careful that one's prejudices are not factors in a decision;
  • declining any involvement with a decision where one has a conflict of interests, a potential conflict of interests, or where there may be a perceived conflict of interests.

Appendix 3

DOMICILE AND RECOGNITION OF FOREIGN DIVORCES ACT, 1986

No 24/1986

ARRANGEMENT OF SECTIONS

Section

1. Abolition of wife's dependent domicile.

2. Domicile before commencement of Act.

3. Domicile after commencement of Act.

4. Dependent domicile of minor.

5. Recognition of foreign divorces.

6. Short title and commencement.

Number 24 of 1986

No. 24/1986: DOMICILE AND RECOGNITION OF FOREIGN DIVORCES ACT, 1986

AN ACT TO AMEND THE LAW RELATING TO DOMICILE AND THE RECOGNITION OF FOREIGN DIVORCES.

[2nd July, 1986]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Abolition of wife's dependent domicile.

1. - (1) From the commencement of this Act the domicile of a married woman shall be an independent domicile and shall be determined by reference to the same factors as in the case of any other person capable of having an independent domicile and, accordingly, the rule of law whereby upon marriage a woman acquires the domicile of her husband and is during the subsistence of the marriage incapable of having any other domicile is hereby abolished

Domicile after commencement of Act.

(2) This section applies to the parties to every marriage, irrespective of where and under what law the marriage takes place and irrespective of the domicile of the parties at he time of the marriage. 

Domicile before commencement of Act.

2. - The domicile that a person had at any time before the commencement of this Act shall be determined as if this Act had not been passed

3. - The domicile that a person has at any time after the commencement of this Act shall be determined as if this Act had always been in force.

Dependent domicile of minor.

4. . - (1) The domicile of a minor at any time when his father and mother are living apart shall be that of his mother if -  

( a ) the minor then has his home with her and has no home with his father, or

( b ) the minor has at any time had her domicile by virtue of paragraph ( a ) of this subsection and has not since had a home with his father.

(2) The domicile of a minor whose mother is dead shall be that which she last had before she died if at her death the minor had her domicile by virtue of subsection (1) of this section and has not since had a home with his father.

(3) This section shall not affect any existing rule of law as to the cases in which a minor's domicile is regarded as being, by dependence, that of his mother.

(4) In the application of this section to a minor who has been adopted, references to the father or mother of such minor shall be construed as references to the adoptive father or adoptive mother of such minor.

Recognition of foreign divorces.

5. (1) For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled.

(2) In relation to a country which has in matters of divorce two or more systems applying in different territorial units, this section shall, without prejudice to subsection (3) of this section, have effect as if each territorial unit were a separate country.

(3) A divorce granted in any of the following jurisdictions

( a ) England and Wales,

( b ) Scotland,

( c ) Northern Ireland,

( d ) the Isle of Man,

( e ) the Channel Islands,

shall be recognised if either spouse is domiciled in any of those jurisdictions.

(4) In a case where neither spouse is domiciled in the State, a divorce shall be recognised if, although not granted in the country where either spouse is domiciled, it is recognised in the country or countries where the spouses are domiciled.

(5) This section shall apply to a divorce granted after the commencement of this Act.

(6) Nothing in this section shall affect a ground on which a court may refuse to recognise a divorce, other than such a ground related to the question whether a spouse is domiciled in a particular country, or whether the divorce is recognised in a country where a spouse is domiciled.

(7) In this section—

"divorce" means divorce a vinculo matrimonii;

"domiciled" means domiciled at the date of the institution of the proceedings for divorce.

Short title and commencement.

6 - (1) This Act may be cited as the Domicile and Recognition of Foreign Divorces Act, 1986

(2) This Act shall come into operation on the day that is three months after the date of the passing of this Act.

Appendix 4

Liaison Arrangements with the General Registrar's Office

1. The liaison Officer appointed by the body should be at an appropriate senior level.

2. In nominating an officer for liaison duties regard should be had to the above functions and also the following aspects

- the need for ready access to the Registrar;

- the seniority of the nominee should be such as will facilitate the processing of complaints quickly and effectively within the body, and

- the requirement to be easily accessible to the staff of the Ombudsman.

3. The Liaison Officer's main functions are:

- to act as the initial point of contact in any particular case between the Ombudsman's Office and the GRO;

- to ensure that any written or oral enquiries from the Ombudsman's Office are immediately directed to the appropriate section(s) for attention;

- to ensure that all time limits applying to requests for information, or for responses to complaints, from the Ombudsman's Office are met;

- to ensure that all relevant files and documents are readily available for inspection when requested by the Ombudsman's Office;

- to ensure that the Ombudsman's staff are provided with suitable facilities on their visits to the GRO.

Examinations/Investigations by the Ombudsman

4. The Ombudsman is empowered to fix whatever procedures he considers appropriate for conducting an examination/investigation. However, the Ombudsman will always seek to have regard to the needs of the particular body in determining procedures in any particular case

5. In the case of the preliminary examination, the first person to be contacted by the Ombudsman's Office is the Liaison Officer. He or she should, in the case of an enquiry by telephone, indicate which section of the body is involved. If possible, he or she should also supply the Ombudsman's Office with the name of a particular officer who should be in a position to respond to the enquiry, so that the Ombudsman's Office can then contact the officer involved and attempt to resolve the matter. In the case of complaints made in writing, the Liaison Officer should ensure that any letter from the Ombudsman's Office is directed to the appropriate section. The Liaison Officer has an important role to play in resolving any difficulties that may arise, particularly in facilitating the processing of that small number of cases which require immediate and urgent consideration outside of normal procedure.

In some cases the subject matter of the complaint might involve consideration of sensitive issues e.g. child abuse or potentially defamatory allegations against individuals. Such complaints will generally be forwarded directly to the Head (or, on occasion, to another senior manager) of the body for an appropriate response.-

A reply to an initial request from the Ombudsman's Office for a report on a complaint should be provided within three weeks of receipt of the request. A reply to any subsequent request for material or additional information should be provided within two weeks of receipt of the request from the Ombudsman's Office.

6. Where the Ombudsman decides to investigate a complaint formally under the Ombudsman Act, this Office will write to the Registrar enclosing a written summary of the complaint and requesting written observations on it. A copy of this correspondence will be sent to the Liaison Officer. Such a communication should be dealt with as a matter of priority and a reply should issue within 14 days of receipt. If the GRO does not accept that a complaint may validly be investigated by the Ombudsman (e.g., if it is of the view that the subject matter is not one for the Ombudsman or if it feels that the complaint is not appropriate to the body), the Head should convey the body's view in writing to the Ombudsman within seven days

 Suggested format of replies to the Ombudsman's office( Preliminary examination and Investigation )

7. Requests from the Ombudsman's Office for a report on a complaint will generally contain a summary of the case circumstances (as perceived by the complainant) and details of the action of the GRO, which is the subject of the complaint, as alleged by the complainant

The GRO's reply should:

State clearly whether it accepts the circumstances of the case as stated by the complainant. If not, the GRO should outline its account of the events giving rise to the complaint and should detail the contacts between it and the complainant in regard to those events;

Indicate whether its position in the matter, as alleged by the complainant, reflects accurately the GRO's actual position. If not, the GRO should outline its position in relation to the alleged decision or action;

State the specific basis for its decision or action by reference to the relevant guidelines, scheme, regulation or statute, as appropriate. In some cases the GRO may decide to send the Ombudsman a copy of the relevant legislation or guidelines. In any event, the Ombudsman may ask that such a copy be provided if it is not otherwise already available to him;

Indicate the reason for the GRO's decision or action in the matter.

 Production of Documents, Witnesses etc.,

8. The Ombudsman may, for the purposes of a preliminary examination or an investigation, require that any information or document or any other thing relevant to his examination or investigation should be furnished to him. Where appropriate, the Ombudsman may require any person who, in his opinion is in possession of any such information, document or other thing to attend before him for the purpose of furnishing it to him. Subject to the Ombudsman's agreement, and at the request of the person concerned, the Liaison Officer may attend any interview between the Ombudsman (or his staff) and the person concerned.

Cases involving individual Officers or Employees

9. In some cases, a complaint may be directed against an individual staff member, or the Ombudsman may find it necessary, in order to complete his examination or investigation, to scrutinise in detail the actions taken by an individual staff member. In such cases, the staff member concerned should be informed immediately by the Liaison Officer (or other senior manager to whom the complaint has been notified) that his/her actions are under scrutiny. If the staff member is not satisfied that his or her position has been adequately reflected in any reply which is sent to the Ombudsman, he/she may wish to submit his or her own comments directly to the Ombudsman. A staff member who wishes to make such a submission should be afforded all reasonable facilities, including access to the relevant files (if necessary), to assist him or her in preparing the submission. Where the Ombudsman has prepared a draft investigation report, he may send to any individual staff member, in the GRO complained of, relevant extracts from the draft and invite comments or representations in relation to the proposed draft. The time limits applicable for personal submissions to the Ombudsman will be 14 days from receipt of the enquiry from the Ombudsman.

Liaison Officer to be Kept Informed by Ombudsman's Office.

10. As the Liaison Officer is the primary channel of communication between the Ombudsman's Office and the particular public body, it is essential that the Liaison Officer be kept informed as to all developments in relations between the two bodies. The Ombudsman's Office will seek to ensure that the Liaison Officer is so informed by, for example, routing complaints through the Liaison Officer, by sending the Liaison Officer copies of all significant correspondence (e.g. re. investigation cases), and by informal contacts.

The Liaison Officer will be advised when a complaint has been finalised and what the outcome was. Generally, this will be done on a periodic (e.g. monthly) rather than on a case by case basis. In some cases, the Liaison Officer will be given additional feedback on the outcome of a complaint.

Appendix 5

Civil Registration Act 2004. [No. 3]

PART 8

General

Appeals.

60.—(1) Where -

(a) a registrar fails or refuses to register in the appropriate register specified in section 13 a birth, stillbirth, death or marriage or to enter in such a register one or more of the particulars required by this Act to be so entered, and furnished to him or her by a person pursuant to this Act,

or

(b) an tArd-Chláraitheoir or an authorised officer fails or refuses to comply with a request of a person under section 63, the registrar, an tArd-Chláraitheoir or the authorised officer, as the case may be, shall notify the qualified informant (within the meaning of Part 3 or 5, as may be appropriate) concerned, the parties to the marriage or the person in writing of the reasons for the failure or refusal.

(2) If a person (‘‘the appellant’’) affected by a failure or refusal by a person under subsection (1) is dissatisfied with it, he or she may appeal against it by lodging a notice of appeal in writing in a form standing approved by an tArd-Chláraitheoir or in a form to the like effect with the authority concerned, not later than 28 days from the date of his or her receipt of the notification under subsection (1), and the appeal shall be referred by the authority to such officer of the authority (not being the person in relation to whom the appeal is brought) as the authority may determine (‘‘the appeals officer’’), and the appeals officer shall determine the appeal.

(3) If an appellant is dissatisfied with the decision of an appeals officer under subsection (2), he or she may appeal against it by lodging a notice of appeal in writing in the form standing approved by an tArd-Chláraitheoir or a form to the like effect with an tArd-Chláraitheoir not more than 28 days after his or her receipt of the decision and an tArd-Chláraitheoir shall determine the appeal and, subject to subsections (6) to (8), the decision shall be final.

(4) The Minister may by regulations make provision in relation to notices of appeal under this section and the procedure to be followed on appeals under this section.

(5) In relation to an appeal under this section, the appeals officer concerned or an tArd-Chláraitheoir, as the case may be -

(a) shall notify the parties concerned in writing of his or her decision in relation to the appeal and of the reasons therefor, and

(b) may give such directions in relation to the registration or correction concerned to the registrar or authorised officer concerned as he or she considers appropriate, and any such direction shall be complied with by the person to whom it is given.

(6) An appeals officer (‘‘the officer’’) may revise a decision of another appeals officer under this section if it appears to the officer that the decision was erroneous having regard to evidence first given to the officer, or a fact first made known to the officer, since the date of the decision.

(7) An tArd-Chláraitheoir may revise a decision (including a revised decision under this subsection) of an tArd-Chláraitheoir or an appeals officer if it appears to him or her that the decision was erroneous by reason of a mistake of law or fact.

(8) A person who is dissatisfied with a decision (including a revised decision) of an tArd-Chláraitheoir may appeal against it to the High Court.

(9) A revision under subsection (6) by an appeals officer shall be deemed, for the purpose of subsections (2) to (5) and (7) of this section, to be a decision under subsection (2), and those subsections shall apply and have effect accordingly, with any necessary modifications, in relation to the revision.

(10) A decision or a revision under this section -

(a) shall be in writing and be signed by the person by whom it is made, and

(b) shall, subject to any appeal under this section, have effect in accordance with its terms.

(11) A document purporting to be a decision or a revision of an tArd-Chláraitheoir or an appeals officer shall be deemed to be such a decision or revision and to have been signed by the person pur-porting to have signed it unless the contrary is shown and shall be prima facie evidence of the decision or revision and it shall not be necessary to prove that that person was an tArd-Chláraitheoir or, as the case may be, an appeals officer.