Changing a birth date for an adopted child. How to obtain a court order (declaration from a judge).
Do you need to change your child’s birth date? It may seem odd to give a child a new birthday, but this is the best course for some children adopted internationally. In the thirteen years I have practised adoption law, I have been asked by parents of children from Ethiopia, Nepal, Vietnam and the Democratic Republic of Congo how they can legally correct a child’s birth date. As an adoptive parent myself, I can sympathize with these parents. The inaccurate birth dates mean extra paperwork and advocacy for them, and may mean missed or delayed opportunities for their children.
Why are children’s birth dates inaccurate? There are many reasons. If a child has been abandoned, or found in the midst of a conflict zone, he or she may have been given an estimated birth date by orphanage staff or adoption officials. Sometimes more than one birth date may appear on a child’s official documents. Children are sometimes given birth dates to make them seem younger in the belief this will increase their likelihood of being adopted. In some countries, birth registration is not required, or birth records are missing or inadequate. Therefore, the birth records that exist may be inaccurate.
Age does matter. For many reasons, it is important that your legal birth date be similar to your chronological birth date. If a child is younger on paper than his or her chronological age, he or she may have to wait one or more years to start school or college. The discrepancy can be problematic for any activity organized by chronological age, including individual or team sports, obtaining a drivers’ licence, or getting a job. For medical matters, age is often a factor in dosages, vaccines and other treatments.
So, how can a parent correct a birth date? For adoptive parents in Canada, there are two ways to change a child’s birth date. This article will discuss one process available to residents of British Columbia, but the other Canadian provinces have a similar process. A person may apply to the Supreme Court of British Columbia for a declaration for a new birth date for a child. There is another process, in the context of making a citizenship application for a child, set out in the Immigration Canada policy manuals. I will not discuss that process in this article.
When making a declaration of a new birth date for an adopted child, the Supreme Court of British Columbia exercises its parens patriae jurisdiction. This is the very broad jurisdiction over matters affecting citizens that our superior courts have inherited from the divine right of kings. The court, however, needs reliable evidence before exercising this jurisdiction. Evidence is generally provided in sworn written documents called Affidavits. Under our current BC court rules, a request to our Supreme Court to change a child’s birth date would be set out in a Petition, with Affidavits as supporting evidence.
I recommend provided the following evidence by Affidavit:
1. A dentist’s opinion. A dentist, considering the root formation of a child’s teeth visible in an x-ray, and the presence and eruption of teeth above the gum line, may be able to provide a range of actual birth dates for the child, hopefully narrowed to a three or six month period. For teenagers, an orthodontist’s opinion may be necessary.
2. A pediatrician’s opinion. An overall assessment of the child’s development, including her gross and fine motor skills, cognitive and emotional development, and a comparison to standard growth charts is very helpful for the court. If the child is in school, the pediatrician can review the child’s report cards, and these documents may be provided to the court as well.
3. Known information about the child’s birth. A summary of the information provided to the parents by the orphanage staff, adoption facilitators, and/or government officials about the child’s birth and the circumstances leading to the child’s availability for adoption should be set out in an Affidavit.
4. A radiologist’s opinion. This is optional, but should be considered. A radiologist, after considering x-rays of the child’s hand or wrist, may be able to provide a narrow range of actual birth dates. However, the age range established by x-rays may be much broader than that established by a dentist, especially if malnutrition delayed the child’s physical growth.
In 2013, I appeared in court regarding a Petition filed on behalf of one of my clients. We had the following evidence before the court: a dentist had determined the child was born in a three month period, a pediatrician had opined the child was born in a six month period and a radiologist gave an eighteen month period for the child’s actual birth date. The narrow three month range provided by the dentist was right in the middle of the six month period provided by the pediatrician. Both of these periods were in the middle of the range provided by the radiologist. So, in the end, we asked the court to declare the child’s birth date to be a date right in the middle of the time period provided by the dentist. And so, the child had a new birthday!
© 2019 Karen Henry, LLB. karenhenrylaw@shaw.ca
Lawyer, West Coast Family Law Centre
1179 Fort Street, Victoria, BC, Canada, V8V 3L1
Disclaimer: The above information is given as information only and is not given as legal advice. Do not rely on this information as advice for your specific circumstances. Talk to a lawyer who specializes in adoption law about the specific facts of your circumstances to get personal legal advice.