A parent who wishes to change their child’s surname must obtain the other parent’s written consent if that other parent has parental responsibility. If this consent is not forthcoming and the other parent objects to the child’s name being changed, it will be necessary to apply to the Court for permission. Therefore where there is no residence order in place and both parents have parental responsibility, a parent wishing to change a child’s surname can only do so with the written agreement of the other parent or by obtaining a an Order from the court giving leave to change the name.
However if only one parent has parental responsibility then that parent may change a child’s name without the consent of any other person and without having to obtain permission from a judge. Therefore when a mother is the only parent with parental responsibility she may change her child’s name without the consent of the father.
If a Residence Order is in place, the leave of the Court must always be obtained. Permission from the court to change a surname is not only required where the requisite consent is not forthcoming, but also where there is no one with parental responsibility. An example of this would be where an orphan child is living with relatives who want to change his surname.
Application for leave to change the surname will be by way of an application for a specific issues order under section 8 of the Children Act 1989. Applications to the court for permission to change the surname of a child are considered most carefully and will only succeed where it can be shown that a change in name is in the child’s best interest. It is therefore essential to fully understand the matters which will be taken into consideration in order to bring these out when making or opposing an application.
Where permission is given by the other parent with parental responsibility it should be in writing. However:
In Re W, Re A, Re B (change of name) 1999 the Court of Appeal stated that where there is no residence order in force [or no care order] written consent is required of all those with parental responsibility if there is to be enrolment of the new name by deed poll. Otherwise, consent need not be given in writing and can be inferred from little more than indifference on the part of the person whose consent is required. Care should be taken however and clearly written consent is preferable.
When a parent wishes to change a child’s surname and a dispute arises as to the change, there is a responsibility on the person seeking the change to take the issue before a court for resolution. The courts consider a child’s name an important matter which must be decided in the child’s best interests. The principle that has been established is that a court should not make an order to change a child’s surname unless there is evidence that it would lead to an improvement in the child’s welfare.
In W v A (Child: Surname) the position was summarised as this:
‘It is a matter for the discretion of the individual judge hearing the case, seeing the witnesses, seeing the parents, possibly seeing the children, to decide whether or not it is in the interests of the child in the particular circumstances of the case that his surname should or should not be changed; and the judge will take into account all the circumstances of the case including no doubt where appropriate any embarrassment which may be caused to the child by not changing his name, and, on the other hand, the long-term interests of the child, the importance of maintaining the child’s links with his paternal family, and the stability or otherwise of the mother’s remarriage.’
A number of general principles have evolved:
- In any application the welfare of the child is paramount.
- Among the factors to which the court should have regard is the original registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child’s father. Registration is always a relevant and important consideration, but is not in itself decisive.
- Relevant considerations should include factors which could arise in the future as well as the present.
- Reasons given for changing or seeking to change a child’s name based on the fact that his name is not the same as the parent making the application do not generally carry much weight.
- The reasons for an earlier unilateral decision to change a child’s name may be relevant.
- Any change of circumstances of the child since the original registration may be relevant.
- In the case of a child whose parents are married to each other, the fact of the marriage is important, and there will have to be strong reasons to change the name from the father’s surname if the child has been so registered.
- Where the child’s parents are not married to each other, the mother has control over registration. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the quality of contact, if it has occurred, between them, the existence or absence of parental responsibility are all relevant factors to take into account.
In one case which ended up before the House of Lords – Dawson v Wearmouth – the mother had been married to Mr Wearmouth and had two children by him. When she and the child’s father divorced the mother and the children retained the surname of Wearmouth.
Mother subsequently met Mr Dawson, she and the children lived with him and she had a third child by him. When the third child was about one month old mother and Mr Dawson separated. Mother registered the third child with the surname of Wearmouth which she and the two other children had maintained. She knew that Mr Dawson would not like this and in fact Mr Dawson applied to the court in order that the third child could be known by his surname.
The House of Lords refused. The question, as always, was what was in the child’s best interests. In this case mother, Mr Dawson and the child had not really lived together as a family unit for any length of time. Mother not unnaturally argued that she and the two other children had one surname and it would do more for the unity of the family if all the children had the same surname. The court agreed with her.
An unmarried father who has never lived with the mother and who has not agreed to let the child be registered with his surname will be in a very weak position.
In other cases where the father and mother had been married and divorced but the father has been sent to prison for a crime which has attracted considerable publicity. In one such case where the child had exactly the same name as his father the court readily agreed to the change of surname that was wanted by the mother. As always, it is what is in the best interests of the child that matters.
However in Re B, three teenage children’s parents had divorced. The children were living with their mother. They had no contact with their father and wished to have nothing to do with him. The mother remarried and applied to the court for the children to be known by her new surname. The children said that this is what they wanted but their father opposed the application on the basis that it would sever any relationship between him and the children.
The application to change the children’s name was refused. Although residence or contact orders would not normally be made if they ran contrary to the wishes of older children, this did not apply to a change of name. It was not harmful to the children for them to have a different surname from other adults in the family and a change of name would damage the link between the children and their natural father.
Also in the case of Re C an unmarried couple had children aged 8 and 7. The children originally had the mother’s maiden name but went to live with the father under a residence order. He changed their name to his not realising that such a change could not be made without the mother’s consent as she had parental responsibility. The mother’s application for the children to be known by her name was dismissed because although it was of fundamental importance for children to have an enduring relationship with an absent parent, in this case it was not appropriate for them to retain their mother’s maiden name as she had now remarried and used a different name.
The court will not make an order to change a child’s surname unless there is some evidence that it would lead to an improvement in the child’s welfare.
Generally what the court does is balance the long-term interests of the child in retaining an outward link with the parent with whom the child is not living against what are often shorter-term benefits of lack of confusion, convenience, lack of embarrassment and the like.
The difficulty is illustrated by W v A, where the fact that the mother, her two children and the step-father were emigrating to Australia to start a new life was not enough to justify a change from the father’s to the step-father’s surname.
Nevertheless, emigration will always be a relevant factor. So, too, will the stability of the mother’s marriage to the step-father, the likely embarrassment which retention of the natural father’s name may cause the child for example among school friends and any notoriety which that name has acquired.
Where there is evidence of embarrassment, a compromise solution by way of a hyphenated surname combining the name of the mother and the father may be appropriate, but in other cases the children might regard that solution as just as embarrassing or even in reality meaningless.
IN Re F (child: surname) the Court of Appeal refused to allow a divorced mother to change her daughter’s surname to her maiden name from that of the father’s surname. They ‘saw no reason to suppose, bearing in mind the current views of ordinary people, that a child was going to be embarrassed or that it was particularly unusual in being registered at a school in a name different from the current surname of the mother’.
In P v N, the mother, on divorce, reverted to use of her maiden name. Her daughter was registered at school and with the doctor and dentist in her father’s name, but was generally known as P-N (being the father’s name followed by the mother’s maiden name). By consent, a residence order was made in favour of the mother. Since this meant that she could not change the girl’s name without consent, the father was content to allow the ‘reasonable compromise’ of the status quo to continue.
It has been urged that ‘parents and courts should be much more prepared to contemplate the use of both surnames in an appropriate case, because that is to recognise the importance of both parents’.
In Re R (a child), sub nom Re R (surname: using both parents’) the Court regretted that ‘it is so often assumed, and even sometimes argued, that fathers need that outward and visible link in order to retain their relationship with, and commitment to, their child. That should not be the case. It is a poor sort of parent whose interest in and commitment to his child depends upon that child bearing his name. After all that is a privilege which is not enjoyed by many mothers, even if they are not living with the child. They have to depend upon more substantial things’.
In Re C (minors) (change of surname) it was held that it was not in the interests of the children to continue to carry their unmarried mother’s surname, given that she no longer carried it and that they had for some time been living with their father and had informally adopted his name.
In Re P (minors) (parental responsibility: change of name) the children of unmarried parents were registered in the father’s name, the mother had changed their name to hers and the Court of Appeal refused to restore his. However, in such cases it is other factors, such as the degree of parental commitment to the child or the history of parental conduct, which are likely to account for allowing the change of surname.
The views of the child will be considered and the courts will usually recognise that a mature child has the power to change his own name. Once a child reaches the age of 16 it may be difficult for a court to refuse to recognise a power to change. If a person of that age has capacity to acquire his own domicile, it is illogical to deny him a similar capacity to acquire a name of his choice.
In Re B (Change of Surname) Wilson J rejected the argument that a first instance judge had erred when refusing to give leave for a change of name because he had not taken notice of the children’s views. Whilst agreeing that ‘orders which ran flatly contrary to the wishes of normal adolescent children were virtually unknown to family law’ that principle did not extend to the formal change of surname from that of the father to the step-father.
In Wilson J’s view that would only serve to injure the link between the father and the children which was not in the latter’s best interests. In so ruling Wilson J rejected the argument that it was embarrassing for the children to be known by the surname other than that of the adult carer.
In determining an application, the court should, in addition to applying the above factors, give proper weight to the wishes of the applicant, pay particular heed to any advice from an officer of CAFCASS and give searching scrutiny to the motives and objectives of a party opposing the application.
Registration of the child’s name
If parents are married both mother and father have the power and duty to register their child’s names and each has an equal voice in the name to be chosen at the outset.
If they are not married, the mother has the sole duty and power to do so. The initial choice is hers, and she can change the surname; but the father has the right to challenge both choice and change.
Change of forenames
In Re D, L and LA (care: change of forename) Dame Elizabeth Butler-Sloss, President of the Family Division, stated:
‘To change a child’s name is to take a significant step in a child’s life. Forename or surname, it seems to me, the principles are the same, in general.’
This statement does not readily accord with the earlier decision and approach of the Court of Appeal in Re H (child’s name: first name).
That was a dispute between married but separated parents over the choice of forenames which arose in uncommon circumstances. The father first registered the birth of the child with two forenames in Sheffield, and then a few days later the mother registered the child with a different forename in Hull, not knowing of the earlier registration. The Court of Appeal held that the mother as primary carer of the child was entitled to use her own choice of forenames, not only within the family but also in her dealings with the education, health and community services. The court pointed out that, whereas the child’s registered surname is ‘of particular significance in so far as it denotes the family to which the child belongs’, forenames ‘have a much less concrete character. It is commonplace for a child to receive statutory registration with one or more given names and, subsequently, to receive different given names, maybe at baptism or, maybe, by custom and adoption’.
In the light of Re H it is difficult to envisage circumstances in which restrictions can be imposed on parental choice of forenames.
However, Re D, L and LA shows that different considerations apply where the question of choice relates to carers without parental responsibility, and it is within that context, that the Dame Butler-Sloss’s statement is to be construed. The case establishes the following principles.
(1) No foster parent or carer, under whatever regulations, should unilaterally change the forename of a child.
(2) If it should happen that there has been a wrongful change of forename by a foster parent or carer, exceptionally it may be in the best interests of the child to allow the change to continue. Certainly, if the foster parent or carer becomes the adoptive parent, the court no longer has the power to put right any change of forename prior to the adoption.
Although disputes over the child’s name usually arise between parents, there can be many other kinds of cases where the leave of the Court should be obtained. For example, the dispute may be between maternal relatives of a deceased married woman, whose child is living with them (whether or not by virtue of a residence order), and the father who refuses to consent to a change of name to that of the relatives. Also, long-term foster parents of an orphan child who is the subject of a care order will not, in the absence of a court order giving consent, be able to change the child’s name unless the local authority, since it has parental responsibility, gives its consent.
A mother or any other person who, within the above permitted limits, has power to change the child’s surname may apply the new name by usage without any formal act, or she may choose to do so by deed and enroll it in the Central Office, Filing Department, of the Supreme Court.
A deed poll is of evidential value. It does not give the change of name any greater legal significance. Thus, in applying the test of the child’s welfare, the court may find that the change was not in his best interests. However enrolment provides unquestionable proof of execution of the deed.
Consent to a change of surname
Pursuant to the Children Act 1989 Section 13(1)(a), I (name and address), being a person with parental responsibility for the child presently known as (present full name and date of birth of the child), consent to the said child being known in future by the new surname of (proposed surname).