Children law what’s in a name?

A child acquires his or her name when it is registered at birth by a child’s parents or another person with parental responsibility.  Recently we are seeing an increasing number of requests by parents to change their child’s surname, most commonly due to the breakdown of the relationship and the development of a new one. There are of course no legal limits on an adult person’s ability to change his or her name but this of course is not the case when either parent wishes to change the name of a minor child.

Applying to change a child’s name

Where a residence order is in place, the consent of all those with parental responsibility is required or consent by the court. If there is no residence order in force or if the father does not have parental responsibility for the child, it is often best practice for the resident parent to seek the non-resident’s parent’s consent and ultimately if that parent does not agree, to seek the sanction of the court.

An application to change a child’s name is a free-standing application.  The type of application to change a child’s name is determined by whether a residence order is in force.  If it is in force, an application to change a child’s surname is made under Section 13 of the Children Act 1989 and as such, there is no specific statutory duty for the court to have regard to the Welfare Checklist in Section 1(3).  However, in light of Dawson v Wearmouth and Re W, Re A and Re B it is likely that in practice a court would take into account the Welfare Checklist.  If a residence order is not in force an application to change the child’s name is to be made under Section 8 in which case the court must have regard to the Welfare Checklist automatically.

The two leading cases set out clear principles for the court to apply when dealing with an application to change a child’s surname. Following, the House of Lords decision in Dawson v Wearmouth [1999], the Court of Appeal in Re W, Re A and Re B (change of name) [1999], set out the key guidelines when considering such an application:

1. If parents are married, they both have the power and the duty to register their child’s names.
2. If they are not married the mother has the sole duty and power to do so.
3. After registration of the child’s names, the grant of a residence order obliges any person wishing to change the surname to obtain the leave of the court or the written consent of all those who have parental responsibility.
4. In the absence of a residence order, the person wishing to change the surname from the registered name ought to obtain the relevant written consent or the leave of the court by making an application for a specific issue order.
5. On any application, the welfare of the child is paramount and the judge must have regard to the s 1(3) criteria.
6. Among the factors to which the court should have regard is the 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 an important consideration but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.
7. The relevant considerations should include factors, which may arise in the future as well as the present situation.
8. Reasons given for changing or seeking to change a child’s name based on the fact that the child’s name is or is not the same as the parent making the application do not generally carry much weight;
9. The reasons for an earlier unilateral decision to change a child’s name may be relevant.
10. Any change of circumstances of the child since the original registration may be relevant.
11. In the case of a child whose parents were married to each other, the fact of the marriage is important and I would suggest that there would have to be strong reasons to change the name from the father’s surname if the child was so registered.
12. Where the child’s parents were 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 occurs, between father and child, the existence or absence of parental responsibility are all relevant factors to take into account.

Re W, Re A, Re B also set out that where an application is made by a father to change the child’s name, his connection with the child and commitment to contact (if applicable) and the existence or absence of parental responsibility would all be relevant considerations.

Additionally, one of the most important considerations is the link with the paternal family.  Maintaining a link with the child’s paternal family through having the same surname as the paternal family is of great importance, particularly when the father plays a role in the child’s life.  In Re W G the court recognised the importance of the child maintaining a link with the father unless he ceased having an interest in the child although there were some other grounds for example having regard to his character and behaviour, which made it undesirable for him to have access to the child at all.

In addition, the following principles in Dawson v Wearmouth still apply:

1. A change of surname should not be permitted without evidence that it would improve the children’s welfare [1167].
2. ‘While registration was a factor to be taken into account, it was not necessarily a major factor in every case, particularly where, as in this case, the child was so young as to be incapable of understanding the significance’ [1167].
3. ‘The attitude and views of the individual parents are only relevant insofar as they may affect the conduct of those persons and therefore indirectly affect the welfare of the child’ [1178].

It is clear from the guidance, that a child’s surname will only be changed if it can be demonstrated that it would improve the child’s welfare.  A compromise is that often children’s surnames are double barreled to reflect the identity of the maternal and paternal family.  This approach was encouraged in Re G [2001].

In terms of evidence that is needed by the court to determine whether a change of name is in a child’s best interests, then it is likely that statements will be prepared by both parties but crucially, a report from CAFCASS is neededl to ascertain whether the change of name is in accordance with the child’s welfare and best interests.  In Re W [children] [2013] Lord Justice Riley gave the mother permission to appeal because the court made a decision in relation to the change of name of a child without the benefit of a CAFCASS report.

James Maguire & Co is a specialist firm of Family Law and Divorce Law solicitors based in Wilmslow, Cheshire. We offer legal advice to parties going through a divorce including the financial issues which flow from this and children matters including child maintenance.  We also offer specialist advice in respect of all aspects of Children Law. We can also advise on Schedule1 Children Act 1989 applications.

We advise clients in the Wilmslow area and also to the surrounding areas of Alderley Edge, Bramhall, Hale, Altrincham, Manchester and the North West. We are also able to act for clients nationally and internationally subject to the jurisdiction of England and Wales. For advice please contact James Maguire by telephone +44 (0) 1625 529456 or by email james.maguire@family-law.