6th May 2015

A balancing Act

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6th May 2015

A balancing Act


There is a growing trend for separated parents to consider a change of surname where children remain in the care of a parent post-separation who goes on to have further children who carry a different surname to their half-siblings. It is a common conception, and sometimes misconception, that the court’s approach on an application to change a surname will be to join or merge ‘old’ and ‘new’ surnames by way of a double-barrel, but this approach is not a default position. It is however an approach often accepted as a compromise or middle ground between ‘old’ and ‘new’ surnames in cases where there are no clear welfare disadvantages to the child in making the change. If there is no welfare disadvantage then there is an implicit welfare advantage to be derived from the change, taking into consideration the court’s power under the no order principle. Double-barrelling is sometimes the right way to approach the child’s identity using both birth parents’ surnames. Some parents accept the idea of a double-barrelled surname (but sometimes dispute which surname should come first), whereas others object to this style.

Surname change cases can revolve around the adding or substituting of a mere handful of letters but can stir up very deep emotions. Such cases may run into long-lasting litigation often costing thousands of pounds. There are of course legal principles that will govern the prospects of success and many applications will fail.

How is the court to determine whether a birth surname should be changed or replaced entirely? What justification is there for doing so or, on the flip side, for refusing to do so? This article will examine the legal principles and case law in relation to the law on changing a child’s name and set out guidance for family lawyers tackling this area within the context of changing societal norms.

Preliminary steps

Parental responsibility

In considering an application to change a surname, the starting point is parental responsibility, as all those with parental responsibility in relation to the child must consent to a proposed change of name. Such consent should be in writing. As a general rule, the mother will have parental responsibility, so as a preliminary step it is essential to ascertain whether the father has parental responsibility. It does not make a difference how the parental responsibility was acquired — whether through marriage prior to the birth of the child, having been registered on the child’s birth certificate on or after 1 December 2003, through a parental responsibility agreement or an order of the court granting parental responsibility — or what the status of the father is (married or unmarried), as parental responsibility carries equal meaning and rights to all those carrying it. The relevance of the enquiry will be as to whether consent is needed and then as to the court’s assessment of the degree of commitment a father has to the child, which is undertaken with a consideration of the background history to the registration of the child’s birth and the relevant circumstances surrounding the nature of the original mother and father relationship. The court will not take a decision to change a child’s registered name lightly.

Consent

The consent requirement can easily be forgotten, particularly where the day-to-day care of a child is administered significantly more by one parent than the other, or where a different person such as a grandparent, other family member or special guardian has parental responsibility. Irrespective of this, other carriers of parental responsibility will be entitled to play a part in the decision-making process. Some parents may feel that they should have the right to make their own decision as to the surname by which the child will be known but this approach is both legally incorrect and conflicts with the very principles of parental responsibility. The fact that the child ordinarily lives with one person with parental responsibility, or that the child does not see or have a relationship with the other parent with parental responsibility, does not mean that these decision-making processes can be circumvented: the legal position requiring consent to a change of name, or permission from the court on an application, is a one-size-fits-all provision irrespective of actual family dynamics or child arrangements that are in place.
Where agreement can be reached for the change of name of a child, this can be arranged typically via deed poll. Where agreement cannot be reached, an application for a specific issue order is required.

Key principles

The leading authority is still Dawson v Wearmouth [1999] although the principles from that case were identified more readily by the Court of Appeal in Re W, Re A, Re B (change of name) [1999] shortly after Dawson. Both established that significant justification for a change of surname is required and must be consistent with some positive feature or features towards promoting the child’s welfare, rather than causing some detriment or no benefit at all (where the no order principle would apply). In Re W, Re A, Re B Butler-Sloss LJ reaffirmed the preliminary principles to be followed as:

  • if the parents are married, they both have the power and the duty to register the child’s names; if they are not married, the mother has the sole duty and power to do so;
  • after registration, a person wishing to change the surname is obliged to obtain the necessary written consent (of others who have parental responsibility) or the leave of the court by making an application for a specific issue order; and
  • on such application to the court, the welfare of the child is paramount and the judge must have regard to the section 1(3), Children Act 1989 (ChA 1989) criteria.

She went on to set out non-exhaustive factors that the judge must have regard to, ie:

  • the existing registered surname and the circumstances of the original birth registration, ie to consider the biological link and recognition of the child’s father;
  • the reasons for the sought-after change, ie the motivation for the application;
  • any relevant change of circumstances since registration — to include matters such as the child’s views if appropriate, any changes adopted informally and an assessment of the family arrangements now and how they contrast to the arrangements in the past generally and on registration, for example. This is the historical background assessment aspect of the court’s duty on an application;
  • a forward-looking consideration of any relevant future circumstances, such as a new family unit or the degree of the relationship between the child and parents and the practical effect of change on the child’s identity, for example; and
  • the nature of the relationship between the parents, to include whether they were married, which will provide a boost to the retention of the status quo; how, if at all, parental responsibility was acquired; and the degree of commitment from the parent towards the child.

As with all cases brought under the provisions of ChA 1989, the child’s welfare is the court’s paramount consideration and the court will be guided by reference to the welfare checklist in s1(3), ChA 1989. Beyond that, a surname change case will need careful and skilful scrutiny as to the motivation for the application (much like as with child relocation cases), as it will be insufficient for a parent to simply wish to bring one child’s surname into line with a subsequent child’s surname or their new surname (eg on remarriage) or to argue that change is appropriate because the surname is not the same as that of one parent.

Issues

There cannot be an exhaustive or definitive guide to whether a name change application should be pursued, or whether change should be ordered by the court. The particular circumstances of each case will determine the balance and weight of the evidence pointing to or against a change. In one case a particular factor will be more magnetic and persuasive than in another, and in some cases there may not be one standout factor but an accumulation of many smaller reasons which when taken together are decisive.

The Children and Family Court Advisory and Support Service (CAFCASS) may be involved in reporting on the welfare implications of a proposed name change. A skilled CAFCASS officer will check their views on the matter against the relevant implications of a recommendation to change or not to change on the welfare of the child. Whichever way the sword swings in a report, a greater emphasis on one factor or another may all too easily expose such conclusions to challenge and contest at a final hearing. Lawyers, judges and CAFCASS officers alike (not to mention the parents) will all have their views and place their own and often differing emphasis on certain matters. It is nevertheless always the child’s welfare which will trump all else. Ultimately, the judge will conclude whether a change is appropriate by attaching weight to the relevant factors while cross-checking their views against the effect which these factors have on the child’s overall welfare. If this assessment points to change, the judge will need to decide what change (usually limited to a name substitution or double-barrelling which then leads to a decision as to which name comes first).

Evolving society

In the past, where the parents had been married and the child’s surname was the married name, this might have carried more weight. However, social and judicial attitudes change and family lawyers may come across differing family dynamics and cultures. The law is a living instrument as societal trends and legal approaches evolve eg in respect of same-sex relationships and parenting. In addition, greater emphasis is being placed on promoting the value of positive and proactive co-parenting. The message firmly stated in law is that the child is the centre of attention and that the child’s welfare comes first, with all other considerations or issues being secondary if at all relevant.

The approach of would-be litigants and indeed the court in relation to a hypothetical case concerning the adding to an already double-barrelled surname so as to make a triple-barrelled surname is something to keep an eye on in an ever-changing society. Likewise, an application to remove one part of a double-barrelled surname in certain exceptional circumstances will cause moot debate given the principles to be applied and explored by the court. Obvious and extreme cases come to mind where there would probably seem to be a good reason on the face of things to sever a double-barrelled surname (eg sexual abuse). Simply put, if there is a persuasive and relevant welfare consideration then there will be good reason or support for the proposed change. The applicable legal principles would be the same in these types of cases.

Conclusion

Thus, although family dynamics and societal trends may change over time, the legislative priority of the child’s welfare has not changed. The most recent reported case in this area is Re W (Children) [2013] where the Court of Appeal was more concerned with the assessment that first instance judges should apply in their decision-making. Ryder LJ, reinforcing Dawson, allowed an appeal by a mother who opposed a name change ordered at first instance in respect of her two-year-old child and stated concisely yet decisively that ‘the test is welfare, pure and simple’. It sums up in a matter of a few words where family lawyers must focus their attention without being caught up in the crossfire of all the other issues and views that are associated with children proceedings. In Re W, the judge at first instance had not considered the welfare principles sufficiently and had attached too much weight to other factors that were indecisive and lacking in significance when considered in the context of the welfare checklist and the guidelines provided in Dawson and Re W, Re A, Re B.

Dawson v Wearmouth
[1999] UKHL 18
Re W (Children)
[2013] EWCA Civ 1488
Re W, Re A, Re B (change of name)
[1999] 2 FLR 930

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