Options and the procedure the court take in to account
When a parent seeks to change their child’s forename, surname or both, any parent with parental responsibility must consent.
Sometimes the “other” parent is not involved in the child’s life and therefore seeking consent can be problematic as the whereabouts of that person may be unknown. There is also the risk if they are contacted that, this could open a whole ‘can of worms’ if the absent parent then wishes to form a relationship with their child.
A reason for wanting to change a child’s name could be that the parent seeking the change believes he or she was prevented from exercising their parental responsibility at the time the name was registered. So was therefore deprived of the right to choose the name. A parent may be caused distress using the registered name where there have been issues of domestic violence or other crimes. This could impact on the parent’s ability to care for the child. Safety and protection concerns may also be a justifiable reason to want to change the child’s name. It may also be as simple as the parent wanting the child to have the same name as the rest of the family.
Where the parent seeking to change the child’s name already has the benefit of a residence/live with order then an application under section 13 of the Children Act 1989 is made by way of a freestanding application purely for the purposes of seeking permission to change the child’s name. The reason for this is that where a residence/live with order is in place, there is no specific statutory duty on the court to have regard to the welfare checklist regarding the welfare of the child. However, the court in practice is still likely to consider the factors in the welfare checklist at Section 1(3) of the Children Act 1989. If there are no residence or live with orders to the parent seeking to change the child’s name then an application under S8 of the Children Act 1989 for a specific issue order would need to be made.
There is fairly limited case law on the issue of change of name through the courts. There are two leading cases where the principles are set out clearly for the court to apply when dealing with any application for the change of a child’s surname. These cases are Dawson -v- Wearmouth 2 WLR 960, 1 FLR 1167 (HL) and the Court of Appeal’s decision in Re: W, Re: A, Re: B (Change of Name)  2 FLR 933-934. The Re: W, Re: A and Re: B set out some key guidelines to follow when considering an application for a change of name. It makes it very clear that the court have to apply the welfare checklist as the child’s welfare is paramount.
The court may also apply the principles that are set out in Dawson -v- Wearmouth which is still good law for the purposes of any application and these are:
- The change of a surname should not be permitted without evidence that it would improve the children’s welfare;
- While registration was a factor to be taken in to 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;
- 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.
It should be noted that the court will suggest that the maintaining of a link with the child’s paternal family is of great importance, particularly when the father plays a role in the child’s life. The court made it very clear in the case of Re: WG (1976) 6 Fam Law 210 that “The court recognised the importance of maintaining a link with the father, unless he ceased to have an interest in the child or there were some grounds – having regard to his character and behaviour – which made it undesirable for him to have access to the child at all”.
Double-barrelled surnames are becoming increasingly popular. This enables both parents’ names to be used and reflects the identity of both the maternal and paternal family.
It should be noted that if you are in court proceedings for this type of application, CAFCASS (Children and Family Court Advisory Service) should be appointed to consider whether an application to change the child’s name is in the child’s best interests and in accordance with the child’s welfare. In the case Re: W (Children)  EWCA 735, Lord Justice Ryder gave the mother permission to appeal the case as the court had made a decision on the change of name without the benefit of a CAFCASS report. He suggested “there appears to have been little or no evidence before the court relating to that important decision in the child’s life. A CAFCASS Officer could and perhaps should be asked to give an opinion on the subject having spoken to at least both parents, and on this ground of appeal, I have much greater sympathy with the mother and I give permission for her to bring an appeal based upon this discrete issue”. It therefore appears imperative that if you are in court proceedings for a change of name then a Section 7 welfare report should be ordered by the court.
Finally, where a parent seeks to change a child’s name without any court application, although this can be done by way of a Statutory Declaration, prepared for the resident parent to swear on behalf of the child, that parent must always be advised of the above procedure to change a child’s name. They must also be advised that should the non-resident not give consent or cannot be found, if that parent becomes aware at any time of the child’s change of name, that parent can make their own application to the court to have the name changed back. It is normally only in circumstances where the father or mother has no contact with the child or children and since birth or has been absent for most of the child’s life, does a party choose to elect the change of name by way of a Statutory Declaration.
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It is always important to seek advice from an experienced family law specialist to discuss your circumstances and consider the different options available to you.
If you wish to speak to any of the family law team about changing a child’s surname, or anything else, then please get in touch. Either call us on 01323 727321 to arrange an appointment or please fill in the form below and someone will get in touch.
Please note the above is for information purposes only and is intended to be a short summary. It should not be treated as a comprehensive guide and should not be acted on without qualified legal advice.