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Changing a Child’s Name

Charlotte Rachael Proudman, barrister at 1 Mitre Court Buildings provides legal guidance on applications to change a child’s name, whether forename or surname, during private law children proceedings.

Charlotte Rachael Proudman, barrister, 1 Mitre Court Buildings

Registering the child's name
A child acquires his name when it is registered at birth by a child's parent or another person with parental responsibility. A child's name must be registered within 42 days of birth (Births and Deaths Registration Act 1953, s2).

Change of name
There are no legal limits on a person's liberty to change his name. In Davies v Lownders (1835) I Bing NC 597 at 618, Tindal CJ said that 'a man may, if he pleases, and it is not for any fraudulent purpose' take a new name. Whilst the law does not prescribe a formal method by which a change of surname may be effected, a deed poll, authenticated notarial instrument or other declaration provides a convenient means of evidencing the maker's intention to change the name (D v B (Surname: Birth Registration) [1979] Fam 38).

Applying to change a child's name
Where the sanction of the court is required, an application for leave to change a child's name is a free standing application (Re B (Change of Surname) [1996] 1 FLR 791).

The type of application to change a child's name is determined by whether a residence order is in force. If a residence order is in force a free standing application for permission to change the child's surname is made under s13 CA 1989 and, as such, there is no specific statutory duty for the court to have regard to the welfare checklist in s1(3) when considering a s13 application for change of name (see s1(4)). However, in light of Dawson v Wearmouth and Re W, Re A, Re B (below), it is likely that in practice a court would take account of s 1(3). If a residence order is not in force an application to change the child's name should be made under s8 (Dawson v Wearmouth [1997] 2 FLR 629, CA) in which case the court must have regard to the section 1(3) welfare checklist.

Application by father
Where an application is made by a father to change the child's name, his connection with the child and commitment to contact and the existence or absence of parental responsibility would all be relevant considerations (Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930).

Anecdotally the following are common reasons for applying to change a child's name:

Distinct principles apply to changing a child's name
Forenames
It has been held that the Christian name given to a person on baptism can be changed only on confirmation, by Act of Parliament or, in a sense, by adding a name when a child is adopted. In a few cases authority to take a new forename has been given by royal licence.

There is limited case law on the change of forename. The Court of Appeal case determining the change of forename is Re H (Child's Name: First Name) [2002] EWCA Civ 190, [2002] 1 FLR 973 (CA), where Thorpe LJ said 'none of the authorities that guided a court in determining disputes about surnames was of any application to a dispute as to the child's first name' [973].

Given names
Children are often called by given names in everyday life instead of their registered forenames. For example, Prince Harry's registered forename is Henry, although he is known by the world as Harry.  Whether parents choose to shorten the child's forename to make the first name more informal in everyday use, or call the child a different name entirely, it is not uncommon for parents to use given forenames rather than the child's registered forename.

Some parents have been less than happy when the other parent has taken it upon himself to give the child another forename informally. In fact the use of given names has resulted in litigation. Although in theory the court could make a prohibited steps order, prohibiting a parent from using any other name that is not the child's registered name, or the court could make a specific issue order, ordering the parent to use the child's registered name, in practice the court does not have the power to restrict parent's use of given names for children in the private sphere. In fact parents may use given names formally and informally. For example, a parent could register his or her child at school and at the doctor's surgery in the child's given name rather than the child's registered name.

In Re H, Thorpe LJ stated:

"Given names have a much less concrete character… During the course of family life, as a child develops personality and individuality, parents or other members of the family, maybe attracted to some nickname or some alternative given name which will then adhere, possible for the rest of the child's life… If the parents are separated, the primary carer simply establishes with the entry of the child, either for school, for general practice medicine or for hospital treatment, the given name that is customary in the primary home."

In that case Thorpe LJ stated:

"I have no doubt that the judge was plainly wrong to seek to inhibit the mother' s use of the name H in her dealings with external authorities, providing that she always recognised the fact that he had an immutable series of names by statutory registration'"[977].

Surnames
The two leading cases which set out clear principles for the court to apply when dealing with an application to change a child's surname are the House of Lords' decision in Dawson v Wearmouth [1999] 2 WLR 960, [1999] 1 FLR 1167 (HL) and the Court of Appeal's decision in Re W, Re A, Re B (Change of Name) [1999] 2 FLR 933.

Following the decision of the House of Lords in Dawson v Wearmouth [1999] 2 WLR 960, [1999] 1 FLR 1167 (HL), at 1173, the Court of Appeal in Re W, Re A, Re B (Change of Name) [1999] 2 FLR 933-934 set out key guidelines (a-l) when considering an application for change of surname:

a. If parents are married, they both have the power and the duty to register their child's names.
b. If they are not married the mother has the sole duty and power to do so.
c. 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.
d. 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.
e. On any application, the welfare of the child is paramount and the judge must have regard to the s 1(3) criteria.
f. 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.
g. The relevant considerations should include factors, which may arise in the future as well as the present situation.
h. 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;
i. The reasons for an earlier unilateral decision to change a child's name may be relevant.
j. Any change of circumstances of the child since the original registration may be relevant.
k. 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.
l. 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.

The principles ascertained in Dawson v Wearmouth [1999] 1 FLR 1167, which are still good law, are as follows:

a. A change of surname should not be permitted without evidence that it would improve the children's welfare [1167].
b.  '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].
c. '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].

Link with the paternal family
Maintaining a link with the child's paternal family through possessing 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 WG (1976) 6 Fam Law 210, the Court of Appeal said:

"[T}he court recognized the importance of maintaining a link with the father, unless he has 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."

Conflicts of culture
In Re S (Change of Names: Cultural Factors) [2001] 2 FLR 1005 at 1015 Wilson J was confronted with a conflict between Muslim and Sikh cultures. He permitted a Muslim mother to use Muslim names for her child but refused to allow a formal change by deed poll from his Sikh names because they maintained the link with his Sikh father.

Compromise: double barreled surname
Double-barreled surnames are becoming increasingly popular. More and more children are given double-barreled surnames where the mother and father's surname are merged together with the use of a hyphen to reflect the identity of the maternal and paternal family.

In Re R (Surname: Using Both Parents) [2001] EWCA 1344, the Court of Appeal set aside an order allowing a mother to change her child's surname to that of her current partner and sought to encourage the practice of giving the child a surname containing the names of both parents.

In the interests of security and protection
Applications to change a child's name have been successful where there are real and substantiated risks to a child's safety to justify changing the child's name. In the recent case of AB v BB and Others [2013] EWHC 227 (Fam), the mother was given permission to change the child's surname where there was a history of violence by the father stretching back to 2007; M's security and the child's welfare justified the need for the child's surname to be changed.

Similarly in Re F (Contact) [2007] EWHC 2543 (Fam), [2008] 1 FLR 1163, following the parents' separation there was a history of abusive and threatening conduct by the father towards the mother which led to the father being committed to prison for a period and to the mother and children being relocated three times. There was a real threat that the father would abduct the children. The mother sought permission to change the children's surnames. Sumner J held that a change of surname was justified. If a change of surname provided extra protection against abduction that added to the children's welfare. It was a proportionate response to the risks posed by the father.

CAFCASS
A CAFCASS officer's recommendation regarding an application to change a child's name is imperative, particularly when considering whether a change of name is in accordance with the child's welfare and the child's best interests. Dawson v Wearmouth [1999] and the recent case of AB v BB and Others [2013] EWHC 227 (Fam) support the need for a child's welfare report when change of the child's name is an issue. In W (Children) [2013] EWCA Civ 735, Lord Justice Ryder gave the mother permission to appeal because the court made a decision in relation to the change of name application without the benefit of a CAFCASS report.

'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 that discrete issue' (paragraph 20).

29/9/13