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W, F, C and D (minors) (Name changes disclosing gender reassignment and other matters) (Rev 1) [2020] EWHC 279 (QB)

Judgment on the potential impact on children changing their forenames by deed poll due to gender reassignment, specifically related to the requirements of exam boards proof of name.

This case grapples with inconsistencies arising from the 'deed poll' process in use for name changes in particular for children, the lack of clarity in the process, and the relationship between the provisions of the Enrolment of Deeds (name change) Regulations 1994 (SI1994/604); the practice direction (PD5A); Art 8 and 14 of the Convention, the Gender Recognition Act 2004 and the Children Act 1989.  The judgment carefully considers the implications of the public nature of the deed poll process on subsequent legislative provisions within the context of 3 applications and highlights several practical difficulties encountered by court staff and parents, in particular in relation to gender reassignment

A feature of the deed poll process (regulation 7) is that the details of the name change are published in the London Gazette giving the full old and new names.  These are then placed in the National Archive after 5 years.  An important provision of the 2004 Act is that it creates a criminal offence (s22) in relation to the disclosure of the fact that a person is of an acquired gender (so-called "outing").  Enrolling a name change deed leads to publication of the child's old and new names making the name change permanently public. 

Re W
W is 15 and the application before the court was for a change from a conventionally female name to a conventionally male name.  The application stated that the reason for the application was because the child was changing gender.  There was no provision within the Regulations for W to give consent or to sign the application, which troubled the Judge given W's age.  There had been a request from the court for medical evidence in support of the application.  The court determined:

• Publication of the full old and new names would be a disproportionate interference with W's Art 8 rights and would interfere with the child's later prospects of protection under the 2004 Act against "outing"

• Interpreting the 1994 Regulations as far as possible compatibly with the Convention, the Court determined that regulation 7 must be applied so that only the date of the deed and the surname, but not the forenames (old or new) should be included.  This would provide sufficient information for authorities seeking to combat fraud to seek permission to access the full details with proper reason.  The court file should be marked private and may be inspected only with the court's permission.

• The same approach might be taken in relation to adults because the rights under the 2004 Act were not restricted to children

• Given that lodgement in the archive is not specifically required by the regulations, the Court directed that as an interim step the deed should be retained by the court and not released to the National Archive on a public basis until the relevant authorities have considered the proper course in relation to access and storage

Re F
Re F is a child aged 17.  The application was for a name change on the basis of a gender change.  The application was signed by both parents with PR.  By regulation 8(4) a child who has attained the age of 16 should endorse the application with their consent, which had not been done.  The Court noted that this was not surprising because there was no form available for the child to sign.  The court determined that the application should be referred back to the family so that approval was sought from F.  If the deed was subsequently approved, then the provisions for publication and storage would be as with re W

Re C & D
The mother of C and D applied for a change of the children's surname because their father (who had PR) had been convicted of sexual assault and other offences against the children of the family and had had no contact for 3 years. There was no evidence of the conviction or any efforts made to obtain his consent.  The Court applied regulation 8(5)(iii) which requires that the application is made by all those with PR or with consent from others with PR.  The court adjourned the application so that efforts could be made to locate the father.  The court considered that this case was one where it was appropriate for a specific issue order application to be made under s8 of the Children Act

The judgment makes a number of observations, recommendations and matters for further consideration

• Given the very public nature of the Deed Poll process and the implications it might have for the rights of children and when they reach adulthood, public bodies such as school examination boards insisting on fully enrolled deeds rather than for example non-enrolled deeds or statutory declarations may wish to consider whether that policy is proportionate

• There are no provisions in the 1994 regulations requiring the provision of medical evidence in support of applications

• The current procedure has no requirement for assessing the wishes or consent of a child under 16 which might be troublesome particularly for older children

• Parents and children considering using the deed poll process should consider whether the public nature of the process is in the best interests of the child.  There are other, more private ways to change a name and it may not be unreasonable for a Master considering an application to request information as to why in any given case it is in the child's best interests to use the public process even if the application is in good order

• Given the availability of protections against "outing" it is recommended that any future guidance makes such protections plain and makes provision for dealing with the form of advertisement in the London Gazette in circumstances where gender reassignment is involved

• If an application discloses welfare issues such as DNA tests or irregular contact then it is likely that a specific issue order application to the family court should be a prior step to obtaining approval for deed poll application by one parent without the other's consent

• The forms currently in use and the PD governing enrolment now needs close scrutiny to ensure adherence to modern diversity standards and to ensure consistency between regulations

• It would be preferable if the guidance on PR could be clearer since this term is not well understood by many parents

• It would assist if there was clarity about the role of the family court and any family court orders made in relation to name changes.  If permission is given by the family court, is a deed still necessary?

• Clarity in respect of documents required would also assist.  For example the guidance pack at present requests a birth certificate or passport, but court staff generally require a full birth certificate with parents' details as evidence of PR

• The judgment includes a table providing a summary of conclusions and an analysis of the position in other contexts arising from the regulations (para 5)

Case summary by Martina van der Leij, barrister, Field Court Chambers

Read the full judgment of W, F, C and D (minors) (Name changes disclosing gender reassignment and other matters) (Rev 1) [2020] EWHC 279 (QB) on BAILII