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Unilaterally changing a child’s name is an issue which regularly causes great distress and protracted litigation.

Your name is your identity; it is who you are.  It provides a link to your father and your immediate forbears; it reverberates back through history.  It provides information about culture, locality and occupation.  At a time when tracing one’s family tree is so popular it is the key which unlocks the records.  Someone whose surname has been changed is set adrift in history, without heritage, and unable to pass their name on to posterity.

Though the point is seldom considered in a secular age, it is said that in English law to change the name given to a child at his baptism is unlawful since his name is given to him by God (See Re Parrott, Cox v Parrott [1946] Ch 183, [1946] 1 AllER321).

A child’s acknowledged name is his name as it appears on his birth certificate; this is regulated by the Registration of Births and Deaths Act 1953.

· Where the parents are married it is the duty of either parent, to register the birth within 42 days;

· where they are not married the parents may register the birth together;

Ø if the father cannot attend he must sign a statutory declaration acknowledging paternity which the mother must produce to the registrar;

Ø if the mother cannot attend she must sign a statutory declaration acknowledging the father’s paternity which the father must produce to the registrar;

If the father’s details are not recorded they can be added later.  Where a couple are not married the father must give his consent for his surname to be given to the child.

In 2008 the Government launched a consultation on proposals to change the registration rules to ensure that the 45,000 children registered each year without a father would be better protected.  New rules would ensure joint registration between unmarried parents, though the emphasis was on enforcing responsibility.

Changing a child’s name is something done mostly by mothers, simply because children usually carry their father’s name, although it is possible that where a child’s birth is registered without the father, or where a father later acquires sole residence, the father may be in a position to change the name at a later date.

Changing a name

The law in this matter is given in Section 13(1)(a) of the Children Act 1989 and is detailed in the Practice Direction Child: Change of Surname, 20th December 1994 [1995] 1 FLR 458.  The Act states that where there is a Residence Order in force with respect to a child the written consent of every person who has Parental Responsibility for the child must be obtained if the child is to be known by a new surname.  Otherwise the leave of the Court must be obtained.  You must make the application to the court on Form C100 or Form A55 if you are changing the name of a child placed for adoption.

Where there is no Residence Order, or where the other parent does not have Parental Responsibility, you must apply for a Specific Issues Order.  The governing principle must be that changing his name will be in the child’s best interests; a father should be expected to give his consent in writing, even if he does not have PR.

Generally it is not possible to change the name on a child’s birth certificate; there are, however, exceptions:

· The forenames may be changed within 12 months of registration;

· The surname may be changed from the mother’s to the father’s if

Ø the father did not attend registration and both parents agree; or

Ø the parents have married subsequent to registration.

A person’s name can be changed by means of a Deed Poll: a legal contract, binding upon only one person.  It binds that person to a certain course of action, in this case to go by a different name.  The Deed Poll is legal evidence that the name has changed, and a copy must be sent to everyone you wish to use the new name. This type of Deed Poll is called a Deed of Change of Name, and it obliges you to:

· Abandon all use of your old name;

· Use only your new name at all times; and

· Require all other persons to address you by your new name.

If your child is under 16 you do not need his consent to change his name; if he is 16 or 17 you do need his consent, and if he is 18 or over he can change his own name without your consent.

It is very easy to change a child’s name, and it can be done on the internet for as little as £3.99 using on-line forms.  It can only be changed by those who have Parental Responsibility (PR) and the application must be accompanied by a letter of consent (not by fax or e-mail), which confirms that all those with PR have consented to the child’s name change.  Even if the father has no contact whatsoever with the child, as long as he has PR his consent in writing is still required to change the child’s name.  If the father withholds his consent the mother must apply to the court for leave.

A name can be changed in any way, provided that it is not for fraudulent or illegal reasons.  There are no legal limitations on what name you choose, but most agencies will not accept:

· Unpronounceable names;

· Names containing figures, punctuation marks or symbols;

· Vulgar or blasphemous names;

· Names intended to deceive by conferring title, honour or rank;

· Names which do not include a forename and a surname.

A less formal way of changing a name is by a statutory declaration, which merely records the change.  You can prepare it yourself or with a solicitor, and you must then sign it before a witness – either a solicitor or JP.  It is still necessary to have the consent of all adults with PR.

There is a variety of reasons why a mother should wish to change the names of one or more of her children; some may not seem unreasonable:

· she has children by several fathers, and wants them all to have the same name;

· she has reverted to her maiden name and wants her child to do so too;

· she has re-married and thinks it is embarrassing or confusing for the child’s name to be different from the rest of his family.

Some are less reasonable and should be resisted:

· changing a child’s name severs his final link with an absent or non-resident father;

· it can be used to persuade the child or other parties that the mother’s new husband or partner is really the child’s father;

· it makes it very much more difficult for a father who is being denied contact to find his child;

· it makes it more difficult for the child to find his father.

There is a more insidious way of changing a child’s name which avoids the legal process, and therefore the necessity of obtaining the father’s consent or a Court Order; it is common where contact between the child and his father is being prevented.  In such a case the mother will encourage the child to use his new name, and to write the new name when at school.  She will encourage members of her family and her friends and neighbours to use the new name.  She will give the new name to schools, doctors and local authority agencies when registering the child with them.

If the mother has made false allegations of abuse against him to social workers or to the school many of these people may already have become prejudiced against the father; if he insists on the use of his child’s correct name they may consider him to be acting unreasonably and selfishly, or out of antipathy towards the mother.  Very often a father with only little or no contact with his children will not even be aware that this is happening.  Changing a name in this way has no legal status and should not be accepted by the courts. Anyone who seeks to deny this should be referred to Section 13(1) of the Children Act 1989.

If the surname of your child is legally protected by a Residence Order you should initially write to the mother.  If she is uncooperative contact the school or doctor and remind them of the order, and ask them to amend their records accordingly.  If the mother does not cooperate you will have to apply to the court to have the order enforced.

If your child’s surname is not legally protected you will need to make a Section 8 application for a Prohibited Steps Order.  If you are already making an application put this on your C100 form as a specific issue – you don’t want to pay twice.  You’ll need to act swiftly; sometimes the courts have condemned the mother for her actions, yet allowed the change to stand on the grounds that to change it again would cause the child further disruption.

Schools are often surprisingly ignorant of the law and will agree to children being known by a new surname if the mother requests it.  Don’t vacillate, and follow the advice given above; write to the school, confirm that you have PR, state the situation, and inform them that it is an offence under Section 13(1) of the 1989 Children Act to allow a child to be known by a surname other than that on the birth certificate unless all parties with PR have agreed to the change, and ask for the name and address of their solicitor.  Alternatively go straight to the LEA.

There is a special case which applies when a child has been born and has not yet been given a name.  Again you can apply for a Prohibited Steps Order to prevent the birth being registered without you and to prevent the child being given a name against your wishes.  This is a very constructive use of the Prohibited Steps Order.

The judicial position on who may change a child’s name in cases where there is no Residence Order is given by Holman J in Re PC (Change of Surname) [1997] 2 FLR 730,

Where only one person has Parental Responsibility for a child … that person has the right and power lawfully to cause a change of surname without any other permission or consent.  Where two or more people have Parental Responsibility for a child then one of those people can only lawfully cause a change of surname if all other people having Parental Responsibility consent or agree.

Thorpe reaffirmed this in Re T (Change of Surname) [1998] 2 FLR 620,

that consent of the other parent or the leave of the Court… was an essential prerequisite certainly where both parents have Parental Responsibility.

Similar emphasis was given in Re C (A Minor) (Change of Surname) [1998].

Where there is dispute the case must be referred to the court in order to stop parents constantly changing and re-changing the child’s name; the foremost case is Dawson v Wearmouth.  The mother had been married to Mr Wearmouth and had two children by him.  When they divorced she and the children retained the surname of Wearmouth.  Subsequently she met Mr Dawson, with whom she had a third child, Alexander.  When he was about a month old the mother and Mr Dawson separated.  The mother registered him with the surname of Wearmouth (without Mr Wearmouth’s consent) rather than Dawson so that she and her three children should all have the same name.  She knew Mr Dawson wouldn’t like this and he duly applied to the court in order that Alexander could be known by his surname.

The House of Lords refused his application.  The question, as always, was what was in Alexander’s best interests.  In this case the mother, Mr Dawson and the child had not really lived together as a family unit for any length of time.  The mother not unnaturally argued that she and the two other children had one surname and it would do more for the unity of the family if all the children had the same surname.  The court agreed.  Lord Mackay said:

The registration or change of a child’s surname is a profound and not merely a formal issue … Any dispute on such an issue must be referred to the Court for determination whether or not there is a Residence Order in force and whoever has or has not Parental Responsibility.

The problem with this solution was that while the first two children really were the children of Wearmouth, the third was not: giving him the same name was a lie, denying his real parentage and imposing a false one.  One of the appeal judges, Lord Jauncey, dissented from the deciding view and it was his approach which showed the way courts would decide in future,

A surname given to a child at birth was not simply plucked out of the air.  Where the parents were married the child would normally be given the father’s surname or patronymic thereby demonstrating its relationship to him.

The surname was thus a biological label telling the world at large that the blood of the name flowed in its veins.  Alexander had not a drop of Wearmouth blood in his veins.

Since then judicial opinion has moved towards preserving a child’s link (it may be his last remaining link) with his father.  A guiding case is Re B (Change of Surname) [1996] 1 FLR 791 in which a mother applied to have the surname of her three children changed to that of the man with whom they had been living for seven years; there was no contact with the father, and the children had been alienated.  J Wilson observed,

I do not think that to allow this change of name would be in the children’s best interests.  B is their father.  And while, as I say, it may be true that the children will in fact insist on being called H, for me to allow this application would be to give the court’s approval to a process which I do not believe is in their best interests.  I think that in reality they are B and that this court should recognise that reality.

In answer to the issue of embarrassment, the judge said,

Miss Woolrich [Counsel for the mother] resurrects the traditional argument that it is embarrassing for children to be known by a surname other than that of the adults in the household.  But the law must not lag behind the times.  In these days of such frequent divorce and remarriage, of such frequent cohabitation outside marriage, and indeed increasingly of preservation of different surnames even within marriage, there is, in my view, no opprobrium nowadays upon a child who carries a surname different from that of the adults in his home.

He also quoted Buckley J in Re T (orse H) (An Infant) [1963] Ch 238,

it is injurious to the link between the father and the child to suggest to the child that there is some reason why it is desirable that she be known by some name other than her father’s name.

Current judicial thinking is neatly summarised by Butler-Sloss LJ in Re W, Re A, Re B, [1999],

e) On any application the welfare of the child is paramount and the Court must have regard to the section 1(3) criteria [i.e. the welfare checklist].

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 the recognition of the biological link with the father.  Registration is always a relevant consideration but it is not of itself decisive.  The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing considerations 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 decision to change a child’s name may be relevant.

j) Any change in circumstances 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 child’s name from the father’s surname if it were so registered.

l) Where the child’s parents were not married to each other the mother has control over representation.  Consequently on any 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 the father and the child, the existence or absence of Parental Responsibility are all relevant factors to be taken into account.

From this it will be seen that a court should only allow the change of a child’s name if so doing will improve the child’s welfare.  This is the paramount consideration in all Children Act decisions and presents a usually insurmountable obstacle.

The second principle is that the child’s name has already been registered.  Anyone wishing to change the name will have to show why that registration was wrong or mistaken, or why the reasons for changing the name now override the reasons for the original registration.  The fact that a mother has remarried since registration and now wishes to change her child’s name to match her own (or those of children born subsequently) is unimportant.

Also look at R v R [1982] 3 FLR 345 and the Practice Direction, Child: change of surname [1995] 1 FLR 458 which upholds the right of a father to be consulted over changing a child’s surname.

Changing a child’s forename is rarer than changing a surname; in Re H (Child’s Name: First Name) [2002] 1 FLR 973 the Court held that the rules which apply to surnames do not apply to forenames, and that a resident parent can use whatever name she chooses.

[1] DWP White Paper, Joint birth registration: recording responsibility, June 2008