Children's Surnames - How Satisfactory is the Current Law?
Introduction
BIRTHS AND DEATHS REGISTRATION ACT 1953
There are only two statutes relevant to this subject. The first and most important is the Births and Deaths Registration Act 1953 (BDRA 1953).
The effect of the BRDA 1953 is now well known to all in this field; if the parents are married then either of them can (must) register a birth within 42 days, if they are unmarried then only the mother can register. Furthermore, this registration is 'immutable' and whatever orders a court may make as to the name that parents may use, the registered name will remain as first registered.
This arrangement is unsatisfactory for several reasons. In the case of children of parents who are unmarried it is discriminatory against men. It effectively perpetuates the supposedly redundant concept of illegitimacy (unsurprising as it is a 1953 statute). More significantly, it creates manifestly unsatisfactory situations such as that encountered in Re H and A (Paternity: Blood Tests) [2002] EWCA Civ 383, [2002] 1 FLR 1145 where the married couple had separated prior to the birth of the child, yet the father (who was apparently questioning paternity) was able to present himself at the registry before the mother did so (the report does not say whether she was still in hospital) and register the child's birth in his name of choice, a registration which was 'immutable'. The same iniquity applies in reverse in the case of unmarried couples, save that the father is even more powerless.
Does it matter? I would suggest that indeed it does, mostly because the registration, possibly obtained in this 'strong-armed' and possibly hasty fashion, is immutable and irreversible (with a possible exception in the case of first names), but also because, as we will see below, the very fact of registration is considered prima facie relevant in considering an application for an order that the child be known by another name.
The only exception to the immutability of the registered name is this: s 13 of the BDRA 1953 does provide for alteration of a child's name within 12 months of the initial registration in certain limited circumstances (change during baptism or, if the child has not been baptised, 'by the mother, father or guardian of the child or other person procuring the name of the child to be altered'). Although the statute simply refers to the child's name, the current implementing regulations (dated 1987) specify in the interpretation section that 'name in relation to a person excludes a surname'.
The law as regards registration remains 'a clear scheme and necessarily a concrete scheme' (Thorpe LJ in Re H and A) but, arguably, an inherent source of problems.
CHILDREN ACT 1989
The only other legislation on this subject is, inevitably, the Children Act 1989 although the only provision parliament thought to include on this subject is that contained in s 13(1) which provides:
'Where a residence order is in force with respect to a child no person may ... cause the child to be known by a new surname ... without either the written consent of every person who has parental responsibility for the child or the leave of the court.'
It does not say what should happen where there is no residence order in force, or where the father does not have parental responsibility.
Fortunately, this omission has been rectified by the appeal courts who have asserted on several occasions that same rule applies even if there is no residence order, although sometimes (for example, Re PC (Change of Surname) [1997] 2 FLR 730) subject to the proviso that the father has parental responsibility and sometimes (for example, Dawson v Wearmouth [1998] Fam 75) without even that restriction.
In Re PC (a decision of the divisional court which is dated June 1996, but was not reported until 1997) Holman J said expressly:
'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.'
However, the Court of Appeal (Hirst and Thorpe LLJ) in Dawson v Wearmouth, also in July 1997, 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.' (emphasis added)
These words were repeated twice by the House of Lords in the same case and were seemingly adopted.
Then, in Re T (Change of Surname) [1998] 2 FLR 620, Thorpe LJ referred to Re PC and said that this decision was:
'persuasively indicative ... that consent of the other parent or the leave of the court ... was an essential prerequisite certainly where both parents have parental responsibility.' (emphasis added)
And then in Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930, Butler-Sloss LJ said:
'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.' (emphasis added)
She did not distinguish between instances where there was sole or joint parental responsibility.
The decisions in these cases make interesting reading for several reasons, apart from the fact that they are obviously conflicting on the subject of the significance of parental responsibility. Holman J in Re PC patently balked at the apparent failure of the Children Act 1989 to provide to any greater degree. In a long, detailed, and thoughtful, judgment he concluded that parliament had clearly assumed we would be adopting the old law on this subject ('Sections 2(7) and 3 of the 1989 Act had to be construed in an historical context'). He was thus able to extend the provisions of s 13 to include cases where there was no residence order but there was joint parental responsibility. Whether it was correct to adopt this old law to achieve this end is another matter but, in the course of doing so, he consciously and specifically excluded parents (inevitably fathers) without parental responsibility.
Conversely, in Dawson v Wearmouth and the subsequent cases, the references to both of these issues (no residence order or no joint parental responsibility) are (with the greatest of respect to her Ladyship and their Lordships) much more instinctive and much less fully reasoned on this subject. Thorpe LJ seems to sit on the fence in Re T whereas Butler-Sloss LJ was simply silent on the distinction.
Again one asks, does it matter? I suggest the answer is 'yes'. The inconsistency and (dare I say) lack of rationale necessarily compromises the advice we lawyers have to give our clients, which may be (and often is) laid at our door at a later date. It also puts the parent who has taken any unilateral action in bad odour which may impact on any later decision (see below).
CONSIDERATIONS RELEVANT TO A DECISION AS TO CHANGE OF SURNAME
So that is the state of the legislation. Their Lordships have attempted to fix some of the problems there. How have they fared with the criteria applied when faced with an application on this subject?
The first 'modern' stab was in Re B (Change of Surname) [1996] 1 FLR 791, an oft?quoted case which involved an application by a mother who had remarried and where the children were aged 12, 14 and 16 and were implacably opposed to seeing their father and were supporting the application for a change of surname. Wilson J made two points:
'(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 approvingly from comments made in Re T (orse H) (An Infant) [1963] Ch 238 where Buckley J had said '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'. He said that the decision in Re T was in other respects 'antediluvian' but was quite happy with this part of Buckley J's decision.
Both the Court of Appeal and the House of Lords had words to say on the subject in Dawson v Wearmouth. Two aspects of the 1997 Court of Appeal decision were approved by the House of Lords in 1999. First, they accepted, although slightly qualified, the importance attached to the registered name (the unmarried mother had registered her choice of names knowing full well that they would not be liked by the father). Secondly, of the 'parental involvement' argument (per Re B), they agreed that 'This would apply in almost every case of an illegitimate child where the father seeks to play some role in the child's life' and discounted this accordingly.
In Re W, Re A, Re B, Butler-Sloss LJ summarised the law as she saw it, both as to procedure (including the requirement for consent even in the absence of a residence order) and the relevant considerations which she listed for future reference. This aide-memoire is conveniently stated and consequently often quoted in court and is repeated in full in Family Court Practice (Jordan Publishing Ltd, 2002), at p 503, so it is appropriate to do so here. Her Ladyship identified the following eight points:
'(e) On any application the welfare of the child is paramount and the court must have regard to the section 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 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.'
Some of these are too general to be exceptionable but I propose to look at the following three highlighted points:
(1) registration;
(2) parental involvement; and
(3) the significance or otherwise of the applicant's name being different.
Registration
We have, of course, already seen the difficulty created by one parent or the other taking advantage of the other. This can happen in any case where the parents are unmarried (as in Dawson v Wearmouth) or were married but separated as in Re H and A. In the latter case, Thorpe LJ said of the first instance judge's reference to registration that:
'It places altogether too much weight on the fortuitous fact that the father's registration was first in time. It also ignores the realities which I have sought to discern.'
Nonetheless, registration must still be relevant when it was consensual and/or of longstanding.
Paternal link
This point had already been, to an extent, criticised by the Court of Appeal and House of Lords in Dawson v Wearmouth although it still appeared in Her Ladyship's list. The point was taken up again by Hale LJ in Re R (Surname: Using Both Parents') [2001] EWCA Civ 1344, [2001] 2 FLR 1358 who said:
'It is a matter of great sadness to me that it is so often assumed and even sometimes argued that father's need that outward and visible link in order to retain their relationship with and commitment to their child. That should not be the case. It is a poor sort of parent whose interest in and commitment to his child depends upon that child bearing his name. After all, that is a privilege not enjoyed by many mothers even if they are not living with the child. They have to depend upon other more substantial things.'
Common surname of child and carer
This point was first made by Wilson J in Re B (Change of Surname) [1996] 1 FLR 791, has been frequently quoted ever since and is made strongly by Butler-Sloss LJ in her list of criteria, not only identifying it as an issue but saying that this 'does not carry much weight'.
This issue was most recently discussed by Hale LJ in Re R. He quoted this point specifically and said:
'I do not think that she (Butler-Sloss LJ) meant that considerations of confusion, anxiety and embarrassment for the child were of little account: it is more that the problem for the parent is of little account. It all depends upon the facts and circumstances of the particular case.'
This seems to me to at least open the door to such arguments in most cases, and why not? It is consistent with the welfare checklist to be able to consider the point and (I would suggest) inconsistent with the welfare principle to start by regarding the point as 'of little weight'.
CONCLUSION
There are real issues here. A child's name is indeed a profound issue, it is part of his identity and ought not to be interfered with lightly or for shallow reasons. I hope this article may serve to identify three areas of concern as to how we deal with this profound issue:
(1) The BDRA 1953 seems to be flawed both as to the way it permits one parent to register a name against the wishes of another and then making that registration immutable. But can we reasonably argue for joint registration in all cases? And are the exceptional cases (they really only apply to those cases where the parties separate after conception but before birth) sufficiently common to trouble us?
(2) The Children Act 1989 seems, on the face of it, only to prohibit a unilateral name change where there is a residence order in place. That would clearly be unsatisfactory, but is Holman J right in extending that provision (in its 'historical context') only to cases where both parents have parental responsibility? Or does it indeed extend to all cases 'whether or not there is a residence order in force and whoever has or has not parental responsibility' (per Lord Mackay in Dawson v Wearmouth). Or should the Act be read literally?
(3) How up-to-date is the consideration checklist kindly supplied by Butler?Sloss LJ? Have the 'paternal link' and 'no longer any embarrassment' arguments now been effectively distinguished? Should the consideration checklist too be formally revisited?
These are issues which arise less frequently than, say, contact issues, but they do arise with increasing frequency. The judge at first instance in Re H and A said that cases of that sort were 'cropping up quite frequently in that locality'. The courts have rightly stressed that cases have to be approached from the point of view of the child but can we really ignore the often very strong feelings and frustrations of parents on this subject? Should they be powerless to prevent unilateral registration by an estranged partner? The issue has only been addressed as an afterthought (if at all) in legislation. The case-law is clearly evolving and usually based on intuition rather than research. This is surely an issue to which at least the Law Commission should be turning its attention.
Published in March 2003 edition of Family Law
Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
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