The parents were unmarried. The mother had registered the child under her former partner’s surname. The father sought an order that his name be used instead. The mother’s apeal against an order to that effect had succeeded.
Held: The father’s appeal succeeded. When considering changing a child’s name by means of a specific issue order, the court must follow the issues identified in section 1 of the Act, and a court order is to be made only if it will be in the best interests of the child. In this case there was no need to use father’s name
HL Lord Mackay of Clashfern: ‘The application of section 1 so long as they take account of the criteria there in question is a matter within the discretion of the Court of Appeal and I can see no ground for suggesting that they have erred in principle. The heavy emphasis on registration is, I think, a reflection of the fact that they considered that the judge had wrongly left that out of account and that the application must be understood as for a change from a name already registered and therefore in the light of section 1 of the Act of 1989 some circumstances required to be pointed to which would justify making that change in the interests of the child’s welfare. In fairness to the Court of Appeal it must be pointed out that, although they described the fact that the name sought to be changed was the duly registered name as ‘all-important’, they coupled that with the circumstances that the name Wearmouth was the mother’s actual name at the time it was chosen for her as well as being that of Alexander’s half-brother and half-sister, in stating their view that their discretion should be exercised against the making of the order for change . . . In my opinion on a fair reading of the decision of the Court of Appeal they were suggesting not that the registration was conclusive of the issue in the present case but that in order to justify changing the name from that which was registered circumstances justifying the change would be required and they concluded in the exercise of their discretion that there were no such circumstances of sufficient strength to do so in the present case.’
HL Lord Jauncey of Tullichettle: A surname which is given to a child at birth is not simply a name plucked out of the air. Where the parents are married the child will normally be given the surname or patronymic of the father thereby demonstrating its relationship to him. The surname is therefore a biological label which tells the world at large that the blood of the name flows in its veins. To suggest that a surname is unimportant because it may be changed at any time by deed poll when the child has attained more mature years ignores the importance of initially applying an appropriate label to that child.’ and ‘My Lords, I accept, of course, as the authorities make clear, that the changing of a child’s surname is a matter of importance and that in determining whether or not a change should take place the court must first and foremost have regard to the welfare of the child. There are many factors which must be taken into account, not only those pertaining to the present situation but also those which are likely to affect the child in the future. Just as the fact that the mother happens to bear a different surname from the child is not a sufficient reason for changing the child’s surname (in re WG 6 Fam Law 210; in re C (Change of Surname) [1998] 2 FLR 656) so the fact that mother and child bear the same name should not necessarily be sufficient reason for refusing a change if there are valid countervailing reasons.’
Lord Hobhouse of Woodborough: ‘The name appearing upon a child’s birth certificate is not without importance. It has practical implications and, other things being equal, it is in the longterm interests of the child that the name by which he is known should also be the name which appears on his birth certificate.’ and ‘The fact of registration is a relevant and, maybe, important factor in assessing where the balance of advantage for the child’s welfare lies. But it is not all important.’
Judges:
Lord Mackay of Clashfern, Lord Jauncey of Tullichettle, Lord Hobhouse of Woodborough
Citations:
Times 26-Mar-1999, Gazette 28-Apr-1999, Gazette 12-May-1999, [1999] UKHL 18, [1999] 2 AC 309, [1999] 2 All ER 353, [1999] 2 WLR 960, [1999] 1 FCR 625, [1999] 1 FLR 1167, [1999] Fam Law 378
Links:
House of Lords, House of Lords, Bailii
Statutes:
Children Act 1989 8 1, Births and Deaths Registration Act 1953
Jurisdiction:
England and Wales
Citing:
Appeal from – Dawson v Wearmouth CA 31-Jul-1997
The father was not married to the mother who, without consulting the father, registered the child in the name of her former husband by whom she had previously had two children. The father sought various orders under the Children Act, including a . .
Cited – Keegan v Ireland ECHR 26-May-1994
The mother and father were not married, and their relationship broke up before the birth of the child, and the father was excluded from seeing the baby after the first time in hospital. He sought guardianship, and objected to his exclusion from . .
Cited – In re T (orse H) (An Infant) ChD 1963
The mother had by deed poll changed the paternal surname of her daughter by her first husband to that of her second husband.
Held: Buckley J said: ‘In the case of a divided family of this sort it is always one of the aims of the court to . .
Cited – In Re B (Minors) (Change of Surname) CA 1-Dec-1995
The mother sought to change the surname of the three children of the family from that of her divorced husband to that of the husband whom she had subsequently married. Her application for leave was refused by the circuit judge. She appealed.
Cited – In re W G CA 1976
The mother sought to change the name of her child from that of the natural father to the surname of her new husband.
Held: Cairns LJ said: ‘it should be realised that the mere fact that there had been a divorce, that the mother had remarried . .
Cited – L v F 31-Jul-1978
The court heard an application with regard to a proposed change of a child’s surname. The child was living en famille with its mother, stepfather and half-sister. It heard evidence from a distinguished psychologist that ‘when they grew older, . .
Cited – W v A (Minor: Surname) CA 1981
The mother of the child sought to change the child’s surname from that of the child’s father to that of her new husband.
Held: The application was refused. Dunn LJ referred to the importance of maintaining the child’s links with the paternal . .
Cited – In Re C (A Minor) (Change of Name) CA 2-Feb-1998
A parent challenging a child’s lawful change of name after the event must do so against the background at time of name change; cogent reasons were needed. . .
Cited by:
Cited – In Re W (A Child); In Re A (A Child); In Re B (Children) CA 5-Aug-1999
Where either a child had been registered with his father’s name, or his parents had been married, there would need to be strong reasons for allowing a change of surname. Where the parents were not married, the degree of commitment shown by the . .
Cited – Payne v Payne; P v P CA 13-Feb-2001
No presumption for Mother on Relocation
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
Lists of cited by and citing cases may be incomplete.
Children, Administrative
Updated: 23 May 2022; Ref: scu.135119