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 father to the child, the quality of contact and the presence or otherwise of parental responsibility were proper factors to be taken into account.
Lady Justice Butler-Sloss: ‘The present position, in summary, would appear to be as follows:-
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 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 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 changes 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, 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. ‘
Judges:
Butler-Sloss LJ, Auld LJ, Mantell LJ
Citations:
Gazette 02-Sep-1999, Times 05-Aug-1999, [1999] EWCA Civ 2030
Links:
Statutes:
Births and Deaths Registration Act 1953, Registration of Births and Deaths Regulations 1987
Jurisdiction:
England and Wales
Citing:
Cited – 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 – Dawson v Wearmouth HL 4-Feb-1999
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 . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 19 May 2022; Ref: scu.82262
