Christmas Parties and a Child’s change of name

JJJ

Well, it is the day after the Christmas Party celebrations here at the Harrogate office of Stowe Family Law and everyone is truly in the festive mood. The party went down really well with a gorgeous meal followed by some secret Santa gift giving and a faux award ceremony. It proved to be a fun filled evening and it was lovely to kick back and get to know my colleagues a little better.

A recent case caught my attention today as I conducted some legal research this afternoon: W (Children) [2013] EWCA Civ 1488. This case concerns a mother who appealed an order which stated that D, a child of two years, have his name changed to include his father’s first name as his middle name. The appeal was allowed on the premise that the judge had not applied the correct test in the first instance. The test that should have been applied comes from the cases of Dawson v Wearmouth [1992] 2 AC 308 and subsequently Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930 and is set out below. It was decided that the judge had failed to apply this test and ask the question of what benefit the change of the child’s name would actually have for the child.

The mother of the child appeared in court for the appeal, but the father did not, expressing his loss of belief in the court system. Lord Justice Ryder gave the judgment in absence of the father. He stated that the parties are at risk of ‘ruining the lives of their children if they do not stop litigating their own issues through their children’. Furthermore, and in reference to the issue at hand, Lord Justice Ryder stated that the test that should have been applied was that from the case of Re W, Re A, Re B (change of name) [1992] 2 FLR 930 at 933F (9-10). In addition he clarified that the ‘effect of Dawson v Wearmouth was not (as was often suggested) that added value was required by a change of name; rather, the test is welfare, ‘pure and simple”. In conclusion the court found that the judge at first instance had not applied the correct test and so set aside the order. The court stated that had the situation remained as it was at the time of the first instance judge’s order it may have allowed the change of name to stand, ‘but given that matters had now moved on (particularly the father’s disengagement with the court) the matter would be remitted for retrial.’

The Test:

“9) 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 s1(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 other, 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 existence or absence of parental responsibility are all relevant factors to take into account.

(10) I cannot stress too strongly that these are only guidelines which do not purport to be exhaustive.  Each case has to be decided on its own facts with the welfare of the child the paramount consideration and all the relevant factors weighed in the balance by the court at the time of the hearing.”

For the full Family Law Week report and the full judgement please visit: http://www.familylawweek.co.uk/site.aspx?i=ed121142

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