Changing a childs name

There are no legal limits on a person's liberty to change his name. In Davies v Lownders (1835) I Bing NC 597 at 618, Tindal CJ said that 'a man may, if he pleases, and it is not for any fraudulent purpose' take a new name. Whilst the law does not prescribe a formal method by which a change of surname may be effected, a deed poll, authenticated notarial instrument or other declaration provides a convenient means of evidencing the maker's intention to change the name (D v B (Surname: Birth Registration) [1979] Fam 38). 

 

 

Surnames
The two leading cases which set out clear principles for the court to apply when dealing with an application to change a child's surname are the House of Lords' decision in Dawson v Wearmouth [1999] 2 WLR 960, [1999] 1 FLR 1167 (HL) and the Court of Appeal's decision in Re W, Re A, Re B (Change of Name) [1999] 2 FLR 933.

Following the decision of the House of Lords in Dawson v Wearmouth [1999] 2 WLR 960, [1999] 1 FLR 1167 (HL), at 1173, the Court of Appeal in Re W, Re A, Re B (Change of Name) [1999] 2 FLR 933-934 set out key guidelines (a-l) when considering an application for change of surname:

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 s 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 change 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 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.

The principles ascertained in Dawson v Wearmouth [1999] 1 FLR 1167, which are still good law, are as follows:

a. A change of surname should not be permitted without evidence that it would improve the children's welfare [1167].
b.  'While registration was a factor to be taken into account, it was not necessarily a major factor in every case, particularly where, as in this case, the child was so young as to be incapable of understanding the significance' [1167]. 
c. 'The attitude and views of the individual parents are only relevant insofar as they may affect the conduct of those persons and therefore indirectly affect the welfare of the child' [1178]. 

Link with the paternal family
Maintaining a link with the child's paternal family through possessing the same surname as the paternal family is of great importance, particularly when the father plays a role in the child's life. In Re WG (1976) 6 Fam Law 210, the Court of Appeal said:

"[T}he court recognized the importance of maintaining a link with the father, unless he has ceased to have an interest in the child or there were some grounds – having regard to his character and behaviour – which made it undesirable for him to have access to the child at all."

Conflicts of culture
In Re S (Change of Names: Cultural Factors) [2001] 2 FLR 1005 at 1015 Wilson J was confronted with a conflict between Muslim and Sikh cultures. He permitted a Muslim mother to use Muslim names for her child but refused to allow a formal change by deed poll from his Sikh names because they maintained the link with his Sikh father. 

 

Applications to change a child's name have been successful where there are real and substantiated risks to a child's safety to justify changing the child's name. In the recent case of AB v BB and Others [2013] EWHC 227 (Fam), the mother was given permission to change the child's surname where there was a history of violence by the father stretching back to 2007; M's security and the child's welfare justified the need for the child's surname to be changed.

 

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