D. v B. (otherwise D.) (Surname: Birth Registration)

High Court (Family Division) 
26^th, 29^th November, 13^th December 1976

Before (the judges sitting on the bench)

• Mrs Justice Lane 

Counsel (the barristers representing the parties)

• John Samuels on behalf of the father, J.D. (the Petitioner).
• David Mills on behalf of the mother, D.B. (otherwise D.D.), and P.A.B. (the Respondent and Co-Respondent, respectively)
• Andrew Kirkwood on behalf of the Official Solicitor  as guardian ad litem.

Judgment (given on 13^th December)

Mrs Justice Lane —

This is an application by a father concerning his year-old son.  Because it involves matters upon which there is an absence of authority, I give this judgment in open court with the concurrence of all counsel concerned.

The issues are as to a mother’s capacity to change the surname of an unborn child by deed poll and by registration of his name after birth, and further as to an order for access by a father to his legitimate child with whom he has had no contact.

The material facts are as follows.  The parents were married on 27^th July, 1970.  Both are now 28 years of age.  The father is a solicitor, the mother is a schoolteacher.  Towards the end of 1974 the mother formed a friendship with a married male schoolteacher who is about two years her senior, and to whom I will refer as “the co-respondent.”  At this stage there was no adultery between them.  The father learned of their association, but he believed that a reconciliation had been achieved with the mother by the time their only child was conceived in February 1975, although with hindsight he now acknowledges that the prospects of the continuance of the marriage were by then uncertain.

Early in April 1975, when according to the mother her pregnancy had not been confirmed, she committed adultery with the co-respondent for the first time.  In the following month she informed the father of her adultery.  He made great efforts to save the marriage.  He sought the assistance of a probation officer, whom the mother also saw, but she was adamant in her intention to continue her association with the co-respondent.  At this time the co-respondent was living with his wife and their daughter born in April 1974.

The mother and the co-respondent sought accommodation where they could be together.  They were unsuccessful in their quest until September 1975 when they obtained a flat in Cambridge, to which they moved and where they still reside.  During this interval each of them remained in their respective matrimonial homes.  The father continued to try to dissuade the mother from leaving him, and I gather that even after she left him (although his letters have not been produced) he wrote to her in affectionate terms.

On the day after the mother left for Cambridge, she executed the deed which I have mentioned, in which she renounced the father’s surname and which contained inter alia the following words: “I hereby authorise and request all persons to designate and address me and my children and remoter issue by such assumed name of” — and she states it — “only.”

The child was born on 23^rd November, 1975.  On 17^th December, 1975, the mother registered his birth with the surname of the co-respondent, which she had assumed, but correctly naming the father as such.  As soon as the father became aware of the registered name of the child, he instructed his solicitors to take up the matter.  I accept his denial of the mother’s evidence that before the birth he had agreed to the child being known by the co-respondent’s name.  Letters from the mother to the father and between their respective solicitors make it clear that he was asking to see the child almost from the time of the birth.  At first it appeared that his wish was to be granted, and on 15^th January, 1976, the mother’s solicitors wrote to the father’s solicitors a letter containing these words:

“Our client is happy that your client should see the child.  She suggests once a month at her mother’s on a Saturday or a Sunday when the child can be left and your client can visit during the day.”

By the mother’s letter to the father of 21^st January, she proposed that the first such access should be on Saturday, 7^th February, but she suddenly changed her mind, and on 5^th February she wrote again saying that she was instructing her solicitors to refuse access and adding in parenthesis: “And this Saturday is off.”  The father has not hitherto set eyes on the child.

Earlier, on 9^th June, 1976, the father had filed his petition for divorce, relying on the admitted adultery of the mother and the co-respondent, and praying for an order for joint custody of, and access to, the child.  On the following day he issued the summons now before me in its then unamended form.  The mother’s acknowledgment of service of 17^th June, 1976, showed that she wished to be heard as to the father’s claims for custody and access, and to make application in respect of these on her own account.

On 19^th November, 1976, a decree nisi was pronounced on the undefended petition.  No order was made with regard to custody or access and no certificate as to the arrangements for the child was given.  I understand that the co-respondent’s wife has instituted divorce proceedings and that her undefended petition is listed for hearing this month.  The mother and the co-respondent intend to marry each other after the two decrees have been made absolute.

As to the law affecting the change and registration of the child’s surname, there is a direction of Lord Denning M.R. , of 6^th August, 1969, Practice Direction (Deed Poll: Minors) [1969] 1 W.L.R. 1330, the introductory words of which read:

“In consequence of difficulties which have arisen the Master of the Rolls proposes, subject to the approval of Parliament, to amend the Enrolment of Deeds (Change of Name) Regulations so far as they govern applications to change the name of a minor.  He desires that in the meantime the following procedure should be observed”: and paragraph (d) reads:

“In all cases the application should be supported by an affidavit showing that the change of name is for the benefit of the minor and that both parents join in or consent to the application, unless special reasons are shown why they cannot or do not do so.”

The regulations have since been amended, but not in conformity with this direction, although, so far as I am aware, the direction has not been cancelled.  The amendment was made by the Enrolment of Deeds (Change of Name) (Amendment) Regulations 1974, which came into force on 30^th December, 1974.  Certain formalities material to this case were prescribed by way of amendment of the Enrolment of Deeds (Change of Name) Regulations 1949, regulations 2(2) and 3(2) of which were replaced by the following:

“2(2) The applicant must be described as single, married, widowed or divorced.”  “3(2) … an applicant who is married must — (a) produce his certificate of marriage and must show that notice of his intention to apply for the enrolment of the deed poll evidencing the change of name has been given to his spouse by delivery or by post to his spouse’s last known address; (b) show that he has obtained the consent of his spouse to the proposed change of name or that there is good reason why such consent should be dispensed with.”

The mother’s deed did not comply with those regulations; she did not give her status; she did not show that notice of her intention had been given to the father, neither did she show that the father had consented or that there was good reason why his consent should be dispensed with.  In fact as I understand it, he had no knowledge of her intention and certainly did not give his consent.

The Matrimonial Causes (Amendment) Rules 1974  amended the Matrimonial Causes Rules 1973  by adding a new sub-rule (8) to rule 92, with effect from 27^th January, 1975.  The new sub-rule reads:

“(8) Unless otherwise directed, any order giving a parent custody or care and control of a child shall provide that no step (other than the institution of proceedings in any court) be taken by that parent which would result in the child being known by a new surname before he or she attains the age of 18 years or, being a female, marries below that age, except with the leave of a judge or the consent in writing of the other parent.”

The mother was not, and is not, in breach of this regulation in purporting to change the surname of the child, because at the time she did so, and up to this moment, no relevant order has been made.  There was judicial authority as to changing the surname of the child in cases decided before the relevant statutory amendments were made.  In re T. (or^se H.) (an Infant) [1963] Ch. 238 was a decision of Buckley J.  The headnote reads:

“On the petition of the mother the parents of a 10-year-old girl were divorced in December, 1959.  The petition was undefended and the mother applied for and obtained the custody of the infant.  There was no order for access but the father had had access by agreement.  In July, 1960, the father remarried and in October, 1960, the mother remarried, acquiring the surname of her second husband.  On 24^th August, 1961, the mother, without any previous communication with the father, executed a deed poll whereby she, purporting to act as legal guardian of the infant, renounced and abandoned the use of the infant’s surname and declared that, as from the date of the deed poll, the infant had assumed the mother’s new surname.  The father was first informed of this change of name in September 1961.  On 31^st January, 1962, the father issued a summons asking, inter alia, that the infant be made a ward of court; that the deed poll purporting to change the surname of the infant be cancelled; or that a deed poll might be caused or ordered to be registered which would change the infant’s surname to the former one: —

“Held, (1) that a child of — tender age could not, of its own motion, change his or her surname since it involved a conscious decision and the power or right to make such a decision primarily resided with the father as the natural guardian, but where the father was not living or was not available for some other reason such power might reside in the legal guardian; that where there had been a divorce in which the father was the person against whom the decree was granted and an order for custody was made in favour of the mother the order did not deprive the father of all his rights and obligations in respect of the child but he remained the natural guardian of the person of the child.

“(2) That in the case of a divided family it was always one of the aims of the court to maintain the child’s contact, respect and affection for both of its parents so far as the circumstances would permit, and to deprive the child of its father’s surname was not in the best interests of the child because it was injurious to the link between the father and the child to suggest to the child that there was some reason why it was desirable that it should be called by some name other than the father’s name.

“Accordingly, the infant’s mother had no status which entitled her to take any step on behalf of the infant which would result in the infant being known by a surname other than the father’s surname.”

It is appropriate that I should also read the judgment, beginning at the second paragraph thereof, at p. 240:

“It is, of course, well known that a person’s surname is a conventional name and forms no part of his true legal name.  An adult can change his or her surname at any time by assuming a new name by any means as a result of which he or she becomes customarily addressed by the new name.  There is no magic in a deed poll.  The effect of a deed poll when changing a name is merely to record the change in solemn form which will tend to perpetuate the evidence of a change of name.  But a change of name on the part of an adult must, in my judgment, involve a conscious decision on the part of the adult that he wishes to change his name and be generally known by his new name.  An infant, and certainly not an infant of the age of the infant with whom I am concerned in the present case, is not competent to make such a decision.  Certainly an infant of tender years cannot of its own motion change his or her surname.  What I have to consider is whether any other person can change it for the infant, and if so, who can do so.

“There appears to be no authority on this point at all, but in The Encyclopedia of Forms and Precedents, 3^rd ed., vol. XI, p. 8, there is a precedent for changing an infant’s name by deed poll to be executed by the guardian of the infant.  It is perhaps worth observing that by rule 8 of the Enrolment of Deeds (Change of Name) Regulations 1949 (as amended by the Enrolment of Deeds (Change of Name) (Amendment) Regulations 1951), which are regulations made by the Master of the Rolls under section 218 of the Supreme Court of Judicature (Consolidation) Act 1925, section 218, it is provided that ‘in the case of an infant the application’ — that is to say, the application to enrol — ‘must be made by the parent or legal guardian of the infant.’  If the infant is over 16 years of age his or her signed ‘consent must be endorsed on the deed and duly witnessed.’

“As I understand it, these rules have no statutory force.  They are merely practice rules of the registration department in respect of deeds poll for changing names.  But that fact does give some support to the view that it may be competent for a parent or legal guardian to change the name of an infant.  If there is such a right or power it is one which, in my judgment, resides primarily in the infant’s father as the natural guardian of the person of the infant.  It may be that if an infant has no father living or if for some reason the father is not available such power may reside in whoever is the legal guardian of the infant.  In the present case the deed was executed without the consent of the infant’s father and indeed without his knowledge at all; it was executed by the mother of the infant who was the person to whom the custody of the infant had been given by the order of the Divorce Court.  An order for custody is as its name implies, an order which gives the person in whose favour it is made the right to the custody of the child and the right to bring up the child subject, of course, to any direction which the court may think right to make from time to time under its jurisdiction in relation to any matter.  It does not deprive the father, who is not given the custody of the child, of all his rights and obligations in respect of his child.  He remains, subject to the rights conferred upon the person to whom custody is given by the court, the natural guardian of the child and among the residual rights which remain to him are any rights which he may have at law with regard to the name of the child.  In my judgment, the deed which the mother has executed with regard to the child is one which she had no power to execute so as to have any effect on the infant.  In any case, as I have already observed, the deed poll does no more than provide evidence of the kind I have mentioned.  The most effective way in which this child’s name has in fact been changed is in the school register.  In the day-to-day contact in her school, her name having been altered, she is now known by her mother’s present surname.  That was done, of course, in September last year.

“In my judgment the infant’s mother had no status which entitled her to take any step on behalf of the infant which would result in her being known by some surname other than the surname of her father, and I can find nothing in the facts of this case which would make it desirable that the infant should be known by any name except that of her father.

“One can imagine cases in which it might be in the interests of a child to cease to be known by a particular name, perhaps because of some particularly unhappy association which that name might have acquired or possibly in order to comply with some condition contained in some trust document.  But in the present case there seems to have been no reason at all for this change of name, except that the mother conceived that it was embarrassing to the child to be called by one surname while she herself was called by a different surname as a result of her having remarried.  The mother in her evidence indeed suggests that the child herself asked that she might be called by the same name as her mother.

“In the case of a divided family of this sort it is always one of the aims of the court to maintain the child’s contact, respect and affection with and for both its parents so far as the circumstances will permit.  But to deprive the child of her father’s surname, in my judgment, is something which is not in the best interests of the child because, I think, it is injurious to the link between the father and the child to suggest to the child that there is desirable that she should be called by some name other than her father’s name.  The fact that there has been a divorce and that the father was the person against whom the decree was granted is an insufficient ground for such a view.  For these reasons, in my judgment, not only was the infant’s mother incompetent to take a step on behalf of the infant which was of a kind calculated to have quite far reaching effects upon the child, but also, in my view, it was a step which was not in the interests of the infant and one which the court ought not to assist in any way.  In these circumstances, I shall declare that the deed poll of 24^th August, 1961, was ineffective to change the name of the infant, and I shall direct the infant’s mother, who is the appropriate person, to take such steps as are necessary to ensure that the infant is called by her proper surname as before this deed.”

As Buckley J. referred to the guardianship of a father, reference should be made to the terms of section 1(1)  of the Guardianship Act 1973 .  The marginal note is “Equality of parental rights.”  It provides:

“(1) In relation to the custody or upbringing of a minor, … a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other.”

It is unnecessary for me to determine whether the word “upbringing” includes changing the surname of a minor: suffice it to say that there is nothing in the subsection which takes away the right of a father to object to such a change being made.  He has equal rights in the matter with the mother.

The next decision for consideration is that of Latey J. in Y. v Y. (Child: Surname) [1973] Fam. 147.  The headnote there reads:

“The parents of two girls, aged 13 and 10 years respectively, were divorced on the ground of the father’s adultery and the custody of the children was committed to the mother.  Both parents remarried and, in July 1965, the mother entered the children in their school register under the mother’s new surname.  The father was neither informed nor consulted about the children’s change of surname.  Some considerable time elapsed before the father discovered that the children’s surnames had been changed at school, so that they had become known under the mother’s new surname.  On the father’s summons asking, inter alia, for an order that the children resume their former surname: —

“Held, (1) that a custody order in favour of a mother did not entitle her to change a child’s surname unilaterally but neither could a father as a child’s natural guardian change the surname unilaterally; in the absence of agreement, a parent wishing to change a child’s surname should seek the decision of the court …  In re T. (or^se H.) (an Infant) [1963] Ch. 238 considered.

“(2) That, although the mother was in grave error when she caused the children to be known at school under her married name, on the evidence it would not be in the best interests of the children to order them to resume the father’s name.”

Latey J. considered the judgment in In re T. (or^se H.) [1963] Ch. 238 and said, at p. 152:

“In my opinion, what Buckley J. is saying is this: that an order for custody to a mother does not deprive the father of all rights and obligations in respect of the child, a view, if I may say so, with which I wholly and respectfully agree.  Secondly, in particular, such an order does not entitle the mother to take steps unilaterally to change the child’s surname.  Again, I agree.  And thirdly, that if there is a right or power in a parent, where parents are estranged and custody has been committed to the mother, the right is in the father, and remains so, though custody is vested in the mother.

“But I do not think that Buckley J. was expressing a final view on this point, which indeed it was not necessary for him to decide, and I think that he has left the point open.  I asked counsel at an early stage whether they or any of them could tell me that, in this context, the powers of this court differed from those of the Chancery court, acting for the Sovereign as parens patriae in its wardship jurisdiction.  Counsel were agreed that in this context both courts had similar powers.

“That being so, in my opinion, the matter being res integra, unregulated by statute and undecided at common law, the correct view is this.  As Buckley J. said, an order for custody in a mother does not entitle her unilaterally to cause a child’s surname to be changed, as to do so would infringe the father’s rights as natural guardian.  But, in my opinion, where the mother has been given custody, the father is no longer entitled unilaterally to cause a child’s name to be changed, as to do so would be to infringe the mother’s rights as custodian.  Where the court has become seized of matters affecting children, and at least unless and until parents are in agreement, a parent who wishes to take some step importantly affecting a child, such as a change in surname, should seek the decision of the court.

“This is in line with the development of the law by the courts, which nowadays pay much less attention to technical rights and a great deal more to realities.  Those realities are to encourage parents to consult, and agree when they can, on matters importantly affecting their children, and, if they cannot agree, for the court to make the decision which seems best to serve the welfare of the children, whether or not such decision may override some technical and often illusory right of a parent.

“If I am right that that is the proper approach, the mother did something she was not entitled to in 1965, and she was, from any sensible and human point of view, gravely in error in doing so.  But does it follow that now, in 1969, the right direction should be that the children should reassume the father’s surname?  In my opinion that has to be decided in the way which will best serve the children, as things now are, and as they are likely to be in the future.”

I was also referred to In re D. (Minors) (Adoption by Parent) [1973] Fam. 209, a Divisional Court decision in which Sir George Baker P. , reading a judgment with which Hollings J. agreed, used these words, at p. 216:

“The fact, if it be a fact, that they asked to have their names changed which should never be done unilaterally unless special reasons are shown: …”

The final authority to which I was referred was In re WG 31/1975 (1976) 6 Family Law 210, a Court of Appeal decision given after the above-mentioned statutory amendments came into force.  I have had an opportunity of reading the Bar Library Transcript, N^o 164 of 1976 (for 7^th April, 1976).  Having read the judgment of Cairns L.J. , with which Orr and Browne L.JJ. agreed, I think it suffices for the purposes of this case if I say that the court considered the earlier authorities to which I have referred and then I read the summary contained in the Family Law report, making one or two verbal amendments of my own, which will be apparent to anyone with the report before him.

“Mr and Mrs D married in 1966 and had one child, a daughter L born in December 1969.  In December 1971 the father left home and in January 1973 the mother obtained a decree nisi of divorce on an undefended petition for divorce on the ground of the father’s adultery.  In February the mother married a Mr B.  In April the father also remarried and in May he went to work in Singapore with the intention of returning to England after finishing his work there.  He remained abroad nearly all the time since May 1973 so that he had very little contact with L since the break-up of the marriage.  The mother was given the custody of L; it being agreed that the father should have reasonable access.  By consent, a maintenance order of £ 4 a week for L was made against the father and he paid the maintenance regularly.  When L started school, the headmistresses of the two schools L attended urged the mother to have L’s name changed to her new name as that would (inter alia) be more convenient administratively for the schools.  Faulks J. added weight to the headmistresses’ views and took the view that it was in L’s interests that her name should be changed and made an order giving leave for a deed poll to be registered accordingly.  The father appealed.

“Cairns L.J., having referred to a practice direction by Lord Denning M.R. [1969] 1 W.L.R. 1330 and the Matrimonial Causes Rules 1974, rule 92(8), said that the headmistresses were quoted as saying (inter alia) that it would be more convenient for administrative reasons that L should be known by the mother’s present name.  While his Lordship had no doubt that there was administrative convenience from the school’s point of view in having the same surname as the people with whom L was living, it was wrong to attach too much importance to considerations in connection with schooling as against the longer term interests of L.  It was, of course, important to bear in mind all the way through that it was in the paramount interests of the child with which their Lordships were concerned.  It had not been suggested on either side here that the court should approach the decision in the case from any other point of view.  But his Lordship thought it important that it should be realised that the mere fact that there had been a divorce, that the mother had remarried and had custody of the child, and had a name different from that of the child, was not a sufficient reason for changing the child’s surname.  The courts recognised the importance of maintaining a link with the father, unless he had 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.  It must greatly tend to create difficulties in the relations between a father and a child if the child ceased to bear the father’s name — especially if, as here, the child had come to address her stepfather as ‘daddy,’ and to refer to her father as ‘old daddy.’  His Lordship would allow the appeal, and dismiss the mother’s application.  Orr and Browne L.JJ. agreed.”

All the authorities I have cited refer to an existing child.  In my judgment, the principles and practice which they lay down are equally apt in the case of a child as yet unborn or newly born and should be so applied.  Further, they an equally applicable in the case of a child who has not been seen by his father as in a case where parent and child are known to each other.

Applying those authorities to this case, I hold that the mother was incompetent to change the child’s surname, by deed poll or by registration of birth, without either the father’s consent or an order of the court.  The child’s surname is that of his father.

As to the cases put forward with regard to giving leave to the mother which, as I hold, would be necessary before she could effectively change the child’s surname to that of the co-respondent, and further as to access by the father, these matters are so closely connected that they should be considered together.  In so doing, I bear in mind that my decision must be made in the best interests of the welfare of the child, although I am not required to disregard the wishes of the parents.

The mother’s case is, in effect, that the father should play no part in the child’s life.  Her proposals may be summarised in this way: the child would live with her and the co-respondent; the latter would be the father of the child in every way except biologically; if, as they hope, she and the co-respondent have children of their own, the child in question would be in a similar factual situation to that of such other children; it would save embarrassment to the mother herself and to the child if at school, and generally, he were known by the surname of the co-respondent; he would be part of what was described by Mr Mills as “an undivided nuclear family,” and would not have to put up with what counsel further described as “the second-rate life of a divided family.”  It is the present intention of the mother and the co-respondent to apply for an adoption order in respect of the child.  It is also her expressed intention in any event to inform the child of his true parentage, and if the child showed inquisitiveness about his father, to facilitate a meeting between them in two or three or even one year’s time.  This would be when she would expect the child to be asking questions and wanting to know about the co-respondent’s daughter, who has fortnightly staying access to him and who calls the mother by her Christian name.  Further she agreed in cross-examination that if access were ordered, there should be joint custody.

It was submitted on the mother’s behalf that it would not be in the child’s interests to cause the bitterness she would feel if the father’s application were granted.  The evidence by the mother as to bitterness was that if there were access to the father, it would be difficult for him to hide his hostility to the co-respondent and herself and that the child would sense such hostility.  The father was not cross-examined as to any bitterness he might feel, and I detected none in his affidavits or when he was in the witness box.  I think it most improbable that he harbours any such feelings and that there is no likelihood that, even if he did, he would betray it to the child.  As to the mother’s feelings, her evidence-in-chief, as I have noted it, was:

“I am very bitter.  I can see no other reason for the father wanting the child to have another name than his mother’s except selfishness, pride and revenge.”

This, is my view, was a most unjust remark and bears no relation to the truth about the father’s attitude.  She added in cross-examination:

“I have always stipulated that there should be no access in my presence.  I could not contemplate meeting the father in order to facilitate access were it ordered …  I do believe I should be acting in [the child’s] best interests in keeping out of the way, because I could not bring myself to convey a happy introductory atmosphere.”

It is the father’s case that, although at any rate for the foreseeable future the child should be in his mother’s care, he should bear his father’s name and that there should be reasonable access.  He believes that he could “do a lot” for the child.  He is interested in the child’s education; he does not think that he and the mother would differ about this, but he would like an opportunity of putting his view forward.  His anxiety that the child should bear his surname derives, partly at any rate, from his belief that this might help the development of a relationship between them and provide a unifying bond.  He said, however, that in the fairly distant future when the child was at school and perhaps nine or ten years of age, if he were seriously upset by not having the mother’s surname, he would allow the appropriate change.  In answer to Mr Kirkwood for the Official Solicitor, he added that by the time the child would be concerned about his surname, they would “either have got a good relationship or not,” and that meanwhile he would prefer to keep every bond between them.

The case for the Official Solicitor, representing the child, is that there should be access to the father.  As to the child’s surname, the Official Solicitor’s report of 19^th October, 1976, ends in this way:

“… should the court decide that the father should have access to [the child], and the Official Solicitor recommends that he should, the father might consider that it would be in the child’s best interests for the future not to insist on his being known by his real surname …,” that is, that of the father.

When the case was opened, Mr Kirkwood for the Official Solicitor made it clear that he was not making a firm recommendation as to the child’s surname.  In his final submission, after the evidence had been given and the submissions on behalf of the parents made, Mr Kirkwood informed me that the Official Solicitor’s submission then was that the child should be called by his father’s surname.

It is appropriate that I should express certain opinions I have formed of the parties in this case.  I considered the mother to be subjective rather than objective in her approach to the problems involved.  She appeared to be blandly impervious to any point of view but her own.  The co-respondent seemed to me to be surprisingly dogmatic and uncomprehending of the father’s attitude.

On the other hand, the father impressed me as having a much gentler nature than either the mother or the co-respondent, and as having given much thought to the problems.  In weighing the pros and cons, he has endeavoured to do what he believes to be in the best interests of the child.

As to the orders to be made, I unreservedly accept the Official Solicitor’s opinion as set out in his report in these words:

“The Official Solicitor, however, can see no reason at all why [the child] should not be allowed to see his father now so that a proper father and son relationship might develop from here on.  However good the mother’s intentions, the child is nevertheless going to be brought up to accept [the co-respondent] as his father figure in the first instance, and he is going to start by calling him ‘daddy.’  The position will naturally develop from there, and for the father to be denied the opportunity of allowing some form of relationship to develop at a very early age would, in the Official Solicitor’s opinion, be quite wrong.  Wrong not only in depriving [the child] of getting to know his father, but also wrong to deprive him of the things that a father can do for his son.  One aspect of this is his future education.  The father will presumably want to take an interest in his son’s education and will wish to have some say in his future.”

This opinion was emphasised by Mr Kirkwood in his final submissions.

It is unnecessary to cite authorities other than those already mentioned in order to emphasise the view of the courts that, unless there be good reason to the contrary, it is in a child’s interests to be brought up to know the truth of his parentage and to know both his parents.  In the absence of such a reason, it is undesirable that a child should believe that his own father had displayed no interest in him, but had abandoned him.  Such a belief would be far from the truth of this case.  The father has done all he could to ensure that he had an appropriate link with the child, including offering to pay maintenance for the child, which incidentally the mother refused while reserving the right to make claim for it in the future.

In my judgment, this father has much to offer the child in the way of affection, companionship and guidance.  The mother and the co-respondent have each had one unsuccessful marriage already, and while it is to be hoped that their marriage to each other will be a long and happy one, it is early days yet to reach any firm conclusions as to its likely stability.  Were difficulties in their marriage to arise, it would be an advantage for the child to have his father’s care available to him.  However, this is not to say that at the present time there is any indication that the marriage of the mother and the co-respondent will not last.  The child has received, and is receiving, affection and good care from the mother and the co-respondent, and it is to be hoped that they will manage to master the resentment which I have no doubt they will feel at the order I am about to make.

The order is that there be joint custody to the petitioner/father and the respondent/mother, with care and control to the mother, subject to reasonable access to the father.  Such access is to commence as soon as is practicable and is to be as may be agreed between the parties and approved by the Official Solicitor or, in default of agreement, as may be ordered by the court.  I request that the Official Solicitor should continue to act for the child for as long as this appears to be desirable, i.e. until access has been arranged and is working smoothly.

The order is further that the mother take all such steps as may be necessary to ensure that the deed poll and the Register of Births be amended so as to show the child’s surname as being that of his father (this being the form of this part of the order which I was invited by counsel to make if I decided that the child should be so known).

The order is further that, until the child reaches the age of 18, the mother do not cause or permit him to be known by any other surname than that of the father, without the written consent of the father or further order of the court.  (I think it appropriate in the circumstances of the case to make this part of my order in these terms, which differ slightly from the wording of rule 92(8) of the Matrimonial Causes Rules 1973.)

Finally, I certify that the arrangements for the child are satisfactory.

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Orders of the court

Order accordingly.
Mother to pay father’s costs assessed at £ 500.