Re B (Minors) (Change of Surname)

Court of Appeal (Civil Division) 
21^st November 1995

On Appeal from Newcastle-upon-Tyne County Court

Before (the judges sitting on the bench)

• Lord Justice Stuart-Smith
• Mr Justice Wilson 

Counsel (the barristers representing the parties)

• Miss Sarah Woolrich for the mother (the Appellant and original Applicant)
• Miss Pauline Moulder for the father (the Respondent and original Respondent)

Judgment

Mr Justice Wilson —

The mother of three children appeals from the refusal of His Honour Judge Crawford, Q.C., sitting in the Newcastle-upon-Tyne county court on 17^th May 1995, to give her leave to cause them to be known by a new surname, namely that of her present husband, Mr H.

The three children are K, who was born on 14^th August 1978 and so was aged 16 at the time of the hearing and is now 17, R, who was born on 12^th April 1981 and so is aged 14, and C, who was born on 7^th April 1983 and so is aged 12.

The children live with the mother and her present husband near Whitley Bay.  Mr B, the respondent to the appeal, is a bus driver and lives not far away, near Blyth.  In 1980 the mother married Mr B.  K had already been born to her by another man and so Mr B and the mother then formally and jointly adopted him.  R and C were natural children of the marriage.

The marriage broke down in 1986 and has since been dissolved.  In 1988 the mother began to live with Mr H.  In 1992 they were married.  By 1990 all direct contact between the three children and the father (as from now onwards I will call Mr B) had broken down because of the children’s implacable opposition to it.  Since then the father has sent the children birthday and Christmas cards: but the children destroy them without even opening them.  They even refuse to travel on local buses in case they find themselves driven by the father.  The present estrangement seems absolute, subject to the fact that the father still pays, albeit with some past irregularity, modest sums pursuant to orders for periodical payments for them.

In 1990 custody of the children had been granted to the mother.  The order contained the usual prohibition against her taking any step which would result in them being known by a new surname except with the father’s consent or the leave of the court.  That order still subsists.  Even though she does not have a residence order under the Children Act 1989 , the mother’s application for leave has rightly been treated as an application under the Act of 1989, for the principles are identical.  I need, however, to penetrate slightly further into this technical area.  For Miss Moulder, on behalf of the father, submits that an application relating to a child’s surname under the Act of 1989 is a type of application for a specific issue order within the meaning of s. 8 rather than a free-standing application under s. 13 of the Act.  In that submission she is supported by the editors of Rayden and Jackson on Divorce and Family Matters, 16^th edⁿ (1991), Volume 1, at pp. 1081 to 1082.  She contends that, on a proper reading, s. 13 is purely prohibitory and does not itself give jurisdiction for an order to be made.

In that s. 13 specifically refers to the leave of the court I find myself in disagreement with that contention.  Indeed, I disagree with the general submission of Miss Moulder that an application in respect of a change of name is an application for a specific issue order.  They are separate applications, as is made clear by r. 4.1(2)(a)  and (c)  of the Family Proceedings Rules 1991  and by the different form for the order under s. 13 (namely Form C44  as opposed to Form C43) which is required by r. 4.21(5) .  It follows that, although pursuant to s. 1(1) of the Act the welfare of the child must be the court’s paramount consideration in an application under s. 13, reference to the check-list of particular factors under s. 1(3) is not, by statute, mandatory.  That is not to deny that the check-list remains a most useful aide-mémoire of the factors that may impinge on the child’s welfare.

The mother’s case before the Judge was founded very substantially upon the wishes of all three children that their surname be changed to that of H.  She said that since the time of her re-marriage her children had become generally known as H, particularly in school, because they had been asked to be known by that name.  She said that R had once failed to answer to a new teacher who had addressed him under the name of B and that, when upbraided, he had explained, “That’s not my name.”  She said however that in the formal records of the school, reflected, for example, in the name in which their reports were written, the children continued to bear the name of B and that this was something which irked and embarrassed them and had prompted her to make the application.

She said that, were her application to fail, the two boys were planning themselves to ask the court to permit the change; that the children referred to Mr H as “Dad”; that she thought it right for them to regard him as their father; that they referred to the father as “him at Blyth”; and that the cessation of contact had come about by virtue of the children’s own wishes.  She evaded answering questions about her own wishes in that last resort.

An order had been made for a welfare officer to file a report “limited to ascertaining the wishes of the three children to the proposed change of surname”.  The welfare officer reported as follows:

“All three children refer to themselves as ‘[H]’.  They tell me that this is the name by which they are known amongst their friends in the village … where they live.  In the case of the two younger children, [H] is the name which they are known by at … school.

“All three children expressed identical opinions in this matter.  They told me that they wished to be known as [H] and found it embarrassing to be described as anything else.  They seemed to have given the matter considerable thought and they expressed their views in a sensible manner.  They told me that they regarded Mr [H] as their ‘dad’ and wished to be known by his name.  Apparently, they have not seen their natural father for many years.

“The children’s views are quite clear in this matter.  They want to be called [H].  Changing their surname officially would simply confirm a situation which has existed for some time and remove a source of embarrassment.”

Although in oral evidence the welfare officer denied that he had gone further than his remit, I do read the last sentence as providing some independent professional support for the mother’s application.  The welfare officer also gave evidence that the children had said that the father “was of the past and not of the present”.

The basis for the father’s opposition to the application was summarized by him in oral evidence as follows:

“With the access not taking place and everything, to me that is just like the final nail in the coffin for them, just to try and cut me off completely, just get me completely out of their minds.”

When it was put to him that, when they became adults, the children could formally alter their surname themselves, he said:

“If they get to the age of 18, if that is what they want to do, that is for them to do, because I maintain that she has poisoned them.  By the time they get to 18, they have got more chance to get a bit of what I call their own minds back.”

The father accepted that the children could not be prevented from informally using the name of H but suggested that it was important that on documents such as passports they should, while children, continue to bear his name.

The Judge’s comments during the hearing were, at times, robust but he did observe that the case was not easy.  In his judgment he found that the mother wanted her new family to be entirely free from the father’s influence and that her view had communicated itself, consciously or unconsciously, to the children.  He nevertheless addressed the strong and clearly expressed wishes of the children and reminded himself of their relatively advanced ages.  He considered that there was little force in the contention that the children were embarrassed by the present inhibition upon any formal change of name and accepted that he could not prevent them from continuing to use the surname of H on an informal basis.  He concluded in this way:

“I do not think that to allow this change of name is in the children’s best interests.  Mr [B] is their father.  He has maintained them since the separation, albeit with some breaks and some arrears.  It seems to me that what would be in the children’s interests would be if access were to be re-established with their father, and to allow this change of name would hamper that process, if not indeed make it totally impossible.  And while, as I say, it may be true that the children will in fact insist on being called [H], for me to allow this application would be to give the court’s approval to a process which I do not believe is in their best interests.

“I think it is in their best interests that they should see Mr [B], who is anxious to see them.  I think that the reality is that they are [B] and that this court should recognize that reality.”

There is one thread clearly visible in almost all the arguments of Miss Woolrich set out in her skeleton argument and developed orally this morning in support of the mother’s appeal, namely that the Judge failed by so wide a margin to give sufficient weight to the wishes of these adolescent children as to render his decision plainly wrong.

I agree with Miss Woolrich that orders nowadays which run flatly counter to the wishes of normal children aged 16, 14 and 12 are virtually unknown to family law.  But in my view there is a big distinction between, for example, a residence or contact order made in the teeth of such opposition and the order made by the Judge here, which left the existing prohibition in force.  There is no point (indeed it is only a recipe for further damaging conflict) in the court ordering children of that age to reside in a home where they will refuse to reside or to have contact with a parent with whom they will refuse to have contact.  But the nature of the prohibition, left untouched by the Judge, is different.  It does not, because in effect it cannot, proscribe the surname which the children ask teachers, friends and relations to attribute to them.  The order represents an inhibition upon the mother not to cause the children to be known by the name of H.  Although an oral instruction on her part to a third party to call the children by her husband’s name would, if obeyed, be a breach of the prohibition, the much more obvious example of its effect is that the mother cannot sign forms by which the children’s surname is identified as that of her husband.  Thus, for example, she cannot sign applications for their school registration, for their medical or dental registration, or for the issue of a passport to them, in that name.  It is, as the Judge pragmatically recognized, a limited prohibition; and it does not purport to oblige adolescent children to do anything which they are refusing to do.

Miss Woolrich resurrects the traditional argument that it is embarrassing for children to be known by a surname other than that of the adults in their household.  But the law must not lag behind the times.  In these days of such frequent divorce and re-marriage, of such frequent cohabitation outside marriage, and indeed increasingly of preservation of different surnames even without marriage, there is, in my view, no opprobrium nowadays upon a child who carries a surname different from that of the adults in his home.  That view is supported by a comment of Ralph Gibson, LJ in Re F (Children: Surname) [1994] 1 FCR 110 at p. 114E.  Even if the argument had had any force, it would have borne little reference to the name appropriate to the child for formal purposes.

There appears to have been no fully reported case on the principles relevant to a formal change of a child’s surname for 13 years.  Paradoxically the first in the run of such cases, namely in Re T (Or^se H) (an Infant) [1963] 1 Ch 238 seems to me to identify what is still a most relevant consideration.  At p. 242 Buckley, J (as he then was) suggested that:

“it is injurious to the link between the father and the child to suggest to the child that there is some reason why it is desirable that she should be called by some name other than her father’s name.”

Although the other main proposition in that judgment, namely that even a father who lacked custody of the child remained her sole natural guardian, seems antediluvian, the passage which I have quoted seems to echo from the past a sentiment which the Judge in this case rightly, if unknowingly, adopted.

It is accepted to be of fundamental importance for every child to have an enduring relationship with both his parents, notwithstanding their separation.  That principle is the foundation of the approach of the courts to issues about contact, even though occasionally circumstances require it to be displaced.  It seems to me that that principle was rightly at the forefront of the Judge’s approach when he said that the grant of leave would be to give the court’s approval to a process not in the best interests of the children.  He may have been unduly optimistic about the chance of re-establishing direct contact between the father and the children in the near future.  But in my judgment the grant of leave to the mother to effect a formal change in the surname of the children would not only have been unwarranted on pragmatic grounds but, more importantly, would have sent a wholly inappropriate message to the children, namely that the court agreed with them that their father was of the past, not of the present.  Save following adoption, a father, while he lives, is always of the present.  Far from being clearly wrong, the Judge was, I believe, right.  I would dismiss the appeal.

Lord Justice Stuart-Smith —

I agree.

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Orders of the court

Appeal dismissed.