Re C (Change of Surname)

Court of Appeal (Civil Division) 
21^st November 1997

On Appeal from Kingston upon Hull County Court (His Honour Judge Cracknell)
Case n^o: LTA 97/6320/J

Before (the judges sitting on the bench)

• Lord Justice Evans 
• Mr Justice Wilson 

Counsel (the barristers representing the parties)

• Mr S Taylor (Instructed by Messrs Max Gold & Co., Hull) appeared on behalf of the mother, Mrs L. (the Applicant and original Respondent)
• Miss A Hunt (Instructed by Messrs Harrowell Shaftoe, York) appeared on behalf of the father, Mr R. (the Respondent and original Applicant)

Judgment

Mr Justice Wilson —

The mother, now Mrs L, seeks leave to appeal from an order made by His Honour Judge Cracknell in the Hull County Court on 2^nd May 1997.  The order was to grant leave to the father, Mr R, to cause their two children, a son born in July 1989 so now aged 8, and a daughter born in November 1990 and so now aged 7, to be known by a new surname, namely R (being his own surname), instead of their existing surname, namely C.  Attached to the order was a condition which I will address later.

The two children have lived with the father since 1991 and a residence order in his favour has been in force since 1992.  By reason of the existence of the residence order, the father’s application was made under section 13(1) of the Children Act 1989 : see Re B (Change of Surname) [1996] 1 FLR 791.  Absent a residence order, the application would have been for a specific issue order under section 10  of the Act of 1989: see Dawson v Wearmouth [1997] 2 FLR 629.  Both authorities explain why, for practical purposes, the same considerations inform the despatch of both types of application.

The children’s official surname prior to the order under proposed appeal, namely C, was the mother’s maiden name.  Now, however, she is married to Mr L and carries his surname.

The father did not realise that the residence order included an express prohibition against his causing the children to be known by a new surname without the mother’s consent or leave of the court.  From 1993 onwards he has caused and permitted the children to carry his surname.  That has become the surname by which they are generally known at school and elsewhere.  Everyone agrees that it is very regrettable for that development to have occurred irregularly.  The mother’s case, ably put by Mr Taylor, is not for an attempt to be made to put the clock back and to alter the surname now in daily use; her case is only that for official purposes their surname should, in their interests, remain as C.

The parents have never been married to each other.  By 1988, when their relationship began, the mother already had two children who carried her maiden name C and who are now aged 12 and 10.  At birth the two children who are the subject of these proceedings (“the subject children”) were given that surname.  Shortly after the birth of the younger of them, the parents’ relationship ended; and soon the two subject children went to live with the father.

In 1992 both parents struck up new relationships, both of which subsist.  The mother married Mr L.  They have three children, a boy now aged 4 and twins now aged 3.  Their three children carry the surname L.  Furthermore in 1994 the mother formally and legitimately changed the surnames of her first two children from C to L.  So the seven members of that family all carry that name.

Also in 1992 the father set up home with the woman who was later to become his wife.  In her care were, and are, three children by a former relationship, a boy now aged 10 and girls now aged 9 and 7.  At that time she was using her maiden name and her three children carried the name of their father.  So the seven members of that family were carrying no less than four different surnames.  In order to simplify matters the father and his future wife decided that all seven should use his surname.  Thus arose the irregularity in relation to the two subject children.  In due course the father’s future wife formally and legitimately changed the surnames of her three children to R.

The two families both live in Yorkshire but 45 miles apart.  There have been orders for contact between the subject children and the mother; but it has not proceeded smoothly and the court welfare officer forecasts further problems in the future.  One difficulty has been the distance between the two homes which has required expenditure on transport which the parents can ill afford.  But the very relationship between the subject children and the mother has been uneven.  We are told that, since the hearing, the daughter has twice gone to visit the mother and has stayed with her for a few days but that the mother’s only contact with the son has been once at a contact centre.  The mother does not, however, suggest that the father has sought to obstruct contact and indeed the judge found that he was anxious for it to develop.

The welfare officer filed a short report on the issue over the surname.  He said:

“[The father] tells me that the children wish to be called by his name, and for all intents and purposes this is the case.  [The mother] agrees that the children would probably wish to call themselves by their father’s name but is of the opinion that their names should remain as on their birth certificate, in order to provide a link however tenuous with herself.  There is some sense in this as indeed there is in [the father’s] argument.

“Because both parents can accept that the children will be known as R on a day-to-day basis, it would seem reasonable to suggest that at this stage their names could remain as C.  In due course when they are older they will be in a position to decide for themselves what they wish to be legally called.  Many things could happen between now and that time, and the use of the name C however tenuous does mean that a link is retained with [the mother], who does not feel there is much left at first sight to hold her and these children together.”

After the welfare report was filed, the father proposed that, were his application to succeed, he would cause the children’s former surname C to become a second middle name for each of them.  In his oral evidence the welfare officer described that proposal as attractive and as representing a reasonable compromise.  Nevertheless a reading of the transcript of his evidence as a whole leaves the impression that he still just favoured the refusal of the application.  He said that what he thought he was suggesting was that sleeping dogs should lie.

In his judgment the learned judge stated that a change of name was an important matter, that the welfare of the children was the paramount consideration and that the arguments were finely balanced.  He addressed, but insufficiently says Mr Taylor to us, the mother’s contention that the retention of the surname C represented an important link between the children and her, especially valuable in circumstances where the link through contact was insecure; and that, were the children to be allowed to continue to use the surname R on a day-to-day basis, no confusion or prejudice would be caused to them.  The judge reminded himself that the welfare officer had tentatively suggested that the status quo should be allowed to continue.

Against these arguments the judge weighed the father’s denial that the status quo was satisfactory; and considered his plea to be permitted to continue to do what unknowingly he had been doing without permission, namely causing the children to be known by his surname, and to be permitted to introduce that change into formal documents so as to accord with their perception of their surname and to prevent unnecessary conflict with the name in daily use.  He noted the father’s argument that, in that the mother had herself changed her surname from C following marriage and, indeed, also the surname of her first two children, the link which that name represented between her and the subject children was attenuated.  He concluded that the status quo was not satisfactory; that the children should not be left in limbo; and that because, and only because, the father was agreeable to the condition that the name C should become the children’s second middle name, he should accede to the application.

This morning Mr Taylor has had the unenviable task of seeking to persuade us that within what appears to be a copy-book judgment lies or may lie a flaw in the discretionary exercise.  He relies on this court’s decision in Re B in support of two propositions.  The first is that the court may countenance as being in the interests of children a situation in which their surname in daily use differs from their surname for registrations and other official purposes.  Reliance is placed on the following passage at 795A-C:

“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 [her new husband].  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.”

As, oddly enough, the author of that passage, perhaps I might be permitted to observe that nothing in it should be taken as indicating that it is in principle desirable for a dichotomy to exist between the name in daily use and the name for official purposes.  On the contrary, it is in principle undesirable.  But sometimes there is a more powerful principle pulling the other way, for example, as in that case itself, the principle that the stamp of parenthood upon the children represented by their having the same surname as the parent should not lightly be erased by the name’s replacement with that of a non-parent.

The second proposition, allied but distinct, and founded upon the same passage, is that the court may countenance as being in the interests of children a situation in which they themselves can ask to be called by a new surname even though the parent with residence is prohibited from causing them to be called by it.  In Re B the children were aged 16, 14 and 12.  It was not only possible to contemplate that they would be minded to speak out about their preferred surname without prompting from the parent with whom they lived but also necessary to recognize pragmatically that they could not be prevented from doing so.  I agree with the submission of Miss Hunt on behalf of the father made in the court below that, where the children are aged 8 and 7, a situation where, while the children are free, the parent with residence is under restraint, is particularly artificial and not conducive to easy operation.

My view is that, had the mother continued herself to carry the surname C, the proper balance of factors might well have tipped the scales against the grant of the father’s application.  But the mother now carries the surname of her husband.  The judge considered that her marriage would endure; but, even if it were to fail, it is highly unlikely that the mother would resume the surname C in circumstances where her five other children all carry her husband’s surname.  Whereas she has left her maiden name behind, the two subject children find themselves still carrying it.  The name represents no overt link between the children and the mother and I cannot see how their continued carriage of it significantly assists their sense of being her children.  Mr Taylor says, as did the welfare officer, that the mother, who signed a statement in the proceedings but elected not to give evidence, nevertheless feels strongly that the name C does represent a link with her which should not be broken.  But, although a parent’s view should never be ignored in the search for where the welfare of the children lies, the primary instrument of search must be an objective appraisal.

The judge weighed all the arguments marshalled before us by Mr Taylor this morning.  He gave clear reasons for disagreeing with the welfare officer’s hesitant suggestion that sleeping dogs should lie.  He said specifically that his decision should not be taken to condone what the father had done irregularly.  Even if the father’s surname had not hitherto been cast upon the children at all, arguments for change would still, in my view, have been powerful.

I detect no flaw in the discretionary exercise conducted in this judgment.  Copy-book it seems; copy-book it was.  I would refuse leave for the mother to appeal.

Lord Justice Evans —

I agree.

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Orders of the court

Application for leave to appeal refused; legal aid taxation of the costs of the applicant and the respondent; names of the parties not to be disclosed.