Re F (Children: Surname)

Court of Appeal (Civil Division) 
9^th June 1993

On Appeal from Blackburn County Court
N^o CCFM1 93/0251/F

Before (the judges sitting on the bench)

• Lord Justice Ralph Gibson
• Mrs Justice Bracewell 

Counsel (the barristers representing the parties)

• Miss C Riley (Instructed by Messrs Fielding, Blackburn) appeared on behalf of the father, Mr Paul John F. (the Appellant and original Respondent)
• Mr M Hodgson (Instructed by Messrs Roebucks, Blackburn) appeared on behalf of the mother, Mrs Mary Louise H. (the Respondent and original Applicant)

Judgment

Lord Justice Ralph Gibson —

This is an appeal by Paul John F, the father of two girls aged five and three and a half, from the order of his Honour Judge Duckworth of 11^th February 1993 whereby he directed that Mary Louise H, formally the wife of Mr F, and the mother of the two girls, have leave to change the surname of the two girls from F to H.

The parties were married in June 1987.  The two girls, Lucy and Lauren, were born on 20^th November 1987 and 13^th June 1989.  In her statement in support of the application the mother said that she left the father, taking the girls with her, in January 1991.  The decree nisi was pronounced in May 1991 and was made absolute on 30^th July of that year.  She then reverted to her maiden name H.  Lucy was attending a primary school in Blackburn in Lancashire where the mother lived.  Lucy, said the mother, became concerned as to why her name was F and her mother’s H.  The children at school called Lucy “Fatty” as had happened to the father at school.  The mother believed that the children would suffer ridicule at school if their name continued to be F.  Lucy was aware that her father does not wish her to change her surname.  She said that she would prefer to be named H but asked her mother “not to tell Daddy.”  The mother was intending to marry a man called S: they intend that any children should have the name H-S.  They married in fact on 16^th January 1993.

Mr F in his statement stated that the mother had left him in January 1991 for only two weeks.  She returned and they remained together until February 1992.  That was because they were discussing re-marriage.  He decided against it.  Within a month the mother met Mr S.  The point of this correction was apparently that the father had been with the children at home until February 1992 when he decided that the marriage should not be renewed.

He objected to the change of names.  The mother, he submitted, would probably not in fact retain the name H and any new children would be H-S, or S.  It would be less upsetting for the two girls to keep the name F.  He had put no pressure on Lucy.  The girls were most unlikely to get fat.  Children will always find something to tease about.

Since 1992 he had been in regular contact with the girls.  In the summer he discovered that the mother had informally changed their surname to H.  He had at once objected.  His solicitor had written to the school.  He was very close to the girls.  It was important that they retain their link to their parental family.  He had suggested letting them have both names — F H or H F but that had not apparently been agreeable to the mother.

In giving judgment his Honour Judge Duckworth proceeded as follows:

1. (1) The facts were clearly set out in the statement before him.
2. (2) The realities were that the F marriage was over.  Having regard to the authorities placed before him it was clear that the approach of the Court was, first of all, to consider what the best interests of the children were going to be and within that overall criterion to consider what the realities were.
3. (3) The label given to children is, to an extent, a matter of convenience, and it should at least reflect the realities of the situation that apply in fact.  The argument that the name F could be abbreviated to Fatty was not “in itself a terribly good argument;” but “the clincher” was that in reality these children were settled with the mother, her maiden name was H, and changing the surname of the surname to H would not “shut Mr F out of the proceedings in any way or close this door upon contact between him and the girls.”
4. (4) There is regular contact between the father and the girls who are well aware who their father is and know the distinction between Mr F and Mr S.
5. (5) As a matter of discretion the realities demanded that the application be granted.

At the hearing on 11^th February 1939, no evidence was given.  The judge it is said refused to hear oral evidence although both parties wished to be heard.  That was advanced in the grounds of appeal on the part of the appellant father but it has not been pressed by Miss Riley and I think rightly.  I think it is apparent that the judge thought it fair to proceed upon the statements before him resolving any link in difference in favour of the respondent against whom the applicant was required to prove her case and we have not been told anything of significance which either side wanted to add to the statements which were before the Court.  Apart from that complaint, the appellant submits —

1. (1) that the judge failed to consider the evidence properly
2. (2) that he failed to treat as paramount the welfare of the children, especially, it is said, because he rejected the mother’s main argument and the risk of teasing
3. (3) that he failed to consider the authorities without, so far as the notice of appeal is concerned, identifying any principle which was said to have been ignored
4. (4) that he attached too much weight to the fact that the marriage was over, and that the “label” should recognise a reality
5. (5) that he failed to take into account the fact that the father had regular contact with the children

In presenting the appeal Miss Riley, in a most helpful skeleton argument, has referred us to the authorities.  As to the correct approach required of the Court in such a case the judge referred to the authorities but did not identify any principle other than the first importance of the welfare of the children.  I take as sufficient guidance for the Court in such a case the judgment of Dunn L.J.  in W v A [1981] Family Division, page 14, with which judgment Lawton  and Bridge  L.JJ. agree.  There was at that time before the Court, two views, with reference to the matter of changing of name.  At paragraph 16 of the report Dunn L.J. referred to the dilemma which faced the judge in that case because of the two apparently conflicting lines of authority in this Court on the question of changing children’s surnames.  The first was that the change of a child’s surname was an important matter not to be undertaken lightly.  The second was that the change of the children’s surname was an apparently unimportant matter.  The judge faced with the choice between those two lines of authority opted for the first.  The primary ground of that appeal was that in so doing he erred in law.  It was held by that Court that the first view was in fact correct.  Dunn L.J. then, at page 20, addressed the question as follows:

“How then does the law stand with regard to the approach by courts in applications for a change of a surname?”

After reference to the paramount consideration of the welfare of the children, he continued at page 21:

“When considering the question of a change of name, that is to be regarded as an important matter: See Cairns L.J.  in In re W.G., 6 Fam. Law 210.  It is a matter for the discretion  of the individual judge hearing the case, seeing the witnesses, seeing the parents, possibly seeing the children, to decide whether or not it is in the interests of the child in the particular circumstances of the case that his surname should or should not be changed; and the judge will take into account all the circumstances of the case, including no doubt where appropriate, any embarrassment which may be caused to the child by not changing his name and, on the other hand, the long-term interests of the child, the importance of maintaining the child’s links with his paternal family, and the probable stability or otherwise of the mother’s re-marriage.  I only mention those as typical examples of the kind of consideration which arise in these cases, but the judge will take into account all the relevant circumstances in the particular case before him.”

The judge in this case made no reference to the change of names as an important matter.  More importantly the substance and expression of his judgment suggest to me that he did not think it was.  What mattered in his view was that the label should match the reality.  I have some sympathy with that approach and with the views expressed by Ormrod L.J.  in D v B [1979] Family Division 38.  This Court however has laid down in the judgment of Dunn L.J. the principle which is to be followed.  Since the fact of changing a child’s name is to be treated as a matter of importance, this Court, if it is clear that the judge failed to treat it as such, as I think it is clear, must set aside the result of the exercise by him of the Court’s discretion and consider the matter afresh.

Mr Hodgson, who has appeared for the respondent to this appeal, invited the Court to say that, treating the change of name as a matter of importance, nevertheless, the case for such a change was made out.  He referred us to the case of R v R [1982] 3 FLR page 345 in which again Ormrod L.J. gave the first judgment and he suggested that that indicated a change in the rigour of the approach to the principle that the change is a matter of importance.  He also referred us to the fact that the children were anxious to have the same name as their mother and that there was reason to suppose that they would be upset from the existence of the different name in future.

For my part, I have no doubt at all that on reviewing the matter, this application should have been refused below, and I would allow this appeal and dismiss it in this Court.

Giving the importance which the law requires us to attach to the changing of the child’s name, I see nothing in the material before the judge which indicates that it is of any significance whatever for the future well-being of these children to change their name.  The time over which they have been alone with their mother is short.  There is no established pattern of them being known by the name H and, indeed, there is not any attempt by the father to prevent the use when convenient of another name of these little girls in circumstances in school.  What is sought by the mother is an order permitting the name formally to be changed.  I see no reason to accede to that application.

We have been asked to have in mind the change in public views of the importance of family relations which have been worked over the last 20 years or so.  Doing the best I can to have regard to the current views of ordinary people, I see no reason to suppose that a little girl at school is going to be embarrassed or particularly unusual in being registered at the school in a name different from the current surname of her mother.

For these reasons I would allow this appeal.

Mrs Justice Bracewell —

I agree and I have nothing to add.

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Orders of the court

Appeal allowed.