Re PC (Change of Surname)

High Court (Family Division) 
19^th June 1997

Before (the judges sitting on the bench)

• Mr Justice Holman

Counsel (the barristers representing the parties)

• Anthony Ward on behalf of the mother, Mrs P. (the Applicant)
• The father, Mr C. appeared in person (the Respondent)
• Jonathan Swift on behalf of Dorset County Council (the Co-Respondent)

Judgment

Mr Justice Holman —

This case, which has been treated as a test case, raises two questions of considerable general importance.  The first is whether, following the Children Act 1989 , one of two or more people who each have parental responsibility for a child can, lawfully, unilaterally cause that child to be known by a new surname without the consent of the other or others.  The second, which depends on the answer to the first, is whether schools, doctors and other holders of “official” or formal records should record or use a new surname without evidence of all requisite consents or a court order.

I wish to make it clear at the outset that nothing in this judgment is intended to impact upon the situation where a child of sufficient legal competence, in particular if over the age of 16, himself changes or purports to change his surname without the act or consent of any person having parental responsibility; or on the question whether a change of surname can ever be effected against the will of such a child.

This case concerns three legitimate children; a girl who was born on 13^th December 1984 and is now aged 12½; a boy who was born on 25^th February 1987 and is now aged 10; and a girl who was born on 26^th April 1991 and is now aged 6.  At their respective births their surname was registered as C, being the name of their father and, at the time, their mother.  Their mother and father were married in 1985, but separated in 1993 and were divorced by a decree absolute dated 17^th June 1994.

The petition for divorce was accompanied by a statement of arrangements for the children, signed by both parties, which indicated the agreement of both parents to all the proposed arrangements.  Under those arrangements the children would be looked after by their mother but see their father.  There was no reference to any proposed change of surname.  There was no issue as to residence, and accordingly and appropriately (having regard to s. 1(5) of the Children Act 1989) no court order was sought or made as to residence.  The court certified, for the purpose of s. 41  of the Matrimonial Causes Act 1973 , that it did not need to exercise its powers under the Children Act 1989 with respect to any of the children.

Contact between the father and the children continued until late in 1995, when it ended in circumstances which it is not necessary, for the purposes of this judgment, to go into.  In the upshot, there has been no direct contact at all between the father and any of the children since then, now nearly 18 months ago.  The mother says that all the children now “have very strong feelings that they do not wish to have any further contact of any nature with their father.”

In May 1996 the mother remarried to Mr P.  She had had a relationship with him since 1993, which indeed had effectively caused the breakdown of her marriage to the father.  She and Mr P did not live together until their marriage, but she says that the children had got to know him well.  She says that before the marriage all the children said that they wanted to be called and known as P.  She told them that when they were married she would be able to look into it.  At the wedding the children all came to her and her new husband at the wedding table and said, “Now can we change our names?”

Some use of the new surname seems to have begun during the summer of 1996, for the father says that when the younger girl was ill with some dizzy spells last summer he was asked to, and did, visit her doctor who wanted to investigate the father’s own medical history.  The father then learned that there had been some change, perhaps informal at that stage, in the surname by which the children were known at the doctors’ surgery.  In late September or early October, the headmaster of the elder girl’s and the boy’s school asked to see the father to discuss the mother’s desire or attempt to change the children’s surname at the school.

On 22^nd October 1996, the mother consulted a solicitor, Mr Noden-Wilkinson of Humphries Kirk, on the subject of a change of name and also because she was concerned that the father had visited the school and, as she thought, was attempting to see the children there.  On 24^th October Mr Noden-Wilkinson wrote to the father telling him to keep away from the school but making no mention of any proposed named change.

However, Mr Noden-Wilkinson also prepared a deed of name change which was modelled on the Precedent N^o 8 at p. 21 of vol. 29 of Butterworths Encyclopaedia of Forms and Precedents (5^th edⁿ, 1990).  The text at para. 7 on p. 7 of the same work states as follows:

“When the Children Act 1989 is brought into force both parents will have parental responsibility for a child if they were married at the time it was born.  This will include the power to change the child’s surname.  Unless a residence order is in force in respect of the child, each parent will be able to exercise this power without the consent of the other parent.  If a residence order is in force, the written consent of all persons having parental responsibility for the child, or the leave of the court, will be required.  Where the parents were not married to each other when the child was born, the mother will have sole parental responsibility for the child and consequently, the sole power to change its surname unless the father acquires parental responsibility under the provisions of the Children Act 1989.  In the case of any dispute between persons having parental responsibility for a child, the leave of the court will have to be sought for a change of surname of a child.  In deciding whether to grant leave the court will be concerned with the welfare of the child.”

I must say that I do not find it easy to reconcile the sentence:

“Unless a residence order is in force in respect of the child, each parent will be able to exercise this power without the consent of the other parent.”

With the later sentence in the same paragraph:

“In the case of any dispute between persons having parental responsibility for a child, the leave of the court will have to be sought for a change of surname of a child.”

If it is correct that one parent can exercise the power without the consent of the other, why should it be necessary to seek the leave of the court in the case of a dispute?  But at all events, in reliance on the earlier of the two sentences and on his own reading of the Children Act, Mr Noden-Wilkinson took the view, and so advised his client, that she did not need the consent of, or even to consult or seek the consent of, the father since no residence order had ever been made.

I mention also one other point arising out of the specimen form in the Encyclopaedia.  That form includes, optionally and within square brackets, provision at the foot of the deed for the child himself to sign an endorsement as follows:

“I, the above named [forename and new surname] consent to the change of my surname from [old surname] evidenced by the above deed poll.”

The footnotes make it plain that the endorsed signed consent of the child himself is only required under the Enrolment of Deeds (Change of Name) Regulations 1994 if the child has attained the age of 16.  But in the present case the solicitor included provision for each child consecutively to sign their consent to the change of name and each child duly did so.  At the time the elder girl was 11¾, the boy was 9, and the younger girl was 5½.  The younger girl’s writing is very nice for her age, yet to see her childish “signature” is to my mind eloquent testimony of how inappropriate it is for her or any of these children to have been signing a formal document of this kind.  Their signatures add nothing to its validity or effect and, whilst not necessarily drawing an arbitrary line at the age of 16, I would strongly discourage that children as young as any of these should be asked to sign such a document.

The deed poll was signed on 26^th October 1996 but, although there was further correspondence between the solicitor for the mother and solicitors instructed by the father about the father visiting the school and contact generally, the deed poll was not sent to the father or his solicitors, nor were they told about it, until a letter of 27^th November 1996.  Meantime, the father’s solicitors wrote to the children’s general practitioner saying that the father understood that the general practitioner had been instructed to change the children’s surname on their medical records; that this had been done without his consent; and that therefore the name should be changed back to the original surname of C.  The general practitioner replied:

“As you rightly say, Mr [C’s] wife has now remarried and is now known as [Mrs P].  It is Mrs [P’s] wishes that the children are now known also by the name of [P].  We have, therefore, complied with her wishes and amended the records accordingly, although the name [C] is still on the record also.  Following some discussion with my legal representative, it would appear that Mrs [P] is at liberty of calling the children by whatever name she wishes.”

However, the headmaster of the elder girl’s and the boy’s school took a different line and refused to amend his school records to show the children by their new surname.  The education department of the Dorset County Council wrote to the mother on 2^nd December 1996:

“[The headmaster] has sought my advice about the deed of name change that you executed on 26^th October 1996.  Before he can change the children’s names in the school registers, he needs to be certain that everyone with parental responsibility has given their consent to the change.”

The letter went on to ask for clarification whether the father has parental responsibility; if so, whether he consented; and whether there was any relevant court order.

Humphries & Kirk replied on 11^th December 1996 on behalf of the mother to the effect that, as there is no residence order in force, the consent of the father to the change of name was not required even though he has parental responsibility.  The letter concluded by stating that the headmaster was “acting unlawfully” in refusing to change the children’s names in the school registers.

There was further correspondence between Humphries & Kirk and the county council, essentially in the same vein, but elaborating the argument a little on each side.

In this impasse the mother issued an application on 6^th March 1997 for a specific issue order as follows:

“I am applying for a specific issue order that the change of name deed executed with regard to the above named children on 26^th October 1996 be formally acknowledged and adopted by Dorset County Council.”

She named the father as the formal respondent but stated in para. 5 of the standard form of application in Form C1  that notice should also be given to Dorset County Council.

On 9^th April 1997 District Judge Wood transferred the application to a Judge of the Family Division and joined Dorset County Council as a respondent to the proceedings.

The mother argues that she had full capacity lawfully to change the children’s names and that she has validly and effectively done so.  The father, who now acts in person, but who has argued his case with both moderation and cogency, protests that this should not have been done without his consent, and that the children’s name remain, or should revert to being, C.  The county council takes no position on what the children’s surname should be; but submits that it cannot register or use any new surname unless either the father consents thereto or there is an appropriate court order made on an application for a specific issue order (if, as in this case, there is no residence order) or an application for leave under s. 13(1) of the Children Act (in any case in which there is a residence order in force).

It is convenient to set out first the relevant provisions of the Children Act 1989.  Section 2(7)  provides:

“Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.”

Section 3(1)  provides:

“In this Act ‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

Section 13 has the side note “Change of child’s name or removal from jurisdiction.”  Section 13(1) provides:

“Where a residence order is in force with respect to a child, no person may —

1. “(a) cause the child to be known by a new surname; or
2. “(b) remove him from the United Kingdom;

“without either the written consent of every person who has parental responsibility for the child or the leave of the court.”

Section 33(7), which relates to care orders, provides:

“While a care order is in force with respect to a child, no person may —

1. “(a) cause the child to be known by a new surname; or
2. “(b) remove him from the United Kingdom;

“without either the written consent of every person who has parental responsibility for the child or the leave of the court.”

Mr Ward’s argument was, in essence, as follows.  Section 2(7)  provides that where two or more people have parental responsibility each of them may act alone subject to any enactment which requires the consent of more than one person.  In relation to a change of name the only relevant enactments are s. 13(1) and s. 33(7).  They do not apply to this case since there is no residence or care order in force.  Further, in private law cases, s. 13 provides an exhaustive statutory “code” of the circumstances in which the consents of all people having parental responsibility is required.  Accordingly the mother had the right and power to change the surname.

Mr Ward seeks support from the commentary in Hershman and McFarlane Children Law and Practice, vol. 1, Section A [14], which states:

“Where no residence order is in force with respect to the child, it seems that there is no restriction under the Children Act on any person changing a child’s name unless there is in force an order that he should not do so …”

Although Mr Ward glides gracefully over the statement in the previous paragraph, A [13]:

“It would seem that in the absence of agreement to a name change an order of the court should be obtained.”

In my judgment the conclusion and consequences of this argument are little short of bizarre.  Where parents have not agreed about their child or not been able to trust each other so that a residence order has had to be made; or where (putting it loosely) they have caused or risked significant harm to their child so that a care order has had to be made, the “rights” of both parents in relation to a change of name are carefully preserved; whereas where parents have been able to agree and have not caused or risked harm to their children, the “rights” of either parent can be unilaterally overborne by the other.  Further, there would technically, and unless the other obtained a court order, have been nothing to stop the father in the present case subsequently exercising his parental responsibility and executing another deed of name change, which would of course lead to chaos and be potentially very damaging to the children.

Moreover the argument, if correct, would run totally counter to the philosophy of the Children Act, for it would be likely to lead to an insistence on formal residence orders even when the parents were in complete agreement about the issue of with whom the child should live.  This has indeed been illustrated by the very recent case of P v N (Child: Surname) [1997] 2 FCR 65 in which a residence order was made, not because there was or had been any issue about residence but as a “practical solution” to give the father “protection” against a further change of surname.  Anticipating my conclusions in the present case, I consider that there was no need to resort to that device in that case.  In my judgment, Parliament neither intended nor enacted the result which the mother contends for, and the relevant provisions of the Children Act need to be considered in their wider and also their historical context.

The key is the meaning of “parental responsibility” in s. 3(1) , namely “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”  In order to determine what rights duties, powers, responsibilities and authority a parent actually has, it is necessary to look at the law.  Where some provision of the Children Act or some other enactment is exhaustive, then of course that defines “the law”.  But vast areas of the law of parental responsibility are still derived from, and to be found in, the common law or a mixture of common law and statute.

In relation to a change of surname, the legal position had been described by Latey J in Y v Y (Child: Surname) decided in 1969 but first reported in 1973 including at [1973] Fam 147.  The facts and context of the case were that, following divorce, the mother had custody of two legitimate children.  She married and, without consulting the father and unknown to him, she later arranged for the children to be known at school by the surname of her new husband.  At p. 152G Latey 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 of 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.”

Clearly that language and reasoning itself did not survive the Guardianship of Minors Acts 1971  and 1973 , after which both parents of a legitimate child had equal rights, and there could no longer be a dichotomy between a “natural guardian” father and “custodian” mother.  But in my judgment the fundamental principle and approach of that passage remained good law, namely that neither parent of a legitimate child could unilaterally change the surname of the child without the agreement of the other or, of course, a court order; and that held good even if the parent who wanted to change the name had the added “right”, power or authority of sole custody.

Y v Y was reported during 1973 and the Matrimonial Causes (Amendment) Rules 1974, S.I. 1974 N^o 2168 , were made in December 1974 and came into operation on 27^th January 1975.  Those amendment rules, amongst other things, added a new rule as r. 92(8) of the Matrimonial Causes Rules 1973  as follows:

“(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 purpose of that rule was two-fold.  First, to ensure that the practical effect of Y v Y was clearly embodied in and recorded on the face of every custody order; and, second, to make clear and express that a custodial parent could change a surname without court order if the non-custodial parent consented in writing.  It is inconceivable that that rule was intended to [provide that if there were] no order for custody either parent could change the surname without either the consent of the other parent or court order.

In my judgment, the relevant provisions of the Children Act 1989 need to be considered in this historical context.  Clearly, s. 13 was essentially replicating in statutory form r. 92(8).  Custody and custody orders were abolished by the Act, but Parliament wished by s. 13 to make it clear that a residence order no more carried a right or power to change the surname than had a custody order before it.  That view is fortified by para. 4.14 of the Law Commission Report “Family Law: Review of Child Law: Guardianship and Custody”  (Law Commission N^o 172; HC 594: July 1988) upon which the Children Act is heavily based and which reads as follows:

“The effect of a residence order is simply to settle where the child is to live.  If any other conditions are needed, they must usually be specified.  However, the Matrimonial Causes Rules 1977  at present specify two conditions which must be included in divorce court custody orders unless the court otherwise directs.  First, the parent with custody must not change the child’s surname without the written consent of the other parent or the leave of a Judge.  The child’s surname is an important symbol of his identity and his relationship with his parents.  While it may well be in his interests for it to be changed, it is clearly not a matter on which the parent with whom he lives should be able to take unilateral action.  We recommend, therefore, that it should be an automatic condition of all residence orders that the child’s surname should not be changed without either the written consent of each person with parental responsibility or the leave of the court.”

The proposition that “… it is clearly not a matter on which the parent with whom he lives should be able to take unilateral action” must be equally true whether he lives with a parent under a residence order or under consensual agreement.

In cases where there is no residence order, the old law derived from Y v Y still holds good.  “By law” a parent of a child does not have a right, power or authority unilaterally to change its surname without the consent or agreement of the other parent if the child is legitimate.  The very right or power itself only exists in law as a bilateral right or power, which is only capable of being exercised jointly with the other parent.  So in relation to a change of surname, s. 3(1)  has the effect that parental responsibility means a right or power jointly exercisable with all other persons having parental responsibility.  The words “but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child” in s. 2(7)  do not preclude that the consent of more than one person may also be required by some other source of law than an enactment, notwithstanding the first limb of s. 2(7) .

Enrolment of a deed poll is not a prerequisite to a change of surname and merely evidences a change in a particularly formal way.  But I observe that the construction and view which I have expressed above accords with the requirements in reg. 8(5) of the Enrolment of Deeds (Change of Name) Regulations 1994, S.I. 1994 N^o 604, set out at Order 63/10/3 of the Supreme Court Practice (1995).  That paragraph requires an application for enrolment in the case of a child to be supported by an affidavit showing, amongst other things, that the application is submitted by all persons having parental responsibility for the child, or that it is submitted by one person having parental responsibility with the consent of every other person; or else giving reasons why it is not so submitted.

These Regulations are further amplified by a Practice Direction dated 11^th April 1994, set out at Order 63/10/5 of the Supreme Court Practice.  This, in effect, requires that in every case the written consent of all persons having parental responsibility must be produced unless the person having parental responsibility is dead or overseas or despite the exercise of reasonable diligence it has not been possible to find him or her or for other good reason.

For these reasons, I conclude and hold as follows:

1. (i) Where only one person has parental responsibility for a child (e.g. a surviving parent after the death of the other; or the mother of a non-marital child where there has been no order or agreement for parental responsibility) that person has the right and power lawfully to cause a change of surname without any other permission or consent.
2. (iii) Where two or more people have parental responsibility for a child then one of those people can only lawfully cause a change of surname if all other people having parental responsibility consent or agree.  Subject to (iii) below, there is no necessary requirement that that consent be in writing (although the practical effect of the Practice Direction of 11^th April 1994 is to require writing before enrolment of a deed poll).
3. (iii) Where two or more people have parental responsibility for a child and either a residence order or a care order is in force, then one of those people can only lawfully cause a change of surname if all other people having parental responsibility consent in writing (ss. 13(1) or 33(7)).
4. (iv) In any other situation an appropriate order of a court is required.

I repeat that none of these conclusions relate to a much older child, in particular over the age of 16, where the consent of that child may (I stress “may”, for I have not considered the point) be both necessary and sufficient.

In my judgment, the conclusions on the first question necessarily answer the second.  No responsible school, doctor, education or health authority, or similar body could want unwittingly to aid or implement an unlawful act.  Any change of surname is an important act in the life of a child, carrying with it emotional and psychological as well as social and practical consequences.  It is hard to reverse.  Any doubt about its lawfulness needs to be resolved before, not after any formal steps to implement the change have taken place.

So in my judgment when one parent, or person with parental responsibility, asks a school or doctor or similar person or body to amend its records or to start using a new surname for a child, that person or body should first inquire whether any other person has parental responsibility for the child.  I do not suggest that any particular formality is required and certainly nothing elaborate.  A letter or other written confirmation may be appropriate.  In other circumstances an oral inquiry may suffice.  But what is important is that the school or doctor or other body feels satisfied as to who has parental responsibility for the child.  Once so satisfied, the school or doctor or other body should only record or use the new surname if satisfied that all persons who have parental responsibility consent to the change or there is a court order authorizing or giving leave for the change.  If there is a court order or if a consent is in writing (as required where there is a residence or care order in force) a copy can easily be supplied.  In other cases, I again do not suggest any particular formality.  What matters is that the school or doctor or other body does feel satisfied that all whose consent is required do in fact consent, bearing in mind the importance of the issue.

Far from “acting unlawfully,” as Humphries Kirk had suggested in their letter of 11^th December 1996, in my judgment the headmaster in this case and the Dorset County Council generally have acted with impeccable correctness.

This very case illustrates the danger of not taking the steps outlined above.  The use, both informal and formal, of a new name may become ingrained before it is practical to stop it.

The father has not yet issued a formal application designed to achieve a “reversal” of such changes as have taken place.  The mother acted throughout in good faith and with legal advice, albeit I think that advice was mistaken.  It is clear that informally the children have now been using the new surname P for a substantial time and it may be difficult and damaging, and even impossible, to reverse that.  On the other hand, the present state of more formal records is, as I understand it, as follows.  In their respective schools the children continue to be registered in the surname C.  In their GP medical records both names are recorded, although “P” appears as the current or primary surname.  They do not have their own passports, but on their mother’s passport they continue to be shown in the name “C”.

There has been no independent inquiry of the children, for example, by a welfare officer and in the case of the elder girl and the boy (now aged 12½ and 10) it would be wrong of me even to contemplate trying to effect any reversal of the position which has now been reached without knowing their wishes and feelings and degree of understanding.  Equally, I do not consider that further steps towards formalizing the change of name should be permitted, unless the father consents, without more profound consideration than I can give at this hearing.

Before beginning to deliver this judgment I indicated to both parties the order which I provisionally proposed to make, essentially in order to preserve the status quo which has now been reached.  I am very pleased to record that each parent, I think most sensibly and responsibly, although it involves personal compromise on the part of each of them, has indicated that if an order is made in these terms they will each be content, at any rate for the foreseeable future, to leave the matter at that.

Accordingly, in exercise of my power to make a prohibited steps order and a specific issue order which arise on the existing application of the mother, I propose to order as follows:

1. 1. Until further order the children may continue to use and be known by the surname “P” both informally (including in day-to-day use within their present or future schools) and to the extent that they are recorded by that surname in any school, medical or like records as at 19^th June 1997.
2. 2. Save as aforesaid, the mother shall not take any step to cause, encourage or permit any person or body to use or record the surname of any of the children as “P” in addition to or in substitution for the surname “C” without either the prior written consent of the father or the consent of a court.

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Orders of the court

Order accordingly.