Re S (Change of Surname)

Court of Appeal (Civil Division) 
15^th December 1998

On Appeal from Chelmsford County Court (His Honour Judge Bradbury)
Case n^o: 98/6945/2

Before (the judges sitting on the bench)

• Lord Justice Thorpe 
• Lord Justice Mummery 

Counsel (the barristers representing the parties)

• Miss Susan Solomon (instructed by Messrs Raggett Tiffen & Harries of Ongar, CM5 9JD) for K, a child (the Appellant and original Applicant) appeared in person
• Essex County Council (the 1^st Respondent and original Respondent) was not represented
• Miss Grace Ong (instructed by Messrs Plamplin & Co. of Maldon, CM9 5PJ) for the father, Mr S. (the 2^nd Respondent and original Respondent)

Judgment

Lord Justice Thorpe —

Section 33(7) of the Children Act 1989  provides:

“Whilst a care order is in force with respect to a child, no person may cause that child to be known by a new surname without either the written consent of every person who has parental responsibility or leave of the court.”

In this appeal, the first and second respondents have parental responsibility for the applicant.  The first respondent, Essex County Council, have throughout offered written consent to the applicant’s desire to change her surname from that of her paternal family to that of her maternal family.  The second respondent, the father, has throughout refused his written consent.  Hence the proceedings between the parties which culminate in the appeal to this court.

First, it is necessary to explain how the relationships between the parties come about.  Mr & Mrs S had two daughters, N, born on 1^st March 1982 and K, born on 15^th December 1983.  Sadly Mrs S died in 1989 leaving the two girls in the sole care of their father.  In June 1997 N moved out to live with foster parents.  In the following month she alleged that she had been sexually and physically abused by her father.  The direct and immediate consequence of those allegations was that on 28^th July 1997 both she and K moved to the home of their maternal uncle and aunt, Mr & Mrs B.  They have not seen their father since, save perhaps in the Crown Court.  N immediately severed all communication but K corresponded with her father in terms which were generally agreed to be affectionate.  The local authority applied for a care order in respect of both girls and that order was made on 5^th March 1998, the father accepting that he was responsible for physical abuse of N and that K was consequently at risk.  He denied the allegations of sexual abuse which accordingly went uninvestigated in the care proceedings.  On 27^th February N had applied for leave to change her surname from S to B but the application was not determined on 5^th March.  There were adjournments and directions during the course of which K on 22^nd May issued a similar application.  Those applications came for hearing on 30^th June, but the father through his counsel required the applicants for cross examination and the hearing was adjourned to 29^th July.  At that hearing both applicants testified as did the guardian ad litem  who, although strictly functus, had attended to assist the judge with her opinion.  The judge granted N’s application but refused K’s.  He later refused K’s application for leave to appeal and that application was renewed to this court.  Directions were given for an early hearing of that application inter partes  with appeal to follow if leave granted.

A prosecution against the father was brought simultaneously in the criminal justice system.  There also there were various adjournments and the case did not come for trial until September 1998.  We know little about the trial save that the father’s basic case was that N was lying, N testified, K was required to attend by the defence but was ultimately not called and finally that the father was acquitted.

These subsequent events were relied upon by both the applicant and the second respondent, although neither formally applied for leave to admit fresh evidence.  Miss Ong, for the father, additionally sought to rely on a letter sent by K to her father shortly before the commencement of the Crown Court trial.

At the outset of the hearing we granted leave to appeal and invited Miss Ong to expand upon her skeleton argument in support of the judgment below.  Her skeleton argument was comprehensive and skilfully written.  Her oral submissions were equally skilful.  Above all she emphasised that the judge had seen and heard the witnesses, he had explained his reasons for rejecting the appraisal of the guardian ad litem, he had explained his reasons for distinguishing between N and K, he had clearly identified the factors relevant to the exercise of his discretion  and, finally, he could not be said to be plainly wrong in his conclusion.

I say at once that all that Miss Ong says in defence of the judgment is well founded.  It is evident to any reader that the judge took great care in what was an exceptional and difficult case.  However I am in no doubt that he reached the wrong conclusion and there are three criticisms of his judgment which pierce the defence raised by Miss Ong.

First, the judge misdirected himself as to the authorities.  At page 8 of his judgment he aptly recorded that the research that he and counsel had conducted had unearthed no authority that considered an application under section 33(7).  However he then over the following six pages reviewed authorities in relation to change of surname over the last 35 years, although it seems that he was not referred to one of the latest decisions in this court.  From those authorities he drew guidance which in my opinion simply did not stand transplanting into the ground that he surveyed.  It may be that those authorities distracted him from the analysis which he would have carried out had he continued from his starting point, namely that there was no authority directly in point.

Second, in my opinion the judge wrongly assessed the weight and relevance of the pending criminal proceedings.  At page 11 he said, “… I do not propose to take into account the sexual allegations which have been made against this father by his daughter N.”  On the following page he said:

“In considering whether to use that case” (Re J [1993] 1 FLR 699) “as persuasive authority I am again very conscious that the allegations made by N relating to criminal conduct by her father remained to be determined.”

But the pending criminal trial inevitably impacted on the application.  In the event of conviction the father’s opposition to the application would inevitably be weakened.  But the corollary does not follow.  Acquittal may leave the complainant with the conviction that she has been doubly abused.  In those circumstances the alliance by the sisters against the father might well be strengthened by an acquittal.  Although the father would no doubt view an acquittal as proof of his innocence the reality is that within the family justice system that issue is most unlikely ever to be determined.

Third, I do not think that the judge sufficiently identified the fact that K is clearly a Gillick competent child .  Such an application clearly requires special consideration.

For all those reasons I conclude that the judge misdirected himself and arrived at the wrong conclusion.  In determining an application by a Gillick competent child in the care of a local authority, the welfare principle must of course be paramount.  However, in addition, the judge should give very careful consideration to the wishes, feelings, needs and objectives of the applicant.  If he has the advantage of advice from a guardian ad litem who has had the opportunity to make a thorough investigation of the family dynamics, he should pay particular heed.  Next, he must give searching scrutiny to the motives and stated objectives of the respondent.  Here, the father’s stated objective was to maintain and restore his relationship with his daughter.  It is hard to see how that objective would be advanced by requiring her to be cross-examined in the family proceedings, by requiring her attendance at the crown court trial and by opposing this appeal.  The inconsistency must cast doubt upon the stated motive.  Finally, the fresh evidence only reinforces my opinion that the application should have been granted on 29^th July.  The acquittal probably retards rather than advances the prospects of any contact between K and her father.  K is now 15.  The letter of 1^st September is sad but determined in her rejection of her father.  Her right to determine her surname without the leave of the court is likely to arrive before there has been a change sufficient to weigh in the scale which we balance.

For all those reasons I would allow this appeal and reverse the judge’s refusal.

Lord Justice Mummery —

I agree.

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Orders of the court

Appeal allowed; legal aid taxation for both parties.