Re T (Change of Name)

Court of Appeal (Civil Division) 
19^th May 1998

On Appeal from Chichester County Court (His Honour Judge Michael Baker)
Case n^o: CCFMI 98/0035/2

Before (the judges sitting on the bench)

• Lord Justice Beldam
• Lord Justice Schiemann
• Lord Justice Thorpe 

Counsel (the barristers representing the parties)

• Mr D J Cellan-Jones (Instructed by Messrs Williams MacDougal Campbell, Sussex, BN11 1RY) appeared on behalf of the father, M.T. (the Appellant and original Applicant)
• The mother, T.F. (the Respondent and original Respondent) did not appear and was not represented

Judgment

Lord Justice Thorpe —

In 1990, MT met TF.  TF had been married before and had two children of that marriage, R who is now 15 and T who is now 13.  She also had an 11 year-old son named G, not a child of that marriage but a child who bore the name of F.  MT had a 15 year old child who does not figure subsequently in this history.

The couple began to cohabit in 1991.  On 8^th February 1992, TF gave birth to female twins who were christened GE and C respectively.  They are now 6 years of age.  The relationship ended with a separation on 9^th January 1995, and in that year there were proceedings brought under the Domestic Violence Act .  Within those proceedings the father was twice imprisoned.  That violence had an inevitable effect on the relationship between the couple and also on arrangements for contact.  However, on 11^th January 1996, parental responsibility was granted to the father.  Also in 1996, arrangements were gradually developed between the couple which enabled the father to see the twins roughly once a fortnight for a few hours in the company of their mother.

On 8^th January 1997, solicitors for the mother wrote a letter by which they sought to formalise the contact arrangements.  The father’s solicitors were slow to respond.  Their letter was not dispatched until 27^th March.  In it they said that, although they did not wish the step to be regarded as an aggressive step, they nonetheless wished for a contact order and intended to apply.  The mother’s solicitors did not reply until 6^th May.  In that letter they informed the father’s solicitors that on 4^th February the mother had signed a Deed Poll document changing the name of the twins from T to F.  The application which the father then issued was an application for a contact order and also for a specific issue order requiring the mother to ensure that the children are known by their birth name of T.

His reasons are succinctly stated on his application of 11^th June.  He said:

“The children have no biological connection or indeed supervisory connection with Mr F and I was not consulted about this change of name.  I think it will only cause confusion to the children and see no reason why they should not be known by the name of T throughout their minority which is the name on their birth certificates and indeed the name of their father.”

The father duly served a statement in support of his application bearing the same date.  Subsequently, the mother filed a statement in response.  Her case in relation to the specific issue application is confined to a single paragraph.  Paragraph 15 reads as follows:

“I understand that Mr T is concerned that I have changed the surnames of the children.  The reason I have changed their surnames to F is that my older children T and R who are the children of my first marriage are known as F.  My son G has also changed his name to F and I have also reverted to using that name.  It followed therefore that the only two children not using that surname were GE and C and I wish to ensure all members of my family have the same surname.”

In relation to the mother’s use of the name F, I only interpolate that, when solicitors opened the correspondence on 8^th January 1997, they headed their letter T v FO, which was the name that the mother was using at that time.  Accordingly, it would appear that her adoption of the name F more or less coincided with the execution of the Deed Poll.

A court welfare officer reported on these issues.  Her report concentrates on the dispute as to the quantum of contact.  The specific issue application is hardly noticed in the report.  When she wrote her section on the father, she included a 2½-line paragraph simply recording the father’s concern at the change of name; equally, in recording the mother’s position, a 2½-line paragraph in which she records the mother’s justification that, because the older children are known by the name of F, it is easier and simpler for medical records and at school.

In the all-important section of the report under the heading “Observations and Conclusions”, the court welfare officer did not refer to the specific issue application one way or the other.

The applications were determined by His Honour Judge Michael Baker.  He sat on 5^th September but did not conclude on that day.  A second day could not be found until 15^th December.  His judgment on that day has been transcribed.  He refers specifically to section 13(1) of the Children Act 1989  which he had said was important to read.  He then read into his judgment this passage from the statute:

“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; …

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

He then continued:

“In a recent case, I reserved judgment to consider a very similar application to this, and had a look at all the authorities.  I came to the conclusion, rightly or wrongly, that where there is no residence order in force, there is no need for the person wishing to change the name of the child either to get the leave of the court or to have the written consent of the other person who has parental responsibility.  There appears to be no direct authority of the High Court or the Court of Appeal on that particular point, but I decided that that was the clear inference.

“It may seem a slightly odd position, but the result of that is that first of all mother in this case did not require leave, and it follows from that that in those circumstances, father cannot prevent the name being changed.  In those circumstances, therefore, she is entitled to do it.”

He went on to deal with the dispute as to contact and made a clear order, which included a provision for a review on the first open date after 1^st May.  Accordingly, no doubt, the issue will be reviewed by that judge in the Chichester County Court some time in the near future.

The ruling in relation to the change of name was the subject of a Notice of Appeal to this Court.  The Notice of Appeal which was settled by Mr Cellan-Jones (who appears this morning to argue the notice) is full and demonstrates clearly the error into which the judge fell.  The misfortune for the judge is that the authority for which he sought in vain was swiftly supplied by the decision of this Court in the case of Dawson v Wearmouth [1997] 2 FLR 629.  In the same part of the Law Reports appears a decision of Holman J in a case of Re PC [1997] 2 FLR 730, and although not directly in point, that is persuasively indicative of the clear principle that children’s names are important and in any situation of dispute, either the consent of the other parent or the leave of the Court is an essential prerequisite, certainly where both parents have parental responsibility.

This is one of those cases in which subsequent decisions demonstrate that the judge’s conclusion on law was manifestly erroneous.  In those circumstances, it is perhaps not entirely surprising that Mr Cellan-Jones this morning provides a letter from the mother’s solicitors which was faxed to his instructing solicitors yesterday.  By that letter they notified that their legal aid certificate has been withdrawn, certainly in relation to proceedings in this Court, although not in relation to continuing proceedings in the court below.

The second paragraph of the letter contains these sentences:

“In the circumstances, it appears very likely that our Client will now be unrepresented at the hearing tomorrow.  Our client will be advised of the hearing but we are not sure whether she will be able to make it in time.”

There has been no appearance this morning on behalf of the mother or by the mother.  In those circumstances Mr Cellan-Jones has urged the Court to determine the appeal; to allow the appeal on the grounds of the judge’s manifest error of law and, rather than to remit for rehearing, to grant the specific issue order originally sought.

Mr Cellan-Jones says that the evidence of the parties on the point is the evidence to which I have already referred; that the oral evidence before the judge scarcely expanded the written evidence; and that it is inconceivable that any court, exercising a discretion  at first instance, would do other than grant the order.

He quite rightly draws attention to the fact that, having dealt with the point of law, the judge passingly approached the issue of discretion.  He said:

“Quite apart from that, it has been done and the position has been, as it is now, for a year.  I would not have thought that it would be in the interests of the children for their names to be changed back.”

Insofar as that is indicative of the judge’s approach on the issue of discretion, I cannot myself agree with it.  If the mother’s action in February 1997 was unlawful, the fact that the unlawful state had endured for a period of approximately seven months to the date of the commencement of the trial could not possibly justify denying the applicant relief.

The applicant’s case for relief is, in my judgment, overwhelmingly strong, and is succinctly summarised in the passage from his application which I have already read.  By contrast, the mother’s case for opposing the application seems insubstantial and scarcely reasoned.  Again, it is only the brief paragraph from her statement, supplemented, perhaps, by what she said to the court welfare officer and to the judge.  That convenience of medical records and school records is of the slightest weight against the strength of the application, inevitably brought by the father, to check what was an ill-considered act on the part of the mother.

For all those reasons, I would have no hesitation, despite the absence of the mother, in allowing the appeal and granting the specific issue order sought by the father’s application of 11^th June 1997.

Lord Justice Schiemann —

I agree.

Lord Justice Beldam —

I agree that we should grant the order sought.  In my view, any further delay would undoubtedly be likely to prejudice the welfare of these two children.  Notwithstanding that the respondent has not appeared today, I too would allow the appeal and make the order.

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Orders of the court

Appeal allowed; legal aid taxation.