Re T (otherwise H) (an Infant)

High Court (Chancery Division) 
15^th November 1962

1962 T. N^o 217

Before (the judges sitting on the bench)

• Mr Justice Buckley 

Summary of the facts

The parents of a 10-year-old girl P.A.T., otherwise known as P.A.H., were married in December 1949 and were divorced in December 1959, when the girl was 7 years old.  The mother had petitioned for divorce and she applied for, and was granted custody of, the child.  The father had — by agreement with the mother — had access to the child since the divorce, although the court made no order regarding access.

The father remarried in July 1960.  The mother also remarried, in October 1960, and took the surname of her second husband.

On 24^th August 1961, the mother executed a deed poll on behalf of the child, purporting to change the child’s surname to that of the mother’s new husband (the girl’s stepfather).  The deed poll was intended to be enrolled at the Supreme Court of Judicature, and thus was in purported compliance with the Enrolment of Deeds (Change of Name) Regulations 1949 (as amended).

The mother did not consult the father about the change of surname, and did not tell the father until 14^th September 1961, when she wrote a letter to him.  The mother also advertised the change of surname in a local newspaper on 19^th September 1961.

The father issued an originating summons on 31^st January, 1962 asking amongst other things —

• that the infant be made a ward of the court

• for an order directing either of the following:

  • that the deed poll of 24^th August, 1961, changing the child’s name from P.A.T. to P.A.H. and enrolled at the Supreme Court of Judicature, be removed from the Rolls and cancelled
  • that the direction be given to execute and enrol a deed poll changing the name of the child back to P.A.T.; and for an injunction restraining the mother from doing anything to prevent the child from bearing the surname of T. without the consent of the infant’s father

Judgment

Mr Justice Buckley —

This matter, which was commenced by an originating summons under the Law Reform (Miscellaneous Provisions) Act, 1949 , relates to an infant of whom the mother has custody by an order of the court, asking for certain directions concerning the infant, and raises a point which to my mind is quite novel.  I have been referred to no authority closely dealing with it.  Therefore, I think it is a case which may be of some general interest, and in those circumstances I am giving my decision in open court.  [Mr Justice Buckley set out the facts, in the main, as above, and carried on with his judgment.]  A preliminary point was taken in chambers that as an order for custody had been made in the Divorce Division this was not a case in which the Chancery Division ought to accept the infant as a ward.  However, I take the view that that custody order having been made in the circumstances mentioned, there was no such conflict of jurisdiction as to disincline me from entertaining the present application.

It is, of course, well known that a person’s surname is a conventional name and forms no part of his true legal name.  An adult can change his or her surname at any time by assuming a new name by any means as a result of which he or she becomes customarily addressed by the new name.  There is no magic in a deed poll.  The effect of a deed poll when changing a name is merely to record the change in solemn form which will tend to perpetuate the evidence of the change of name.  But a change of name on the part of an adult must, in my judgment, involve a conscious decision on the part of the adult that he wishes to change his name and be generally known by his new name.  An infant, and certainly not an infant of the age of the infant with whom I am concerned in the present case, is not competent to make such a decision.  Certainly an infant of tender years cannot of its own motion change his or her surname.  What I have to consider is whether any other person can change it for the infant, and, if so, who can do so?

There appears to be no authority on this point at all, but in the Encyclopaedia of Forms and Precedents, 3^rd ed., vol. XI, p. 8, there is a precedent for changing an infant’s name by deed poll to be executed by the guardian of the infant.  It is perhaps worth observing that by rule 8 of the Enrolment of Deeds (Change of Name) Regulations, 1949 (as amended by the Enrolment of Deeds (Change of Name) (Amendment) Regulations, 1951), which are regulations made by the Master of the Rolls under the Supreme Court of Judicature (Consolidation) Act, 1925, s. 218, it is provided that “in the case of an infant the application” — that is to say, the application to enrol — “must be made by the parent or legal guardian of the infant.”  If the infant is over sixteen years of age his or her signed “consent must be endorsed on the deed and duly witnessed.”

As I understand it, these rules have no statutory force.  They are merely practice rules of the registration department in respect of deeds poll for changing names.  But that fact does give some support to the view that it may be competent for a parent or legal guardian to change the name of an infant.  If there is such a right or power it is one which, in my judgment, resides primarily in the infant’s father as the natural guardian of the person of the infant.  It may be that if an infant has no father living or if for some reason the father is not available such power may reside in whoever is the legal guardian of the infant.  In the present case the deed was executed without the consent of the infant’s father and indeed without his knowledge at all; it was executed by the mother of the infant who was the person to whom the custody of the infant had been given by the order of the Divorce Court.  An order for custody is as its name implies, an order which gives the person in whose favour it is made the right to the custody of the child and the right to bring up the child subject, of course, to any direction which the court may think right to make from time to time under its jurisdiction in relation to any matter.  It does not deprive the father, who is not given the custody of the child, of all his rights and obligations in respect of his child.  He remains, subject to the rights conferred upon the person to whom custody is given by the court, the natural guardian of the child and among the residual rights which remain to him are any rights which he may have at law with regard to the name of the child.  In my judgment, the deed which the mother has executed with regard to the child is one which she had no power to execute so as to have any effect on the infant.  In any case, as I have already observed, the deed poll does no more than provide evidence of the kind I have mentioned.  The most effective way in which this child’s name has in fact been changed is in the school register.  In the day-to-day contact in her school, her name having been altered, she is now known by her mother’s present surname.  That was done, of course, in September last year.  In my judgment the infant’s mother had no status which entitled her to take any step on behalf of the infant which would result in her being known by some surname other than the surname of her father, and I can find nothing in the facts of this case which would make it desirable that the infant should be known by any name except that of her father.

One can imagine cases in which it might be in the interests of a child to cease to be known by a particular name, perhaps because of some particularly unhappy association which that name might have acquired or possibly in order to comply with some condition contained in some trust document.  But in the present case there seems to have been no reason at all for this change of name, except that the mother conceived that it was embarrassing to the child to be called by one surname while she herself was called by a different surname as a result of her having remarried.  The mother in her evidence indeed suggests that the child herself asked that she might be called by the same name as her mother.

In the case of a divided family of this sort it is always one of the aims of the court to maintain the child’s contact, respect and affection with and for both of its parents so far as the circumstances will permit.  But to deprive the child of her father’s surname, in my judgment, is something which is not in the best interests of the child because, I think, it is injurious to the link between the father and the child to suggest to the child that there is some reason why it is desirable that she should be called by some name other than her father’s name.  The fact that there has been a divorce and that the father was the person against whom the decree was granted is an insufficient ground for such a view.  For these reasons, in my judgment, not only was the infant’s mother incompetent to take a step on behalf of the infant which was of a kind calculated to have quite far reaching effects upon the child, but also, in my view, it was a step which was not in the interests of the infant and one which the court ought not to assist in any way.  In these circumstances, I shall declare that the deed poll of 24^th August, 1961, was ineffective to change the name of the infant, and I shall direct the infant’s mother, who is the appropriate person, to take such steps as are necessary to ensure that the infant is called by her proper surname as before this deed.

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Orders of the court

According to the judgment.