Re W (Children)

Reference: Re W (Children) [2013] EWCA Civ 1488

Also known as:
  • In the matter of W (Children)
  • W (Children)
Also referenced as:
  • [2013] CN 1306

Court of Appeal (Civil Division) ↗
20th August 2013

On Appeal from Reading County Court
Case no: B4/2013/0205
Application for permission to appeal: Re W (Children) [2013] EWCA Civ 735

Before (the judges sitting on the bench)

Counsel (the barristers representing the parties)

  • The mother, J.W. (the Appellant and original Respondent) appeared in person
  • The father, J.C. (the Respondent and original Applicant) did not appear and was not represented
  • Mr John Haina appeared from Cafcass ↗ but was not required to speak

Judgment

Lord Justice Ryder —

1.  This is an appeal by JW, who is the mother of a child I shall call D, who was born on 21st November 2011.  D’s father is JC.  He opposes the appeal but has absented himself from court today.  He says in a communication with the court that he has lost faith in the family courts and asks that his written materials stand as his submissions on this appeal.

2.  The order that is the subject of this appeal was made by HHJ Oliver in the Reading County Court on 4th January 2013.  On that day the judge ordered that mother shall make the two children of the family available for contact once a week with father at a supported contact centre, developing into contact at father’s home and then overnight staying contact and holiday contact.  The judge also ordered that D’s name be changed with the inclusion of his father’s first forename, J, as one of his middle names.

3.  At an oral permission hearing on 15th May 2013 I refused permission to mother to appeal the contact orders, refused her permission to appeal on the basis of bias, and granted her limited permission to appeal the order for the change of one of D’s middle names on the basis the judge had not considered the principles in Dawson v Wearmouth [1999] 2 AC 308.  I do not propose to rehearse the detailed bases upon which I refused permission, which can be found at [2013] EWCA Civ 735.

4.  Turning then to the single issue before this court, the judge dealt with the question of D’s name at paragraph 72–79 of his judgment.  It ought to be understood that by far the greatest part of a judgment of some 113 paragraphs relates to residence and contact.  These parties are so antagonistically opposed to each other that their disputes have continued to simmer and have been back to HHJ Oliver at least once since the order complained of.  They will ruin the lives of their children if they do not stop litigating their own issues through their children.

5.  Be that as it may, and despite the apparent failure of the judge’s attempt to construct an ongoing meaningful relationship between father and his children, the issue of D’s name remains in dispute.  The judge’s ruling on that point is as follows:

“It seems to me appropriate that [J] should be a middle given name, and therefore I order it.  It seems to me I see no reason why that should not take place.  As I say, it was agreed.”

6.  The context was this.  At the time of D’s birth the parents separated and on 21st November (that is, the day of his birth) mother sent a text to father:

“You have a son, born at 12.55 p.m., weighs 9 lbs 11 oz (which is a big size).  He is very pink, hungry, doing well.”

7.  Father replied:

“Well done.  I hope you are okay.  Thank you.  Can you send me a picture when you can.  I would like to meet him as soon as possible.  Hope [S] is okay and loves her little brother.”

8.  There were then two or three exchanges about D’s name, including whether he should have a middle name, and, if so, what name.  Father suggested his name, J, as one of D’s middle names, and mother agreed.  The text messages do not provide evidence of any coercion at the time the agreement was made.  Subsequently mother changed her mind and submitted to HHJ Oliver that the circumstances of the agreement were an example of father’s controlling behaviour.  She submitted that she was within hours of a Caesarean section and was under pressure, and she added that her daughter would not have a similar additional name, and so there would no longer be parity between the children.  That was her reasoning in the court below.  The judge rejected her submission and evidence of pressure on the evidence that was put before him, and as he was entitled to do.  He rejected the parity submission on the basis that the daughter could have an additional name if the parents wished it, or indeed if the child wished for one to be given.  I make no comment about that question, as the issue of the daughter’s welfare is not before this court.

9.  The judge then made the order complained of, changing D’s name to add J as a middle name as requested by father.

10.  Dealing first of all with the issues of fact, this court has not given permission for them to be challenged, and there is no basis for such a challenge absent mother’s submission to this court that, at the time of D’s birth, father had given an undertaking to the court not to harass mother, which included the following: namely, that father “shall not communicate directly with the applicant by any means, including telephone, email, text message, letter or in person.”  It is perfectly plain that at the time of the text communication between the parents, mother did not regard father to be in breach of that undertaking, and in any event she initiated the text communications herself.  She tells this court that there was a specific permission recorded in the order of the court below relating to that undertaking, but there is no evidence of the same on any of the written materials provided to this court.  Her submission that this evidences the pressure she was under is, in my judgment, an afterthought to bolster her position.  There is no sufficient basis to dislodge the judge’s finding that she was not under pressure when the agreement as to D’s name was entered into.

11.  In giving permission I directed that the Cafcass officer, a family court advisor, report on the welfare implications for D on the name change proposed in the hope of giving these parents a neutral basis to come to a further agreement.  I am very grateful to the family court advisor for undertaking that task so quickly and for being present in court today.  Inevitably, however, that has not been successful.  The Cafcass officer’s opinion on the question to be answered on the authorities is now in a document dated 2nd July 2013.  The family court advisor says:

“It is my professional opinion that the proposed addition of name would [be] unlikely [to] cause harm to [D] or put him at risk now or in the future, and therefore there are no welfare implications.”

12.  The legal test that should have been applied by the judge is that explained by Butler-Sloss LJ ↗ as she then was, in Re W, Re A, Re B (change of name) [1999] 2 FLR 930 at 933F, applying Dawson v Wearmouth above in the following terms:

“9.  The present position, in summary, would appear to be as follows:

  1. “(a) If parents are married, they both have the power and the duty to register their child’s names.
  2. “(b) If they are not married the mother has the sole duty and power to do so.
  3. “(c) After registration of the child’s names, the grant of a residence order obliges any person wishing to change the surname to obtain the leave of the court or the written consent of all those who have parental responsibility.
  4. “(d) In the absence of a residence order, the person wishing to change the surname from the registered name ought to obtain the relevant written consent or the leave of the court by making an application for a specific issue order.
  5. “(e) On any application, the welfare of the child is paramount and the judge must have regard to the s. 1(3) criteria.
  6. “(f) Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child’s father.  Registration is always a relevant and an important consideration but it is not in itself decisive.  The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.
  7. “(g) The relevant considerations should include factors which may arise in the future as well as the present situation.
  8. “(h) Reasons given for changing or seeking to change a child’s name based on the fact that the child’s name is or is not the same as the parent making the application do not generally carry much weight.
  9. “(i) The reasons for an earlier unilateral decision to change a child’s name may be relevant.
  10. “(j) Any changes of circumstances of the child since the original registration may be relevant.
  11. “(k) In the case of a child whose parents were married to each other, the fact of the marriage is important and I would suggest that there would have to be strong reasons to change the name from the father’s surname if the child was so registered.
  12. “(l) Where the child’s parents were not married to each other, the mother has control over registration.  Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the existence or absence of parental responsibility are all relevant factors to take into account.

“10.  I cannot stress too strongly that these are only guidelines which do not purport to be exhaustive.  Each case has to be decided on its own facts with the welfare of the child the paramount consideration and all the relevant factors weighed in the balance by the court at the time of the hearing.”

13.  The test emphasizes that this is a question about upbringing, to which section 1 of the 1989 Act ↗ applies, and the court must consider the welfare check-list.  The factors will inevitably then include the effect of the change that is proposed, which will cause an analysis of the circumstance in which a different name was registered and circumstances that may be relevant to the future, including the father’s commitment, the existence of contact, parental responsibility and so on.  Dawson v Wearmouth above is often characterized as authority for the proposition that there has to be added value for the child concerned in any change proposed.  That is not strictly accurate.  The test is welfare, pure and simple.  It is because the court has to analyse welfare by reference to the check-list, in which an analysis of the effect of change and of risk of harm is undertaken, that in every name-change case the question of harm will arise.  That is not to say that there is a presumption ↗ of harm arising out of a proposed change that has to be rebutted.  On the facts, a change may be beneficial, because, for example, the circumstances that led to registration may be harmful.  The judge did not apply the correct test and accordingly we are minded to set aside his order.  The next question is whether this court is in a position to substitute its own judgment.

14.  At the time this decision was made by the judge the welfare implications were neutral, as has been confirmed by the family court advisor; and there had been a change of mind by mother, without agreement from father, and in circumstances where the original agreement was entered into without pressure.  If that had been the only circumstance put before this court, it is entirely possible that this court would have allowed the name change to stand, as ordered by HHJ Oliver.  However, matters have moved on and this court must have regard to the realities.  The welfare equation is not the same.

15.  Father has not attended today, in effect in protest at the fact that the court below wishes to manage the interests of his child.  Father walked out of the court below in protest at the fact that that court seeks to come to conclusions which are in the best interests of his child.  Mother submits to this court that the whole exercise, including the application to change D’s name, is evidence of the control which father seeks to exercise over her life.  For this court to leave D’s name change intact may have adverse welfare implications in a circumstance where the father has walked out of the child’s life.

16.  Mother says to this court that she wants father to have a meaningful relationship with his son.  She does not object in principle to a change of name, although the mechanism she proposes, whereby the child would have an element of decision-making imposed upon him when he is older, is not one which finds favour with this court, involving as it would pressure upon the child to choose between the positions of his parents.  It would be far better even now if these two parents could come to an agreement.

17.  The judge did not apply the test in law that he had to apply.  That has the necessary implication that, in circumstances where the parents are disagreed and the evidence that is now relevant is at large, I would set aside the judge’s order in relation to name change and allow the appeal to the limited extent that the decision should be made again.

Lord Justice Jackson —

18.  I agree.  Therefore this appeal is allowed and the child D will retain his original given names without the additional name which has been proposed by the father.

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Orders of the court

Appeal allowed.