Re W, Re A, Re B (Change of Name)

Court of Appeal (Civil Division) 
29^th July 1999

(3 separate appeals)
1976 T. N^o 164

Before (the judges sitting on the bench)

• Lady Justice Butler-Sloss 
• Lord Justice Auld 
• Lord Justice Mantell

Counsel (the barristers representing the parties)

In re W (a Child)

• Miss E Platt Q.C. & Miss S Morgan (Instructed by Lee Davies & Co.) appeared on behalf of the father, Mr B. (the Appellant and original Applicant)
• Miss A Pauffley Q.C.  & Miss J Parr (Instructed by Kenneth Shaw & Co.) appeared on behalf of the mother, Mrs W. (the Respondent and original Respondent)

In re A (a Child)

• Mr P Hopkins (Instructed by Martyn Prowel, Edwards & Davies, Cardiff, CF2 1TD) appeared on behalf of the mother, Mrs I. (the Appellant and original Applicant)
• Miss C Wills-Goldingham (Instructed by Foster & Partners, Bristol, BS7 8TJ) appeared on behalf of the father, Mr I. (the Respondent and original Respondent)

In re B (Children)

• Miss E Brann & (Re 29^th July 1999 — Miss A Guha) (Instructed by Greene Deavin, Leicester, LE1 6EH) appeared on behalf of the father (the Appellant and original Respondent)
• Miss E Allingham-Nicholson (Instructed by John D Cort, Leicester, LE1 1FB) appeared on behalf of the mother (the Respondent and original Applicant)

Judgment

Lady Justice Butler-Sloss —

1.  These three appeals have one issue in common, the circumstances in which a child registered at birth in one surname may have that name changed by deed-poll by one parent against the wishes of the other parent.  Before turning to the individual facts and issues which arise on each appeal, following the decision of the House of Lords in Dawson v Wearmouth [1999] 2 WLR 960, it may be helpful to set out what appears to be the present position on change of name applications.

2.  The Births and Deaths Registration Act 1953  (as amended) (“the 1953 Act”) requires registration of the birth of a child within 42 days of birth.  The Registration of Births and Deaths Regulations 1987  as amended by the Registration of Births and Deaths (Amendment) Regulations 1994  set out the requirements for registration.  These include the name and surname of the child.  Regulation 9(3)(b)  provides:

“the surname to be entered shall be the surname by which at the date of the registration of the birth it is intended that the child shall be known.”

When the parents are married the duty to provide the relevant information lies on both parents.  When the parents are not married at the time of his birth the mother alone has the duty to register the birth.  Further the registrar may not enter the name of any person as the father except as provided by paragraph 6  of Schedule 12  to the Children Act 1989 .  This provides that the father’s name may be entered either if the mother consents or there is a court order in force.  Section 10(1)  of the 1953 Act provides for the re-registration of the child to show a person as the father, but only with the consent and co-operation of the mother.

3.  A father has parental responsibility for his child, (i) if he was married to the mother at the time of birth; (ii) there is a parental responsibility agreement between him and the mother; (iii) there is an order of the court granting him parental responsibility, see sections 2  and 4  of the Children Act.  Parental rights form part of parental responsibility, see section 3(1)  of the Children Act.  The registration of the birth of a child under the 1953 Act and regulations, (as amended) reflects the philosophy of the Children Act.

4.  An application to change the surname by which a child may be known may be made under section 13 of the Children Act which requires:

“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.”

There may also be an application under section 8 for a specific issue order if no residence order is in force, see Dawson v Wearmouth [1997] 2 FLR 629 (in the Court of Appeal).

5.  In Dawson v Wearmouth, the father was not married to the mother.  After the birth of their child, without consulting the father, she registered him in the name of her former husband by whom she had previously had two children.  They had already separated.  The father sought various orders under the Children Act, including a parental responsibility order and a specific issue order to change the child’s surname to his.  The circuit judge made a contact and parental responsibility order and directed that the child be known by the father’s surname.  His decision was reversed by the Court of Appeal and their decision was upheld by the House of Lords.

6.  In his speech Lord Mackay of Clashfern said at page 966:

“The application of section 1 so long as they take account of the criteria there in question is a matter within the discretion  of the Court of Appeal and I can see no ground for suggesting that they have erred in principle.  The heavy emphasis on registration is, I think, a reflection of the fact that they considered that the judge had wrongly left that out of account and that the application must be understood as for a change from a name already registered and therefore in the light of section 1 of the Act of 1989 some circumstances required to be pointed to which would justify making that change in the interests of the child’s welfare.  In fairness to the Court of Appeal it must be pointed out that, although they described the fact that the name sought to be changed was the duly registered name as ‘all-important’, they coupled that with the circumstances that the name Wearmouth was the mother’s actual name at the time it was chosen for her as well as being that of Alexander’s half-brother and half-sister, in stating their view that their discretion should be exercised against the making of the order for change …

“In my opinion on a fair reading of the decision of the Court of Appeal they were suggesting not that the registration was conclusive of the issue in the present case but that in order to justify changing the name from that which was registered circumstances justifying the change would be required and they concluded in the exercise of their discretion that there were no such circumstances of sufficient strength to do so in the present case.”

7.  Lord Jauncey of Tullichettle said at page 968: “A surname which is given to a child at birth is not simply a name plucked out of the air.  Where the parents are married the child will normally be given the surname or patronymic of the father thereby demonstrating its relationship to him.  The surname is therefore a biological label which tells the world at large that the blood of the name flows in its veins.  To suggest that a surname is unimportant because it may be changed at any time by deed poll when the child has attained more mature years ignores the importance of initially applying an appropriate label to that child.”

Lord Jauncey then referred to a number of decisions demonstrating the importance attached to a child bearing its father’s name.  He then said at page 969:

“My Lords, I accept, of course, as the authorities make clear, that the changing of a child’s surname is a matter of importance and that in determining whether or not a change should take place the court must first and foremost have regard to the welfare of the child.  There are many factors which must be taken into account, not only those pertaining to the present situation but also those which are likely to affect the child in the future.  Just as the fact that the mother happens to bear a different surname from the child is not a sufficient reason for changing the child’s surname (in re WG 6 Fam Law 210; in re C (Change of Surname) [1998] 2 FLR 656) so the fact that mother and child bear the same name should not necessarily be sufficient reason for refusing a change if there are valid countervailing reasons.”

8.  Lord Hobhouse of Woodborough in his speech gave less emphasis to registration of the surname but at page 972 recognised that:

“The name appearing upon a child’s birth certificate is not without importance.  It has practical implications and, other things being equal, it is in the long-term interests of the child that the name by which he is known should also be the name which appears on his birth certificate.”

He said at page 973:

“The fact of registration is a relevant and, maybe, important factor in assessing where the balance of advantage for the child’s welfare lies.  But it is not all important.”

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 section 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 quality of contact, if it occurs, between father and 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.

I turn now to the three appeals.  The issue in the first appeal concerns the amendment of the register in relation to a child legitimated by the subsequent marriage of the parents.  The issue in the second and third cases does not encompass an amendment to the register since the power to correct the register is, by section 29  of the 1953 Act, limited to clerical errors and errors of fact and substance.  The main question in all three cases is by what surname the child shall be known.

Appeal in re W (a Child)

11.  The facts of this case are unusual.  The child is J, born on the 10^th June 1994.  Her parents met in 1993.  There was no settled relationship and the father was abroad at the time of her birth.  The mother registered her as JW giving the child her surname.  In December 1995 the parents began a relationship and married on the 8^th June 1996.  They lived with the mother’s parents whose surname was W.  J’s sister O was born on the 24^th April 1997.  She was registered as OB, the father’s surname.  The marriage did not survive and the parents separated in June 1997.  The mother changed her name by deed poll to W.  The two children stayed with their mother and have continued to live in the home of the maternal grandparents.

12.  The effect of the marriage of her parents caused J to be legitimated, see section 2  of the Legitimacy Act 1976 .  At some stage the parents sought to re-register J’s birth  as they were required to do after their marriage .  By the time the Registrar wrote to them, they had parted and were unable to agree on the surname and, in the absence of agreement, there has been no re-registration of the child’s name.

13.  The father applied under section 8 of the Children Act to change J’s surname to B and to have it re-registered.  The matter was heard by His Honour Judge O’Brien on the 9^th July 1998 in the Harlow County Court.  We have an agreed note from Counsel of his extempore judgment, which unfortunately, was not recorded.  There was no oral evidence called.  The judge believed, wrongly in this unusual case, that the registered name could not be changed.  He referred to the fact that J was 4 and had always had the same surname; that she knew her surname and had learnt to write it.  The judge set out the father’s case that the child was now legitimate and she should be known by his name.  Her sister O bore the father’s name.  They were full sisters and it was undesirable that they should have different surnames.  As the judge expressed it:

“Father’s case depends upon his concerns and desire for link between his child being maintained and publicly and officially recognised.”

14.  In this case there has been no unilateral change of name so the child has always been called by her registered name of W.  The judge directed himself that the approach was what is in the best interests of the child now.  There had to be good and cogent reasons shown to allow a change.  In applying the section 1(3) welfare check-list “the likely effect … of any change of … circumstances” — 1(3)(c) — her present name should not be changed without good reason.  He referred to the Court of Appeal judgments in Dawson v Wearmouth and the significance attached to registration.  He did not, of course, have the speeches of the House of Lords cited to him.  He concluded:

“When I come back to this case and consider the reasons advanced; first the maintenance of the link with the father and the question of the two girls attending the same school and having the same name.  The maintenance of a link is not a matter of a name but a matter of contact how the father gets on [with it] and treats and cares for the girls.  Younger child a few years off going to school in a few years not at the same school.  Change of name takes away from the family unit.  In general those considerations balance out and favour no change.  When I look to see good and cogent reasons I can find none.  In this case see no reason to disturb the little girl’s name, state of mind or knowledge.”

15.  He refused the application.  The father sought permission to appeal which was granted by me and he appealed to this Court.

Miss Platt Q.C. for the father raised a number of points in her submissions.  Her first submission related to the requirements of the Legitimacy Act 1976 , the Births and Deaths Registration Act 1953 and the regulations.  By section 2  of the Legitimacy Act a child is legitimated by the subsequent marriage of its parents.  Section 9(1)  states that it is the duty of the parents of a legitimated child to furnish to the Registrar-General information with a view to obtaining the re-registration of the birth of that child within 3 months after the date of re-marriage.  Failure to give information as required is an offence (section 9(4) ).

She sought leave to adduce further evidence to show the correspondence on this point.

16.  Although it appears clear that neither parent has complied with the requirements to furnish the Registrar-General with the requisite information and each may be guilty of more than one summary offence, those omissions do not, in my judgment, advance the father’s case very far, if at all.  The requirement to provide the information as to legitimation and the name of the natural father does not impose upon the parents to seek nor upon the Registrar-General to require the local registrar to re-register the child in the name of the father.  As I read the requirements, and I understand Miss Platt to agree, the father has no power to ensure that his daughter is re-registered in his name.  The fact of legitimation is a relevant factor but the opportunity for re-registration does not appear to me to be of any great weight.  The relevant factors are those considered by the judge.  It is argued that the judge did not give to the father’s arguments the weight which Miss Platt considers should have been given.  But, for my part, in this case which was not easy to decide, I cannot say that the judge fell into error by exercising his discretion in the manner in which he did.  Appellate judges ought not to substitute their exercise of discretion for the judge’s unless he erred in principle or was otherwise plainly wrong.

I would dismiss the appeal of re W.

Appeal in re A (a Child)

17.  This is an appeal by the mother from His Honour Judge Masterman in the Cardiff County Court on the 5^th February 1999 when he allowed an appeal from District Judge Terry John on the 18^th November 1998.  The child I, a boy, was born on the 16^th May 1989 and registered by the mother in the name of I, being exactly the same name as his father.  The parents met in 1988 when the mother was 15.  The father has been described as a notorious criminal.  His life has been dominated by crime.  After the birth of I, while the father was on remand charged with murder, the parents married.  The father was convicted of murder, which was reduced on appeal to manslaughter.  He was released from prison in 1994, but was arrested in 1996 and convicted of a section 18 offence and sentenced to 9 years imprisonment.  He took part in riots in Cardiff Prison in which 2 prison officers were seriously injured and received a further sentence of 12 years, a total term of 21 years.  He will not be eligible for parole until 2006 when I will be 17.

18.  Prior to his release in 1994 the mother took I regularly to see him in prison.  After his release in 1994, there was a brief resumption of cohabitation but the father then formed a new relationship by which he has another child.  There was contact between the father and I including staying contact.  The child saw his father twice after his arrest in 1996 and on one occasion in June 1998.  The parents divorced in 1998.  The mother moved to a new address a few miles away.  She wished to change I’s name to her maiden name and made an application for a specific issue order.  The father applied for defined contact.

19.  Both matters were dealt with at first instance by District Judge John on the 18^th November 1998.  In his careful and comprehensive judgment, he set out the reasons why the mother wanted to change the boy’s surname.  She accepted that I spoke frequently of his father and wanted to see him and that he had the right to do so.  But she had reservations over him seeing his father in a prison environment.  She feared the effect on him and the risk that he might be drawn into a similar lifestyle or seek to emulate his father.  He had the right to a normal life which she could give him if she could get on with her life.

20.  The district judge made a contact order for 2 occasions a year at a time when the father was transferred to a local prison and for indirect contact.  On the change of name application the district judge said:

“Mother says that such is the notoriety of the respondent father in this locality that taking into account the fact that the father and son share identical names, I is at risk of suffering if his identity becomes known in the area in which they now live and have recently moved to.  She says that the risks which he could face as a young teenager are obvious to anyone.  Having recently moved … she wants to preserve I’s anonymity.  She is supported in this by the court welfare officer.  Her report of 4^th November 1998 says: ‘It is hard to see how young I can avoid the association with his father’s notoriety.’  She concluded that the risks outweighed the benefit of maintaining a paternal link through the name ‘A’.”

21.  The district judge then set out the oral evidence of the court welfare officer on identification and association with the father which he accepted.  He found the motives of the mother were genuine and based upon a deep seated fear that the boy was at real risk of harm if his identity was exposed.  He said that might include being taunted, victimised or the subject of attack himself.  He found the father’s name to be notorious.

The district judge then carefully considered and applied the criteria in section 1 and concluded:

“I is a child in exceptional circumstances which require very careful nourishment …

“The risks in this case are sufficiently real for mother to be justified in the course she proposes, particularly in the context of her active participation in the continuation of contact.  Now is the appropriate time as mother and son have recently moved.  To wait longer would defeat or at least jeopardise the object of the exercise.”

He made the order.

22.  The father appealed to His Honour Judge Masterman who gave judgment on the 5^th February 1999.  He did not hear any further evidence and dealt with the matter by submissions.  The first issue was whether the appeal should be heard on the principles set out in G v G ([1985] 1 WLR 647]) or in accordance with the decision in Marsh v Marsh [1993] 1 FLR 467 which applies to ancillary relief appeals.  He decided to adopt the Marsh v Marsh approach to the appeal on the basis that:

“it is an appeal from one tier to another of the same court which is exercising the same basic jurisdiction.”

The judge then assessed the evidence which had been given before the district judge and in a careful judgment balanced the factors for and against a change of surname.  He disagreed with the conclusions of the district judge and allowed the appeal.  He refused leave to appeal to this Court.

23.  Two issues arise on this appeal; the basis upon which an appeal in a child case from a district judge should be heard by the circuit judge and second the issue of change of name.  For my part, on the first issue, I find it difficult to understand why the appeal process from district judge to circuit judge in ancillary relief appeals, which may itself be reconsidered under the civil procedure reforms, should be extended to the exercise of discretion in child cases.  The judge was in a similar position to the High Court Judge hearing appeals from the Family Proceedings Court where G v G principles apply, see re M (Section 94 Appeals) [1995] 1 FLR 546.  An appeal from the High Court Judge or the circuit judge to the Court of Appeal are subject to the same procedure.  In my judgment, in the Children Act jurisdiction where the magistrates, district judges, circuit judges and High Court Judges all have the same statutory jurisdiction on these issues, the approach of the appellate courts, whether to High Court Judge from magistrates, to circuit judge from district judge or to Court of Appeal from judges should be the same and on G v G principles in cases where no further evidence is adduced.  In this context I see no reason to differentiate between appeals from the district judges of the Principal Registry of the Family Division and district judges elsewhere, see also re S (Appeal from Principal Registry: Procedure) [1997] 2 FLR 856.  The trial court sees and hears the oral evidence and has the inestimable advantage of the feel of the case, denied as much to the circuit judge on appeal as to the Court of Appeal.

24.  In this case the circuit judge fell into error in adopting the Marsh v Marsh approach and in exercising his own discretion afresh instead of asking himself the question: did the district judge err in principle or was his decision otherwise plainly wrong?  Since Judge Masterman clearly failed to ask the question his decision cannot stand and it falls to this Court to consider whether the district judge approached the case correctly.

25.  In my judgement, this was a difficult and finely balanced case in which, as one can see from the two previous decisions on it, a court might go either way.  As this Court has said more than once, in child cases the more difficult the decision the less easy it is for the appellate court to substitute its decision for that of the trial court.  The district judge properly took into account all the relevant considerations, giving more weight to some of them than did the circuit judge.  But the degree of weight to be given to each factor is a matter for the discretion of the trial judge.  I cannot fault District Judge John in his approach to this case and therefore there is no reason on G v G principles for this Court to intervene.  I would allow the appeal in re A and restore the order of the district judge.

Appeal in re B (Children)

26.  In this appeal there are two children, both girls, the elder — M — born on the 9^th November 1995 and the younger — K — born on the 5^th May 1997.  Both children were registered at birth in the name of their father.  The parents began a relationship in 1994 but did not marry.  They separated finally, after a short reconciliation, in December 1997.  The father shortly thereafter made applications for contact and parental responsibility, opposed by the mother.  Contact was agreed but the case was thereafter complicated by allegations of sexual abuse and physical abuse against his own children.  The court ordered a section 7  report by the local authority.  On the 1^st December 1998 the father was arrested and charged with two offences of indecent assault upon a 17 year-old girl.  Later in December the father was arrested in connection with offences in respect of allegations made by his 11 year niece.  In February 1999 the father was found guilty of two offences of indecent assault on the 17 year old girl and sentenced to 5 months imprisonment.  In March 1999 he pleaded guilty in the magistrates’ court to one offence of indecent assault on his 11 year old niece.  In due course the Crown Court sentenced him to two years imprisonment.

27.  At the hearing before His Honour Judge O’Rorke on the 23^rd March 1999 the father had already been sentenced for the first offences but not yet for the indecent assault on his young niece.  Before the judge was earlier evidence of the success of supervised contact, which had been suspended as a result of the criminal proceedings.  The revised section 7  report from the local authority expressed serious concerns about future contact between the father and his two little girls.  The father withdrew his applications for parental responsibility and contact, direct or indirect.  We were told at the hearing of this appeal that the father is now renewing an application for contact but not for parental responsibility.  The mother applied to change the name of both little girls to her name.  This application was opposed by the father.

28.  The judge took into account the importance of the biological link of the children with the father.  He correctly directed himself that the welfare of the two children was paramount and he applied the section 1(3) check-list.  He considered the importance of the registration of the names after birth and the success of the periods of contact.  He took into account the withdrawal of contact and parental applications by the father which he was entitled to do.  He formed the view that the prison sentence would be longer than it turned out to be.  He also had in mind the difficulties which were considerable, even if not actually unsurmountable, of a schedule I  offender having long-term regular supervised contact over many years with these very young children.  The father clearly would not be allowed unsupervised contact with them for the foreseeable future.  The judge directed that the mother should be allowed to change the children’s surnames from that of the father to her own.  He gave leave to appeal to this Court.  We dismissed the appeal and reserved our reasons.

29.  On behalf of the father, Miss Brann sought with enthusiasm and persistence to persuade us that the judge erred in principle in deciding that the mother be given permission to change her daughters’ names to hers.  She suggested that the judge was to be criticised for considering the reasons of the mother rather than the interests of the children.  I do not accept that as a fair analysis of the judgment.

30.  The mother had and still retains sole parental responsibility and is the only person with the right lawfully to make decisions for them, so the fact of registration in the father’s name points to an agreement between the parents to do so and it is an important factor in the balancing exercise.  We are told that members of the mother’s family are also schedule I  offenders.  This does not in my view help the father.  It only shows that the children are at risk from various sources.  The continuing link between the father and the children is a relevant consideration which may have more force at the next hearing, since the father now seeks to revive it, than before the judge when it had at that stage been abandoned.  We however have to assess whether the new application for contact is such as to displace the judge’s view as to the peripheral part this father is likely to play in the future life of two small girls.  In my view it does not.

31.  The point that stands out in this case, is not the length of the sentences but the consequences of the offences proved against the father which are crucial to the issue before the court.  The father may get an order for indirect contact and after release some direct contact.  But with two small and obviously vulnerable little girls, a father convicted of sexual abuse against two girls, is likely to be seen as posing a most serious risk to each of his daughters for the foreseeable future.  We are told that he has applied for and hopes to be given suitable therapy which may have some success.  One hopes that it will be so.  I would, on the present evidence, expect that it will be a considerable period of time before a court would deem it safe for this father to have unsupervised contact with either girl, possibly not until each is grown up.  If the contact has to be supervised for the rest of the childhood of each child, then it is not likely to be frequent nor to result in a close and valuable relationship between father and daughters.  The father is therefore likely on the present evidence to play a peripheral part in their lives even if he is shortly to be released from prison and does not re-offend.  On the evidence before him, the judge was clearly entitled to come to that conclusion.  In all the circumstances, taking into account all the relevant factors including the father’s intention to seek contact in future, I cannot see that the judge erred in principle or that there are any grounds to criticise his exercise of discretion.

32.  I would therefore dismiss the appeal in re W, allow the appeal in re A and I have given my reasons for the appeal having been dismissed in re B.

Lord Justice Auld —

I agree.

Lord Justice Mantell —

For the reasons given I also agree with my Lady’s conclusions in all three appeals under consideration.

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Orders of the court

Re W: Appeal dismissed; no order as to costs; legal aid assessment of both parties’ costs.
Re A: Appeal allowed; legal aid assessment.
Re B: Appeal dismissed; legal aid assessment.
(This order does not form part of the approved judgment)