Re WG 31/1975
Reference: Re WG 31/1975 (1976) 6 Fam. Law 210
Court of Appeal (Civil Division)
7th April 1976
(Appeal of Father from Order of Mr Justice Faulks, London, 17th February, 1976)
1976 T. No 164
Before (the judges sitting on the bench)
- Lord Justice Cairns
- Lord Justice Orr
- Lord Justice Browne
Counsel (the barristers representing the parties)
- Miss M. Booth, (instructed by Messrs Pritchard, Englefield & Tobin) appeared on behalf of the father, Mr Donaghue (the Appellant and original Respondent)
- The mother, Mrs Brodey (formerly Donaghue) (the Respondent and original Applicant) appeared in person
Lord Justice Cairns —
We need not trouble you further, Miss Booth.
This is an appeal concerning the name of a child. Cases relating to children almost always cause the court a good deal of anxiety, because generally, whichever way the decision goes, there is something to be said on the other side, and whichever way the decision goes, it is likely to cause distress to one or other of the parents. It is an appeal from an order of Mr Justice Faulks who acceded to an application by the mother of the child for leave to change the name of the child from the name of Donaghue, which is the name of her father and, of course, of her mother at the time of her birth, and is still the child’s name in law, the application being to change it to the name of Brodey, which is the mother’s present name she having divorced her husband and married Mr Brodey. The father appeals.
At the hearing before Mr Justice Faulks the mother was represented by counsel. For financial reasons, she has not been able to instruct solicitors and counsel for the purpose of this appeal. She has been present in court with Mr Brodey her present husband, and she had prepared, no doubt with the assistance of Mr Brodey, a cogent argument of her case. It became evident when she started to read it that she would have difficulty in doing so because of her natural emotional upset, and accordingly we took the unusual course of allowing that argument to be read to us by Mr Brodey. I do not think that any point was omitted from it which could have been advanced by counsel if she had had professional advice.
Mr and Mrs Donaghue were married on the 11th June, 1966. Their daughter, Louise, is the only child of the marriage, born on the 19th December, 1969, so she Is now nearly 6½ years of age. In December, 1971, when Louise was 2, the father left home. The mother petitioned for divorce on the ground of his adultery, presenting her petition on the 27th November, 1972, It was undefended, A decree was pronounced, and that decree was made absolute on the 27th January, 1973. The marriage to Mr Brodey took place on the 26th February of that year; and on the 14th April of the same year the father married a Malaysian lady. He married her in England. In May, 1973, the father went to Singapore with his new wife, He went there to take up work with a shipping firm. He had previously been on the Baltic Exchange here, and he took up this appointment as a charter ships’ broker, going to Singapore on a two years’ contract in the first instance, He has now been there for more than four years. A fresh contract was entered into which is terminable by six months’ notice on either side. Mr Donaghue does not intend to stay permanently in Singapore. He wants in due course to return to this country, better equipped for his work probably again on the Baltic Exchange, with the experience that he has gained abroad.
Of course, because the father has been abroad nearly all the time since May, 1973, the extent to which he has had any contact with Louise since the break-up of the marriage has been very small. He did see her during the time immediately following the break-up, but when it came to February, 1972, he said that there were some difficulties over access, and February, 1972, was the last time that he had any effective access to his daughter. He saw her again in December of that year, but she was asleep at the time. He said that there had been some difficulties in making arrangements for him to see her.
In the divorce suit an order was made on the 8th March for the mother to have custody of the child, it being agreed that the father should have reasonable access. He certainly, in the first place, was asking for an order for joint custody. We were told by Miss Booth that he had in the end consented to the mother having the sole custody, but the mother tells us that he did contest that matter up to the time of the order. I do not think it makes any difference on this appeal whether he did in the end consent or not. No order was made for him to have access to the child, but it was agreed that he should have reasonable access to her. There was also in May, 1973, a maintenance order made by consent for him to pay £ 4 a week for the maintenance of the child, and it is agreed that those payments have been regularly made.
The father came to this country on leave with his new wife in September, 1974; and I think it was during that visit that a child was born of that union in England. He did not attempt to see Louise during that visit because his brother had advised him that it would be better that he should not.
With a little girl between the time of her birth and the time when she starts school there is very little need for anybody at any stage to refer to her surname; but she started school in January, 1975, and then the headmistress of the school that she was going to attend urged the mother to let her be known as Brodey. Louise has since changed her school, and the headmistress of the second school has been still more insistent that Brodey would be the name by which she should be known. The mother at both schools has acceded to that request. It does not appear that except at school there has been any necessity for reference to her surname. She is not a member of any organisation where her surname would be relevant or anything of that kind.
The evidence before the learned judge consisted of affidavits from both parents and from the paternal grandparents, who said in effect that they had wished to have contact with Louise, but difficulties had been put in their way. The view that Mr Justice Faulks took about that was that the difficulties had really arisen from something that happened in the office of the firm of solicitors who were then acting for the mother. There was also oral evidence.
Mr Justice Faulks obviously considered the matter with great care. He made reference to the only two reported decisions upon change of name in circumstances such as these. One of the decisions was a decision of Mr Justice Buckley (as he then was) in Re “T” (otherwise H) (an Infant) 1963 Ch. 238, where Mr Justice Buckley was dealing with a girl of 10 and the mother had registered a Deed Poll making a change of name without the knowledge of the father. The father took proceedings to have that set aside, and Mr Justice Buckley acceded to that application. He took the view that, although the mother in that case had custody of the child, that did not take away the residual rights of the father as natural guardian. If Mr Justice Buckley meant by that that the father as natural guardian of the child would have the right unilaterally to change the child’s name, that is not, I think, a view that would be taken to-day. But, at any rate, the result of that decision was that Mr Justice Buckley said that the Deed Poll should be set aside.
The next case is Y v Y (1973 Fam. D. p. 147), a decision of Mr Justice Latey, who was dealing with two children who were then 13 and 10 years of age. He said that if there were not agreement between the two parents as to a change of name no change of name should be made without a decision of the court being obtained. That was a case where the new name had been used for four years. The elder of the two children, who was 13, had expressed a very strong wish not to be embarrassed by having her name changed back to her original name, and Mr Justice Latey held that the change of name should be permitted.
It was shortly after that that a practice direction was made by the Master of the Rolls, It is contained in the 1969 volume 1 of the W.L.R. at page 1330. That direction related to the enrolment of deeds for change of name. The relevant sub-paragraph of the direction is (d), in these words; “In all cases the application” — that is the application for enrolment of deed changing the name of the child — “should be supported by an affidavit showing that the change of name is for the benefit of the minor, and that both parents join in and consent to the application unless special reasons are shown why they cannot or do not do so.”
Since then there has been one reported case in which some reference was made to this matter, though it does not really carry it any further. It is the case of In re D (Minors) (Adoption by Parent), a decision of the Family Division Divisional Court, the President and Mr Justice Hollings (1973 Fam. D, p. 209), It was an adoption case, and at the top of page 216 the learned President, reading a judgment with which Mr Justice Hollings agreed, said; “The fact, if it be a fact, that they asked to have their names changed which should never be done unilaterally unless special reasons are shown …” — and he referred to the practice direction and to the decision of Mr Justice Latey.
At the end of 1974 this new paragraph was added to Rule 92 of the Matrimonial Causes Rules: “(8) Unless otherwise directed, any order giving a parent custody or care and control of a child shall provide that no step (other than the institution of proceedings in any court) be taken by that parent which would result in the child being known by a new surname before he or she attains the age of 18 years or, being a female, marries below that age, except with the leave of a judge or the consent in writing of the other parent.”
Mr Justice Faulks in this case took the view in the end that it was in the interests of Louise that her name should be changed, and made an order giving leave for a deed poll to be registered accordingly and it is from that order that the father appeals, I have said that the father has had no effective contact with Louise between February, 1972, and very recently. He is now again on leave in this country and he had access to Louise last Saturday. He is very anxious to continue to have such access, and we are assured by the mother that no obstacle will be placed by her or Mr Brodey in the way of his continuing to have access.
What are the reasons in favour of allowing this change of name? They clearly depend very largely upon the attitude which has been adopted by the headmistresses of the two schools, to which Mr Justice Faulks expressly said that he attached weight. The headmistresses were quoted as saying that it would be more convenient for administrative reasons that she should be known by the present name of her mother, and that it would be better from the point of view of security, by which it appears to have been meant that there might be some difficulty if somebody came to the school seeking to have contact with the child, or wanting to obtain some information about the child, and having a different surname from that of the child. While I have no doubt that there is administrative convenience from the schools point of view in having the child with the same surname as the people with whom she is living, I really cannot see that this suggestion of greater security can be of any substantial force. There must be, after all, thousands of cases in which children are living with foster parents, or with maternal grandparents, or uncles and aunts or other relatives, who have a different name from the name of the child. Moreover I think it is wrong to attach too much importance to considerations arising in connection with schooling as against the longer term interests of the child.
It is said by Mrs Brodey that the child herself has been told of these proceedings and has said that she does not want to change her name and has been upset about it. It is inevitable that when a question of that kind is put by a parent who is very anxious for a particular decision that, with the utmost good faith on the part of the parent, the child is influenced towards giving an answer which will be acceptable to the parent; and although the immediate effect might be upsetting to the little girl, I cannot imagine that it would cause a child of that age any real difficulty at this time, much less be a permanent embarrassment to her.
It is, of course, important to bear in mind all the way through, as I certainly do, that it is the paramount interests of the child with which we are concerned. It has not been suggested on either side here that the court should approach the decision in the case from any other point of view. But I think it is important that it should be realised that the mere fact that there has been a divorce, that the mother has remarried and has custody of the child and has a name different from that of the child, is not a sufficient reason for changing that child’s surname. That is why the Master of the Rolls made his practice direction and why sub-rule (8) was added to Rule 92. The courts recognise the importance of maintaining a link with the father unless he has ceased to have an interest in the child or there are some grounds — having regard to his character or behaviour — which make it undesirable for him to have access to the child at all. It must greatly tend to create difficulties in the relations between a father and child if the child ceases to bear his name — especially if, as here, the child has come to address her stepfather as “Daddy” and to refer to her father as “Old Daddy”.
The learned judge said that he thought it was likely that the father would see the child only sporadically in the future. Well, so long as Mr Donaghue is living and working in Singapore it is obviously impossible for him to see his daughter anything but infrequently. But he has the intention of ultimately returning to this country. He has a house, the former matrimonial home, of which he still retains the ownership. The house is at present let, but he looks forward eventually to resuming occupation of it. The fact that he is separated geographically from his daughter at present is, I think, not a strong reason for saying that the change of name should be allowed.
Sometimes where a situation like this exists there is an application for adoption by the mother and the new husband. If that takes place, then the natural result is that the surname of the adopters becomes the surname of the adopted child. That is not the situation here, and I think it would be very unfortunate if it were thought that short of adoption an application to change the name could be made which might be used at a later stage in support of an application for an adoption order. I do not for a moment suggest that that is Mrs Brodey’s motive in this case. I do not for a moment suggest that she has anything at heart but the best interests of her daughter. But, doing the best I can to consider what those interests are, I have reached the conclusion that the grounds upon which Mr Justice Faulks ordered that this change of name should be permitted are not sufficiently strong to justify it, and I would allow the appeal and dismiss the application.
Lord Justice Orr —
Lord Justice Browne —
I also agree.
Miss Booth —
Your Lordships dismiss the application, and allow the appeal, with no order as to costs.
Lord Justice Cairns —
You are not asking for costs?
Miss Booth —
No, my Lord.
Lord Justice Cairns —
I am glad to hear that.
Miss Booth —
If your Lordship pleases.
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Orders of the court
Appeal allowed and application dismissed. No order as to costs.