W v A (Minor: Surname)

Court of Appeal (Civil Division) 
24^th July 1980

On Appeal from Bristol County Court
N^o 1980 D 0255

Before (the judges sitting on the bench)

• Lord Justice Lawton 
• Lord Justice Bridge 
• Lord Justice Dunn 

Counsel (the barristers representing the parties)

• Mr C.L. Boothman (instructed by Sharpies & Co., Solicitors, Bristol) appeared on behalf of the mother, Mrs W. (the Appellant and original Applicant)
• The father, Mr A. (the Respondent and original Respondent) did not appear and was not represented

Judgment

Lord Justice Lawton —

I will ask Lord Justice Dunn to deliver the first Judgment.

Lord Justice Dunn —

This is an appeal from an Order of Judge Hutton made on the 3^rd June of this year, and amended on the 20^th June whereby in effect he ordered that two children should continue to use their father’s surname.  The mother appeals against that Order.  The father has not been represented on the appeal, although it is clear from the letter from his solicitors that he opposes any variation of the Order.  I say that the effect of the Order was that the children’s surname should not be changed because, in form, it was an application by the mother to be released from an undertaking to that effect which she gave to the learned Judge as a condition of being allowed to take both children permanently out of the jurisdiction to Australia.

The father had originally opposed her application to take the children to Australia but eventually agreed, subject to seven undertakings being given by the mother, the last of which was by reason of the ruling of the Court, to continue the use, by the children, of their surname which I shall call “A”.  That was the only matter which was in contention before the learned Judge, namely, whether the children should continue, when they went to Australia, to be called “A” or whether they should be allowed to change their names to the name of the mother’s second husband, which I shall call “W”.

The background to the case can be stated quite shortly.  The parents were married in 1966.  The father was and is a farmer, farming near Tewkesbury in Gloucester, and his father was a farmer.  The two children were born, Stephen, on the 19^th July 1968 and Julie on the 1^st April 1970.  In September 1971 the mother left the matrimonial home with the two children, and an Order was made under the Guardianship of Minors Act whereby joint custody was granted to both parents with care and control to the mother and reasonable access to the father.

That “reasonable access” continued down to the time that the mother and the children went to Australia, which was earlier this month.

Both the parents subsequently remarried, there having been a decree nisi on the 24^th April 1974 under Section 1(2)(d) of the Matrimonial Causes Act.

The father has two sons by his second marriage.  The mother married an Australian who was over here temporarily, and there is a little girl of that marriage born in 1978.  The mother’s second husband desiring to return to Australia, application was made for leave to be granted for the children to leave the jurisdiction permanently:

When the question of the change of name came before the learned Judge, he was faced with the dilemma that there are two apparently conflicting lines of authority in this Court on the question of changing children’s surnames.  The first is that the change of a child’s surname is an important matter, not to be undertaken lightly.  The second is that the change of a child’s surname is a comparatively unimportant matter.  The learned Judge, faced with the choice between those two lines of authority, opted for the first.  The primary ground of this appeal is that in so doing he erred in law.

It is necessary, accordingly, to look at the various decided cases which have been very helpfully cited to us by Mr Boothman who, if I may say so, has conducted this appeal with great ability and also with great responsibility, having no opponent.

The first case to which he refers is the case of In re W.G., reported only in 1976, Volume VI of Family Law at page 210.  That was a case in which the issue as to whether or not the child’s surname should be changed was the very question which the Court had to decide.  There was evidence before the Trial Judge, Mr Justice Faulks, from the headmistress of the childrens’ schools that it was administratively convenient that their names should be changed to the name of their stepfather.  Mr Justice Faulks accepted that view and made an Order, giving leave for a Deed Poll to be registered changing their names.  The Court of Appeal reversed the Judge’s Order and Lord Justice Cairns  said this: “It was of course important to bear in mind all the way through that it was in the paramount interests of the child with which their Lordships were concerned.  It had not been suggested on either side here that the Court should approach a decision in this case from any other point of view.  But his Lordship thought it important that it should be realised that the mere fact that there had been a divorce, that the mother had remarried and had custody of the child and had a name different from that of the child, was not sufficient reason for changing the child’s surname.  The Courts recognise the importance of maintaining a link with the father, unless he had ceased to have an interest in the child or there were some grounds — having regard to his character and behaviour — which made it undesirable for him to have access to the child at all; and it must greatly tend to create difficulties in the relations between the father and the child if the child ceased to bear the father’s name.”  The other two members of the Court agreed.  There followed the case of R v R also in the Court of Appeal reported at (1977) 1 WLR 1256.  It is I think important to have regard to what was the issue which fell to be determined in that case and what were the facts of the matter.  The facts of the matter were that the mother had left the father and four children, and had gone to live with a soldier.  About two years after she left, she obtained a decree nisi and she obtained custody of all the children.  The youngest child, was unhappy with her and the soldier, and returned to live with the father.  The issue in R v R was whether the custody of C should be granted to the mother who, by that time, had been living for some time with the soldier and the other three children, or whether C should remain with the father.

The question of change of name only arose in this way:  There was evidence that the three older children living in the army camp with the mother and Sergeant W. (as he was known) were known in the camp as W. and this was used by those representing the father as an indication that W. would try to eliminate the father from the lives of the children and usurp his position.  Lord Justice stamp made this very clear at page 1259.  He said this: “I think it is convenient to mention that the point was made by Mr Evans in the course of his submissions in this Court that the Judge might not have been aware at that point or had it present to his mind at that point in his judgment, that the elder children were now in the camp, where they are known officially by the surname of W., and it was suggested that this rather tended to counter the Judge’s findings that Sergeant W. would always be ready to remind the children that he was not their real father, and a good deal of play was made by Mr Evans regarding this change in the way the children are known in the camp.  I am bound to say I do not think that the fact that the three elder children are known as W. now in the camp really signifies anything as regards the characters of Sergeant W. and the mother.  I think that too much attention is paid to these matters of names of children, the names by which they are known, on some occasions at least, and it must be most convenient that they should be known as W. in the camp in which they are being brought up where Sergeant W. is the head of the family.”

I think it is important to read that last sentence in its context and not to take it out of its context as suggesting the laying down of any general proposition as to changes of name.  Lord Justice Ormrod , in his Judgment, referred to the change of name as a peripheral matter, and no doubt in the facts and circumstances of that case it was a peripheral matter.

The learned Lord Justice went on to make certain general observations as to the question of changing the surnames of children and emphasised the embarrassment for the school authorities if children are not known by the same name as their mother.  Those observations were clearly, in my view, obiter.  They were not necessary for the decision of the case and they should not be regarded as other than comments upon the factual situation which arose in that case.  They were in any event inconsistent with the ratio  In re W.G. supra.

The second case which was cited by Mr Boothman in support of what he submitted was the proper approach to the question of changing children’s names was the case of D v B reported in (1978) 2 WLR 573.  That again was a case which was decided by Lord Justices Stamp and Ormrod.  The facts of the matter were somewhat complicated.  The child in question was born after the mother had left the father and had gone to live with another man.  The mother took the name of the other man.  She registered the birth of the child in that man’s name, but on the registration form declared that her husband was the father, and she refused him access.  The father then issued a Summons seeking access and asked for an Order that the register of births should be altered so as to show the child’s name as being his name, and also asked for a rectification of a Deed Poll which had been executed by the mother, by which she assumed the other man’s surname for herself and any children of hers.

The case came before Mrs Justice Lane who ordered access to the father; ordered that the mother should take all necessary steps to ensure that the Deed Poll and the register of births should be amended, and also ordered that until the child reached the age of 18, the mother should not let him be known by any other surname than that of the father, without the father’s consent.

The mother failed to carry out the learned Judge’s Order, the father applied for Directions, and the learned Judge, on that application, directed the mother to execute a Statutory Declaration and a fresh Deed Poll and attached a penal notice to the Order.  It was against that Order that the mother appealed.

It appears from the report that in the course of the appeal, the father consented to the child being known by the mother’s name.  As it is put in the head note, the father, having consented that part of the Order of December 1976 “requiring the mother not to allow the child to be known by any other surname than that of the father, would be varied to enable the child to be known by the mother’s new surname.”  So that so far as this Court was concerned, the question whether or not the child should be known by the father’s surname or should be known by the surname which the mother had assumed, was not in issue.

This is clear from the Judgment at page 576, when Lord Justice Ormrod said: “The substantive issue in the case was whether or not the father should have access to a very young boy.  The formalistic issues rotate round the question as to the name by which this boy is to be known, and it is a great pity that these issues have come to overshadow the real issue of substance, which has been resolved by an earlier decision of the Judge.”

The Court of Appeal upheld the learned Judge’s Order as to access, but they varied the Order because of some technical provision of the Enrolment of Deed (Change of Names) Regulations 1949, and also of the Registration of Births, Deaths and Marriages Regulations of 1968 .  At the end of his Judgment, Lord Justice Ormrod made some general observations about applications to change names, and they may perhaps be summarised by reading shortly from the end of his Judgment at page 583.  He said this: “She had changed her own name to B, by deed poll so that she could say, ‘Now I am properly known as B.,’ and she had registered the child in the name of B. so that she would say, ‘But the child’s real name is B,’ and one can understand that the father’s tactics should direct an attack on those two points.  It is bad enough for him that both of them have proved abortive.  But neither of them are real.  What is real is that the father and the child should know one another, that the child should, in course of time, come to recognise the fact that is his natural father and, so long as that is understood, names are really of little importance and they only become important when they become a casus belli between the parents.”

Once again in my view that last sentence was not necessary for the decision of the issues before the Court in that case and the dicta were obiter.  But I go further than that.  Assuming that they were necessary for the decision of the case, they are in direct contradiction with what was said in this Court by Lord Justice Cairns in the case of W.G. and speaking for myself, with the greatest respect to the learned Lord Justice, I do not agree with his dicta.

A useful footnote to the authorities was provided by Mr Justice Latey in the case of L. v F. which is reported only in the Times newspaper for the 31^st July 1978.  Once again in that case the direct issue which the learned Judge had to decide was the question of whether the mother should or should not be allowed to change her children’s surname to that of her new husband, and Mr Justice Latey referred to the two decisions to which I have just referred, and also to the decision of In re W.G.

Mr Justice Latey said this: “Until the two recent decisions expressed by Lord Justice Stamp and Lord Justice Ormrod the prevailing view, enunciated In re W.G. and which had never been questioned, was that on the failure of a marriage a decision to change children’s surnames should never be taken unilaterally and that unless parents were in agreement a decision about it should be approached by the Court as a matter of real importance.”  Pausing there for one moment, I agree with every word of that.

The learned Judge went on: “The fact that one approach had been evolved over many years and the other had only recently been expressed did not mean that either should automatically be accepted as correct.  One had to make a fresh appraisal.  His Lordship had reached the opinion that the approach expressed by Lord Justice Cairns in In re W.G. was the correct one.  The Court was concerned with cases where the parents were in disagreement.  A marriage could be dissolved but not parenthood.  The parents in most cases continued to play an important role in their children’s emotional lives and development.  From the point of view of the children’s best interests it was essential that the parents’ feelings should be taken very carefully, and anxiously into consideration.”

Then the learned Judge referred to the character of the father and the fact that, as in this case, he was a responsible father who had played a part in the children’s lives, and also to psychiatric evidence which is often called in this type of case and which the learned Judge had before him in the case of L. v F.  In regard to it he said this: “A very distinguished child psychiatrist had given evidence that, when they grew older, children were often greatly concerned with their biological origin.  How then,” said the Judge, “could one accept that a change of name was of little importance to the children?  His Lordship could not.  In one case a change might be of benefit to them.  In another it might injure them.  Surely it was an important decision?”

How then does the law stand with regard to the approach by courts in applications for change of a surname?  As in all cases concerning the future of children, whether they be custody, access, education or, as in this case, the change of a child’s name, Section 1  of the Guardianship of Minors Act 1971  requires that the court shall regard the welfare of the child as the first and paramount consideration.  Those words were construed by Lord MacDermott in the case of J. v C reported in (1970) AC at page 710 in the following well known passage; “Reading these words in their ordinary significance, and relating them to the various classes of proceedings which the Section has already mentioned, it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question.  I think they connote a process whereby when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood.  That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed.”

That is the first and paramount consideration which must be in the learned Judge’s mind.  When considering the question of a change of name, that is to be regarded as an important matter: see Lord Justice Cairns in In re W.G.  It is a matter for the discretion  of the individual Judge hearing the case, seeing the witnesses, seeing the parents, possibly seeing the children, to decide whether or not it is in the interests of the child in the particular circumstances of the case that his surname should or should not be changed; and the Judge will take into account all the circumstances of the case, including no doubt where appropriate, any embarrassment which may be caused to the child by not changing his name and, on the other hand, the long-term interests of the child, the importance of maintaining “the child’s” links with his paternal family, and the, stability or otherwise of the mother’s remarriage.  I only mention those as typical examples of the kind of considerations which arise in these cases, but the Judge will take into account all the relevant circumstances in the particular case before him.

Now how did this learned Judge approach the matter?  He approached the matter by preferring the approach of Lord Justice Cairns in In re W.G. to the approach in the obiter dicta in the cases of R v R and D v B, and in my judgment in taking that course he was right.

Certain detailed criticisms have been made of his reasons for refusing to allow the mother to change the surname of these children.  First and foremost it is said that he did not pay sufficient regard to the express wishes of the children themselves.  The learned Judge saw the children in his room and has recorded that Stephen had said because of difficulties at school and because there were no relatives of his father in Australia he wanted to be called W, and the little girl Julie, agreed.

The learned Judge dealt with this in one or two sentences.  He said: “I think they are too young to express a view on what is a fairly drastic step.  I pay little regard to their views, which are views that largely reflect the mother’s views.”

In my judgment, this Court could not possibly go behind that.  The learned Judge, experienced in these matters, would know that children are suggestible at this age and that inevitably, having spent the whole of their lives with their mother, they would be likely to reflect their mother’s views, and that is not to make any criticisms of the mother or suggest that she put words into their mouths.  But they would naturally be anxious not to offend her, and they would no doubt know that it was her wish that they should change their surname.

Speaking for myself, I think the learned Judge was entirely right not to attach decisive importance to the views of two young children of 12 and 10 who were about to embark on the excitement of going to Australia with their mother and their new stepfather.  Other criticisms were made of the learned Judge.  It was said that there were positive advantages to these children in changing their surname.  They were about to make a fresh start in a new country and it would be an advantage to them to go out as a united family.  A change of name, it was said, would not make much difference to the father because the children would be at the other end of the world and he has two sons by his second marriage, so the name of “A” will survive in Gloucestershire.

It was also said that when they get older, if the children wished to change their name back to “A”, they could always do so.

I have no doubt that the learned Judge had all these matters in mind and there is nothing in his reasons, in his short Judgment, which leads me to suppose that he did not.  On the contrary, it seems to me that the learned Judge approached this matter entirely rightly.  It was a matter for his discretion.  I cannot see that this Court can possibly interfere with that discretion and speaking for myself, I should have come to the same conclusion as did the learned Judge.

For these reasons, I would dismiss this appeal.

Lord Justice Bridge —

I too would dismiss this appeal for all the reasons given in the Judgment of Lord Justice Dunn, with which I am in complete agreement.

Lord Justice Lawton —

I too am in complete agreement with Lord Justice Dunn’s Judgment.

Mr Boothman, that means that this appeal is dismissed.  I understand that your client is legally aided?

Mr Boothman —

Yes, my Lord, she is.

Lord Justice Lawton —

So you ask for legal aid taxation?

Mr Boothman —

Yes, my Lord.

Text of judgment is Crown Copyright ©.  Presentation, mark-up and all other content is copyright © Deed Poll Office Ltd.

Orders of the court

Appeal dismissed.
Legal Aid taxation of the Appellant’s costs.