Y. v Y. (Child: Surname)

High Court (Probate, etc. Division) 
10^th, 11^th March 1969

Before (the judges sitting on the bench)

• Mr Justice Latey

Counsel (the barristers representing the parties)

• G. D. Lovegrove on behalf of the father
• H. S. law on behalf of the mother
• Derek Hyamson on behalf of the Official Solicitor  (representing the two children)

Judgment

Mr Justice Latey —

There are two issues in this case, the first being by what surname should the children be known and the second, whether their father should have them to stay with him from time to time.  This summons is in chambers, but the issues raised are of real importance to the children, and to their parents and I think it right that I should state in outline the reasons for the conclusions I have reached.

At the same time, it would be the reverse of helpful to add to the friction — the very considerable friction — between the parents, and I do not propose to review all the detail which has been canvassed in evidence, both written and oral.

The two children concerned are Alison born in February 1956, so that she is now just 13, and Gillian, born in July 1959, who is rising 10.  The marriage finally broke up, I think, fairly early in 1963.  The mother was granted a decree nisi on the ground of the father’s adultery, which was made absolute in August 1964, and the custody of the children was committed to her.  The parents had been to the National Marriage Guidance Council , who had referred them to doctors, and the father began a course of deep analysis, which is still continuing.  At the moment he is having analysis, he told me, three times a week; and he told me that the purpose of it, as he summed it up, is “to know thyself”, that is, to come to terms with oneself.

The mother married her present husband in January 1965.  In February 1967 the father married the lady with whom he had been living, her previous marriage having been dissolved by decree absolute in August 1966, and she is expecting a baby, by the father, in May of this year.  Both families are in comfortable circumstances financially.  The mother’s husband and the children get on very well indeed and are very fond of each other, and his son, aged 17, also lives with them.  It is a very happy family and home.  They live in North London.  The father’s wife gets on very well with the children, as they do with her.

The children stayed with their father at weekends until the summer of 1964, when the mother stopped this form of access, saying that it upset the children.  Since then, access has been for a day or part of a day, with periods when there has been none.  Both the father and mother are Jewish, as is the mother’s husband.  The father’s wife is not.  The father and mother belong to the Reform Synagogue, whose rules of observance and ritual are much less inflexible and rigid than in the Orthodox Synagogue.  The father is now an agnostic and his wife a humanist, and accordingly they themselves have no religious beliefs or observances.

In July 1965, without consulting the father and unbeknown to him, the mother arranged that Alison and Gillian should be known at school by her husband’s surname.  Nothing was said to the father, either by the mother or by the children’s headmistress, and the copies of the school reports sent to the father gave the children’s former name.  It was not until very much later that the father found out what had been done and, not surprisingly, he was greatly upset and resentful.  He issued a summons asking for directions that the children should resume his surname and at the same time asking that, as part of the access, the children should come and stay with him from time to time.  The mother also issued a summons at the same time, asking for directions about the children in general terms.

These summonses came before Karminski J. in February 1968 — a little over a year ago.  At that time, Alison was about to go to a new school.  Karminski J., taking the view — as, indeed, I take the view — that this was a difficult case — directed that the children be separately represented by the Official Solicitor, and for that purpose he adjourned the summonses generally, directing that Alison should go to her new school under the step-father’s name but stressing that that interim direction was entirely without prejudice to the ultimate decision of the court.  He also gave interim directions for access covering March and April 1968, and he evidently anticipated that that should give everybody sufficient time to restore the summonses for hearing.

It is, in my view, unfortunate for all concerned that so long has elapsed.  I have to deal with the issues in the circumstances prevailing today and to decide them in the way which seems best for the children.  Lapse of time itself can become an important factor in children’s cases, and the procedure and practice of this court, together with the availability of several judges, have been tailored to reduce delay to a minimum.  Any question affecting children can be brought before the court immediately, and I repeat that for reasons which I do not propose to go into — because I am not sure that I know them in detail — I repeat that it is most unfortunate that so many months have elapsed before this case was brought back.

That is the broad history of the matter, and what are the right conclusions on the two issues?  Each is very far from easy, as is often the case when a family has broken up and new families have formed.  There is a good deal of written evidence in the form of affidavits and exhibited correspondence.  In this case it is difficult, if not impossible, to resolve some of the conflicts on matters of fact on the basis of the written evidence.  More importantly, even though one had the opportunity of seeing them sitting behind counsel and identifying them, that and no more left the parents and the step-parents, who are the four people most closely concerned with these children, as no more than paper figures.

Accordingly, I was responsible for the invitation to counsel that the parents and step-parents should give evidence and be cross-examined.  That has happened.  Where does it all lead one?  There was, on paper, the stoppage by the mother of the staying access, the changing of the children’s name without a word to the father, the fact that without any discouragement the children were allowed to call their step-father “daddy,” the fact that when Alison went into hospital for an operation for appendicitis her father was not informed: all this, especially when viewed in writing, suggested that there might well have been a deliberate plan, by stages, to cut the father out of the children’s lives.

I am bound to say, and I have thought it important to bear in the forefront of my mind, that he, as it seems to me, cannot be blamed for entertaining that view in his mind.  But after the evidence which has been given in the witness box, the matter is very far from being so simple.  There is no doubt in my mind, and in my judgment, that the mother and her husband so far as he came into it, were gravely in error, not necessarily in changing the children’s name in 1965, but in doing so without first consulting the father.  And this weighs heavily against her.

Before coming to other factors, it is convenient to state my view of the approach to the change of surname of young children.  Counsel have referred me to In re T. (or^se H.) (an Infant) [1963] Ch. 238, as the only reported case on the matter.  Until that decision, this question of the changing of the surname of infants where their parents were estranged was devoid of any authority.  The facts were these.  There was a divorce on the petition of the mother in December 1959.  That petition was undefended.  The mother applied for and obtained the custody of the child, a 10-year-old girl.  The father had access by agreement.  In July 1960 the father remarried.  In October 1960 the mother remarried, acquiring the surname of her second husband.  On 24^th August, 1961, the mother, without any previous communication with the father, executed a deed poll whereby she, purporting to act as legal guardian of the infant, renounced and abandoned the use of the infant’s surname and declared that, as from the date of the deed poll, the infant had assumed the mother’s new surname.  That, as I say, was on 24^th August, 1961.  The father was first informed of this change of name in September 1961.  On 31^st January, 1962, he issued a summons, asking that the child be made a ward of court and that the deed poll be cancelled, or that there be a further deed poll to be registered, which would change the infant’s surname back to the former one.

Those being the facts, the matter came before Buckley J., and his decision is accurately summarised in the headnote, which states:

“Held, (1) that a child of a tender age could not, of its own motion, change his or her surname since it involved a conscious decision and the power or right to make such a decision primarily resided with the father as the natural guardian, but where the father was not living or was not available for some other reason such power might reside in the legal guardian; that where there had been a divorce in which the father was the person against whom the decree was granted and an order for custody was made in favour of the mother the order did not deprive the father of all his rights and obligations in respect of the child but he remained the natural guardian of the person of the child.

“(2) That in the case of a divided family it was always one of the aims of the court to maintain the child’s contact, respect and affection for both of its parents so far as the circumstances would permit, and to deprive the child of its father’s surname was not in the best interests of the child because it was injurious to the link between the father and the child to suggest to the child that there was some reason why it was desirable that it should be called by some name other than the father’s name.

“Accordingly, the infant’s mother had no status which entitled her to take any step on behalf of the infant which would result in the infant being known by a surname other than the father’s surname.”

Though not binding, any decision from so eminent and experienced a judge as Buckley J. must, and does, command the greatest respect.  It was argued that the effect of the decision was not only that an order for custody in favour of the mother does not vest in her the unilateral right to change the children’s surname, but the rights of the father to do so, as the natural guardian, remain unimpaired or unrestricted by the custody order.

I do not read the judgment as going as far as that.  Buckley J., at p. 241, points out that the point is not covered at all by authority.  He refers to the Encyclopaedia of Forms and Precedents.  He points out that there is a precedent for changing an infant’s name by deed poll to be executed by the guardian of the infant, and he refers to 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 section 218 of the Supreme Court of Judicature (Consolidation) Act 1925.  Then he goes on as follows, at p. 241:

“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.”

Then Buckley J. points out that the most effective way in which this child’s name has actually been changed is in the school register.  In my opinion, what Buckley J. is saying is this: that an order for custody to a mother does not deprive the father of all rights and obligations in respect of the child, a view, if I may say so, with which I wholly and respectfully agree.  Secondly, in particular, such an order does not entitle the mother to take steps unilaterally to change the child’s surname.  Again, I agree.  And thirdly, that if there is a right or power in a parent, where parents are estranged and custody has been committed to the mother, the right is in the father, and remains so, though custody is vested in the mother.

But I do not think that Buckley J. was expressing a final view on this point, which indeed it was not necessary for him to decide, and I think that he has left the point open.  I asked counsel at an early stage whether they or any of them could tell me that, in this context, the powers of this court differed from those of the Chancery court, acting for the Sovereign as parens patriae in its wardship jurisdiction.  Counsel were agreed that in this context both courts had similar powers.

That being so, in my opinion, the matter being res integra, unregulated by statute and undecided at common law, the correct view is this.  As Buckley J. said, an order for custody in a mother does not entitle her unilaterally to cause a child’s surname to be changed, as to do so would infringe the father’s rights as natural guardian.  But, in my opinion, where the mother has been given custody, the father is no longer entitled unilaterally to cause a child’s name to be changed, as to do so would be to infringe the mother’s rights as custodian.  Where the court has become seized of matters affecting children, and at least unless and until parents are in agreement, a parent who wishes to take some step importantly affecting a child, such as a change of surname, should seek the decision of the court.

This is in line with the development of the law by the courts, which nowadays pay much less attention to technical rights and a great deal more to realities.  Those realities are to encourage parents to consult, and agree when they can, on matters importantly affecting their children, and, if they cannot agree, for the court to make the decision which seems best to serve the welfare of the children, whether or not such decision may override some technical and often illusory right of a parent.

If I am right that that is the proper approach, the mother did something she was not entitled to in 1965, and she was, from any sensible and human point of view, gravely in error in doing so.  But does it follow that now, in 1969, the right direction should be that the children should reassume the father’s surname?  In my opinion that has to be decided in the way which will best serve the children, as things now are, and as they are likely to be in the future.

Both this question of the name and the question of whether there should be staying access have to be considered in the light of all the available evidence.  For the reasons that I have already given, I shall not — deliberately not — review it in detail.  Seeing the four people most concerned giving their evidence in the witness box has been of much help to me, and from that and the written evidence the following has emerged in my judgment.

First, the father.  It has to be borne in mind that the father has been in a difficult position throughout of having access only, a situation which does not make it so easy to develop the best relationship with one’s children as it is for the parent with whom they are living and by whom they are being brought up, and I have borne that in mind throughout.  The father is a complicated person.  He is highly intelligent.  He is a proud man and has a strong streak of arrogance, and it is very difficult for him to change his mind once he has made it up, or to accept that he may be mistaken.

This is not to say that his approach to the children has been a selfish one, or a wholly selfish one; as witness, for example, in 1964 he accepted the medical view that he should not insist on staying access.  At the same time he has not been wholly selfless or always wise about the children; as witness, merely for example, his refusal to accept the mother’s very reasonable and sensible suggestion that he should have the children for the whole day at a weekend instead of for two very unsatisfactory hours on Wednesday evenings.  To accept that would have disrupted his weekends in Sussex, and this he was not prepared to do, but preferred to take a course which, in fact, resulted in his cutting himself off from contact with the children for some eight or nine months.

This, I must say straightly, was selfish and stiff-necked, and this cannot in any way be mitigated by his very natural feeling of resentment about the change of name, because at that time he did not know anything about it.

Again I was left with the strong impression that he was, sometimes at any rate, far from wise or understanding in his handling of the children.  A special illustration was in July 1968, when he told the children that it was his intention to take steps to have their name changed, and to see that they came to stay with him.  Of course, in this kind of situation, children themselves often ask questions about what is happening or going to happen, and parents have to do their best in what they say and how they deal with it.  But that is not what happened here.  The father started it by asking them whether they wanted to go on seeing him.  I am not at all sure whether that was a very wise topic to broach.  Happily, they both said that they did.  They having said that, why on earth not leave it there?  But instead, he went on to volunteer what his further intentions were though he knew that at the very least those intentions might not be welcome — indeed, much more probably, would not be welcome — at that time.  As he himself said, he did not raise it in any way to discuss with the children, but it was his pronunciamento — his edict — that he was laying down.

The result was to distress these children very seriously in the way which Dr Shear described in his affidavit, and which the mother has described.

The mother is a very different kind of person.  She, too, is intelligent, but she is a much more straightforward, uncomplicated person, a much warmer, more easy and natural kind of person, and I thought her most impressive, not merely as an honest witness but as a person and as a mother.  I do not overlook that she acted quite wrongly in changing the children’s names for school purposes without consulting their father, but that has to be looked at in conjunction with the equally undoubted fact, as I am satisfied, that she had a difficult man to deal with, as she knew from long experience.

Having heard her and him and the step-father, I no longer think, as I was inclined to think on the written evidence, that she had set out to cut him off from the children so far as she could, though she did make that serious error.  She has done, with that exception, what she has done, wisely, in the interests of the children, and not to oust their father.

The father’s wife and the mother’s husband are, neither of them, in at all easy positions.  I think that both have been doing their best.  It might be said against the father’s wife that she has, herself, perhaps a somewhat over-elaborate and introspective approach, but I do not see anything to suggest that that has any unfavourable impact on the children.  She is a schoolteacher by profession; and ever since Alison mentioned that there were some things that she preferred not to eat because it was against the dietary laws, I am sure that she has not served food (and will so continue) which does conflict with the dietary laws.

The step-father made no bones about his view that, in one way and another, the father had let down the mother and the children.  I do not propose to go into that part of fairly ancient history at all, but the stepfather was entirely honest and frank in his evidence.  He said that his view was that the father had greatly failed the children as a father but, he said, “they are not my children, they are my wife’s children, and I have always left it to her to decide what is the right course to take.”

There is no doubt at all that, although there has been friction between the mother and father, the mother has never for a moment forgotten that the father is the children’s father, and she has done what she can to foster a normal affectionate relationship between father and daughters.  Moreover, both the mother and her husband told me that, to their way of thinking, a very important factor is what Alison and Gillian themselves feel about visits to their father, and that unless it seems that to impose visits is going seriously to disturb the children — as I am afraid, on occasions, it undoubtedly has in the past they will do all they can to co-operate in gently nudging Alison at first, and then one hopes Gillian towards a frame of mind when she is, at least, not averse to going to or staying with her father from time to time; something which, once it begins, one hopes will develop into a regular pattern.

Now what are the right decisions if indeed, “right” is the proper word in a situation like this — on these two questions, which remain very difficult?  As to the problem of the name, whatever might have been the decision of the court in 1965, had the matter come before it then, as it probably would have done had the mother done what she should have done, and consulted the father I have to reach a decision now in 1969.  Mr Lovegrove argued that a mother should not benefit now from her wrong action then.  That contention has force and attraction but, of course, more important is what is best for the children.

Today, Alison is the main problem on this topic, though plainly both children must have the same name, and therefore the decision will affect them both.  Accepting, as I do, that the initial decision was the mother’s, it is plain on all the evidence that Alison does now feel, deeply and acutely, the social embarrassment of a further change of name back to her father’s surname.  She is 13 years of age, and though I do not agree at all that she is, in any real sense of the word, a young woman, she is old enough to be sensitive on questions about her name and the circumstances in which it is changed, if it be changed.  The father acknowledged that to force a change on her might well set her against him, but he feels this is a risk he should run, and that he is prepared to run.

He, himself, put the arguments on the other side thoughtfully and very sensibly, I thought.  He says that when Alison is older, say 17 or 18, she may want to bear her own father’s name — her patronym, as it is — but it will then be a good deal more difficult for her and more embarrassing for her to resume it, and I think there is a good deal of force in that view.  But it does, of course, presuppose that Alison — or, indeed, both the children — are likely, later on, to want to resume their father’s name.

No one can foretell the future, but to my mind, in this case, having seen the grown-ups, I am far from sure that the children will want to change their name again.  They may.  If they do, and they feel strongly about it, they will be able to do so, though I agree entirely with the father that it will not be so easy for them to do so.

Weighing it all up as best I can — and without anything approaching certainty, I am afraid, that I am right — I have reached the conclusion that the scales do come down in favour of leaving the name as it is for the time being.

[Mr Justice Latey then reviewed the evidence concerning the question of access by the father to the children and made an interim order defining that access.]

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Orders of the court

According to the judgment.