How the courts make a decision (England & Wales)

When a court has to make a decision about a child’s change of name, it will use its discretion  to decide whether or not a change of name would be in the child’s best interests, and — if necessary — what the child’s name should be.

In “exercising” its discretion, the court is bound to take certain factors into account, though, and to apply certain principles when making a decision.  It may also be bound to follow the precedents  set by court cases that have gone before it.  The most important of these factors and principles are set out below:

Guiding principles: the “section 1 criteria”

 Main article: A child’s welfare (the “section 1 criteria”)

Section 1 of the Children Act 1989 lays down general principles to do with the child’s welfare, which courts have to follow in any matters relating to children.  These are often known as the “section 1 criteria”.

The child’s welfare is paramount (subsection 1(1))

 Main article: The welfare principle

Courts must have the child’s welfare as their “paramount consideration” when making any decision about a child’s name, or change of name, according to subsection 1(1) of the Children Act 1989.

This is sometimes called the “welfare principle” or the “paramountcy principle”, and it applies generally to any proceedings where a court has to resolve a question to do with a child’s upbringing (i.e. not just proceedings under the Children Act).

Reduce delay as much as possible (subsection 1(2))

In balance with their other considerations, the court must reduce delay as far as possible, according to subsection 1(2) —

In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

Every parent should be involved in the child’s life (subsection 1(2A))

 Main article: Parent involvement

On any application for a Specific Issue Order (or any section 8 order), the court must presume that each parent being involved in the child’s life will be good for the child’s welfare, according to subsection 1(2A).

The “welfare check-list” (subsection 1(3))

 Main article: The welfare check-list

On any application for a Specific Issue Order (or any section 8 order), the court must have particular regard to the check-list in subsection 1(3) — often called the “subsection 1(3) check-list / criteria”, or the “welfare check-list”.

The ‘no order’ principle (subsection 1(5))

The court also must consider whether it would be better not to make an order, according to subsection 1(5) of the Act, which provides that —

Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

This is a crucial part of the welfare test as laid out by Dawson v Wearmouth, in the House of Lords (below).

A child’s name is an important matter

 Main article: Why a child’s name is an important matter

The courts must see a child’s name, and any proposed change of name, as an important matter; and any change of name must not be undertaken lightly.

This has been discussed in many court cases, including in Dawson v Wearmouth [1999] UKHL 18, in the House of Lords, where Lord Mackay held that —

The name of a child is not a trivial matter but an important matter, and is not a question to be resolved without regard to the child’s welfare.

Any change of name must improve a child’s welfare

 Main article: The welfare test (as laid down in Dawson v Wearmouth)

Before using its discretion to allow any change of name, a court must weigh a number of factors in the balance, in the light of the section 1 criteria — and make up its mind whether the change would improve the child’s welfare.

This was confirmed as the law by Dawson v Wearmouth [1999] UKHL 18, where Lord Mackay held that —

… the right course, in my opinion, must be to apply the criteria in section 1 of the Act of 1989 including section 1(5) and not make an order for the change of name unless there is some evidence that this would lead to an improvement from the point of view of the welfare of the child.

Other general considerations

For a change of surname

In Re W, Re A, Re B (Change of Name) [1999] EWCA Civ 2030, in the Court of Appeal, Lady Justice Butler-Sloss  summarised the law (as it stood) with regard to the change of surname of a child, based on the statute and court cases up till that point.

Points (e)–(l), of her summary, are factors which a court should consider when considering an application for a change of surname —

1. (e) On any application the welfare of the child is paramount and the judge must have regard to the section 1(3) criteria.
2. (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.
3. (g) The relevant considerations should include factors which may arise in the future as well as the present situation.
4. (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.
5. (i) The reasons for an earlier unilateral decision to change a child’s name may be relevant.
6. (j) Any changes of circumstances of the child since the original registration may be relevant.
7. (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.
8. (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.

However, Lady Justice Butler-Sloss did qualify her summary by stressing that there could be other factors, and that every case is of course different —

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.

For a change of first name

There is limited case law for changes of first name (of children), simply because cases of this sort come before the courts much less often than with the surname.

The test as laid out in Dawson v Wearmouth (that a child’s change of name must lead to an improvement in the child’s welfare) should also be applied by courts to any proposed change of a child’s first name — even though Dawson v Wearmouth was a dispute about a child’s surname only.  This was held in Re W (Children) [2013] EWCA Civ 1488.

However, the leading case which sets out principles for the court to apply — specifically for when dealing with an application to change a child’s first name — is Re H (a Child) (Child’s First Name) [2002] EWCA Civ 190, in the Court of Appeal.  In that case, though, the application was not to change the child’s first name outright, but merely to allow the mother to use her choice of first name “with educational, health and other authorities, without representing that to be his registered name.”