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.

The registered surname is a relevant factor which may be important

☞ Main article: A child’s registered surname

In Dawson v Wearmouth [1999] UKHL 18, in the House of Lords, the Law Lords held that “… 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”, and that “… in order to justify changing [a] name from that which was registered, circumstances justifying the change would be required”.

In “assessing where the balance of advantage for the child’s welfare lies”, the fact of registration —

  • is a “relevant factor” that courts should take into account
  • may be “important” or a “major factor”, but not in every case
  • is “an important factor” for children who’ve been known by the registered name for a number of years, are aware of the name, and use the surname for external authorities such as schools, GP, etc.
  • is not “all-important”
Maintaining a link with the father (or mother, as the case may be)

☞ Main article: Maintaining a link with the father or mother

The courts have held many times that a child sharing a surname with their or father or mother (as the case may be) is important because —

  • it tends to help the relationship between the child and the parent
  • children, especially when they get older, are often concerned with their identity and biological origin

Thus courts are reluctant to take away a surname from a child which is shared with one of their parents, even when —

  • the parent lives far away
  • the parent has little contact with the child, even to the extent that the relationship has almost completely broken down
  • the child is opposed to the parent and wishes to change their name
Extent of the ties between a parent (typically the father) and the child

☞ Main article: The ties between parent and child

Although the court has held that it’s important to maintain the link — through a shared surname — between a parent (typically the father) and a child, this should be considered in light of the ties and the amount (and quality) of contact between them, and the degree of commitment of the parent to the child.

The child’s wishes and feelings

☞ Main article: A child’s wishes and feelings

The court must have particular regard to “the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”, as one of the criteria in subsection 1(3).

But although a child’s feelings are always important, the child’s (stated) wishes aren’t given much weight when the child is still very young.

The parents’ wishes and feelings

☞ Main article: A parent’s wishes and feelings

The parents’ thoughts, wishes and feelings, if they’re made available to the court, should always be considered by the court, but in the end the parents’ wishes and feelings are subordinate to the welfare of the child.

Having the same name as the rest of the family

☞ Main article: Having the same name as the rest of the family

The courts don’t give much weight to “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” as summarised by Lady Justice Butler-Sloss in Re W, Re A, Re B (Change of Name) [1999] EWCA Civ 2030.

Cultural or religious reasons

☞ Main article: Cultural and religious reasons

The court will give weight to cultural and religious reasons, especially in the context of a community that attaches great weight to them.  In the end, it isn’t up to the court to judge whether it is right or wrong for the community to attach importance to such reasons — it just has to judge what the effect will be for the child’s name to be changed, in the context of the family and community which they live in.  If the welfare of the child will be improved, practically speaking, then it should be allowed according to the section 1 criteria.

Risk of harm or abduction

☞ Main article: Risk of harm or abduction

In the subsection 1(3) check-list, point (e) obliges courts to “have regard in particular to … any harm which [the child concerned] has suffered or is at risk of suffering” — and “harm” must be thought of in quite a wide sense of the word, according to the definition in subsection 31(9).

Welfare reports

☞ Main article: Welfare reports

In some cases (when there’s an application under the Children Act), the judge may order a welfare report (or “section 7 report”).  The welfare report will be carried out for the court by a specialist social worker.

Whether or not to order the report is a matter of the court’s discretion.  However, an appeal may be brought on the grounds that it wasn’t considered whether a change of name was in the best interests of the child’s welfare (applying the test as laid down in Dawson v Wearmouth) — as was held in Re W (Children) [2013] EWCA Civ 735.

There have also been other cases supporting the need for a welfare report.

An earlier, unilateral change of name

☞ Main article: An earlier, unilateral change of name

When a child’s name has been changed “unilaterally” (by one parent / guardian) before anyone has applied for a court order, the question of what name the child should now be known by is nonetheless subject to the section 1 criteria.  This applies whether the (unilateral) change of name was lawful or not.  So if in fact the change of name was unlawful — even if the court thinks a change of name was not in the child’s best interests — the court will allow the change of name to stand, notwithstanding, if they believe it would be worse to change it back (considering the child’s welfare).

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.”

The principles that apply to surnames don’t apply to first names

Lord Justice Thorpe (in Re H) held that previous cases to do with surnames were of little use when it came to a dispute about a first name, due to the different nature of first names and surnames.

He held that —

… none of the authorities that guide the court in determining disputes as to the surname by which a child should be known seems to be of any application to a dispute of this sort [about a child’s first name].  The surname by which a child is registered and known is of particular significance in so far as it denotes the family to which the child belongs.  Given names have a much less concrete character.

Registered names shouldn’t be given too much importance

Lord Justice Thorpe (again in Re H) held that courts shouldn’t give too much importance to the registered names, although at the same time implying that they shouldn’t be disregarded either.  He held that —

… judges must look in a worldly, common-sense way at what is likely to be best for the child and must not place too much emphasis upon the statutory process of registration.

This can be compared with the House of Lords’ judgment in Dawson v Wearmouth [1999] UKHL 18, where the Law Lords held that the fact of registration “is a relevant and, maybe, important factor” but not “necessarily a major factor in every case”.  And there’s no reason why any court should treat the registered first name as being any more important than the registered surname — especially seeing as Lord Justice Thorpe held that the first name has “a much less concrete character”, and that it is “commonplace” for a child to receive, adopt, or choose other (different) first names “during the course of family life”.