A child’s wishes and feelings about their name
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.
For example, in the case of Re WG (1976) 6 Fam. Law 210, where the child was 6½, Lord Justice Cairns held that —
It is inevitable that when a question of that kind is put by a parent [i.e. whether the child wants to have their surname changed, to be the same as that 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.
In the case of W v A (Minor: Surname)  Fam 14, Lord Justice Dunn agreed with the court below him in disregarding the wishes of the two children concerned, aged 10 and 12 (who both wanted to change their surname to their mother’s) — mainly because he believed the children would be strongly influenced by the views of their mother, whom they lived with; and because this wouldn’t necessarily be in the children’s own best interests.
The learned Judge [in the County Court below], 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.
As a corollary, though, the children’s wishes (at the age of 10–12) would presumably be given much more weight if they had been disagreeing with the parent they lived and most identified with. In practice, of course, this happens much less often.
The wishes of a more mature child, particularly any child approaching 16, will be given much more weight, though — especially if they’re identified as “Gillick competent”, which means that the court considers them to have “sufficient understanding and intelligence” to make their own decision (about their change of name) — for example, as in Re S (Change of Surname)  EWCA Civ 1950. The fact that a child can change their own name once they’re 16 (in a relatively short time) is a further factor (again, as in Re S (Change of Surname)  EWCA Civ 1950).
On the other hand, in the case of Re B (Minors) (Change of Surname)  1 FLR 791 — where the children were aged 17, 14 and 12 — the court refused the mother’s application for leave to change the children’s surnames to their step-father’s surname. As Mr Justice Wilson noted, it was very unusual for the court to make a decision against the wishes of children of that age. However, in that case, there was a (pre-Children Act) Custody Order in force, which was treated as a deemed Residence Order under the Children Act 1989, and which prohibited the mother from changing the children’s surnames as long as the order was in force (as it was at that point). Therefore, Mr Justice Wilson justified his decision (to go against the children’s wishes) by arguing that —
- he was merely leaving the existing (statutory) prohibition in place, and was not making “a residence or contact order … in the teeth of such opposition [from the children]”
- the prohibition applied to the mother, but not to the children themselves — the court would not (and could not) “proscribe the surname which the children [asked] teachers, friends and relations to attribute to them”, and thus did not “purport to oblige adolescent children to do anything which they [were] refusing to do” — and so was a “limited prohibition”