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).

The courts may also decide to keep the status quo — that is — to allow the new name to be used in the contexts where it’s already been changed (and only in those contexts).  Thus the court has a number of options, which are —

  • to change the child’s name back to what it was before
  • to keep the status quo — that is — to allow the new name to be used in some contexts (typically in the child’s home community, e.g. at school, at the doctor, etc.)
  • to change the child’s name to something else (e.g. a double-barrelled name, using both parents’ names)
  • to allow the change of name to stand

Factors that the court will bear in mind are:

  • the amount of time that has gone by since the child’s name was (unilaterally) changed: the more ingrained that the name has become, then the more the upheaval and embarassment will be for the name to be changed back
  • the child’s age — it’s more difficult and (potentially) damaging to reverse an older child’s name than for a younger child
  • the child’s wishes and feelings
  • the welfare report or other independent inquiry into the child’s welfare (if there is no such report, then the court is more likely to keep the status quo, as in Re PC (Change of Surname) [1997] 2 FLR 730)
  • that keeping a status quo whereby a child is known on a day-to-day basis by a different surname to that in their “official” documents (such as passport) is problematic in itself

Changing the child’s name back to what it was before

In Re T (Change of Name) [1998] EWCA Civ 854 the mother of 6-year-old twins had unlawfully changed their surname without the father’s consent.  The father then applied for a Specific Issue Order requiring the mother to change their name back, but she argued that — given the length of time the children had been called by their new name — it wouldn’t be in their best interests to change it back.  But Lord Justice Thorpe ↗ concluded that — in the circumstances — this amount of time wasn’t enough to justify letting the change of name stand.  He held that —

If the mother’s action [in changing the children’s surname] was unlawful, the fact that the unlawful state had endured for a period of approximately seven months to the date of the commencement of the trial could not possibly justify denying the applicant relief [by granting a Specific Issue Order requiring the mother to ensure that the children are known by their birth name].

Keeping the status quo (and allowing the new name to be used in some contexts)

In Re PC (Change of Surname) [1997] 2 FLR 730, which involved two much older children — aged 12½ and 10 (although there was a third child who was 6) — the children’s surname was also changed, unlawfully, without the father’s consent.  However, in that case, Mr Justice Holman gave much more importance to the fact that the children had been using the new name for about a year before the trial took place.  Although he deemed the change of name to be unlawful, he decided that it was in the best interests of the children to keep the status quo, and allow them to be informally known by the new name in day-to-day records, including school and medical records, but not (for example) in their passports.

Mr Justice Holman held that —

This very case illustrates the danger of not taking [steps to check that everyone with parental responsibility has given consent to a change of name].  The use, both informal and formal, of a new name may become ingrained before it is practical to stop it.

The father has not yet issued a formal application designed to achieve a “reversal” of such changes as have taken place.  … It is clear that informally the children have now been using the new surname … for a substantial time and it may be difficult and damaging, and even impossible, to reverse that.  …

There has been no independent inquiry of the children, for example, by a welfare officer and in the case of the elder girl and the boy (now aged 12½ and 10) it would be wrong of me even to contemplate trying to effect any reversal of the position which has now been reached without knowing their wishes and feelings and degree of understanding.  Equally, I do not consider that further steps towards formalizing the change of name should be permitted, unless the father consents, without more profound consideration than I can give at this hearing.

Before beginning to deliver this judgment I indicated to both parties the order which I provisionally proposed to make, essentially in order to preserve the status quo which has now been reached.

Changing the child’s name to something else

In Re C (Change of Surname) [1997] EWCA Civ 2783, two children aged 7 and 8 lived with their father, according to a Residence Order in the father’s favour.  The father had informally, and unlawfully, changed the children’s surname in day-to-day use — without the mother’s consent — roughly 3 years before he’d made a “free-standing” application for an order for the surname to be changed formally.  Although the court didn’t condone the father’s actions in changing the children’s surname, the order was granted, but with the the condition that the mother’s maiden name would be given to the children as a second middle name.

The mother then appealed that decision, arguing that it would be better for the children to keep the status quo whereby the children were known by their father’s surname on a day-to-day basis, but by their mother’s maiden name for official purposes.  But the Court of Appeal — now roughly 4 years after the surname was originally changed by the father — rejected the appeal and agreed with the judge in the County Court below, in that the status quo was “not satisfactory” and that it left the children “in limbo” about their name, and was therefore not in their best interests.

The mother had argued that the children having her maiden surname kept the link of identity to her, but the County Court judge noted that the mother was now known by a different surname and so “the link which that name represented between her and the subject children was attenuated”.  Another crucial part of the judge’s decision was that this link to the mother would also be kept (to some extent) intact by the mother’s maiden name being added as a second middle name for the children.

Allowing the change of name to stand

In Re C (Change of Surname) [1998] EWCA Civ 57, a 5-year-old girl’s surname was changed by her mother, the day before the girl’s 2nd birthday — and just a few weeks after the parents had separated.  The child was in the mother’s care, and she’d executed a deed poll without the father’s consent — though the change of name was lawful notwithstanding, since the two parents weren’t married and so the father didn’t have parental responsibility at that point anyway.  Two years after the change of name, the father applied for a Specific Issue Order to have it changed back to the girl’s original birth name, and by the time the case reached the Court of Appeal, three years had gone by since the change of name had taken place.

The Court of Appeal criticised the mother’s changing the girl’s name as “utterly wrong”, and not in the girl’s best interests, and said that — even if the father didn’t have parental responsibility — it be “highly advisable that at the first signs of a dispute about the child's name the court should be involved”.

Nevertheless, the Court of Appeal thought that — given that it had been three years since the girl’s name had been changed — it would not be in her best interests, despite her young age, for the change of name to stand, in the circumstances.  Lord Justice Ward argued that changing the girl’s name back would create “difficulties” in the mother’s “day-to-day life”, due to her hostility towards the father, and he feared that that would “impact on the good contact the father is already enjoying”.  He hoped — on the other hand — that the father would “rest content” with this decision.

Lord Justice Ward then concluded that —

When I ask myself whether 3 years after the event, 3 years during which the child has become conscious of the name “H”, it is now beneficial for it to revert to “C”, then very reluctantly indeed I conclude that it will not do her sufficient good to outweigh the likely disadvantage from the denial of this relief.  That I come to that unhappy conclusion is a reflection of the facts of this particular case.