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 child doesn’t live with the parent
• 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

In Re T (or^se H) (an Infant) [1963] Ch 238, Mr Justice Buckley held that —

… to deprive the child of her father’s surname, in my judgment, is something which is not in the best interests of the child because, I think, it is injurious to the link between the father and the child to suggest to the child that there is some reason why it is desirable that she should be called by some name other than her father’s name.

And Lord Justice Cairns, in the Court of Appeal, in Re WG (1976) 6 Fam. Law 210, stressed the importance of maintaining a link with the father after the mother had divorced and been re-married to another man, and held custody of the child.  He held then that —

The courts recognise the importance of maintaining a link with the father unless he has ceased to have an interest in the child or there are some grounds — having regard to his character or behaviour — which make it undesirable for him to have access to the child at all.  It must greatly tend to create difficulties in the relations between a father and child if the child ceases to bear his name — especially if, as here, the child has come to address her stepfather as “Daddy” and to refer to her father as “Old Daddy”.

Later in the same case, Lord Justice Cairns addressed the fact that the father had gone to live and work in Singapore, and the argument that it were likely, at least in the short-term, that he would “see the child only sporadically in the future”.  But Lord Justice Cairns held, that where the father had the intention of returning to the U.K. (and the father’s argument was made stronger by his ownership of a house in the U.K.), that —

The fact that he is separated geographically from his daughter at present is, I think, not a strong reason for saying that the change of name should be allowed.

Even in a case where the link between a father and his child has almost (if not completely) broken down, the courts are still reluctant to take away the father’s surname, if there is some hope or possibility that a relationship can be re-established between them.

In Re B (Minors) (Change of Surname) [1996] 1 FLR 791, Mr Justice Wilson  upheld the judgment of the County Court below, who’d refused the mother permission to change her three children’s surnames.  Despite the fact that the children, who were 17, 14 and 12, each strongly wished to have their surname changed, to their step-father’s — and had even begun using the new surname informally — Mr Justice Wilson (in agreement with the County Court judge) held that —

… [it] would be in the children’s interests … if access were to be re-established with their father, and to allow [the] change of name would hamper that process, if not indeed make it totally impossible.

In his conclusion, he held that —

It is accepted to be of fundamental importance for every child to have an enduring relationship with both his parents, notwithstanding their separation.  That principle is the foundation of the approach of the courts to issues about contact, even though occasionally circumstances require it to be displaced.  It seems to me that that principle was rightly at the forefront of the Judge’s approach [in the County Court below] when he said that the grant of leave would be to give the court’s approval to a process not in the best interests of the children.  He may have been unduly optimistic about the chance of re-establishing direct contact between the father and the children in the near future.  But in my judgment the grant of leave to the mother to effect a formal change in the surname of the children would not only have been unwarranted on pragmatic grounds but, more importantly, would have sent a wholly inappropriate message to the children, namely that the court agreed with them that their father was of the past, not of the present.  Save following adoption, a father, while he lives, is always of the present.

If the parent has changed their own name

In Re C (Change of Surname) [1997] EWCA Civ 2783, the court allowed the father to remove the mother’s surname from their two children, but with the the condition that the mother’s maiden name would be given to the children as a second middle name.  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” — which the Court of Appeal agreed with.

It must be noted, though, that the children had (unlawfully) been using their father’s surname for a substantial time by the time the matter came to trial, and a crucial part of the judge’s decision was that the link to the mother would have been kept (to some extent) intact by the mother’s maiden name being added as a second middle name for the children.