A child’s registered surname

The registered surname is a relevant factor which may be important in any court case to do with the child’s name. It’s more likely to be an important factor for older children who have always been known by their registered surname, but the importance of the registration will depend on the facts of the case.

The case of Dawson v Wearmouth [1999] UKHL 18, in the House of Lords, is the outstanding case as to the importance of the registered surname. It was an appeal from the Court of Appeal, where Lord Justices Hirst & Thorpe (in their joint judgment) held that —

… the registration or change of a child’s surname is a profound and not a merely formal issue, whatever the age of the child.

The Court of Appeal had also described the fact of registration as “all-important”, although in the House of Lords, Lord Mackay held that this should be interpreted as having meant all-important in the case at hand — not all-important generally speaking. In fact, all three Law Lords who expressed their own opinion commented on the meaning of the words used and on the importance that should be given to the registered surname.

In the end, the House of Lords dismissed the appeal — agreeing with the Court of Appeal’s decision and, generally speaking, with their reasoning too. The Law Lords’ judgments were generally a matter of clarifying and interpreting the Court of Appeal’s own judgment. In particular, it was held that the words “all-important” could be ambiguous, if not wholly wrong.

In summary, 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” (see: Lord Hobhouse’s view), and that “… in order to justify changing [a] name from that which was registered, circumstances justifying the change would be required” (see: Lord Mackay’s view).

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 (See: Lord Hobhouse’s view)
may be “important” or a “major factor”, but not in every case (See: Lord Jauncey’s view)
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. (See: Lord Jauncey’s view)
is not “all-important” (See: Lord Hobhouse’s view)

Lord Mackay’s view

Lord Mackay (whose speech the other Law Lords — bar Lord Jauncey — agreed with in full) didn’t go as far as Lords Jauncey and Hobhouse, in that he didn’t think the Court of Appeal had erred in principle in any way. He thus upheld the Court of Appeal’s judgment.

However, he played down the use of the word “all-important”, and stressed that it had to be understood in the context of the case. According to his judgment, what the Court of Appeal had meant by “all-important” was that the registration was crucial to the case at hand, because the County Court judge had left it out of account, and — in exercising their discretion afresh — the Court of Appeal had come to the opposite conclusion.

He held that —

The heavy emphasis on the registration is, I think, a reflection of the fact that they considered that the judge had wrongly left that out of account and that the application must be understood as for a change from a name already registered [and not — as the County Court judge had done — by approaching the matter “as though [it] had come before [him] at the time when the birth was to be registered”] and therefore that in the light of section 1 of the Children Act some circumstances required to be pointed to which would justify making that change in the interest of the child’s welfare.

And Lord Mackay also pointed out that the Court of Appeal hadn’t, after all, used the fact of registration in itself as the deciding factor:

… although [the Court of Appeal] described the fact that the name sought to be changed was the duly registered name as all-important, they coupled that with the circumstances that the name Wearmouth was the mother’s actual name at the time it was chosen by her, as well as being that of Alexander’s half-brother and half-sister, in stating their view that their discretion should be exercised against the making of the order for change. … In my opinion, on a fair reading of the decision of the Court of Appeal they were suggesting not that the registration was conclusive of the issue in the present case but that in order to justify changing the name from that which was registered, circumstances justifying the change would be required, and they concluded in the exercise of their discretion that there were no such circumstances of sufficient strength to do so in the present case.

See also: Lord Mackay’s speech in full

Lord Jauncey’s view

Lord Jauncey held that the weight that should be given to the registration depends on the circumstances of the case —

[Registration of a birth] is a factor to be taken into account but I do not accept that it is necessarily a major factor in every case. When a child has for a number of years been known by its registered name, where it is aware of that name and where, for example, it has been entered at school or on the list of a General Practitioner by that name no doubt the fact of such registration will be an important factor in the exercise of discretion. However where the child, as in this case, was of such an age as to be incapable of understanding the significance of its registered surname, registration as a factor must assume very much less importance. The weight to be attached to the fact of registration in an application to change a child’s name must always depend upon the surrounding circumstances as they affect the welfare of the child.

See also: Lord Jauncey’s speech in full

Lord Hobhouse’s view

Lord Hobhouse held that it’s wrong to disregard the fact of a child’s birth registration, in the matter of a change of surname. He held that —

The name appearing upon a child’s birth certificate is not without importance. It has practical implications and, 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.

But at the same time, Lord Hobhouse held that it’s wrong to attach too much importance to the registration —

The fact of registration is a relevant and, maybe, important factor in assessing where the balance of advantage for the child’s welfare lies. But it is not “all-important.” Similarly, it does not as such render irrelevant the well recognised considerations which weigh in favour of a child having the same surname as its natural father and does not alter the need for making an overall assessment of where the child’s interests lie. … the registered surname is a relevant factor which must be taken into account and may, in certain cases, like any other relevant factor make the difference between whether an order is made or not.

See also: Lord Hobhouse’s speech in full