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)  which provides that —

• “harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;
• “development” means physical, intellectual, emotional, social or behavioural development;
• “health” means physical or mental health; and
• “ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.

Where a child being at risk of harm or abduction can be used as a justification for a change of name, it is of course a strong factor.  In a typical case, the child’s name would be changed in order to stop one of the parents from contacting or locating the child, because of the risk of harm or abduction by that parent.

Lord Justice Ryder, in Re W (Children) [2013] EWCA Civ 1488, commented on the need for courts to look out for any (possible) harmful effects of a name being changed, as well as any harm that has already been caused by the child using, or being registered by, the name they’re already known by —

It is because the court has to analyse welfare by reference to the check-list, in which an analysis of the effect of change and of risk of harm is undertaken, that in every name-change case the question of harm will arise.  That is not to say that there is a presumption  of harm arising out of a proposed change that has to be rebutted.  On the facts, a change may be beneficial, because, for example, the circumstances that led to registration may be harmful.

An example of a case where a child’s change of name was allowed on safety grounds was AB v BB and O^rs [2013] EWHC 227 (Fam), where there were allegations of domestic violence and where Mrs Justice Theis  acknowledged that the father posed a risk of harm to the children.  She held that —

I agree with the Children’s Guardian that the “safety aspect is the most critical from the children’s point of view … indeed it is critical.”  The surname is not a common one and in the light of the father’s expressed intentions, as set out in the letter to his mother, he appears conversant with methods of trying to establish where the mother and children live.  From the children’s perspective it would be very detrimental if that was done.  Whilst acknowledging the importance of names for children’s identity, in this case the welfare considerations make clear the application should be granted and I do so.