The welfare principle (subsection 1(1) of the Children Act 1989)
Courts must have the child’s welfare as their “paramount consideration” when making any decision about a child’s name, or change of name, according to subsection 1(1) of the Children Act 1989 — which provides that —
When a court determines any question with respect to —
- (a) the upbringing of a child; or
- (b) the administration of a child’s property or the application of any income arising from it,
the child’s welfare shall be the court’s paramount consideration.
This is sometimes called the “welfare principle” or the “paramountcy principle”.
It’s something that can be forgotten by parents, in disputes about their child’s surname — especially when each parent wants the child to have “their” surname. Parents often tend to see this as their “right”, but although parents do have certain “rights” with respect to their child, the law prefers to emphasise the parents’ “responsibilities”.
In Dawson v Wearmouth [1999] UKHL 18, Lord Hobhouse made clear that disputes about children’s surnames are not about the parents’ “rights”, whatever the parents may feel —
It has often been observed that the use of surnames is among the questions which give rise to the most deeply felt disputes between parents. As in other areas, the parents are liable to see the question raised as reflecting upon their own rights. It is clear from the arguments which have been advanced in the courts below and even to some extent Your Lordships’ House that the father and mother see the present dispute largely in such terms. They are mistaken. Once the dispute has arisen, the paramount consideration is the welfare of the child. The attitude and views of the individual parents are only relevant in so far as they may affect the conduct of those persons and therefore indirectly affect the welfare of the child.
Subsection 1(1) (quoted above) was derived from section 1 
of the Guardianship of Minors Act 1971 , of which Lord MacDermott explained the meaning of the words “… shall regard the welfare of the infant as the first and paramount consideration” — in J v C [1970] AC 668 (in the House of Lords) — thus:
… it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed.
Although the Guardianship of Minors Act has now been repealed, Baroness Hale made clear in Re G (children) (FC) [2006] UKHL 43 , that Lord MacDermott’s interpretation is still applicable to what is effectively the same principle in subsection 1(1) of the Children Act.
In the case of W v A (Minor: Surname) [1981] Fam 14, Lord Justice Dunn — referring to Lord MacDermott’s interpretation — explained in more detail how judges should exercise their discretion as to whether to allow a change of a child’s name, in deciding what is in a child’s best interests —
[The welfare of the child] is the first and paramount consideration which must be in the learned Judge’s mind. When considering the question of a change of name, that is to be regarded as an important matter: see Lord Justice Cairns in In re W.G. It is a matter for the discretion of the individual Judge hearing the case, seeing the witnesses, seeing the parents, possibly seeing the children, to decide whether or not it is in the interests of the child in the particular circumstances of the case that his surname should or should not be changed; and the Judge will take into account all the circumstances of the case, including no doubt where appropriate, any embarrassment which may be caused to the child by not changing his name and, on the other hand, the long-term interests of the child, the importance of maintaining “the child’s” links with his paternal family, and the, stability or otherwise of the mother’s remarriage. I only mention those as typical examples of the kind of considerations which arise in these cases, but the Judge will take into account all the relevant circumstances in the particular case before him.
According to subsection 1(1), the welfare principle applies generally to any proceedings where a court has to resolve a question to do with a child’s upbringing (i.e. not just proceedings under the Children Act) — and the matter of a child’s name is clearly part of their upbringing (as was held in Dawson v Wearmouth [1999] UKHL 18). Even so, it has been specifically held by the courts that the welfare principle applies in any application for —
- a Specific Issue Order (under section 8) to change a child’s surname (See: Dawson v Wearmouth)
- a Specific Issue Order (under section 8) to change a child’s first name (See: Re W (Children) [2013] EWCA Civ 1488)
- a free-standing application under subsection 13(1) for leave to change a child’s surname (when there’s a Child Arrangements Order / Residence Order in force) (See: Re B (Minors) (Change of Surname) [1996] 1 FLR 791)
- a free-standing application under subsection 33(7) for leave to change a child’s surname (when there’s a Care Order in force) (See: Re S (Change of Surname) [1998] EWCA Civ 1950)
There is no currently no authority that has considered a (free-standing) application under subsection 14C(3), for leave to change a child’s surname when there’s a Special Guardianship Order in force. However, given subsection 14C(3) is almost identical in form and intent to subsections 13(1) and 33(7), it’s extremely unlikely that the court would treat that an application under that subsection any differently.