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Can I change my child's name?

View profile for Kerry Avis
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When a child is born, their name is then registered on their birth certificate. It is common for a child to be given the same surname as the father, both for married and unmarried couples.

If parents then separate or divorce, it is usual for the child to keep their surname, however, people often ask the question, can I change my child’s surname?

There are many reasons for parents wanting to change the child’s surname. This can be anything from the child not having an ongoing relationship with the other parent to wanting the child to have the same surname as half-siblings or step-siblings.

Do I need the other parents consent?

The simple answer to this is yes.

To change the child’s registered name, you need the consent of everyone who holds parental responsibility for the child.

What if I cannot get consent?

In the event that the other parent is not willing to consent to the change of surname, you will need to apply to Court for a Specific Issue Order to permit you to change the surname of your child.

Before applying to Court, in most cases you will need to demonstrate that you have attempted to mediate first. It is therefore worthwhile contacting a mediator as your first step.

The Law and the Court

When looking at any application, the Court’s paramount consideration is always the welfare of the child. When considering the child’s welfare, the Court must consider a list of factors which are set out in the Welfare Checklist as set out in Section 1(3) Children Act 1989.

Each case will be considered on its own merit, however, the Court in every case will scrutinise the application before the Court and considering a number of factors and guidelines that are set out in the case law.

There are two leading cases which set out clear principles for the court to apply when dealing with such an application; the House of Lords’ decision in Dawson v Wearmouth [1999] 2 WLR 960 and the Court of Appeal’s decision in Re W, Re A, Re B (Change of Name) [1999] 2 FLR 933.

The Court of Appeal in Re W, Re A, Re B (Change of Name) [1999] 2 FLR 933 set out key guidelines when considering an application for a change of surname;

a.            If parents are married, they both have the power and the duty to register their child's names.

b.         If they are not married the mother has the sole duty and power to do so.

c.         After registration of the child's names, the grant of a residence order obliges any person wishing to change the surname to obtain the leave of the court or the written consent of all those who have parental responsibility.

d.         In the absence of a residence order, the person wishing to change the surname from the registered name ought to obtain the relevant written consent or the leave of the court by making an application for a specific issue order.

e.         On any application, the welfare of the child is paramount and the judge must have regard to the s 1(3) criteria.

f.          Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child's father. Registration is always a relevant and an important consideration but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.

g.         The relevant considerations should include factors, which may arise in the future as well as the present situation.

h.         Reasons given for changing or seeking to change a child's name based on the fact that the child's name is or is not the same as the parent making the application do not generally carry much weight;

i.          The reasons for an earlier unilateral decision to change a child's name may be relevant.

j.          Any change of circumstances of the child since the original registration may be relevant.

k.         In the case of a child whose parents were married to each other, the fact of the marriage is important and there would have to be strong reasons to change the name from the father's surname if the child was so registered.

l.          Where the child's parents were not married to each other, the mother has control over registration. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, the existence or absence of parental responsibility are all relevant factors to take into account.

The principles as ascertained and set out in Dawson v Wearmouth [1999] 1 FLR 1167, remain as good law to be followed:

a.         a change of surname should not be permitted without evidence that it is in the child’s best interests;

b.         Whilst registration is a factor to be taken into account, it is not necessarily a major factor, particularly as the child is so young it is incapable of understanding the significance; and

c.         the attitude and views of the individual parents are only relevant insofar as they may affect the conduct of those persons and therefore indirectly affect the welfare of the child.

When considering the above guidelines and the best interests of the child, it is common practice for the Court to appoint a CAFCASS Officer (Court and Family Court Advisory and Support Service) to undertake a report. It is important that the Court have an independent recommendation in respect of the application and the welfare of the child. This was acknowledged by Lord Justice Ryder in the case of Re W (Children) [2013] EWCA Civ 735, where a mother was given permission to appeal because a Court had made a decision in relation to a change of name application without having the benefit of a report from CAFCASS.

Finally, it is important that you consider a compromise in respect of the name. This is something that is often considered by the Court to ensure that links with both sides of the family are maintained. More commonly, parents are encouraged to consider a double-barrelled surname as this promotes the child’s identity in respect of the mother and the father’s family (Re R (Surname: Using Both Parents) [2001] EWCA).

Given names

In respect of given names, it is common for children to often be called by names that are not their registered names. Although in theory the Court could prohibit a parent from using any other name that is not the child’s registered name, in practice the Court does not have the power to restrict the parent’s use of given names in their private lives. Parents may use given names both formally and informally, as long as they recognise and make it clear that the name provided is not the child’s registered name (Re H (Child’s Name; First Name) [2002] EWCA Civ 190 1 FLR 973).

It is therefore clear that before making an application to the Court to change a child’s surname, you must have considered the nature of your application carefully and be able to demonstrate and evidence why such a change would be in the best interests of the child. 

A word of warning, the Court are very hesitant about changing the name of a child as it could severe the child’s ties to their other parent. It is therefore important for you to consider why you are making the application as this will undoubtedly be considered by the Court.

For further information please contact Kerry Avis on 01733 394000 or by email at Kerry.avis@familylawgroup.co.uk

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