Changing a child’s name

Posted by Naomi Hayward

Senior Associate & Collaborative Lawyer

I often receive enquiries from clients wishing to change their child’s name.  This is more often than not in relation to a child’s surname because, for example, the mother wishes to go back to her maiden name following a divorce, or because one of the parents is remarrying.

The change of a child’s name is considered by the court to be a hugely significant issue and critical to a child’s identity.  It is not a decision that should be undertaken by one parent alone where both parents have parental responsibility for the child.

If the parents cannot agree whether the child’s name should be changed, then an application needs to be made to the court under the Children Act 1989 to determine the issue and the court has to apply the welfare principle, considering the welfare checklist when determining whether or not the proposed change would be in the child’s best interests.

This is what happened in the recent case of Re W (Children) (Change of name) [2013] All ER (D) 154 (Aug) although in this case, the child was born after the parents had already separated, in November 2011. 

After the birth, the mother and father exchanged text messages in relation to the choice of name for the child.  The father suggested that his own forename should be used as the child’s middle name and this was agreed by the mother.

However, when the mother came to register the child’s birth, she chose a different middle name.

During subsequent contact proceedings, the father applied to the court to change the child’s middle name and the mother explained that whilst she had originally agreed to the name, this was due to the father’s “controlling behaviour”.  The Judge at first instance made an order that as the mother had previously agreed to the name, he could see no reason why the name could not be changed.

The mother appealed against this decision.  The Court of Appeal had to decide whether the original Judge had followed the correct approach for making the order to change the name.

The Court of Appeal held that first Judge had not considered the welfare checklist when making the original decision and therefore, the mother’s appeal was allowed.  The court reiterated the point that the test is purely one of welfare when considering a child’s upbringing.

If you wish to change your child’s name, whether it is a forename, middle name or surname then the principles are the same.  If you cannot agree the change of name with the other parent then you should apply to the court for permission and the welfare checklist will be applied.

The Welfare Checklist is as follows, although this is not an exhaustive list:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)
  2. their physical, emotional and educational needs
  3. the likely effect on them of any change in their circumstances
  4. their age, sex, background and any characteristics of theirs that the court considers relevant
  5. any harm that they have suffered or are at risk of suffering
  6. how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs
  7. the range of powers available to the court under the Children Act 1989 in the proceedings in question

 


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