Names are very important and emotive things. They are our labels, and our surnames act as markers to show who we all belong to as a family unit, both down the generations and through marriage.
When a family separates, there are sometimes issues over surnames. Wives may wish to revert to their maiden names, or lose one part of the double-barrel. For children, it is normal practice (although there is no strict legal reason for it) for them to acquire their father’s surname. A few take their mother’s surname. For an interesting read from the Guardian on just this point see here and you can also read our previous blog on names here.
Sometimes when couples separate, one or other parent wants to change the children’s surname to reflect the changed family circumstances. Usually it is the parent with day to day care of the children who wants to change the name, for example if the mother has reverted to her former name on divorce and wants the children to share it.
The procedure for changing children’s names is a little different to that for adults. All people who have Parental Responsibility for the child must consent in writing to a name change, and a change of name deed (also known as a deed poll) must be executed. Consent of children under the age of 16 is not needed to change their name, but if they are old enough they can object, via the courts.
There is no need to register the deed poll, although there is a procedure called enrolment, which means that a deed poll is placed for safe keeping in the Royal Courts of Justice. As an aside it is worth knowing that Government bodies accept both enrolled and un-enrolled deeds as evidence of change of name, and the process of enrolment doesn’t affect the legal status of your name. An enrolled deed is no more legally binding than an un-enrolled deed. It is simply a matter of making a safe and public record of your change of name.
If consent for changing a child’s name cannot be obtained, the family court can order a name change. This involves an application to the family court for a specific issue order. When considering whether or not to accede to the request, a court’s paramount consideration will be the welfare of the children, and the fact that a surname can be an important link to a father, particularly if that father is no longer living with the children.
A recent case looked at the issue of children’s name changes. Here, the judge allowed the mother to change the children’s surname in order to protect them from the damaging behaviour exhibited by the father.
The children in this case were 3-yearold twin boys, who had been born to the parents following a fertilisation process involving two anonymous sperm donors. After the parents separated the boys remained with the mother, but there has been extensive litigation. The court found that the father’s conduct during the litigation has been detrimental to the children’s welfare. He has maintained an online blog in which he has named the family and the children, has published details of the legal proceedings as well as some very personal medical details about one of the boys, and has called the mother a ‘drug-addicted alcoholic surrogate who has suffered from sexually transmitted diseases’. The court also heard that the father had contacted hundreds of nurseries and child care providers near to where the mother lives to tell them his view of the mother, and threatened to track down the anonymous sperm donors, claiming he had bribed employees of the fertility clinic to let him have information about them.
The boys’ mother asked the court for permission to change their surname. The children were not having face-to-face contact with their father, and he had decided not to take up the offer of indirect contact with them (eg letters etc). Although the two boys had had no recent involvement with their father, they were the primary subjects of his online blog, which made public the details of their biological parentage and medical problems.
At an earlier hearing, the court gave the mother permission to change the boys’ surname temporarily to protect their identity and privacy, and the court now had to decide whether to sanction a permanent change. The mother wanted to protect the children from the consequences of the father seeking to find them, and from the unwanted consequences of him publishing private information about them. The court had to balance the importance of maintaining the children’s link to their absent father with protecting and promoting their welfare.
The court decided that the father’s approach to publicising details about the family was so insidious as to justify the name change. The judge said, “I am persuaded that the desirable preservation of a symbol of a paternal link through the preservation of the surname has to give way to the protection of the children from the father’s publication steps”. As the father does not know their new name, the boys will now have some protection from being identified from the harmful material published by the father.
Although this is, mercifully, an unusual case, it does illustrate that the court will be prepared to permit a child’s name change, and thus their label to the world, when it is in their interests. The bar in these cases, however, can be pretty high – a change of name for a child is not always easy to achieve in the absence of a consensus between the parents.
If you have any queries about name changes, or other aspects of family law, please give Simon, Gail, Sue, Adam or Tricia a call on 01223 443333.