The legalities of changing your Child’s surname

There are some well-established principles that must be applied when considering an application to change a child’s last name. It’s also important to know that parents can apply for, or resist, changing a child’s last name without legal representation, or with the limited assistance of a family lawyer to guide them in the right direction.

Changing your child’s last name is not as simple as some may think, though. In many cases, changing a child’s last name is only allowed when everyone with parental responsibility gives their consent. However, it is the role of the court to assess what is in the best interests of the child.

Considerations for changing a child’s last name

In the case of Re W (Children) [2013] EWCA Civ 1488 at the Court of Appeal, the court heard the appeal from a mother who was representing herself, although it is perhaps likely that she sought some legal advice along the way. The mother was unhappy because the trial judge had ordered that her child’s name could be changed with the inclusion of his father’s first forename, as one of his middle names. The father did not turn up to the Appeal hearing. The legal principles that should be followed when a party wants to change a child’s name have been in place for a long time, but the Court of Appeal found that the trial judge had not followed them properly when he made his decision.

The Court of Appeal held that the legal test that should have been applied by the judge is that explained by Butler-Sloss LT (as she then was), in Re W, Re A, Re B (change of name) [1999] 2 FLR 930 at 933F, when she applied the principles in Dawson v Wearmouth [1992] 2 AC 308 in the following terms:

“The present position, in summary, would appear to be as follows:

  • If parents are married, they both have the power and the duty to register their child’s names;
  • If they are not married the mother has the sole duty and power to do so;
  • 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.
  • 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.
  • On any application, the welfare of the child is paramount and the judge must have regard to the s1(3) criteria.
  • 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, registration of the biological link with the child’s father. Registration is always a relevant and 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.
  • The relevant considerations should include factors which may arise in the future, as well as the present situation.
  • 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 generally do not carry much weight.
  • The reasons for an earlier unilateral decision to change a child’s name may be relevant.
  • Any changes of circumstances of the child since the original registration may be relevant.
  • In the case of a child whose parents were married to each other, the fact of the marriage is important and I would suggest that there would have to be strong reasons to change the name from the father’s surname if the child was so registered.
  • 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 and the existence or absence of parental responsibility are all relevant factors to take into account.

I cannot stress too strongly that these are only guidelines which do not purport to be exhaustive. Each case has to be decided on its own facts with the welfare of the child the paramount consideration and all of the relevant factors weighed in the balance by the court at the time of the hearing.”

Our Family Barristers can help in changing your child’s surname

If you are looking into changing your child’s surname, or perhaps into opposing a change, and are in need of legal advice, our family lawyers are able to provide advice and support to point you in the right direction. We are also able to represent you at court if you wish and, if your case requires it, we can also assist you in finding a solicitor to help you as well.

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