W & Ors (Children), Court of Appeal - Civil Division, July 29, 1999,  EWCA Civ 2030
|Resolution Date:||July 29, 1999|
|Issuing Organization:||Civil Division|
|Actores:||W & Ors (Children)|
IN THE SUPREME COURT OF JUDICATURE 98/6741, 99/O573 & 99/0362
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF APPEAL (CIVIL DIVISION)
(HARLOW COUNTY COURT - HH JUDGE O'BRIEN))
(CARDIFF COUNTY COURT - HH JUDGE MASTERMAN)
(LEICESTER COUNTY COURT - HH JUDGE O'RORKE)
Royal Courts of Justice
Strand, London WC2
Friday, 29 July 1999
B e f o r e:
LADY JUSTICE BUTLER-SLOSS
LORD JUSTICE AULD
LORD JUSTICE MANTELL
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W (A CHILD)
A (A CHILD)
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(Handed Down Transcript of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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W (A Child) MISS E PLATT QC & MISS S MORGAN (Instructed by Lee Davies & Co. appeared on behalf of the Appellant
MISS A PAUFFLEY QC & MISS J PARR (Instructed by Kenneth Shaw & Co., appeared on behalf of the Respondent
A (A Child) MR P HOPKINS (Instructed by Martyn Prowel, Edwards & Davies, Cardiff, CF2 1TD) appeared on behalf of the Appellant
MISS C WILLS-GOLDINGHAM (Instructed by Foster & Partners, Bristol, BS7 8TJ) appeared on behalf of the Respondent
B (Children) MISS E BRANN & (Re 29 July 1999 - MISS A GUHA) (Instructed by Greene Deavin, Leicester, LE1 6EH) appeared on behalf of the Appellant
MISS E ALLINGHAM-NICHOLSON (Instructed by John D Cort, Leicester, LE1 1FB) appeared on behalf of the Respondents
J U D G M E N T
(As approved by the Court)
LADY JUSTICE BUTLER-SLOSS:
These three appeals have one issue in common, the circumstances in which a child registered at birth in one surname may have that name changed by deed-poll by one parent against the wishes of the other parent. Before turning to the individual facts and issues which arise on each appeal, following the decision of the House of Lords in Dawson v Wearmouth  2 WLR 960, it may be helpful to set out what appears to be the present position on change of name applications.
The Births and Deaths Registration Act 1953 (as amended)(the 1953 Act) requires registration of the birth of a child within 42 days of birth. The Registration of Births and Deaths Regulations 1987 as amended by the Registration of Births and Deaths (Amendment) Regulations 1994 set out the requirements for registration. These include the name and surname of the child. Regulation 9(3)(b) provides:-
"the surname to be entered shall be the surname by which at the date of the registration of the birth it is intended that the child shall be known."
When the parents are married the duty to provide the relevant information lies on both parents. When the parents are not married at the time of his birth the mother alone has the duty to register the birth. Further the registrar may not enter the name of any person as the father except as provided by paragraph 6 of Schedule 12 to the Children Act 1989. This provides that the father's name may be entered either if the mother consents or there is a court order in force. Section 10 (1) of the 1953 Act provides for the re-registration of the child to show a person as the father, but only with the consent and co-operation of the mother.
A father has parental responsibility for his child, (i) if he was married to the mother at the time of birth; (ii) there is a parental responsibility agreement between him and the mother; (iii) there is an order of the court granting him parental responsibility, see sections 2 and 4 of the Children Act. Parental rights form part of parental responsibility, see section 3(1) of the Children Act. The registration of the birth of a child under the 1953 Act and regulations, (as amended) reflects the philosophy of the Children Act.
An application to change the surname by which a child may be known may be made under section 13 of the Children Act which requires:-
"Where a residence order is in force with respect to a child, no person may
(a) cause the child to be known by a new surname; or
(b) remove him from the United Kingdom;
without either the written consent of every person who has parental responsibility for the child or leave of the court."
There may also be an application under section 8 for a specific issue order if no residence order is in force, see Dawson v Wearmouth  2 FLR 629 (in the Court of Appeal).
In Dawson v Wearmouth, the father was not married to the mother. After the birth of their child, without consulting the father, she registered him in the name of her former husband by whom she had previously had two children. They had already separated. The father sought various orders under the Children Act, including a parental responsibility order and a specific issue order to change the child's surname to his. The circuit judge made a contact and parental responsibility order and directed that the child be known by the father's surname. His decision was reversed by the Court of Appeal and their decision was upheld by the House of Lords.
In his speech Lord Mackay of Clashfern said at page 966:-
"The application of section 1 so long as they take account of the criteria there in question is a matter within the discretion of the Court of Appeal and I can see no ground for suggesting that they have erred in principle. The heavy emphasis on registration is, I think, a reflection of the fact that they considered that the judge had wrongly left that out of account and that the application must be understood as for a change from a name already registered and therefore in the light of section 1 of the Act of 1989 some circumstances required to be pointed to which would justify making that change in the interests of the child's welfare. In fairness to the Court of Appeal it must be pointed out that, although they described the fact that the name sought to be changed was the duly registered name as `all-important', they coupled that with the circumstances that the name Wearmouth was the mother's actual name at the time it was chosen for her as well as being that of Alexander's half-brother and half-sister, in stating their view that their discretion should be exercised against the making of the order for change.....
In my opinion on a fair reading of the decision of the Court of Appeal they were suggesting not that the registration was conclusive of the issue in the present case but that in order to justify changing the name from that which was registered circumstances justifying the change would be required and they concluded in the exercise of their discretion that there were no such circumstances of sufficient strength to do so in the present case."
Lord Jauncey of Tullichettle said at page 968:- "A surname which is given to a child at birth is not simply a name plucked out of the air. Where the parents are married the child will normally be given the surname or patronymic of the father thereby demonstrating its relationship to him. The surname is therefore a biological label which tells the world at large that the blood of the name flows in its veins. To suggest that a surname is unimportant because it may be changed at any time by deed poll when the child has attained more mature years ignores the...
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