Court had power to order change of child's surname

Law Report: 9 OCTOBER 1997
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The Independent Online
The county court had jurisdiction under section 8 of the Children Act 1989 to order that a child's surname be changed from that which had been registered, but in exercising its discretion whether to order such a change, registration was a major factor to be taken into account.

Dawson v Wearmouth; Court of Appeal (Lord Justice Hirst and Lord Justice Thorpe) 31 July 1997

The appellant, Dawn Wearmouth, whose surname was that of her former husband, had a son by the respondent, Mark Dawson. They had been living together but had never married. They separated about a month after the baby's birth, and the mother looked after the baby, together with her two legitimate children. In April 1996 she registered the child's name as Alexander Guy Wearmouth.

The father applied under section 8 of the Children Act 1989 for an order that the child be known as Dawson, not Wearmouth. In January 1997 Judge Cotterill ordered that the child should be known as Dawson, and that the mother was prohibited from causing or permitting the child to be known by any other name.

Rodger Hayward Smith QC and Richard Harrison (neither of whom appeared in the court below) (Battens, Taunton) for the mother; Catriona Duthie (Dodson Harding, Wellington) for the father.

Lord Justice Hirst, giving the judgment of the court, said that it was submitted for the mother that there was no jurisdiction to entertain an application to effect the change of a child's name save under section 13 of the Children Act 1989. The father contended that specific issue orders under section 8 of the Act replaced the court's unfettered pre- existing jurisdiction in wardship, and that without such jurisdiction the father of an illegitimate child would be bereft of a remedy if the mother abused her responsibility under the Births and Deaths Registration Act 1953. In the case of an illegitimate child the statutory requirement for the registration of the birth was on the mother alone.

Section 13 of the 1989 Act provided that:

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 the leave of the court.

It was submitted that that provision excluded the exercise of a general power under section 8 to make an order.

Where two parents had parental responsibility but no residence order was in force, in the event of disagreement in relation to a surname or any other matter either party had the right to apply to the court for any of the four orders mentioned in subsection (1) of section 8. Precisely the same right existed where one parent had parental responsibility and the other did not. It was only if a residence order was in force that the application fell to be brought under section 13.

The clear conclusion was that the jurisdiction was there. Whether it should have been exercised was another matter. If there was a general principle underlying the present appeal it was that the registration or change of a child's surname was a profound and not merely a formal issue, whatever the age of the child. Any dispute on such an issue must be referred to the court for determination.

The judge had erred in principle in approaching the question as though the matter had been heard before the registration of the child's birth. It was thus incumbent upon the court to exercise its discretion afresh.

The name Wearmouth was the mother's actual name at the time it was chosen by her, as well as being that of the child's half-brother and half-sister. It was therefore a perfectly natural and logical choice for her to make, and could not be justly criticised as alien merely because it was also the name of her ex-husband.

Those circumstances, coupled with the all-important fact already stressed that it was the child's duly registered name, seemed to be very powerful factors in the mother's favour. In all the circumstances the appeal would be allowed.

- Kate O'Hanlon, Barrister