Court had power to order change of child's surname

Law Report: 9 OCTOBER 1997

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

Suggested Topics
Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksAn introduction to the ground rules of British democracy
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
SPONSORED FEATURES
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Office / Sales Manager

£22000 - £32000 per annum: Recruitment Genius: Established and expanding South...

Recruitment Genius: Administrative Assistant / Order Fulfilment

£14000 per annum: Recruitment Genius: An exciting opportunity to join a thrivi...

SThree: Trainee Recruitment Consultant

£18000 - £23000 per annum + Uncapped OTE: SThree: Trainee Recruitment Consulta...

SThree: Trainee Recruitment Consultant

£18000 - £23000 per annum + Uncapped OTE: SThree: Trainee Recruitment Consulta...

Day In a Page

Refugee crisis: David Cameron lowered the flag for the dead king of Saudi Arabia - will he do the same honour for little Aylan Kurdi?

Cameron lowered the flag for the dead king of Saudi Arabia...

But will he do the same honour for little Aylan Kurdi, asks Robert Fisk
Our leaders lack courage in this refugee crisis. We are shamed by our European neighbours

Our leaders lack courage in this refugee crisis. We are shamed by our European neighbours

Humanity must be at the heart of politics, says Jeremy Corbyn
Joe Biden's 'tease tour': Could the US Vice-President be testing the water for a presidential run?

Joe Biden's 'tease tour'

Could the US Vice-President be testing the water for a presidential run?
Britain's 24-hour culture: With the 'leisured society' a distant dream we're working longer and less regular hours than ever

Britain's 24-hour culture

With the 'leisured society' a distant dream we're working longer and less regular hours than ever
Diplomacy board game: Treachery is the way to win - which makes it just like the real thing

The addictive nature of Diplomacy

Bullying, betrayal, aggression – it may be just a board game, but the family that plays Diplomacy may never look at each other in the same way again
Lady Chatterley's Lover: Racy underwear for fans of DH Lawrence's equally racy tome

Fashion: Ooh, Lady Chatterley!

Take inspiration from DH Lawrence's racy tome with equally racy underwear
8 best children's clocks

Tick-tock: 8 best children's clocks

Whether you’re teaching them to tell the time or putting the finishing touches to a nursery, there’s a ticker for that
Charlie Austin: Queens Park Rangers striker says ‘If the move is not right, I’m not going’

Charlie Austin: ‘If the move is not right, I’m not going’

After hitting 18 goals in the Premier League last season, the QPR striker was the great non-deal of transfer deadline day. But he says he'd preferred another shot at promotion
Isis profits from destruction of antiquities by selling relics to dealers - and then blowing up the buildings they come from to conceal the evidence of looting

How Isis profits from destruction of antiquities

Robert Fisk on the terrorist group's manipulation of the market to increase the price of artefacts
Labour leadership: Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea

'If we lose touch we’ll end up with two decades of the Tories'

In an exclusive interview, Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea
Tunisia fears its Arab Spring could be reversed as the new regime becomes as intolerant of dissent as its predecessor

The Arab Spring reversed

Tunisian protesters fear that a new law will whitewash corrupt businessmen and officials, but they are finding that the new regime is becoming as intolerant of dissent as its predecessor
King Arthur: Legendary figure was real and lived most of his life in Strathclyde, academic claims

Academic claims King Arthur was real - and reveals where he lived

Dr Andrew Breeze says the legendary figure did exist – but was a general, not a king
Who is Oliver Bonas and how has he captured middle-class hearts?

Who is Oliver Bonas?

It's the first high-street store to pay its staff the living wage, and it saw out the recession in style
Earth has 'lost more than half its trees' since humans first started cutting them down

Axe-wielding Man fells half the world’s trees – leaving us just 422 each

However, the number of trees may be eight times higher than previously thought
60 years of Scalextric: Model cars are now stuffed with as much tech as real ones

60 years of Scalextric

Model cars are now stuffed with as much tech as real ones