A mother has won permission to appeal against a ruling that she must give her child the father’s name.
In W (Children), the couple began a relationship but did not marry. They had two children – a daughter, referred to as S in court reports, and a son, called D. Their reportedly turbulent relationship began to break down not long after the woman became pregnant with their second child. The father’s business also ran into difficulties around the same time. To quote a judgement, by Lord Justice Ryder:
“It does not appear to be in dispute that at least by May 2011 the father’s businesses were in financial difficulty, causing him considerable stress and, [the] mother would say as she has submitted to this court this morning, exacerbating his controlling and abusive behaviour.”
The couple split up. His Honour Judge Oliver, sitting at Reading County Court, was asked to rule on contact arrangements for the children. The father wanted unsupervised contact, but the mother was unwilling, saying he was “abusive and aggressive” and the children would therefore be “at risk”. Lord Justice Ryder noted that this risk supposedly extended to the father’s “former business colleagues as a consequence of his business dealings.”
The father also insisted that that the mother had agreed to give their son, D, his first name as a middle name. The mother admitted that she had made such an agreement but said she had only done so under pressure and did not, in fact, want to create a difference between her children.
Judge Oliver concluded that the father was “not bullying or threatening” and cared “passionately about his children”. He accepted that the father had a short temper and a fractious relationship with the mother but rejected claims that this meant he had a personality disorder.
He ordered limited unsupervised contact. On the question of the boy’s name, the judge said:
“What is wrong with having [the respondent’s first name] as a second or third given name? It was obviously agreed in what I regard and can see as being a happy exchange of text messages. It was not a subject of pressure, or anything like that.”
The mother appealed, seeking instead just three hours supervised contact with the father each week. She claimed, amongst other arguments, that the judge had failed to properly consider evidence of domestic violence by the father.
At the Court of Appeal, Lord Justice Ryder concluded, having “considered this ground of appeal very carefully indeed” that there was insufficient evidence to justify preventing contact between the father and the children, or to restrict it to supervised contact only. He said:
“…the material that she sets out is not sufficient, in my judgment, to give permission to appeal on the domestic violence ground…”
However her grounds of appeal on the issue of the father’s name were stronger, he ruled. The mother argued that Judge Oliver’s original ruling had not properly considered the principles set out in the 1999 case of Dawson v Wearmouth. Due to the couple’s deteriorating relationship, the mother had had a legal undertaking in place that prevented the father from being present at D’s birth, at the time the agreement about giving the boy his father’s name had been made. To quote Lord Justice Ryder:
“…so any agreement made at that stage relating to a name, middle or surname, was necessarily in the context that mother felt under considerable pressure. The existence of the undertaking would be capable of establishing that. The consequence of this is that the agreement itself does not necessarily, as [Judge Oliver] had imagined, exhibit a view as to the welfare of the child that had been come to by both parents.”
“My conclusion therefore is that I grant permission to mother to pursue an appeal limited to the issue of the change of the child’s name “
He urged the father, meanwhile, to:
“…take whatever contact is on offer to re-establish contact with the children.”