Welfare and changing a child’s name by John Bolch

Children|Cohabitation|Divorce|November 20th 2013

Some cases that have been around for a while seem like old friends. So it is with Dawson v Wearmouth. Decided by the House of Lords in 1999, it is still the leading case on the often highly contentious subject of changing a child’s name.

The latest case to re-acquaint us with this issue is W (Children), decided by the Court of Appeal on the 20th of August. The case involved a mother’s appeal against an order changing the name of her son. It has, in fact, already had a mention here, when we reported the mother’s application for permission to appeal, which was heard on the 15th of May.

The case concerned an unmarried couple with two children. They separated before the second child was born. It was agreed that that child, a boy, would have the father’s first name added as one of his middle names. However, the mother did not stick to this agreement, and registered the birth without the father’s name.

There then followed considerable litigation between the parents over arrangements for the children. In the midst of this a hearing took place before His Honour Judge Oliver on 4 January this year. The judge made an order providing, amongst other things, for the child’s name to be changed in accordance with the parents’ earlier agreement.

Lord Justice Ryder gave the leading judgment in the Court of Appeal. He found that Judge Oliver had not applied the correct legal test when considering the change of name, as set out in Dawson v Wearmouth. He said that the test was simply the welfare of the child, with due regard to the checklist of factors to consider set out in section 1(3) of the Children Act 1989. In particular, the court had to analyse the effect of the change and the risk of any harm to the child. Judge Oliver had not done this, and therefore his order was set aside.

Lord Justice Ryder then proceeded to consider whether the Court of Appeal should substitute its own judgment.

When he had given permission for the appeal, Lord Justice Ryder had directed that a Cafcass officer investigate and report upon the implications of the name change for the welfare of the child. The officer reported that the change would be unlikely to cause harm to the child and that there were therefore no welfare implications. In view of that, and the fact that the mother had agreed to the father’s name being included without any pressure being put upon her, the Court of Appeal may have allowed the name change to stand.

However, Lord Justice Ryder said matters had since moved on, and the ‘welfare equation’ was no longer the same. The father had failed to attend the appeal (he claimed to have lost faith in the family courts – not a tactic to be recommended) and had walked out of a hearing in the lower court. The mother claimed that the father’s application to change the child’s name was evidence of the control that he seeks to exercise over her life.

In the circumstances, Lord Justice Ryder concluded that leaving the name change intact could have an adverse effect on the child’s welfare. He therefore ordered that the decision to be made again.

As an aside, I think the following words from earlier point in Lord Justice Ryder’s judgment are instructive for all separated parents (my emphasis):

“These parties are so antagonistically opposed to each other that their disputes have continued to simmer and have been back to [Judge) Oliver at least once since the order complained of. They will ruin the lives of their children if they do not stop litigating their own issues through their children

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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