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Important cases: Dawson v Wearmouth

The surname used by a child after his or her parents separate can be an extremely emotive issue. This is particularly so where the child lives with the mother and the mother has changed her surname, for example by way of remarriage or by reverting to her maiden name. It can be even more so where there are other children in the same household who go by a different surname, for example children of the mother and her new husband.

In 1999 the House of Lords had to consider such issues in the case Dawson v Wearmouth.

The facts of the case were that the mother had previously married a Mr Wearmouth and had had two children by him, who of course took their father’s surname. The mother and Mr Wearmouth then divorced, but she kept his surname, as did the children, who continued to live with her.

The mother then formed a relationship with Mr Dawson. They began living together but were never married. A child, Alexander, was born to the relationship on the 26th of March 1996 but on the 15th of April the mother left Mr Dawson, taking all three of the children with her.

On the 19th of April the mother, without consulting Mr Dawson, registered Alexander’s birth under the surname ‘Wearmouth’, despite being aware that Mr Dawson wanted Alexander to have his surname. Mr Dawson found out about this and issued an application for a specific issue order changing Alexander’s surname to his.

In January 1997 the judge made an order that Alexander should be known as by the surname of ‘Dawson’ and that the mother be prohibited from causing or permitting Alexander to be known by any other name.

The mother appealed against this order and her appeal was upheld by the Court of Appeal. Mr Dawson then appealed himself, to the House of Lords.

The House of Lords dismissed Mr Dawson’s appeal. As with all questions relating to a child, their welfare was the paramount consideration and the points set out in the ‘welfare checklist’ in section 1(3) of the Children Act 1989 had to be considered.

Alexander had already been registered with the surname ‘Wearmouth’. The registration was an important factor that should be taken into account, although was not of itself “all-important”. However, there had to be some evidence that a change would improve the child’s welfare for the court to order a change from the name that was registered. Here, Mr Dawson had not made his case – namely that the welfare of Alexander made it appropriate to order the mother to cease to use the surname ‘Wearmouth’.

Despite being handed down by the highest court in the land, Dawson v Wearmouth did not of itself seem to do an awful lot to clarify the law on change of a child’s surname. However, shortly after the case was decided it was applied by the Court of Appeal in the case Re W, Re A, Re B (change of name). In that case Lady Justice Butler-Sloss, as she then was, set out the following (non-exhaustive) guidelines, gleaned in particular from Dawson v Wearmouth. These summarised the position:

(a) If parents are married, they both have the power and the duty to register their child’s names.

(b) If they are not married the mother has the sole duty and power to do so.

(c) After registration of the child’s names, the grant of a residence order obliges any person wishing to change the surname to obtain the leave of the court or the written consent of all those who have parental responsibility.

(d) In the absence of a residence order, the person wishing to change the surname from the registered name ought to obtain the relevant written consent or the leave of the court by making an application for a specific issue order.

(e) On any application, the welfare of the child is paramount and the judge must have regard to the section 1(3) checklist.

(f) Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child’s father.  Registration is always a relevant and an important consideration but it is not in itself decisive.  The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.

(g) The relevant considerations should include factors which may arise in the future as well as the present situation.

(h) Reasons given for changing or seeking to change a child’s name based on the fact that the child’s name is or is not the same as the parent making the application do not generally carry much weight.

(i) The reasons for an earlier unilateral decision to change a child’s name may be relevant.

(j) Any changes of circumstances of the child since the original registration may be relevant.

(k) In the case of a child whose parents were married to each other, the fact of the marriage is important and there would have to be strong reasons to change the name from the father’s surname if the child was so registered.

(l) Where the child’s parents were not married to each other, the mother has control over registration.  Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the existence or absence of parental responsibility are all relevant factors to take into account.

These are still the main guidelines that are followed when considering a child’s change of surname and are the reason why, with a little help from Lady Butler-Sloss, Dawson v Wearmouth remains an important case today.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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