It seems such a simple thing: whether the court has the power to prevent a parent with parental responsibility from registering a child with the forename of his or her choice. Yet the technicalities of that ‘simple’ matter occupied no fewer than eighty-five paragraphs of Lady Justice King’s leading judgment in the Court of Appeal in C (Children) last week.
I’m not going to discuss the outcome of C (Children) here – that has already been done, in this post. What I want to talk about is the legal principles behind the decision. As Lady Justice King said at the beginning of her judgment:
“The issue to be determined is whether there is power in this jurisdiction to prevent a parent with parental responsibility from registering a child with the forename of his or her choice. If the answer to that question is ‘Yes’, the second question (and one which rather unexpectedly requires a detailed consideration of somewhat labyrinthine technicalities) is by what procedural route the court should exercise that power.”
Before I begin it should just be recounted that the children in this case were the subject of care proceedings and it was therefore the local authority that sought to prevent the mother from giving the children her chosen forenames “Preacher” and “Cyanide”. In the proceedings before the court below the judge had declared that both the registration of a child’s birth and the naming of a child are “aspects of parental responsibility”. As a consequence the mother’s exercise of parental responsibility could be limited, including preventing her registering the forenames of her choice, pursuant to section 33(3)(b) of the Children Act 1989. The judge therefore declared that the local authority were permitted to restrict the extent to which the mother exercised her parental responsibility so as to prevent her registering the forenames “Preacher” and “Cyanide”.
The discussion of the legal principles begins with a look at what Lady Justice King refers to as the “route through the legislative maze”, which necessitates the consideration of the following questions:
1. Are either or both of the naming of a child and registration of a child’s birth and the entry onto the register of a child’s name under the Births and Deaths Registration Act 1953 (‘BDRA 1953’) acts of parental responsibility?
2. If the naming of a child is an act of parental responsibility:
(a) Can a local authority under the powers given to it under the Children Act 1989 prevent a mother from naming and registering her child with the name of her choice; and/or
(b) Can a court under its inherent jurisdiction (notwithstanding the limitations placed on the exercise of those powers under section 100 Children Act 1989) intervene in appropriate circumstances either to prevent the registration of a particular forename (or to change the name in question once registered)?
After reminding herself of the definition of ‘parental responsibility’ (the “rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child”), Lady Justice King therefore turned to look in detail at the relevant provisions of the BDRA 1953, and the related Regulations. There are some interesting points here. For example, there is no absolute requirement under the Regulations to register a child’s forename. However, the forename is mentioned in relation to the provision that a child’s name on the register can be altered before the expiration of twelve months from the date of the registration of the birth. Crucially, if the name is changed, the original name will not be erased, but just struck through. Accordingly, if the female child was called “Cyanide” then “that name will remain on the register for all time and, should she when she is older choose to look at the register, it will tell her that “Cyanide” is the name her birth mother chose to give to her.”
Lady Justice King then considered the essential question “What is in a name?” or, to put it another way: what is the importance of a name? As she pointed out, this was a matter to which the judge below had given consideration when he said the following:
“A name is a direct link with the parent who chose the name……A name is also a badge of association, sometimes reflecting cultural identity, nationality, tribal heritage or religion. Above all a name is a gift a parent gives to a child, reflective of personal wishes and traditionally unconstrained in its choosing by legal restriction.”
The judge had, however, pointed out that some parents are minded to bestow upon their progeny names which are, shall we say, just a little eccentric – something which I’m sure most family lawyers have come across.
This case, of course, dealt with the issue of a child’s forename, rather than their surname which, at least until recently, has been considered to be of more importance. However, Lady Justice King took the view that forenames are now used almost exclusively for all purposes, and therefore a child’s forename is now every bit as important to that child, and his or her identity, as is his or her surname.
Lady Justice King then moved on to the critical question of whether the naming of a child was an act of parental responsibility. Quite rightly in my opinion she didn’t actually waste much time here. Registering a child’s name was clearly a duty which, by “law, a parent has in relation to a child”, and was therefore an act of parental responsibility. Accordingly, both the choosing of a name (forename and surname) for a child by a parent with parental responsibility and thereafter the act of complying with the duty to register the name were each acts of parental responsibility.
The next question, then, was what powers, if any, does a local authority possesses that might allow it to intervene in circumstances where it believes the name proposed by the mother is, or is likely to be, contrary to the best interests of the child? The answer to this appeared to be simple: section 33(3) of the Children Act gave the local authority the power to do exactly as they proposed.
However, the powers of a local authority to make decisions in relation to children in their care are, of course, subject to Article 8 of the European Convention on Human Rights: the right to respect for private and family life, and this was the next issue considered by Lady Justice King. She found that notwithstanding that a local authority may have the statutory power under section 33(3)(b) to prevent the mother from calling the twins “Preacher” and “Cyanide”, the seriousness of the interference with the Article 8 rights of the mother consequent upon the local authority exercising that power demanded that the course of action it proposed be brought before and approved by the court. However, whereas section 33(7) required the local authority to seek the leave of the court before changing the child’s surname, there was no similar provision in respect of the child’s forename.
Accordingly, section 33(3) was not the answer. The answer, in the view of Lady Justice King, was to invoke the inherent jurisdiction of the court. Section 100 provides that no application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court, and that the court may only grant leave if it is satisfied that the result which the authority wish to achieve could not be achieved through the making of any other order for which the authority could apply, and there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm. Lady Justice King did not think that there was any other order by which the local authority could have achieved the result they sought. As to the issue of significant harm, she said:
“…in my judgment, although it will only rarely be the case, the giving of a particular name to a child can give a court reasonable cause to believe that, absent its intervention, the child in question is likely to suffer significant emotional harm. In my judgment this is one such case and there is every reason to believe that if the court’s inherent jurisdiction is not invoked in order to prevent the girl child from being named “Cyanide”, she is likely to suffer significant harm.”
Lady Justice King therefore concluded her discussion of the legal principles with the following guidance for future cases:
“I am … satisfied that there may be rare cases, where a local authority believes that the forename chosen by a parent, and by which he or she intends to register a child, goes beyond the unusual, bizarre, extreme or plain foolish, and instead gives the local authority reasonable cause to believe that by calling him or her that name he or she is likely to be caused significant harm. In those highly unusual circumstances, the proper route by which the local authority seek to ensure that the course it proposes is necessary and in the child’s interests is … by putting the matter before the High Court by way of an application to invoke its inherent jurisdiction.”
I hope you followed all of that…
The full judgment in C (Children) can be read here.