Mother refused permission to change child’s surname, despite father posing risk to child

Children|Divorce|August 14th 2019

Despite the fact that the issue of what name a child should take crops up quite frequently (or at least it did when I was practising), it is comparatively rare to come across it in the law reports. Accordingly, when the case R v P appeared the other day on the Bailii website, I had to take a look.

R v P is, I think, a useful example of where the law now stands on changing a child’s name. Note that I say ‘now’. Over the years the courts have attached increasing importance to a child’s original name, and it has therefore become more difficult to persuade a court that changing a child’s name is a good thing, even where there are serious issues with the other parent. R v P is a good demonstration of this.

The facts in R v P were slightly unusual, in that the parents were both of Lithuanian origin. They married in 2010 and just over a year later, their daughter was born, also in Lithuania. The parents separated in August 2012, and there then followed lengthy proceedings in Lithuania relating to the father’s violent and threatening behaviour, both to the mother and the child, between 2012 and 2015.

The mother then brought the child to this country in October 2015, claiming that she did so because of the father’s behaviour. The father made an application under the Hague Convention on Child Abduction for the return of the child to Lithuania. However, Mrs Justice Theis refused the application, finding that the lack of recognition by the father of his actions in the past and their impact upon the child supported the mother’s fears that he could not be trusted to comply with any undertakings that he offered (to protect the mother and child) or compliance with orders made by the courts in Lithuania.

The mother remarried had a second child, by her new husband, in December 2015. In January 2018 she issued an application in the English court for an order that the child’s surname be changed to her new husband’s surname. The application was subsequently changed so that the father’s surname be retained as a middle name, thereby continuing that connection with the father’s surname.

The application again went before Mrs Justice Theis in the High Court. Despite finding that the father posed a risk to the child if he should take steps to try and find her without her knowledge, she refused the application, for the following reasons.

Firstly, whilst she recognised that the revised position of the mother in some way met the concerns of the father and the Guardian (who was worried that the change would further distance the child from her father), and that having the change of surname was something that the child wanted, she had to balance that with the child’s wider welfare interests (see below).

Secondly, she was concerned that there was nothing in the mother’s home regarding the father, as the Guardian had recorded in her report.

Thirdly, the application had been put by the mother on the basis that having the change of name would make it easier, and safer, for her to travel in Lithuania if she were ever to return, but she did not provide any further information in support of this assertion.

Fourthly, the parties had actually agreed to take some initial steps to seek to re-establish some relationship by the father with the child, including that the father should participate in a programme to address his previous behaviour, and that arrangements would be made so that the father and the paternal family could send gifts and cards to the child three or four times a year. Mrs Justice Theis felt that at such a delicate time, to remove or change the child’s surname in the way that had been suggested, as a coping mechanism for her day to day life and to make it more convenient for her, was not a reason on its own to take such an important step. When and if the child had more knowledge of the father and the paternal family, the position could be looked at again, but she was satisfied that now such a step would not meet the child’s welfare needs.

You can read the full judgment here. (I should point out that there are other things going on in the judgment, besides the change of name issue.)

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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