England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCFMI 97/0470/F

Royal Courts of Justice

Thursday, 31st July 1997

Before:

LORD JUSTICE HIRST

LORD JUSTICE THORPE

MARK RICHARD BOLDEN DAWSON

Applicant

-v-

DAWN ANN ELAINE WEARMOUTH

Respondent

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(Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited,

180 Fleet Street, London, EC2A 2HD. Telephone No: 0171-831 3183.

Shorthand Writers to the Court.)

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MR. R. HAYWARD SMITH Q.C. and MR. R. HARRISON (instructed by Messrs Battens, Taunton, Somerset) appeared on behalf of the Appellant/Respondent.

MISS C. DUTHIE appeared on behalf of the Respondent/Applicant.

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J U D G M E N T

(As approved by the Court )

Crown Copyright

This is the judgment of the Court to which we have both contributed.

The case concerns the surname of a boy called Alexander who is now nearly 16 months old having been born on 23 March 1996. His mother, the present appellant, is Dawn Wearmouth, which is the surname of her former husband Tony Wearmouth, by whom she had two children, a daughter born in May 1986 and a son born in April 1988. The husband and wife separated in June 1993 and they have subsequently divorced.

Alexander's father is Mark Dawson, with whom she began living in April 1995, their relationship having started in June 1994. They never married, and in fact separated less than a month after Alexander's birth. Since then Alexander has been looked after by his mother, together with the two legitimate children.

On 19th April 1996 the mother registered Alexander's name as Alexander Guy Wearmouth.

On 13th May 1996 Mark Dawson issued his present application for a specific issue order under section 8 of the Children Act 1989, seeking an order that Alexander be known as Dawson and not Wearmouth, together with orders for parental responsibility and contact in relation to Alexander.

On 14 January 1997 Judge Cotterill sitting in the Taunton County Court made consent orders for parental responsibility and contact which are not in issue. In addition, he further ordered that:

(a) The child shall be known as Alexander Guy Dawson.

(b) The mother is prohibited from causing or permitting the said child to be known by any other name.

It is against these orders that the mother presently appeals on the basis first that the judge had no jurisdiction to make the order under section 8, and secondly that even if he did have jurisdiction, he erred in principle in the exercise of his discretion.

The judge's jurisdiction was never challenged in the court below, but clearly this raises a question of importance which this court should consider.

In the exercise of his discretion the judge rejected as irrelevant reliance upon the mother's inevitably adverse reaction to the use of the name Dawson, since it was unlikely to be so extreme as to affect adversely her ability to bring up Alexander; he also rejected the submission that it was generally in a child's interest to have the same name as its mother who, it was contended, was exercising her primary right to confer upon the child the name of her choosing.

He then went on to say that he based his decision on the following grounds:

"I base my decision, a decision that this child shall be known by the name Dawson, upon this. This child has two parents. His awareness of his status as the son of Mrs. Wearmouth can never be in question. He will have a day to day reminder of that by his being in her care. His awareness of his being the child of Mr. Dawson is likely to be maintained by the contact which has been agreed between the parties and is the subject of a consent order in these proceedings today, but how that contact will develop, what change in circumstances will affect mother in the future, or indeed father in the future, can only be a matter for conjecture. It seems to me that this child's interest is best served in his having the reminder of his father's place in his life by his bearing his father's name, without regard to convention and without regard to any notion of proprietorial rights vested in the father.

I am reinforced in that view by the fact that the authorities emphasise the importance of paternity and a child's right to know who his father is, and I am further reinforced by the fact that this mother has in the past elected to adopt the name of her husband and the father of her children, and being a young mother is certainly a candidate for entering a fresh relationship in the future. Whether that will lead to remarriage or whether that will lead to the birth of other children cannot, at this stage, be more than the subject of conjecture, but at least it must be a distinct possibility and if that possibility were to turn into reality then it seems, on past practice in Mrs. Wearmouth, a distinct probability that she would adopt the name of the new partner and that his children would be known by his name, certainly during the subsistence of friendly relations between those two."

Earlier in his judgment he had stated:

"It seems to me that I must approach this question of how he should be named as though the matter had come before me at the time when the birth was to be registered and before the question had been resolved, because otherwise Mr. Dawson falls foul of the law's delay rather than of his own acquiescence in a state of affairs of which he never for one moment approved.”

Mr Hayward-Smith QC submits that there is no jurisdiction to entertain an application to effect the change of a child’s name, as opposed to prohibit the change of a child’s name, save under section 13 of the Children Act 1989. He submits more specifically that the court has no jurisdiction to entertain an application for a specific issue order under section 8 of the Children Act 1989 that would have the effect of changing a child’s name. He mounts his submission upon the foundation of a detailed scrutiny of the provisions of the Births and Deaths Registration Act 1953.

In response Miss Duthie does not challenge any of his submissions as to the provisions of the Births and Deaths Registration Act 1953. She is, I think, driven to the submission that the 1953 Act is irrelevant to the points raised by this appeal. She realistically concedes that the application which succeeded below cannot be brought within section 13 of the Children Act 1989. Her response stands on the single submission that specific issue orders under section 8 of the Children Act 1989 were introduced to replace the court’s unfettered pre-existing jurisdiction in wardship, that some text book writers support her contention that the range of the specific issue order jurisdiction extends to orders in relation to a child’s name and that unless this court upholds her submission the father of an illegitimate child is bereft of any remedy when confronted with a mother who for whatever motive seeks to abuse the responsibility arising from the performance of her duty under the 1953 Act.

The basic scheme of the 1953 Act is to require registration within 42 days of the birth and where the parents are married the duty lies on both the father and the mother of the child: see section 2(a). What the parents must furnish to the Registrar are such particulars concerning the birth as may be prescribed: see section 1(1). Prescription is by the Registration of Births and Deaths Regulations 1987, regulation 7 of which declares that the particulars shall be those required in spaces one to thirteen in form 1. Form 1, which appears in schedule 2 to the Regulations, requires in space two the name and surname of the child. Regulation 9(3) provides as follows:

“With respect to space 2 (name and surname) -

(a) If a name is not given, the Registrar shall enter only the surname, preceded by a horizontal line;

(b) The surname to be entered shall be the surname by which at the date of the registration of the birth it is intended that the child shall be known.”

In the case of a child whose father and mother were not married to each other at the time of his birth then the section 2 duty is upon the mother alone: see section 10 with its side note ‘Registration of Father where Parents not Married’ and particularly sub-section (1). Furthermore section 10(1) not only relieves the father of such a child from the duty to give information but prohibits the Registrar from entering in space four of form 1 the name of any person as father of the child except as provided in the circumstances defined in the following lettered paragraphs. By paragraph six of schedule 12 of the Children Act 1989, for the final lettered paragraph (d) was substituted more extensively paragraphs (d) to (g). The circumstances defined in paragraphs (a) to (f) all require the mother’s co-operation and consent. Therefore absent her co-operation and consent the Registrar shall not enter the name of any person as father of the child in the register save where there is in force any of the orders defined in paragraph (g) and sub-section 1(a). None of these orders was in force in this case.

In summary this broad survey of the statutory requirements for the registration of a birth demonstrate that in the case of an illegitimate child the duty is on the mother alone and without her consent and co-operation the father, who is in any event free from duty, can play no part in the provision of particulars for entry on the prescribed form, save and except where a specified order is in force.

Section 10(a), with its side note ‘Re-registration of births of illegitimate children’, permits re-registration so as to show a person as the father, but again, as in the case of section 10, only with the consent and co-operation of the mother. Throughout the Act and the Regulations a very clear distinction is drawn between a name and a surname. Indeed the interpretation regulation 2(1) states, ‘ “name”, in relation to a person, excludes surname.’ Finally the power to correct the register is closely confined by section 29 and essentially does not extend beyond clerical errors and errors of fact or substance. Accordingly once the mother of an illegitimate child has fulfilled her duty to register and exercised her right to register the surname of her choice there is nothing to permit that registration to be changed.

Against that background we turn to the Children Act 1989. In almost every case before the court exercises any jurisdiction in respect of a child the child in question will possess what might be described as his surname of origin, by which we mean the surname under which his birth has been registered. Mr Hayward-Smith’s submission is that the court’s jurisdiction to entertain an application to change such a surname is limited to section 13 with its side note ‘Change of child’s name or removal from jurisdiction’. The relevant words of the section are then as follows:

“Where a residence order is in force with respect to a child, no person may -

(a) cause the child to be known by a new surname; or

(b) remove him from the United Kingdom;

without either the written consent of every person who has parental responsibility for the child or the leave of the court.”

That specific provision he submits excludes the exercise of a general power under section 8 to make a specific issue order in relation to a child’s surname. However he accepts that there would be jurisdiction under section 8 to make a prohibited steps order in relation to a proposed change of a child’s surname. The submission rests largely on the judgment of this court in the case of Re B (Change of Surname) [1996] 1 FLR 791. In that case the mother sought to change the surname of the three children of the family from that of her divorced husband to that of the husband whom she had subsequently married. Her application for leave was refused by the circuit judge and this court upheld his refusal. The case was transitional in that the order in relation to the children had been a custody order made in the suit prior to the commencement of the Children Act 1989. However it was rightly treated as a deemed residence order and her application was therefore rightly treated as an application for leave under section 13. Counsel for the father sought to argue that the application was for a specific issue order under section 8. (It may be assumed that the underlying strategy was then to advance the argument that, since the determination of a section 8 application was subject to the section 1(3) checklist, the views of the three children aged between 17 and 12 were almost decisive.) The submission was rejected by Wilson J in these terms:

“For Miss Moulder, on behalf of the father, submits that an application relating to a child’s surname under the 1989 Act is a type of application for a specific issue order within the meaning of section 8 rather than a free standing application under section 13 of the Act. In that submission she is supported by the editors of Rayden & Jackson Divorce & Family Matters (Butterworths 16th Edition 1991) vol 1 pp 1081-1082. She contends that on a proper reading section 13 is purely prohibitory and does not itself give jurisdiction for an order to be made.

In that section 13 specifically refers to the leave of the court I find myself in disagreement with that contention. Indeed I disagree with the general submission of Miss Moulder that an application in respect of a change of name is an application for a specific issue order. They are separate applications, as is made clear by Rule 4.1(2)(a) and (c) of the Family Proceedings Rules 1991 and by the different form of the order under section 13 (namely form C44 as opposed to form C43) which is required by Rule 4.21(5). It follows that although pursuant to section 1(1) of the Act the welfare of the child must be the court’s paramount consideration in an application under section 13, reference to the check list of particular factors under section 1(3) is not, by statute, mandatory. That is not to deny that the check list remains a most useful aid memoire of the factors that may impinge on the child’s welfare.”

That ruling may well be apt in any case where a residence order is in force with respect to a child whose name the application seeks to change. However the fact that the Family Proceedings Rules 1991 both in rule 4.1(2) and in its forms C43 and C44 treat section 8 and section 13 as distinct sections does not in our judgment support the submission that applications in relation to children’s surnames must be brought under the latter and not the former section. Further the paragraphs in Rayden at pages 1081 and 1082 are directed to the general scope of the power to make specific issue orders followed by examples of specific usage including orders in relation to a change of surname. In our judgment that is an apt example of an area in which the court has power to make a specific issue order, so long as no residence order is in force. The purpose of section 13 is surely to emphasise that the rights and duties consequent upon the grant of a residence order are not so extensive as to permit a change of surname or a removal from the jurisdiction without either the written consent of every person having parental responsibility or the leave of the court. For the section re-enacts the same limitation that had been put upon custody orders by rule 92(8) of the Matrimonial Causes Rules 1973. But there will be many cases in which no residence order is in force with respect to a child. After all one of the cornerstones of the statute expressed in section 1(5) is that the court shall not make an order unless it considers that doing so would be better for the child than making no order at all. Where two parents have parental responsibility but no residence order is in force, in the event of disagreement, whether in relation to a surname or in relation to any other matter either party has the right to apply to the court for any of the four orders mentioned in sub-section (1) of section 8. In our judgment precisely the same right exists where one has parental responsibility and the other does not. It is only if a residence order is in force that the application falls to be brought under section 13. We accept Mr Hayward-Smith’s submission that in practice it is inconceivable that such an application would ever be brought other than by the parent in whose favour the residence order had been made. For practically speaking it is only the person with whom the child resides who has the opportunity to cause a child to be known by a new surname. Mr Hayward-Smith relies on the fact that nowhere in the reported cases is there a single instance of the father of an illegitimate child applying for an order to change a child’s surname, still less a decision ordering the mother of such a child to change the surname against her will. That negative consideration no doubt illustrates the reality that, absent co-operation between the parents, the mother of an illegitimate child is recognised to have the right to determine the initial surname of her child save in extreme cases involving perhaps a malicious or manifestly absurd choice. The inter-relationship between sections 13 and 8 of the statute is not particularly happy. Restrictions on making section 8 orders are specifically defined in section 9 and we would not extend the restriction perceived by Wilson J beyond the case in which the applicant for change had been granted a residence order. Even in that case the effect of this distinction seems to us to be more theoretical than real. The judge entertaining the application under section 13, rather than under section 8, will invariably have regard to the considerations identified in section 1(3) in his search for welfare as the paramount consideration even if under no specific statutory duty so to do.

Finally, as Mr Hayward-Smith accepted, the High Court in the exercise of its wardship jurisdiction prior to 1st October 1991, would have had jurisdiction to make the order sought by Mr Dawson in this case. The statutory restriction on the use of that jurisdiction contained in section 100 of the Children Act 1989 are of no application to this case.

Therefore our clear conclusion is that the jurisdiction is there. Whether it should have been exercised is another matter. If there is a general principle underlying this appeal it is that the registration or change of a child’s surname is a profound and not a merely formal issue, whatever the age of the child. Any dispute on such an issue must be referred to the court for determination whether or not there is a residence order in force and whoever has or has not parental responsibility. No disputed registration or change should be made unilaterally. On the facts of this case the mother is not in breach of that principle.

Discretion

Mr. Hayward-Smith submits that there was a fundamental error of principle in the judge's decision to approach the question as though the matter had been heard before the registration of Alexander's birth. Miss Duthie accepts that this was going somewhat too far, and suggests that it would have been more appropriate for the judge to say that he would put the registration on one side, or words to that effect.

As we have already observed, as a matter of principle registration is a profound matter, and consequently in our judgment a major factor to be taken into account in the exercise of the court's discretion, and one which it is wholly inappropriate for the court to put on one side as of no more than marginal significance, let alone to disregard entirely.

We thus conclude that in this respect the judge erred in principle, so that it is incumbent upon us to exercise our discretion afresh. We would add at this stage that, with respect, we do not understand the judge's suggestion in this context that in some way the father fell foul of the laws' delays, seeing that the registration was obligatory not later than 4 May 1996, and his application followed a week or so later.

Mr. Hayward-Smith criticises the judge's rationale in favour of the father, and submits that if these reasons are sufficient, it would follow in virtually every case that the mother of an illegitimate child could be compelled against her wishes to give the child the father's surname when the father seeks to play some role in the child's life.

He stresses, as is common ground, that in the authorities the courts have emphasised the significance of changing a child's name and have shown themselves slow to accede to such an application. He also submits that the judge gave insufficient weight to the mother's objections, and above all, to the registration, and contends that the mother's choice was a perfectly reasonable and logical one, seeing that Wearmouth was her own name at the date of registration, and also the name of her two legitimate children.

Our attention was also drawn to the mother's evidence, showing that the child's first name (Alexander) was that chosen by the father.

Miss Duthie supports the judge's reasoning and submits that he correctly identified the rights of the child.

She characterises the mother's objections which the judge rejected as no better than routine, and submits that they should carry little weight. She also points out that the mother had not chosen her own family name, but rather a name which had only been acquired through marriage, and which (she argues) signified a factually incorrect nexus between the child and the mother's ex-husband.

In summing up her arguments she submits that the mother was seeking to use the name of a former partner which she had only acquired by convention on marriage, and that when thinking of the name of a child, common-sense dictated that one should look at the connection between the adults and the child, thus favouring the name of the father who had such a connection rather than that of the mother's ex husband who had none.

In our judgment there is a major flaw in Miss Duthie's concluding submissions, seeing that the name Wearmouth was the mother's actual name at the time it was chosen by her, as well as being that of Alexander's half brother and half sister. It was therefore a perfectly natural and logical choice for her to make, and cannot in our view be justly criticised as alien merely because it is also the name of the mother's ex husband.

These circumstances, coupled with the all important fact already stressed that this was the child's duly registered name, seem to us to be very powerful factors in the mother's favour, which can only be displaced by strong countervailing considerations.

The considerations cited by the judge, and re-asserted by Miss Duthie, do not in our judgment qualify as such, seeing that, as Mr Hayward-Smith rightly submits, they would apply in virtually every case to an illegitimate child where the father seeks to play some role in the child's life. Indeed they, unlike the mother's objections, are properly to be regarded as routine in the circumstances.

We also think that it is not without relevance that the mother did not have things all her own way, since she gave the child the first name chosen by the father.

In all these circumstances we are quite satisfied that our discretion should be exercised in the mother's favour, and would allow this appeal.

Order: Appeal allowed; reporting restrictions in relation to naming the parties lifted; no order as to costs in the court below; legal aid taxation for each side in the Court of Appeal .

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