England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRIGHTON COUNTY COURT
(His Honour Judge Kemp)

		Royal Courts of Justice Strand London WC2
		Friday, 20th July 2001

1. LORD JUSTICE THORPE: This appeal raises what is a comparatively small issue in relation to the future of a little boy named G, who was born on 25th April 1998 to GWL (the father) and JLR (then JLS) (the mother). The parties had come together in August 1996 and they had lived together from December 1996. They separated in August 1999, when G would have been about 15 months old, although the final end of their relationship did not come until April 2000. After his birth G was registered as GAL.
2. There were initial difficulties over contact following the breakdown of the relationship between the parents. On 4th May 2000 solicitors for the father, Mr L, wrote to the mother seeking clarification or formalisation of contact arrangements. There was a response of 10th May which offered supervised contact once a fortnight, but that was not acceptable to the father and county court proceedings followed. It is perhaps of some significance that on 12th May, at the time of this developing dispute, the mother changed G's surname from L to R by executing a deed which was not thereafter formally registered. So it is an indication of her state of mind and intent, but it did not achieve that intent in law. She had herself apparently adopted the surname of R with some formality on 4th June 1998. The name of R is the name of her mother's partner and it is the name by which her mother is ordinarily known, certainly socially, although she continues to use her name of M for certain purposes and perhaps on more formal documents.
3. The father's knowledge of these developments came from a solicitors' letter of 17th July 2000. The mother's solicitors, in the final paragraph of their letter, said:

"Incidentally we should point out to you that [G] is known as [GR] and not [L] as in the court papers."

4. In response, the father's solicitors said that their client was very disappointed to hear of this usage. In reply, the mother's solicitors proffered an explanation which was all to do with the fact that father and son had the same initials and that there had been some confusion over a letter offering a hospital appointment which had either been opened by the father or had not been received by the son.
5. The court proceedings developed into an application by the mother to remove G permanently to Spain, where she intended to live in accommodation immediately adjoining accommodation acquired by Mr and Mrs R. There was therefore to be decided that primary application, together with the issues of contact and the issue as to G's surname. The parties came to a very sensible agreement at the listing on 8th May 2001 before His Honour Judge Kemp. The father accepted the mother's proposals for G's future. The mother accepted that there should be full continuing contact: visiting contact during a minimum of two visits a year in this jurisdiction, each of one week's duration, with an open invitation to the father to have visiting contact to G in Spain. The mother also conceded that the father should have parental responsibility. So the only issue for the judge to decide was the relatively minor issue of by which name G should be known.
6. It is important to emphasise that the judge heard no oral evidence: he simply decided the issue on the statements that had been filed and on the submissions of Mr Turner, for the father, and Mr Valks, for the mother. We do not have a transcript of his judgment, but we do have a brief note which has been agreed between counsel. That shows the judge reciting the rival submissions advanced by counsel and referring to the authorities that had been cited to him, namely the decision of the House of Lords in Dawson v Wearmouth [1999] 2 AC 308 and the decision of this Court in In re W [2000] 2 WLR 258. What the judge then said in conclusion was this:

"I have to apply the welfare checklist. The welfare of the child is paramount ... his recent experience is `[R]' rather than `[L]' - though there is no specific evidence of this. I have to look at the future. His circumstances are about to change dramatically. I have to consider the likely effect of change, age, sex and background, harm, capability, range of orders. I have to consider the `no order' principle, but to make no order is not an option. The matter cannot rest in limbo.

I have to consider the educational and other needs of the child in these peculiar circumstances. The child is about to start a new stage in his life. The proposed choice of names is unusual in that it is not the surname of a partner or husband or of any other child in the family. Whatever its origin, should he be singled out with a different name, thus making life potentially more awkward? I have heard no evidence regarding life in Spain and I, therefore, consider it to be similar to life in England. It is in his overriding interests to be known by the same name as the rest of the family unit. His long-term interests are in favour of the change of name. I have no doubt that father will continue to have contact. I permit the change of name from `[L]' to `[R]'.

Of course, I bear in mind that this is only a brief and rough note of what the judge said. I also bear in mind that this is a very experienced judge, particularly in this field. But he did not have the opportunity of hearing from the parties and perhaps exploring what was really going on in the family; what was really the motivation of the mother and the motivation of the father. He was in no better position than we to make an assessment and to arrive at a proper conclusion.

There are a number of factors which seem to me to militate against the judge's conclusion. The first and most obvious is that the surname of R has a relatively insecure foundation. It is a name that the mother has adopted of choice since G's birth. It is a name that her mother uses of preference, but not for all purposes. Further, it is a name that the mother has adopted for G without any consultation with the father, and during a period when he has been having regular contact. Whether it is a name that she herself will bear in the long-term is obviously an open question. I also regard the proposed move to Spain as being a neutral factor in the debate. It is strongly relied upon by Mr Valks in the sense that he contends that the move to Spain will require considerable adjustment, and that to ask G to adapt to a general and social use of the name L is only to aggravate the task. Against that, it can obviously be said that the removal of G from the community in which his father lives requires every sensible counter-balancing in order to ensure that, throughout the years of development in Spain, G maintains the consciousness that he has an English father who is attached to him in every way.

The judge had no evidence as to Spanish custom and made the assumption that it must accord with English custom. But in Spain there is, of course, a very different custom in relation to the naming of a child, and that custom gives the child the advantage of one of the maternal surnames and one of the paternal surnames. So combining his parents' surnames might have seemed a very sensible solution in this case, bearing in mind that G was going to be living in Spain and going to a Spanish school. That is a solution which the parties should hereafter consider as a means of bridging the divide which presumably still subsists between them following the judge's ruling.

But I think it is important to recognise in this and in all cases that there must be some burden on the parent who seeks to obtain the judge's approval of change. The child here was very young and there was certainly nothing set in stone by the date of the hearing.

With some hesitation, and with every respect to the judgment of Judge Kemp, I think on this occasion that he probably reached the wrong conclusion. I think that the order should not have gone as it went. In the order as drawn, in paragraph 3, he simply says:

"There be permission to change the name of the child to [GAR]."

7. I would propose the deletion of that paragraph. I would urge the parents to consider the good sense of imitating Spanish custom in order to ease G's adjustment to a life in that culture.
8. LADY JUSTICE HALE: I have not found this an easy case. It has to be borne in mind that, in the case of Dawson v Wearmouth [1999] 2 AC 308, Lord Jauncey was in effect dissenting from the other four members of the court. None of the other members agreed with his observations: they all specifically agreed with Lord Mackay. They were not, therefore, associated with his remarks at page 323B-C as to the importance of a blood tie or of the child bearing his father's name. In that regard, I would respectfully say that the majority view was more consistent with the modern law.
9. The choice of surname is a matter of parental responsibility. The court may allow a change or prohibit it under section 8 of the Children Act 1989. Therefore, if the parents share parental responsibility, each has an equal voice in the name to be chosen at the outset. However, if they do not share it, the other parent nevertheless has the right to challenge any change or, indeed, any initial choice under section 8, and this father did make such a challenge as soon as he learnt that the mother had changed the registered surname of the child. If there is a change and it is opposed, then the change has to be justified under section 1 of the Children Act 1989: that is, as being in the best interests of the child. As Lord Mackay said in Dawson v Wearmouth at page 321A, there has to be some evidence that it would lead to an improvement in the child's life.
10. Generally, therefore, what the court is doing is balancing the long-term interests of a child in retaining an outward link with the parent with whom that child is not living against what are often shorter-term benefits of lack of confusion, convenience, lack of embarrassment and the like. I recognise that the latter set of considerations may well not be sufficient to outweigh the former. However, when Butler-Sloss LJ (as she then was) referred, in In re W (a Child) (Illegitimate Child: Change of Surname) [2000] 2 WLR 258, to factor (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",

11. I do not think she meant that considerations of confusion, anxiety and embarrassment for the child were of little account: it is more that the problem for the parent is of little account. It all depends upon the facts and circumstances of the particular case; and one notices that the cases listed together with In re W were cases in which a change of name was permitted.
12. I would like to add an aside. It for me is a matter of huge regret that the Incorporated Council of Law Reporting chose to entitle that case In re W (a Child) (Illegitimate Child: Change of Surname). It is now more than 14 years since the Family Law Reform Act 1987 sought to remove such language from our law, and in particular to emphasise that no opprobrious adjectives should be attached to the child. If there is to be any opprobrium stemming from the birth of a child to parents who are not married to one another (and for my part I would not necessarily say that there was to be any such opprobrium), it should be attached to the parents, whose choice it was, and not to the child, whose choice it most definitely was not. I very much hope the Incorporated Council will pay attention to those observations should the problem arise in the future.
13. That having been said, I return to the issue of names. It is also a matter of great sadness to me that it is so often assumed, and even sometimes argued, that fathers need that outward and visible link in order to retain their relationship with, and commitment to, their child. That should not be the case. It is a poor sort of parent whose interest in and commitment to his child depends upon that child bearing his name. After all, that is a privilege which is not enjoyed by many mothers, even if they are not living with the child. They have to depend upon other more substantial things.
14. The crucial point, however, is that it is important for a child for there to be transparency about his parentage and for it to be acknowledged that a child always has two parents; and if it turns out (as it often does) that children have both social parents and birth parents, it is important that that fact too is acknowledged. It can be even more important in cases where there is a risk of links fading or becoming less strong as the years go on, because in the future it can prompt a child to wish to re-establish links which have become weaker or have even disappeared. We all know of cases where it has prompted a search and a reunion later in life, with great benefit for the child. That factor may be of particular importance in cases where increased distance is coming into the equation. As I say, the reason for that is the importance of recognising that children have two parents.
15. In my judgment, parents and courts should be much more prepared to contemplate the use of both surnames in an appropriate case, because that is to recognise the importance of both parents. As it happens, it is the common practice in Spain so to do. It is not unknown, for that matter, in the United States of America, where women in particular will often use both names. I therefore echo what has fallen from my Lord, Lord Justice Thorpe, in urging both parents to contemplate that course in this case.
16. If the judge had heard evidence, he could have made a judgment as to the particular circumstances of this case and the parties' respective motivations. Had he done so, he would have been assisted by that and it would have been difficult indeed for this court to intervene. But on the basis of the material that we have, it has to be borne in mind that there was virtually no evidence given by the mother to support the advantage alleged for G in changing his registered surname. The factor to which the judge attached the greatest importance, the forthcoming move to Spain, in my view cuts the other way, for the reasons that I have explained.
17. So, not without certain misgivings, I agree that the appeal should be allowed, but allowed only to the extent of deleting paragraph 3 from the order of His Honour Judge Kemp.
Order: appeal allowed to extent of deleting paragraph 3 from the order below; public funded costs assessments for both parties.