England and Wales Family Court Decisions (other Judges)

Case No:ZE15P00362

IN THE FAMILY COURT

(sitting in Lincoln)

Date: 26 July 2017

Before :

His Honour Judge Rogers

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Both parents appeared in person

Hearing dates: 15 May 2017

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JUDGMENT

His Honour Judge Rogers :

1.      This judgment is in two parts, public and private (or wholly redacted). The introduction and concluding paragraphs may be published and will be on Bailii. The central part contains detailed factual material necessary to understand the case in its context and is strictly confidential to the parties and may not be published. Usual forms of anonymisation are inappropriate given the nature of the dispute and would probably compromise the privacy of the parties. In the public judgment, I will be deliberately vague to avoid unintended identification.

2.      This is an appeal against a decision of District Judge Cooper given late last year in private law proceedings between a mother and a father in respect of a child, whom I do not further identify or describe.

3.      The Judge made a child arrangements order. The father sought to appeal and I refused him permission. The Judge also ordered, under the sub heading Specific Issue Order:

“The mother has permission to change (the child’s) name to remove the middle name xxxx.”

The father also sought to appeal against that clause and, at an earlier hearing, I granted him permission. I ordered:

“If represented, the Respondent must file a Skeleton Argument dealing with the law and future position in respect of the change of name, including the practical consequences of the order, for example as to the Birth Certificate and other public records and as to informal usage.”

I made that direction as, at trial, the mother had been represented by counsel and continued to receive public funding in relation to a further application arising out of the child arrangements order. I hoped that the legal aid authorities would fund the mother’s response to the appeal as, it seemed to me, it raised difficult questions beyond the specific welfare analysis of the case in its immediate context. No such funding was made available and so both parents were in person at the appeal and could give me no assistance on the wider issues.

4.      At birth the child was given two forenames by the parents and registered with both. The child is most commonly known by the first name but the father uses both and says he favours the middle name. The middle name is a normal well established name. It is not eccentric or in itself offensive. However, the mother’s case was that, as a result of its association with a notorious public figure, it is infected with bad connotations.

5.      Following the father’s application for a child arrangements order, the mother cross applied for a Specific Issue Order “to have the name changed”. No further detail was given. The proceedings concentrated upon the father’s application. Although the mother was represented at trial, I regret to say that it does not appear that the Judge was addressed upon the precise nature of the order sought in respect of the name or the practical consequences of such an order.

6.      In paragraph 2 of his judgment, the Judge described the issue as “the removal of the middle name”. In paragraph 60, the Judge recorded his conclusion thus:

“there will be the removal of the middle name xxxx”.

7.      (Paragraphs 7 to 10 of the full judgment are redacted in the published version to preserve anonymity.)

8.      The father’s appeal against the substantive decision appears to have no merit and, had the matter ended there, I would not have granted permission. The Judge directed himself, correctly, to the issue of welfare and weighed up the arguments properly. His evaluation of the risks cannot be criticised.

9.      The difficulty, in my judgment, arises when one comes to consider the consequences of the welfare based order, how it is implemented and how it is enforced. The judgment and order are silent on such matters. I do not criticise the Judge. He recorded in his judgment how long the day had been before adjourning and, as I have recorded earlier, he appears not to have been addressed upon the matters now troubling me.

10.  The questions which seem to me to arise include:

a)      Is the order a permission to the mother to change the name by Deed Poll? Arguably it is.

b)      Can the child’s name be changed on the Birth Certificate? Almost certainly not.

c)      Can the mother take steps to have public or official documents removed or altered to reflect the change?

d)     Should official, but somewhat less formal documents, (for example school reports) be changed and should the use of the middle name be prevented or outlawed?

e)      To what extent is there a retrospective element to the order in relation to documents?

f)       Above all and of greatest practical importance, how does the order work to prevent informal usage of the name by the father (and others not party to the proceedings)?

11.  Without any representations from counsel, I have been given no assistance. I do not have the time (nor do I think it would have been entirely appropriate) to undertake detailed researches. Equally, there would be no merit in remitting the matter to the Judge as he would be in the same position in all probability.

12.  The points arising might fall for detailed consideration in another case at High Court Judge level with full argument and, in that situation, some guidance might be useful. Nothing I say, at Circuit Judge level, hearing an appeal, has any binding authority and so is probably of only passing interest.

13.  In my judgment if a party with parental responsibility wishes to effect a change of name by Deed Poll against the wishes of another he or she should spell it out so that the full implications can be considered.

14.  Similarly, if the intention is for a child’s name to be changed for all purposes, including in relation to official documents, then that should be made clear in the application and any doubt as to the practicalities explored in advance with the bodies in question to avoid the risk of the Court making an order which it is ultimately impossible or difficult to implement, if there are technical problems unforeseen at the time.

15.  This may all seem somewhat over technical since the mother’s objective in this case, supported by the Judge’s decision, was to protect the child from the risk of harm from the continued casual usage of the middle name with all of its negative connotations. As the Judge found, that was essentially a welfare point.

16.  The order made is permissive for the mother to change the name. It does not prohibit the use of the name, nor is it, in terms, an injunction against the father to prevent him so addressing the child. Had that been considered, the obvious difficulties over policing and enforcement would have come to light. How would the communications between the child and the father (both oral and in writing) be monitored and, in any event, would any devisable method of monitoring be healthy or in the interests of the child?

17.  I do not propose to attempt to answer my own questions in this judgment since they are outside of the scope of the order under review, but they serve as a reminder of the importance of apparently subsidiary or drafting issues in a case of this sort.

18.  The general law does not provide any particular assistance. Nomenclature is undoubtedly a matter of parental responsibility and, where there is dispute, the Court may make Specific Issue Orders on a welfare basis. Forenames and surnames previously were not generally dealt with in the same way. The modern approach, however, in my judgment, is to be found in the words of Lady Justice King in Re C (Children) [2016] EWCA Civ 374. That case dealt expressly with the power of a local authority in relation to the question of the initial registration of a name and so is not on point. However, in a wide ranging review of the law, Her Ladyship summarised the position in respect of changing forenames:

“Forenames

48. In contrast to surnames, 'given' names or 'forenames' have not, until relatively recently, been regarded as carrying the same level of importance to a child as his or her surname. In Re H (Child's Name: First Name) [2002] EWCA Civ 190; [2002] 1 FLR 1989 Thorpe LJ said:

"[13] There are a number of points which should be made. The first is that none of the authorities that guide the court in determining disputes as to the surname by which a child should be known seems to be of any application to a dispute of this sort. The surname by which a child is registered and known is of particular significance insofar as it denotes the family to which the child belongs.

[14] Given names have a much less concrete character. It is commonplace for a child to receive statutory registration with one or more given names and, subsequently, to receive different given names, maybe at baptism or, maybe, by custom and adoption. During the course of family life, as a child develops personality and individuality, parents or other members of the family, may be attracted to some nickname or some alternative given name which will then adhere, possibly for the rest of the child's life, or possibly only until the child's individuality and maturity allow it to make a choice for itself as to the name by which he or she wishes to be known.

[18] If issues such as this arise, it seems to me that judges must look in a worldly, common-sense way at what is likely to be best for the child and must not place too much emphasis upon the statutory process of registration."

49. In Re D, L and LA (Care: Change of Forename) [2003] 1 FLR 339, a case heard several months later, Butler-Sloss LJ (as she then was) took a somewhat different view. Butler-Sloss LJ said that the principles to be applied are the same regardless of whether a proposed name change relates to a forename or a surname; at 346 she said:

"To change a child's name is to take a significant step in a child's life. Forename or surname, it seems to me, the principles are the same, in general. A child has roots. A child has names given to him or her by parents. The child has a right to those names and retains that right, as indeed, the parents have rights to retention of the name of the child which they chose. Those rights should not be set to one side, other than for good reasons. It may be that foster parents do not appreciate the underlying importance for the child of a name, and it is significant. You would not, for instance, be likely to change the forename of a child of 7, 8 or 9, I suggest even, 5, 6 or 7, because by that time the child has made that name part of his or her identity and very young children know what their names are. You ask a very young child 'what's your name?', and they will certainly be able to give you the name he or she is called by. To change that is to affect the child's identity. The right of the child and both parents to respect for that part of family life still exists, even though the child has gone into a foster placement. It may be that foster carers have not yet been sufficiently made aware that this is not a technical point. There is an underlying importance to the principle that the name should not be changed."

And at 347:

"So, the first rule, in my judgment, is that no foster parent or carer, under whatever regulations, should unilaterally change the name of a child. If, for any reason, the foster parents or other such carers think the name should be changed, they should go straight away to the social worker in charge of the case or the adoption placement officer, whoever it may be, and ask for the change and explain why. That should then be a matter of careful consideration by the local authority, who does, of course, have shared parental responsibility. The parents, who remain with parental responsibility in all foster placements, though not, of course, in placements after freeing for adoption, should be consulted in foster placements, to be allowed to express their views, if they are capable of being found or able to express a view, and if it is a matter that cannot be achieved by consent, it may be necessary, and one would hope it would be rare that such a situation would arise, but it may be necessary to invoke the inherent jurisdiction of the court and ask the High Court to rule on whether the name should be changed. That has happened in a number of cases in surnames and I see no reason why it should not happen in, what I hope will be the rare case, for forenames."

50. I would, with respect to Thorpe LJ, endorse the view of Butler-Sloss LJ.  By 2002, when Thorpe LJ decided Re H, custom had already moved a long way from the days when the formal combination of a person's title together with their surname was the almost universal way in which a person would be addressed, with the use of the forename being reserved for only the closest friends and family. But, even by 2002, convention had nowhere near relaxed to the stage where, as now, forenames are used almost exclusively for all purposes, social and business, often, it would seem, entirely in the absence of surnames. Further the increase in blended families means that it is by no longer the universal norm for a family living together all to share the same surname.

51. Whilst Butler Sloss LJ in Re D, L and LA, was focussing on the effect on a child of changing its forename once it is sentient, in my judgement given the fact that in the 21st century a child will predominantly use his or her forenames for most purposes throughout his or her life, that forename is now every bit as important to that child, and his or her identity, as is his or her surname.”

19.  The Judge approached his decision on the narrow basis of the child’s immediate and foreseeable welfare needs. He adopted a “worldly common-sense” approach, to borrow Thorpe LJ’s words. I have to ask myself whether that is sufficient, given the wider implications of the order and the significance of the step long-term in relation to issues of identity. Normally, for the reasons articulated by Butler-Sloss LJ and endorsed by King LJ such factors would require analysis.

20.  A child’s age, his or her degree of understanding (the “sentient” point) and the growing importance of forenames in terms of identity are all crucial factors. I have recorded the child’s age in the private part of the judgment and do not propose to say more here, save that I am satisfied from the Judge’s remarks (albeit, I accept, to some extent relying upon inference) that he took these factors into account as part of his welfare evaluation. His finding as to the child’s self-perception of identity, based upon the comments of the Family Court Adviser, is key.

21.  In the end, the Judge’s finding that continuing use of the middle name would damage the child’s emotional welfare was, in my judgment, open to him.

22.  How then am I to dispose of this appeal? I have found that the Judge’s welfare analysis was not only sound but sufficient. Nevertheless, I am doubtful that the order made achieves the goal intended, namely to protect the child on a day to day basis. When the parties addressed me on the appeal, I did not get the impression from the mother that she intended to take elaborate steps to excise the name. What she is entitled to do, in my judgment, on the basis of the Judge’s order is to ensure that the middle name does not routinely appear on documents, for example school reports. Thereby any innocent usage will be avoided or curtailed.

23.  If, in due course, she decides to take more formal steps, then, in my judgment, because the order is vague and essentially declaratory in its terms, she would be well advised to seek to take such steps with the father’s consent and, if that is not forthcoming, to refer the matter back to Court, not to reopen the central point but to ensure that the Court makes a proportionate and practical order to give effect to the underlying intention.

24.  I recognise that my solution risks further litigation, which in this case would be undesirable. However, in my judgment, that is preferable to me attempting to write a number of implementation clauses into the order or remitting the matter to the Judge.

25.  In fact, I was encouraged, to some extent, by what the father said to me at the appeal. I hope he means what he said. He told me that it is not a problem to use (the first name) in e-mails. He also told me that he calls the child by the first name and is happy to continue to do so. He said his objective was simply to preserve the middle name as part of the child’s identity. I know that the mother is sceptical, but, of course, time will tell and if the father proves unreliable and uses the middle name openly and in circumstances liable to cause distress or emotional harm to the child, then it would be open to the mother to seek an order directed personally to the father. It would be unfortunate if the matter had to come back to Court on that basis, but at least the issue would be precisely defined and the Court’s decision would be focussed accordingly.

26.  Therefore, although permission to appeal was granted in recognition of the apparent difficulties with the order, in the event the appeal is dismissed.