Before : |
Carol Elizabeth Canavan, Registrar, Family Division. |
|||
Between |
A (the father) |
Applicant |
|
|
And |
B (the mother) |
Respondent |
|
|
|
And |
|
|
|
Between |
B (the mother) |
Applicant |
|
|
And |
A (the father) |
Respondent |
|
|
IN THE MATTER OF SETH AND ZOE (PARENTAL RESPONSIBILITY AND CONTACT)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate J. F. Orchard for the Applicant/Respondent father.
Advocate L. J. Glynn for the Respondent/Applicant mother.
reasons
the registrar:
1. On the 2nd September, 2016, the applicant father filed an application for:-
(i) an order for parental responsibility in respect of Seth (this is not his real name) (already having parental responsibility for Zoe (this is not her real name) as she was born in England);
(ii) a prohibitive steps order preventing the respondent mother from changing the surname of the children to incorporate both surnames; and
(iii) an order for regular direct and indirect contact.
2. On the 23rd September, 2016, the applicant mother filed an application for a specific issue order to change the surname of both children from the father's surname to the mother's and father's surnames.
3. For ease of reference I will refer to the parties as "the father" and "the mother" and their surnames as "X" and "Y" respectively.
4. It was not disputed that the parties, who were both living in Jersey at the time, commenced a relationship in 2009. The respondent fell pregnant with Seth a few months thereafter and the parties started living together. Seth's surname was recorded using the father's surname ("X") on his birth certificate and the father was named as Seth's father on the birth certificate.
5. In September 2011, the parties (with Seth) moved to live in England. Zoe was born in 2012. Zoe's surname was recorded using the father's surname ("X") on her birth certificate and the father was named as Zoe's father on the birth certificate.
6. The mother's position was that the relationship ended in March 2013 when she moved back to Jersey with the children. The father remained living in England. The father's position was that the relationship was "on and off" but ended for the last time in July 2015. It was not necessary, for reasons set out below, for me to decide when the relationship did come to an end.
7. Both parties gave conflicting evidence of the nature of their relationship although both agreed that the relationship had been volatile and intermittent. They also gave conflicting evidence with regard to the amount of contact the father had had (or had not had) with the children subsequent to the separation. Again, it was not necessary to determine whose evidence was to be preferred because, after receiving the report of Mr Chris Langford, the JFCAS officer assigned to the case ("Mr Langford"), the parties reached agreement on parental responsibility for Seth and also a schedule of direct and indirect contact. Therefore the only issue left for determination at the hearing was whether or not the specific issue order allowing the change of surname or the prohibited steps order preventing the change of surname should be made.
8. The mother's proposal that the children's name should be changed from X to X-Y was raised with the father in a letter to him from Carey Olsen dated the 7th July, 2016. The letter stated:-
"Given that the children have had little and/or irregular contact with you since the breakdown in your relationship, my client considers that it would be in the children's best interests to identify their name and heritage with their mother, as well as with you".
The letter also pointed out that consent was not required from the father in order to change Seth's name but his consent would be required to change Zoe's name.
9. On the 28th July, 2016, Viberts replied to Carey Olsen stating that the father was not in agreement for the children's name to be changed for the reason, inter alia, that the mother and indeed her family, were trying to "side-line" him. His reasons for refusing to give consent were:-
"Both parties agreed on the children's names before their births and they both registered their names as they currently are.
My client is of the view that there was very little consideration for his "heritage" when your client and her family changed Seth's name to Y at a go-karting meet. ..........My client was never consulted about this or the plans to change their names by deed poll and reflects that he would most probably still been (sic) none the wiser if he had not discovered this by chance by reading the flyer at the event. My client did try to address this at the time but there was no forthcoming constructive dialogue.
Not only does my client believe that the proposed name change will have no psychological benefit, he believes that it could have a detrimental effect on the children especially on Seth. I am instructed that Seth is upset about his father being side-lined in his life but now has the added confusion about his identity......
..My client is concerned that the motivation behind the proposed change of name is not genuine rather is another attempt lead (sic) by your client's family to side-line him."
The "go-karting incident" is referred to in greater detail below.
10. The letter in reply dated the 9th September, 2016, on behalf of the mother stated:-
"It is not accepted that there will be no psychological benefit to the children in the name being changed to include their mother's surname. Your client admits having only intermittent contact with the children. My client is already concerned that this has been damaging for the children. She is further concerned that, should your client's contact with the children remains (sic) intermittent or become non-existent, their connection with their mother will not be reflected in their names. This will be noted by the children's friends and class mates as the children become older. The difference in surname between the children and their mother has also led to my client being questioned by customs officers when travelling....... I note your client's comments regarding Seth's name change at a go-carting (sic) meet. Seth's name had been included in the programme for the event as Y only, quite by accident. It was made quite clear to your client, by my client and her family, at the time, that that was an error, which has arisen as a result of Seth being registered for the event by his grandfather. The reason your client was unable to discuss the matter further was as a result of his aggressive response when in drink, which led to him being removed from the area by the States of Jersey Police. This is the incident referred to in my earlier correspondence. It is therefore quite ludicrous for your client to suggest that Seth understood his name had been changed at the time of this incident".
11. The mother's reasons for making the application as set out in her position statement and in her evidence can be summarised as follows:-
(i) The mother had always wanted the children to bear both parents' surnames, but that she suffered from physical and emotional abuse at the hands of the father when they argued about what Seth's surname should be. As a result of the father's behaviour, the mother had given in to the father's demand and Seth's birth was registered in 2009 with the father's surname. When Zoe was born, the mother considered that it would be futile to try to persuade the father that Zoe should bear both parents' surnames. The mother's position was that she had been effectively prevented from exercising her parental responsibility in respect of the children.
(ii) In addition to always having wanted the children to bear both parents' surnames, the application to change the surname was made because the mother considered that the change would be in the best interests of the children. There had been intermittent contact between the children and their father since the separation and the mother was concerned that, should the father not remain committed to contact with the children, the connection between the children and their mother would not be recognised by name. The mother took the view that the children should be entitled to have an ongoing connection to their maternal heritage, particularly as it is what she had always wanted for them. She had suffered difficulties and embarrassment when travelling with the children, having been questioned about the difference in names by customs officers in front of the children. The matter had remained very important to her since the children's birth.
(iii) The mother was not seeking to alienate the children from their father and there could be no reasonable suggestion that she had made the application to change the children's names for that purpose. The mother had done nothing other than promote the relationship between the children and their father. The application had always been to change the children's surnames by adding the mother's surname, not by removing the father's. The mother recognised that the children should have a meaningful ongoing relationship with their father.
(iv) The mother's application for the change of name was supported by Mr Langford, who must have concluded that the making of the order was in the children's best interests and taking into account the no order principle.
(v) The mother gave evidence of the pressure from the father to register the children's surname as X. I do not need to comment on the reasons why the children's surname was registered as X because the registration of the birth of Seth cannot be changed. There is no provision in the Marriage and Civil Status (Jersey) Law 2001 for birth certificates to be changed other than in the circumstances set out in Articles 56 and 57 of that Law.
(vi) It was not disputed by either party that there was an incident ("the go-karting incident") on the 14th May, 2016, which had arisen as a result of the father noticing that Seth's surname had been put in the go-kart brochure as Y. The mother and father had different versions of the incident but again, it was not necessary to decide which version of the event is correct. Suffice it to say that the father had become angry and demanded an explanation as to why Seth's surname was stated to be Y. He believed that the mother's family was trying to side-line and exclude him from his child's life. The mother said that she was not trying to exclude him from their lives and that, apart from the go-kart brochure, for all other purposes e.g. school, medical purposes, dentists, nursery, Seth and Zoe had always been known under X. The mother said that she had never suggested that their surnames should be changed to Y. The mother confirmed that she had discussed the change of name with Seth when she had started these proceedings and had explained to him that she would like her name to be part of his name. At first Seth had said that he wanted to keep the surname of his father but later, Seth told Mr Langford that his mother had explained that his name would not change but rather be added to. The mother said that she had not exerted any undue pressure on Seth to agree to the double-barrelled name. She felt that the name change would be in the children's best interests because, as their main carer, having a connection with the mother through the name would give them a sense of belonging to her. She repeated that there had been occasions when she had been stopped by customs officers and questioned as to whether or not the children were hers.
(vii) In answer to questions from Advocate Orchard she confirmed that the main reasons for the application were (i) to solidify the children's relationship with her and (ii) to make travel easier. She did not believe that the children were confused by not having the same name as her at present but she believed that as they got older the addition of her name would give them some sense of being part of a family unit. She believed that names become more important with age. She confirmed that, so far, the children had shown no problems with their name and she wanted to make sure they grow up knowing that they are known under the mother's surname as much as the father's surname. She agreed with Advocate Orchard that the difficulties with customs officers related to her and not to the children.
(viii) In her evidence the mother did say that, contrary to the content of the correspondence (see paragraph 10 above) the inclusion of Seth's name under Y in the go-kart brochure had not been an "error" but had been intentionally included by her father for safety reasons. There had been no pressure from her family to change the surname although her father and mother felt the same way as her. She accepted that it might have been upsetting for the father to see his son named under Y in the go-kart brochure.
12. The father's reasons for not agreeing to the change of surname are set out in the correspondence detailed above and his position statement. His evidence can be summarised as follows:
(i) The father believed that the mother's application for the name change stemmed from the go-karting incident which had led to an argument, in Seth's presence, between him, the mother and her family. He had seen Seth's name recorded under Y in the go-karting program. He said that the mother's father had told him that the mother's family intended to change the children's surnames by deed poll and that there was nothing he could do about it. He had advised the mother's father that they needed to talk about this and he had replied "there's nothing to talk about".
(ii) Up until the go-karting incident the father, mother and the children had been living happily as a family as the mother and the father had decided to try and to make a go of their relationship again. The mother had lied to him when he had asked her to explain why Seth's name was under her surname. The mother had contended that Seth's name being entered as "Y at the go-karting was a one off "mistake." He had been shocked, frustrated and humiliated.
(iii) The father's position was that the mother had not provided sufficient explanation as to how the change of name would benefit the children but rather that it would be of benefit to her and would cause her less inconvenience. He did not accept her assertion that travelling with the children could be difficult. In paragraph 17 of his open position the father said:-
"I accept that the Mother, as we are separated, would like the children's names to reflect her family name too. It is disappointing to me that she did not just provide this as a reason and approach matters openly rather than unilaterally changing Seth's name".
The mother, of course, had not changed Seth's name contrary to the father's belief.
In paragraph 18 he said that the mother's intention had been to remove his name completely. He added:-
"I feel that she has only compromised due to judicial pressure. I am concerned that the Mother still intends for the children to be known by Y and that my name will only be retained in an official capacity i.e. passports, doctors and that Y will become the name they are known by. I have not even been provided proof that the Mother has rectified the name "mistake" with Seth's go-karting. Additionally I only have her word that the children's names have not been changed elsewhere".
Again it was clear that the mother had not changed the children's surname "elsewhere".
(iv) The father believed that the mother's family had not been supportive of him as a parent and that they had influenced the mother with regard to the change of name. There had never been mention made to him about a double-barrelled name prior to the go-karting incident. The only time they had discussed the name was just after Seth's birth and they had agreed on the name of Seth and the father's surname - there had been no duress. Nothing further had been said about the change of name until May 2016.
(v) The father opposed the mother's application because he felt that he was being pushed away, and he thought that the mother's original intent was to "get rid" of him, to get rid of his name and replace it with the mother's surname. He believed that this was still the intent. He believed that if an order were to be made in her favour then she would go along with it but then she would eventually drop the name of the father.
(vi) Before the lunch adjournment I asked the father to consider whether or not he would agree to the change of surname if conditions were attached e.g. the name could not be changed without consent or further order of the Court and/or an undertaking given by the mother that she would use the double-barrelled name for all purposes. After the lunch adjournment notwithstanding paragraph 17 of his open position (paragraph 12(iii) above) he said that would have agreed with it but that he would not now (my emphasis) agree because of Mr Langford's report. In Seth's first interview with Mr Langford he had said that he wanted to be named under X and the father felt that Seth's wishes should be respected. Ten days after this interview Seth had been talking to his father on the phone and he had become nervous. He had said "Daddy don't be mad at me but my name is not Seth X anymore". Seth had been upset, and had not seemed like himself - the father felt that Seth "had been put up to it". Once again the father said that if he had been approached by the mother, they could have talked to the children and asked them what they wanted but the mother had tried to manipulate Seth into changing his mind. The father felt that the mother should not have talked to Seth about the change of name.
(vii) In cross-examination Advocate Glynn pointed out to the father that the double-barrelled name had been mentioned to him in the letter dated the 7th July, 2016. The father had not agreed the proposal but, she said, he had not suggested any alternative. The father insisted that he believed that the mother's proposal had not "been up for discussion". He said he would have engaged if an "offer" had been made. However in the response from Viberts to Carey Olsen in the letter dated the 28th July, 2016, he had said that he did not agree to the names being changed. He did not want the mother's name recognised because this was not what Seth wanted. His view was that this is about what the children want but of course, it is not. The Court has to consider what is in the best interests of the children, not what the children want, bearing in mind that Seth is only 7 and Zoe only 4.
13. Mr Langford recommended in his report that the surnames of the children be changed to X-Y. At paragraph 29 he said:-
"In respect of her application to change both the children's surnames she remains of the view that they should have some link with her surname. She had originally wanted to change the surname to hers but confirmed at our Pre-CRH interview that X-Y could be a suitable compromise. In her opinion the children have been confused about their names and have been upset when she has been asked for proof of their links to her. She feels that her surname in their surname would give them a "sense of belonging" to her as their primary carer just as a double-barrelled name does not remove their sense of belonging to their father."
He confirmed to Advocate Glynn in his evidence that he still remained of the same opinion. He also confirmed that his decision had been based on what he believed to be in the children's best interests. With regard to Zoe, he said that it did not make much difference to her at the moment because of her age, she was not aware of any Court issues. He explained that it was a different situation with Seth.
14. With regard to Seth's ascertainable wishes and feelings in respect of a change to his surname, Mr Langford recorded that at his first meeting with Seth on the 11th January, 2017:-
"36. Without any question or prompting Seth then stated: "Seth X but Mummy wants it to be Seth Y".
37. I asked Seth how he knew that was what his Mother wanted: Mummy has told me this. I want to stay as Seth X but I can't because my mum wants me to go-karting but if my name's not Seth Y no-one knows who I'm with".
43. I asked Seth what he thought about his last name being Y-X or maybe X-Y, he stated: "I don't think Daddy would be happy because Daddy wants me to be Seth X and they argue but I think my Dad starts it........ I want to be Seth X not Seth Y".
It had been clear to Mr Langford that Seth was aware that his name was an issue and that he had known it from both parents. He would have known it from the discussions and arguments he had witnessed. Seth had been very aware that there were ongoing Court proceedings and that there was a Judge involved.
15. At the time of the second interview on the 15th February, 2017, Mr Langford thought that Seth had been thinking about his name and that he had discussed this with both parents. Mr Langford felt that Seth had made a conscious decision to try and keep both parents happy. He had formed the opinion that Seth felt under pressure. Seth's head teacher had told Mr Langford that sometimes Seth struggles at school - sometimes he would be doing something and the next minute he would be in floods of tears. Trying to keep both parents happy was a weight on Seth's shoulders. Mr Langford thought that Seth was trying think of a way to stop his parents from arguing. At the second interview with Seth, Mr Langford recorded that:-
"44. Seth then stated, "I want to be Mummy's name and Daddy's name. I want to be X-Y.
45. I asked Seth if his surname and Skyping Daddy were what he wanted or someone else wanted. He answered "My Mum wants this but I'm happy with being called Seth X-Y."
16. Zoe was too young to have wishes and/or feelings about a change of surname.
17. Mr Langford concluded in paragraphs 84 and 85 of his report:-
"I sense that Seth has felt fatigued by these Court proceedings and just wants to "keep the peace" between his parents....
... I also believe that Seth has made a conscious decision that he can "live" with a "double-barrelled" surname. In this respect both parents need to accept the emotional pressure this may have created for him and support his wish".
Mr Langford recommended that a specific issue order should be made changing Seth and Zoe's surnames from X to X-Y.
18. In answer to questions from Advocate Orchard Mr Langford said:-
(i) The mother had not identified any situations to him where the children had been asked to prove their links with her nor were there any situations which caused distress or confusion for the children. Only the mother had been asked to explain why the children's names were different to hers.
(ii) He confirmed that given the age of the children at the moment the only person who would benefit from a name change would be the mother.
(iii) The children had shown no sign of being upset or confused about their links with their mother or her family.
(iv) He had not gained the impression that the use of the mother's surname at go-karting confused or upset Seth.
(v) He believed that children get to an age at school when they are looking at history and lineage and start taking more interest in their names. Mr Langford did not feel that Seth was showing this awareness.
(vi) Advocate Orchard put it to Mr Langford that the mother's expression of her views about the change of name was the equivalent of undue influence, manipulation or coaching which had resulted in Seth's change of heart at the second interview. Mr Langford agreed that the mother's conversation with Seth had "sewn a very heavy seed" in Seth's mind of the importance to his mother of the change of name but Seth was equally aware of the importance to his father of keeping his name. Seth was aware that the issue of his name was important to both parents. Mr Langford repeated that, in his opinion, the issue had taken an emotional toll on Seth as could be seen by the fact that his performance at school had dropped. He believed that the change of surname to the double-barrelled name would be the best outcome for Seth.
(vii) Mr Langford agreed with Advocate Orchard that it would not be fair for a decision about the name to be based on someone's influence but it should be made in what is in the best interests of both children.
(viii) Advocate Orchard put it to Mr Langford that there would be no benefit for the children in having their name changed, it would only benefit the mother. His reply was that Seth needed to know a decision has been made and that both parents accept the decision and will support Seth with it. The important thing was for there to be an end to the matter.
(ix) Mr Langford felt that Seth had made a mental adjustment - he could work with the double-barrelled name and just "get on with it". He felt that the positive impact on Seth would be that the Court issue was finished.
19. I only propose to summarise the submissions made on behalf of the parties but, when determining this application, I have taken all matters raised into account.
20. Advocate Glynn submitted on behalf of the mother:-
(i) The key issue for the Court to decide is what is in the best interests for Seth and Zoe.
(ii) The mother accepted that the father loves his children and that they love him and she wants the children to have a good relationship with their father and that why she had agreed to the orders with regard to PR and contact.
(iii) Her evidence about the circumstances surrounding the registration of the children's births had been almost unchallenged. Re W, Re A, Re B (Change of name) [1999] 2 FLR 930 confirmed that factors relating to the registration of a child's name and the reasons for it is one of the factors to which the Court should have regard when considering a name change application. Also the Court should have regard to future considerations.
(iv) In respect of the registration of the births, if the parties had been equal in their relationship at the time of the children's births, they would have been registered with both parents' names.
(v) Mr Langford recommended that the order should be made. He is the Court appointed officer whose job is to consider what orders are in the best interests of the children. He could have recommended that no order be made but he had not done that.
(vi) Too much had been made of the comments made by Seth to Mr Langford. It was clear that Seth had said that his mother wanted to change his name and that his father would be angry.
(vii) There had been no evidence of coaching or pressure on the part of the mother. The mother had discussed the matter with Seth but, Advocate Glynn submitted, that this was entirely normal. There was no evidence that Seth thought his name had actually already been changed to Y or X-Y.
(viii) Re H [2014] EWCA Civ 733 dealt with the impact of parental manipulation on children but Advocate Glynn submitted that that case concerned such serious manipulation that the children had been immediately removed for the mother. There had been no such manipulation in this case.
(ix) Whilst Seth's wishes and feelings are very important he is only 7 years old.
(x) Both children recognise their mother as their primary carer and they should therefore have the benefit of their primary carer's name being reflected in their own names.
(xi) In Re R (Surname: Using Both Parents') (2001) EWCA Civ 1344 it was clearly the view of the Court of Appeal, although obiter, that they recognised that both parents' names being included in the surname should be considered more frequently and that it was important to reflect the parents' equal roles in a child's life. The mother believes that it is in the children's best interests for the parents to be recognised as equal so that everyone can move forward.
(xii) She submitted that the evidence given showed an important and significant enough reason to make the order sought.
(xiii) The mother would agree to give an undertaking that she would use the double-barrelled name on a daily basis and that no change would be made without consent or a Court order.
21. Advocate Orchard submitted on behalf of the father:-
(i) In considering the change of name the Court should have regard to the welfare of the child as set out in Articles 2(1), 2(3) and 2(5) of the Children (Jersey) Law 2002 ("the Law"). Mr Langford had addressed the welfare of the children specifically in his report. Advocate Orchard submitted that the ascertainable wishes of the children should be approached with caution as it was clear, on the balance of probabilities, that the mother had influenced Seth's decision about his surname. Seth had been initially resolute about his wish to retain his current surname. He referred to the case of Re H and agreed that that was a very serious case but some comments made in that case were pertinent to the facts of this case:-
"44. At paragraphs 74 to 76 the judge then set out her conclusions:
"74. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the whole outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. ..........Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this."
(ii) There had been ample evidence that Seth's view had been influenced and Mr Langford had suggested that a "heavy seed" had been planted by the mother. Advocate Orchard thought that if the mother had not planted this seed, it was more than likely that Seth's views would have remained as they were in the first interview.
(iii) The father had made the conscious decision not to involve Seth in the proceedings, he had not tried to influence Seth. Seth's involvement had caused the father distress and he was concerned because the mother had engaged Seth in the process.
(iv) The wording of the first part of the welfare check list is that the "ascertainable wishes" need to be considered not the "expressed wishes". The Court has to apply its judicial intelligence in interpreting the comments of the children. On the balance of probabilities there had been influence which had caused distress to Seth. The mother should not be rewarded for her behaviour - her behaviour should not be condoned by the Court.
(v) When considering the likely effects on the child if there were to be any change in the child's circumstances, it should be noted that father was asking for the status quo to remain. Seth had been known and identified as Seth X for his entire life. This was not a case such as Re R where the mother had already been calling the children by a different name. In this case the children had been called X for all purposes. A change of name would have a greater impact on the children than if no change was made at all.
(vi) Mr Langford had recommended in his report that it would be in the best interests of the children for their name to be changed. Advocate Orchard said that he had not got that impression towards the end of Mr Langford's evidence. He had seemed to go back on his position. He had suggested that the reason the change would be in the best interests of the children was so that there was finality and that was what was most important to Seth. Mr Langford had not suggested that the change of name would actively benefit the children. Advocate Orchard submitted that there would be finality for Seth whatever decision were to be made. Both parents would have to accept the decision. Mr Langford had said that it does not matter what the decision was as long as it was supported by both mother and father.
(vii) Dealing with any harm which the child might suffer, he submitted that Seth had already suffered some harm from the application. He had been caused anxiety which might have had an effect on his school work. It was the father's position that the anxiety had been brought about by the mother and that there would be no harm caused if the status quo was maintained. It had been the idea of changing his name which had caused Seth anxiety.
(viii) Article 2(5) of the Law states that the Court shall not make the order or any orders unless it considers that doing so would be better for the child than making no order at all. The burden of proof is firmly on the shoulders of the mother that the order she is seeking must be for the benefit of the children.
(ix) The mother's only reasons for believing that the children would benefit from a change of name were (a) to bring the children closer to the maternal family and (b) to remove the issue of possible embarrassment when moving through customs. Mr Langford had confirmed that there was no suggestion that it would bring the children any closer to their maternal family - they already have very strong bonds and they have no confusion about their links with their maternal family. There had been no evidence to support this. The mother had expressed concerns that if the father did not maintain contact the children would be left with his surname. Her argument was completely unfounded.
(x) With regard to the mother's argument about the questions from the customs officers, in the headnote of Re T (Change of surname) [1998] 2 FLR 620 it was said :-
"Held - allowing the appeal - shortly after the judge's ruling the Court of Appeal had made it clear in Dawson v Wearmouth that children's names were important, and in any situation of dispute either the consent of the other parent or the leave of the court was an essential prerequisite, certainly where both parents had parental responsibility. The twins should revert to using the name T, their father's name. Neither the convenience of using one name for medical and school records, nor the long period of unlawful use, justified the change of name".
It was the father's view that the mother was seeking the order because it would more convenient for her and would be for her own benefit. The children had not talked about it nor asked for it. The mother had talked it through with Seth initially, when he had made it clear that he wanted to remain Seth X. Subsequent pressure applied by the mother, had caused the change in Seth's mind. By reasons of the mother's actions Mr Langford's decision had been trying to take the road with least resistance. Seth's wishes at the first interview should be given greater weight than his wishes at the second interview.
(xi) With regard to the registration of the children's births, the father had always consistently maintained that the parties had agreed that the father's surname should be registered. The parties had wanted to be a family unit.
(xii) The father took the view that the children could make their own decision with regard to their names when they are old enough.
22. Articles 2(1), (3), (4) and (5) of the Children (Jersey) Law 2002 contain the relevant statutory provisions:
"2 Welfare of the child
(1) When the court determines any question with regard to -
(a) the upbringing of a child; or
(b) the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration.
(3) In the circumstances mentioned in paragraph (4), the court shall have regard in particular to -
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of the child's age and understanding);
(b) the child's physical, emotional and educational needs;
(c) the likely effect on the child of any change in his or her circumstances;
(d) the child's age, sex, background and any characteristics of the child which the court considers relevant;
(e) any harm which the child has suffered or is at risk of suffering;
(f) how capable each of the child's parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs; and
(g) the range of powers available to the court under this Law in the proceedings in question.
(4) The circumstances are that -
(a) the court is considering whether to make, vary or discharge an Article 10 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or
(b) the court is considering whether to make, vary or discharge an order under Part 4.
(5) Where the court is considering whether or not to make one or more orders under this Law with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all."
23. The circumstances in the cases below may differ from the circumstances in this case but the principles which can be drawn from these cases were helpful to me in reaching what has been a very difficult decision.
24. In the case of Re T (Change of surname) when the mother met the father she had three children named after her estranged husband. She then had twins with the father registered under his name. Subsequent to the separation the mother changed the name of the twins to the name of her former husband, arguing that she wanted all of her children to have the same names and the same name as she was herself using, as this was more convenient for medical and school records. The father, who had parental responsibility but had not been consulted, issued an application for a specific issue order requiring the mother to ensure that the twins were known by his name, arguing that the twins had no connection with the name of the former husband and that the use of that name would confuse the twins. The father's application was refused and he appealed. The appeal was allowed. Thorpe LJ said that the father's reasons for the application were -
"succinctly stated on his application of 11 June 1997. He said:
'... I was not consulted about this change of name. I think it will only cause confusion to the children and see no reason why they should not be known by the name of T throughout their minority which is the name on their birth certificate and indeed the name of their father".
He commented that the fact that the deed poll had been in effect for some 7 months prior to the hearing "could not possibly justify denying the applicant relief". He also went on to say:-
"The applicant's case for relief is, in my judgment, overwhelmingly strong, and is succinctly summarised in the passage from his application which I have already read. By contrast, the mother's case for opposing the application seems insubstantial and scarcely reasoned. Again it is only the brief paragraph from her statement, supplemented, perhaps, by what she said to the court welfare officer and to the judge. That convenience of medical records and school records is of the slightest weight against the strength of the application, inevitably brought by that father, to check what was an ill-considered act on the part of the mother".
25. In Dawson v Wearmouth [1999] 1 FLR 1167 the parties were not married. Lord Mackay of Clashfern said:
"......ultimately the right course, in my opinion, must be to apply the criteria in s. 1 of the Act of 1989 including s.1(5) and not make an order for the change of name unless there is some evidence that this would lead to an improvement from the point of view of the welfare of the child".
... In my opinion, on a fair reading of the decision of the Court of Appeal they were suggesting not that the registration was conclusive of the issue in the present case but that in order to justify changing the name from that which was registered circumstances justifying the change would be required and they concluded in the exercise of their discretion that there were no such circumstances of sufficient strength to do so in the present case."
26. In the same case Lord Jauncey of Tullichettle said:
"When a child has for a number of years been known by its registered name, where it is aware of that name and where, for example, it has been entered at school or on the list of a general practitioner by that name no doubt the fact of such registration will be an important factor in the exercise of discretion. However, where the child, as in this case, was of such an age as to be incapable of understanding the significance of its registered name, registration as a factor must assume very much less importance. The weight to be attached to the fact of registration in an application to change a child's name must always depend upon the surrounding circumstances as they affect the welfare of the child....
A surname which is given to a child at birth is not simply a name plucked out of the air. Where the parents are married the child will normally be given the surname or patronymic of the father thereby demonstrating its relationship to him. The surname is thus a biological label which tells the world at large that the blood of its name flows in its veins. To suggest that a surname is unimportant because it may be changed at any time by deed poll when the child has obtained more mature years ignores the importance of initially applying an appropriate label to that child."
My Lords I accept, of course, as the authorities make clear, that the changing of a child's surname is a matter of importance and that in determining whether or not a change should take place the court must first and foremost have regard to the welfare of the child. There are many factors which must be taken into account, not only those pertaining to the present situation but also those which are likely to affect the child in the future. Just as the fact that the mother happens to bear a different surname from the child is not a sufficient reason for changing the child's surname (In re WG: Re C (Change of Surname) [1998] 2 FLR 656 so the fact that the mother and child bear the same name should not necessarily be sufficient reason for refusing a change if there are valid countervailing reasons."
Lord Hobhouse of Woodborough said:-
"It has often been observed that the use of surnames is among the questions which give rise to the most deeply felt disputes between parents. As in other areas, the parents are liable to see the question raised as reflecting upon their own rights. It is clear from the arguments which have been advanced in the courts below and even to some extent your Lordships' House that the father and mother see the present dispute largely in such terms. They are mistaken. Once the dispute has arisen, the paramount consideration is the welfare of the child. The attitude and views of the individual parents are only relevant in so far as they may affect the conduct of those persons and therefore indirectly the welfare of the child.
.....There is ample material in the present case which supports the conclusion that the status quo represents the best interests of the child at present, or, at least, shows that the arguments in favour of and against making the order are no better than equally balanced and that therefore an order should not be made".
He went on to recognise that:-
"The name appearing upon a child's birth certificate is not without importance. It has practical implications and, other things being equal, it is in the long-term interest of the child that the name by which he is known should also be the name which appears on his birth certificate".
27. These passages from Dawson v Wearmouth were cited by Butler-Sloss LJ (as she then was) in Re W, Re A, Re B (Change of name). The head note contained the following:-
"Reasons given for changing or seeking to change a child's name based on the fact that the child's name was or was not the same as the parent making the application would not generally carry much weight.
........Where the parents were unmarried the degree of the father's commitment to the child, the quality of any contact and the existence or absence of parental responsibility were all relevant factors".
28. In Re R (a minor) [2001] 2 FLR 1358 Hale LJ said:-
"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 Re W (a Child) [2001] 3 Fam1, [2000] 2WLR 258 to factor (h)-:
"Reasons given for the 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."
I do not think she meant that considerations of confusion, anxiety and embarrassment for the child were of little account: it is more the problem for the parent is of little account. It all depends upon the facts and circumstances of the particular case;"
Hale LJ went on to say:-
"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..... I therefore echo what has fallen from my Lord, Lord Justice Thorpe, in urging both parents to contemplate that course in this case".
29. In summary, I have drawn the following general principles from the above cases and applied them to the facts of this case:-
(i) A change of name might cause confusion for a child
There was no evidence that the children have been confused about their names. Mr Langford had not sensed this. There was no evidence that the children do not feel a "sense of belonging" to the mother or her family because they do not have the same name or because they are confused about their name.
(ii) Changing a name because it is more convenient for one of the parents is not a sufficient reason for changing the name
As cited from the case law above, convenience for the mother, e.g. when going through customs, was not a sufficient reason for ordering a change of name. I did not consider that any difficulties the mother had experienced with customs were sufficient reasons to change the status quo.
(iii) No order should be made unless there is evidence that this would lead to an improvement from the point of view of the welfare of the children
Mr Langford had seen no evidence that there was anything other than a strong connection between the children and their maternal family so I did not accept that this limb of the mother's argument was a valid reason for changing the surname. I will deal with the welfare of the children in greater detail below.
(iv) Parents view the change of name as a reflection on their own rights whereas the paramount consideration is the welfare of the child and if the arguments in favour or against are equally balanced no order should be made
The father's open position and his evidence were contradictory with regard to agreeing to a change of name. At one point he said that he would have agreed if the mother had talked to him about it but his view was that her proposal had not been up for discussion. He said in evidence that he would have agreed but for Mr Langford's report. However, in the correspondence between the lawyers (referred to above) it was stated that the father would not agree to the change to a double-barrelled name. He believed that Seth wanted his name to remain the same and he said that he wanted Seth's views to be taken into account. Whilst I agree that Seth's wishes should be considered there is no doubt in my mind, having read Mr Langford's report and heard his evidence, that these proceedings have had an adverse effect on Seth. I do not accept that one parent played a greater part in influencing Seth than the other. Seth is only 7 and he should not have been put in the position of trying to please both parents. He certainly should not have been exposed to the arguments between the father and the mother which, according to both parties, had caused Seth a great deal of distress. If the parties had had the best interests of Seth and Zoe in mind, this application, in my view, would never have come to Court. There was a compromise which could have been reached which the mother was prepared to agree but the father was not, namely an order for the change of name with conditions attached.
In my opinion, both parents viewed the change of name (or not) as a reflection on their own rights and not as being in the best interests of Seth and Zoe.
(v) Changing a child's name because the child's name is or is not the same as the parent making the application does not generally carry much weight - it is not a sufficient reason for changing the child's surname
The mother said she had always wanted the double-barrelled name but she did not stand up to the father for this when registering either of the births. This is not, in my view, a consideration to be taken into account seven years later. The fact that her surname is not the same is again, not a sufficient reason in my view, for a change in the surname now. Seth has been Seth X since birth. He is clearly capable of understanding the significance of his name as shown in the comments he made to Mr Langford about his mother wanting him to have her name and his father being angry about it.
I did not agree with the argument that if contact with the father were to cease the mother's name would not be reflected in children's names and this would be noted by friends and class mates in the future. There is no reason to suggest that contact with the father will cease and in any event, as set out above, the fact that surnames may be different is not a sufficient reason for changing the surname. Many parents, whether because of divorce or remarriage, have different names from their children.
In his evidence Mr Langford was firmly of the opinion that Seth had suffered emotionally because of these proceedings so much so that it would be in Seth's best interests to have finality in this matter, whatever the decision.
(vi) The burden of proof falls on the parent making the application
The burden of proof is on the mother in respect of the specific issue order. I have to consider whether or not she has convinced me that the change of name will lead to an improvement from the point of view of the welfare of the children. Unfortunately, on her arguments, she has not. It is clear from the case law referred to above that the reasons she has given for changing the name were for her convenience and so that she could have her name reflected in the names of the children.
However the father has also made an application for a prohibited steps order and so there is a burden of proof on him to show cause why the surnames should not be changed. It is clear from his evidence that the go-karting incident angered and upset him because he wrongly believed that Seth's surname had been changed without consultation. He felt that the mother and her family were "ganging up" on him. There was no evidence that the mother's family were going to change the names by deed poll. Indeed, the consent of the father would have been required in order do so. I can understand that the father would have been upset to see his son named as Y but it is clear to me, despite his statements that he would have agreed if he had been "consulted" that the father was never going to agree to any change of name. It is unfortunate that the "error" or "mistake" of entering Seth's name in the go-kart brochure as Y however it occurred and for whatever reason, was the catalyst for these proceedings which have caused such emotional harm to Seth.
30. I accept that the mother, in not seeking to remove the father's name but rather just add her own, she was not seeking to alienate the father from the children as he believed. The mother had not changed the surnames of the children as the father believed. I accept the mother's evidence that she used the father's surname for all other aspects of the children's lives.
31. Having decided that, following the authorities neither of the parties has made out their case, I have to make a decision using my discretion as to what I believe to be in the best interests of the children. There is no doubt that Seth is aware of the conflict between his parents about his name, he needs these proceedings to come to an end and he needs to know that both parents will support any decision made. I consider that it will be in the best interests of Seth now (and Zoe later) for these parents to stop arguing, to put the children first and to stop involving them in their disagreements. The question is how do I do that? If I leave the name as X the father will think that he has "won". I do not believe that such a decision will help the relationship between the father and the mother or her family in the future and will probably result in further adverse effects on the children. If I order the change of the surnames to X-Y, the father will undoubtedly feel aggrieved and remain convinced that the mother will eventually try and remove his name altogether. Weighing up the authorities and the future relationship of these parents and the effect on Seth and Zoe, I feel that it is in the best interests of the children to try and ease the ongoing relationship between the father and the mother. I have therefore decided that:-
(i) the surnames of Seth and Zoe should be changed from X to X-Y;
(ii) the mother and the father shall use the name X-Y for all purposes connected with the children unless or until they agree otherwise or until further order of the Court.
32. This has been a difficult decision to make and I hope that both parents, for the sake of the children, will make every effort to support it. In my opinion, this is an entirely appropriate case, as contemplated by Hale LJ in Re R (a minor), in which both surnames should be used as recognition of the importance of both parents.
Authorities
Marriage and Civil Status (Jersey) Law 2001.
Re W, Re A, Re B (Change of name) [1999] 2 FLR 930.
R (Surname: Using Both Parents') (2001) EWCA Civ 1344.
Children (Jersey) Law 2002.
Re T (Change of surname) [1998] 2 FLR 620.