Scottish Sheriff Court Decisions

You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> C (otherwise McC) v. C [2002] ScotSC 92 (26th March, 2002)
URL: http://www.bailii.org/scot/cases/ScotSC/2002/92.html
Cite as: [2002] ScotSC 92

[New search] [Help]

C (otherwise McC) v. C [2002] ScotSC 92 (26th March, 2002)

Ref F108/01

JUDGMENT OF SHERIFF A.L. STEWART, Q.C.

in causa

C (otherwise McC) v C

Pursuer

against

Defender

_______________________________

Act: S.J. Brand of Thorntons, W.S., Dundee

Alt: R.T. Bennett of Campbell Boath, Solicitors, Dundee

DUNDEE, 26 March 2002

The sheriff, having resumed consideration of the cause FINDS IN FACT:-

The parties are as designed in the instance. The pursuer is a practising Roman Catholic. The defender is not a Roman Catholic.

The parties were married at Dundee on 24 July 1994. They were married in a Roman Catholic Church. In the course of the marriage ceremony the defender undertook that any child of the marriage would be brought up in the Roman Catholic faith.

There is one child of the marriage, M (hereinafter referred to as "M") who was born on 12 August 1996. M was baptised into the Roman Catholic Church. At the baptism ceremony both parties undertook to bring him up in the Roman Catholic faith.

The pursuer was habitually resident in Scotland throughout the period of one year immediately prior to the raising of the present action. The defender was resident within the Sheriffdom of Tayside, Central and Fife for a period of more than 40 days immediately prior to the raising of this action.

The parties lived together until 12 July 1999. Since then they have neither lived together nor had sexual relations with each other. The defender consents to the granting of decree of divorce.

Since the parties separated M has lived with the pursuer. He is happy and well cared for. There is ample accommodation for him in the pursuer's house. M has regular contact with the defender, seeing him every Wednesday late afternoon and staying with him every Saturday night and every fourth Friday night. The defender also has residential contact with M for longer periods during the Easter and summer holiday periods.

Early in 2001 the pursuer began to take the steps necessary to have the parties' marriage annulled by the Roman Catholic Church. Before an annulment can be granted each party to the marriage requires to be interviewed by a priest. Subsequent procedure involves consideration of the case by a tribunal. If an annulment is granted the marriage is treated in the eyes of the Church as if it had never taken place.

In about March 2001 the pursuer registered M as a pupil in Seaview Primary School, Monifieth, this being the non-denominational school appropriate to the area of the pursuer's house.

At about Easter 2001 the pursuer was interviewed by a priest as part of the process necessary for obtaining an annulment of the parties' marriage.

In about June 2001 the pursuer decided that she wished to use her maiden name, McC, as her surname rather than C. She decided that she wished M to use the surname McC too. She informed Seaview School that she wished M to be registered at the school as M McC but that she required to obtain the defender's agreement to this and that she would let the school know if this agreement was not obtained.

The pursuer's reason for wishing M to be known as McC was that she considered it would be better for him to have the same surname as her because they were a family unit living in the same house.

The pursuer intends in future always to be known by the surname McC. If she remarries she does not intend to adopt her husband's surname. However, if she had any children by a subsequent marriage, she intends that such children would have the surname of her husband.

About 3 August 2001 the defender was interviewed by a priest in connection with the pursuer's application for an annulment of the parties' marriage.

On 6 August 2001 the defender attended at the pursuer's house at her request. M was at that time at the house of his maternal grandparents. The parties discussed a number of matters, including (1) the fact that the defender wished to take M on a holiday to Florida at Easter time 2002; (2) the fact that the pursuer had arranged for M to attend catechism classes on Saturday mornings; and (3) the fact that the pursuer wished M to be known by the surname McC rather than C.

The defender had previously in M's presence discussed with members of his family the possibility of going on holiday to Florida, but no definite decision had been made about it. M had told the pursuer about this but the defender did not mention it to the pursuer prior to the meeting.

The reason for wishing to discuss the catechism classes was primarily to see if they could be fitted in with the defender's times of contact rather than to consider whether as a matter of principle M should attend such classes. This is what was understood at the meeting by both parties.

The pursuer had not, prior to the meeting, made any mention of the proposed change of surname to the defender. Her reason for not doing so was that she did not wish to raise the matter until after the defender had been interviewed in connection with the proposed annulment of marriage. She feared that, if the defender knew of her wish to change M's surname, he would not be willing to be interviewed and that this would jeopardise her chances of obtaining an annulment.

The pursuer's intention in asking for the meeting with the defender was a genuine wish to discuss matters. However, the defender gained the impression that, so far as the catechism classes and the change of name were concerned he was being told of decisions taken by the pursuer and that he had no option but to accept them. It was not unreasonable for him to gain this impression.

The defender was not happy about the proposed change to M's surname. In the course of the parties' conversation about it the defender mentioned the possibility of combining the two surnames into a double-barrelled name. This was not put forward as a serious suggestion by the defender but rather as a thought that had occurred to him. Both parties agreed that such a combination of the names was not appropriate.

By the end of the meeting the pursuer was under the impression that the defender, while not being happy about the proposed change of surname for M, was not actively opposing it. This was a reasonable but mistaken assumption on the pursuer's part. The defender did not intend to indicate that he had no objection to the proposed change. He in fact had a strong objection thereto.

Following the meeting the pursuer did not again contact Seaview School. Accordingly, when M attended school for the first time on 14 August 2001 he was registered as M McC. He has been known at school by that name since then.

On 15 August 2001 the defender's solicitor, Mr Bennett, wrote to the pursuer's solicitor, Mr Brand, the letter which is no. 5/2/1 of process. In the letter Mr Bennett states that the defender had been informed by the pursuer "quite unilaterally" that she had changed M's surname to McC and expressed the view that the defender should have been consulted about the matter. Mr Bennett also raised the question of the catechism classes and stated that the defender should have been consulted about this matter.

The defender has arranged for M to accompany himself and other members of his family to Florida for about ten days at Easter 2002. The defender has obtained a passport for M in the name C. In order to obtain this passport he had to exhibit an extract of the entry in the Register of Births in respect of M's birth.

It would not be harmful to M's welfare if he were to revert to the surname C.

M has, since August 2001, attended catechism classes each Saturday morning except for the one Saturday morning each month when he is staying with the defender. The pursuer has agreed to his being absent from the classes on these Saturdays.

It is reasonable that M should attend catechism classes, such classes being the norm for children of his age who are being brought up in a practising Roman Catholic home. Attendance at such classes is perfectly compatible with the defender's continued contact with M.

FINDS IN FACT AND IN LAW:-

This court has jurisdiction.

The marriage between the parties has broken down irretrievably.

It is not necessary to make any order regulating M's residence or the defender's contact with M.

As both the pursuer and the defender have parental rights and responsibilities in respect of M, they have a joint responsibility to provide him with a name.

It was not appropriate for the pursuer to change M's surname without consulting the defender and giving him an opportunity to object to any change. The pursuer failed to give the defender a reasonable opportunity to consider her wish to change M's surname.

As it would not be detrimental to M's welfare for him to revert to the surname of C he should do so, and his surname should not hereafter be changed so long as he is a child, without the agreement of both the pursuer and defender.

As it would not be detrimental to M's welfare to continue to attend catechism classes on Saturday mornings and as such classes are a normal part of the life of a child growing up in a practising Roman Catholic household, which the defender has previously accepted would be the case for M, it is not reasonable that the defender's specific consent to M's attendance at such classes should be required.

FINDS IN LAW:-

The marriage of the parties having broken down irretrievably, the pursuer is entitled to divorce.

The defender is entitled to an order to the effect that M should continue to be known by the surname C and that the pursuer should not alter or change his surname without the agreement of the defender.

The defender is not entitled to an order that M should not be forced into attending classes in religious instruction with the consent of the defender.

ACCORDINGLY

SUSTAINS the first and third pleas-in-law for the pursuer and the first and second pleas-in-law for the defender so far as they relate to the specific issue order first craved; REPELS the remaining pleas-in-law for both parties.

DIVORCES the pursuer from the defender; ORDERS that M J C, born on 12 August 1996 should continue to be known by the surname C and that, until said child reaches the age of sixteen years, the pursuer should not alter or change his surname without the consent of the defender; and DECERNS; reserves meantime all questions of expenses and appoints parties to be heard thereon on 2002.

NOTE

INTRODUCTION

This is an action of divorce, the ground of irretrievable breakdown being established by non-cohabitation for a period exceeding two years coupled with the defender's consent. The crave for divorce was not opposed and I am satisfied that decree should be granted. There is one child of the marriage, M, born on 12 August 1996, but parties seek no orders in respect of either residence or contact as these matters have been completely agreed between them.

The defender seeks two specific issue orders.

The first is in respect of M's surname. The pursuer, who herself has reverted to her maiden surname of McC wishes M to use the same name and he has in fact been doing so for approximately eight months. The defender wishes him to revert to the surname of C and for the pursuer to be ordered not to alter his name without the defender's consent.

The second specific issue order relates to the fact that M is attending catechism classes, the pursuer being a practising Roman Catholic who wishes M to be brought up in that faith. The defender seeks an order that M should not be "forced into attending classes in religious instruction" without the defender's consent.

THE EVIDENCE

The pursuer gave evidence, her supporting witness being her father, Mr P McC. The defender was the only witness on his own behalf.

It was most refreshing to have witnesses who were all quite obviously doing their best to tell the truth. At times a note of bitterness towards the defender was apparent in the pursuer's evidence, but on the whole, she, like the other witnesses, was reMably restrained.

Mr P McC's evidence was uncontroversial and was mainly concerned with the practical arrangements made for M when the pursuer was working. Mr Bennett for the defender attempted to establish from Mr McC some of the technicalities of a decree of annulment in the Roman Catholic Church, but the witness was quite clearly not sufficiently knowledgeable on this matter to provide any useful evidence.

The defender's evidence was concerned very largely with the name change, which was clearly the matter which troubled him most. His resistance to the idea of the catechism classes was at best half-hearted. I had a clear impression that he had no real objection to M's attendance at the classes. He virtually conceded that his main concern had been about he possibility that the classes might affect his contact. He accepted that he had given undertakings that M should be brought up as a Roman Catholic.

What occurred at the meeting between the parties on 6 August 2001 was spoken to by them both. There was reMably little disagreement between them about what actually happened, even though each was left with a different impression of the outcome. I am prepared to accept that the pursuer genuinely believed that the defender was not actively opposed to the change of name. However, I am satisfied that the pursuer misinterpreted the defender's position. He is not an assertive character. He was informed for the first time at the meeting of the pursuer's intention to carry out this major change affecting M. It is not surprising that he was somewhat nonplussed. I am not prepared to accept that he in fact gave his consent to the proposed change.

SUBMISSIONS FOR PURSUER

The submissions were mainly concerned with the change of surname.

Mr Brand began by pointing out that authorities on the question of changing a child's name were very limited. The only reported case which he had been able to find was Flett v Flett (Sh. Ct) 1995 S.C.L.R. 189 (Notes). He accepted that that case was not of great assistance as it was concerned with the law prior to the coming into force of the Children (Scotland) Act 1995 (hereinafter referred to as "the 1995 Act"). In my opinion that is the correct view of that case, and I shall not refer to it further.

Mr Brand questioned whether the specific issue order relating to the name change was in fact competent. He referred me to the 1995 Act , section 11(2)(e) and sections 1 and 2. He submitted that it was doubtful whether the change of a surname was something which fell within the scope of parental rights or responsibilities.

If the order sought was indeed competent, was it in M's best interests to grant it? This must be the test. M had been known by the name of McC for eight months now. A child's concept of time was different from that of an adult. For him eight months was a long time. To change his name again would cause him confusion.

The pursuer's way of dealing with the question had been reasonable. She had arranged the meeting with the defender in order to discuss the matter. She had been quite open in evidence about why she had fixed the date of the meeting. She had reasonably concluded that the defender accepted her position. The defender had not made it clear that he did not do so.

This was not the all too common case of a mother trying to exclude a father from the child's life. The defender was seeing M regularly and this would continue.

It was for the defender to demonstrate that it would be in M's interests that he should revert to his original name. In this he had failed. His crave for the order should be refused.

So far as the catechism classes were concerned, there was nothing harmful in M's attending them. He should be allowed to continue to do so. The defender's crave for an order in this respect should also be refused.

SUBMISSIONS FOR DEFENDER

Mr Bennett began by dealing briefly with the question of the catechism classes. He submitted, with it has to be said no very great enthusiasm, that to insist that a child of five should attend such classes was unreasonable and that the defender should be entitled to prevent such attendance. I have no doubt that Mr Bennett realised that the defender's own evidence on this matter had not been strong.

Turning to the name change question Mr Bennett submitted that the pursuer had reached the wrong conclusion at the end of the meeting of 6 August. The defender was a quiet individual. He should have made more of the fact that he did indeed have a strong objection to the proposed change. However, the defender's position was made quite clear by the solicitor's letter of 15 August and the pursuer could have had no illusions about where he stood.

Mr Bennett accepted that, procedurally, the onus was on the defender to establish that M should revert to his original surname. The starting point was that C was indeed his name. It was the name in which his birth had been registered. The entry in the Register of Births could be altered only with the consent of both parents (Registration of Births, Deaths and Marriages (Scotland) Act 1965, section 43 as amended by the 1995 Act).

Mr Bennett referred me to Wilkinson and Norrie on Parent and Child, (2^nd edition by Professor Norrie) at paras. 8.62 and 8.63 and to the cases referred to therein. He accepted that, as the learned author states, English cases should be treated with caution, but founded strongly on Re B (Change of Surname) [1996] 1 F.L.R. 791 a case specifically mentioned by Professor Norrie, which emphasises the importance of children maintaining the link with their natural father.

The pursuer had been adamant that she would not again change her own name. Yet if she remarried and had children, these children would take their father's name. This was likely to cause confusion to M, as his step-siblings would not have the name of their mother whereas he would do so.

In all the circumstances it was appropriate and reasonable that the defender should be granted the order first sought.

DECISION

The catechism classes

I deal first with the question of the catechism classes. As I have stated, I had the impression that this was not a matter which greatly exercised the defender. At the meeting of 6 August his main concern was that such classes should not interfere with his contact. This has proved to be the case. The pursuer has been accommodating about the Saturday mornings when M is with the defender and has not insisted on his attending classes on these days.

The defender's only objection in principle to the classes appeared to be that he thought that M should be allowed to make up his own mind about attending. I think that that is to place too great a burden on a child aged five years. M is being brought up as a Roman Catholic. The defender does not object to this. Indeed, he has formally agreed to it on two occasions - at the marriage and at M's baptism. The catechism classes are a normal part of the education of a child being brought up as a Catholic who does not attend a denominational school. In these circumstances I do not consider that the defender's consent is required. For him to withhold his consent would in any event be unreasonable.

The change of surname

There is no doubt that both parties have parental rights and responsibilities in respect of M. Mr Brand sought to argue that the giving of a name to a child was no part of either rights or responsibilities. I do not accept that submission. Professor Norrie states in the second edition of Parent and Child at paragraph 8.61 in a passage to which, surprisingly, I was not referred by either party:-

"Having a name is one of the most fundamental elements of a person's sense of self and personal identity, which itself makes an essential contribution to his or her psychological development and well-being. For this reason the parental responsibility to safeguard and promote the child's health, development and welfare [1995 Act, section 1(1)(a)] includes an obligation to provide the child with a name."

The footnote attached to this passage states:-

"Confirmation that this is a parental responsibility is found in s. 43 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 as amended, whereby persons with parental responsibilities can register a change in the child's name."

I respectfully agree with these expressions of opinion. The naming of a child is a parental responsibility which is shared by both parents.

This being the case, it is, in my opinion, as a general rule quite inappropriate for either parent to take a unilateral decision to change a child's name. There may be situations where there are overwhelming reasons why a child's name should be changed despite the objections of one parent. However, such cases must be exceptional. Even in such cases I should expect the parent who wishes a change of name at least to attempt to obtain the consent of the other parent and to give that parent an opportunity to consider and reflect on the proposal for a change.

I am far from satisfied that the present case is one of these exceptional ones. There are really no overwhelming reasons why M's surname should be changed. It is, for better or for worse, not unusual nowadays for a child to be a member of a family the surname of some of whose members is not the same as his or her own. I cannot accept that a child is likely to be embarrassed or traumatised by such an event. I think that this is implicitly accepted by the pursuer herself given her stated intention to retain her maiden name even if she remarries and has other children who would take their father's surname.

I have accepted that the pursuer was genuine in her belief that the defender was not opposing the proposed change, but I have found as a fact that her belief was ill-founded. The defender was presented with the stated wish of the pursuer. The pursuer had already taken steps to inform the school of her intention. She waited until a matter of days before M started school to tell the defender. Her reason for delaying doing so does not, in my view, do her much credit. It was not fair to the defender to spring this on him. He was entitled to a reasonable opportunity to reflect on it and to seek professional advice. I am satisfied that he did not intend to agree to the proposed change. It therefore should not have taken place.

Mr Brand argued that, even if I were to hold that the defender should have given his consent but had in fact not done so, the passage of some eight months made it unreasonable now to insist on M's reverting to his former surname. He submitted that this would cause him confusion. It would not be in M's best interests to insist on the change.

I can see the attraction of this submission, but, in my opinion, it should be rejected. Among children of M's age surnames are little used. It may be, as the evidence suggested, that some of M's friends will know what his surname is, but I question whether any of them will refer to it to any great extent. In any event, M's original surname is still that which is being used on his passport and thus for all purposes of the Florida holiday. He has thus not completely departed from its use.

I heard no evidence which persuaded me that M was likely to be adversely affected by again changing his name. It has not been demonstrated to me to be particularly in his interests that his surname should be McC. Until eight months ago his surname was indubitably C. I am satisfied that he should revert to that name and that, so long as he is a child, his name should not be changed in the future unless the defender agrees.

I have found support for this view in the passage from Parent and Child (paragraph 8.63) to which Mr Bennett referred me and in the case of Re B (Change of Surname), cit. supra. I accept that English cases in this field must be viewed with caution, but the general principle "that a child's welfare is served by his or her retaining the name by which he or she has hitherto been known, so that if there is no significance to the change the court will not authorise it" (Parent and Child, paragraph 8.63) seems to me to be of as much application this side of the Border as in the other jurisdiction.

There is always, of course, the possibility that circumstances may alter in the future and that an exceptional situation may arise which would justify a change of name even thought the defender objected. However, I have to say that I have the greatest difficulty in envisaging what such circumstances would be.

I have therefore decided that the defender is entitled to the first specific issue order which he seeks.

EXPENSES

Parties were agreed that I should reserve the question of expenses, and I have done so.