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|Judgment - Dawson v. Wearmouth (A.P.)
Lord Clyde Lord Hobhouse of Woodborough
LORD SLYNN OF HADLEY
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Mackay of Clashfern. For the reasons he gives, I, too, would dismiss the appeal.
LORD MACKAY OF CLASHFERN
This appeal is concerned with a dispute between the appellant whom I shall refer to as "the father" and the respondent whom I shall refer to as "the mother" relating to the name to be given to their child whom I shall refer to as "Alexander."
It is an appeal by leave of your Lordships' House given on 23 July 1998 from the decision of the Court of Appeal (Hirst and Thorpe L.JJ.) which on 31 July 1997 allowed the mother's appeal from the order of His Honour Judge Cotterill in the Taunton County Court made on 14 January 1997 in which he had ordered that the child, Alexander, should be known as Alexander Guy Dawson--Dawson being the father's surname--and that the mother be prohibited from causing or permitting Alexander to be known by any other name.
The facts may be summarised as follows. Prior to her meeting the father, the mother had been married to Tony Wearmouth by whom she had two children, a daughter Danielle Wearmouth born on 10 May 1986 and a son Ben Kenward Wearmouth born on 22 April 1988. The mother and her husband separated in June 1993. Their marriage was subsequently dissolved. The mother has at all times continued to use and be called by the surname Wearmouth. The children of her marriage have at all times continued to live with the mother and to be called by the surname Wearmouth.
In about June 1994, and after her marriage had been dissolved, the mother began a relationship with the father. They began living together at the mother's council house in Somerset, initially at weekends, in about September 1994. They bought and moved into their own house in the West Midlands in April 1995. They moved back to Somerset in February 1996 to a house which they had purchased and where the father continues to live. They never married.
Alexander was born on 26 March 1996. On 15 April 1996 the mother left the father taking all three children with her. On 26 April 1996 the mother made an application against the father for an "ouster" injunction which was dismissed following a two day hearing. On 15 May 1996 the father gave voluntary "non-molestation" undertakings but the mother declined to move back to live with him. Since then the mother has looked after Alexander and the two children of her former marriage, living in council accommodation.
On 19 April 1996 the mother without consulting the father registered Alexander's name in accordance with the Births and Deaths Registration Act 1953 as amended, which I shall refer to as "the 1953 Act," as Alexander Guy Wearmouth. The father became aware of this a few days later. Prior to Alexander's birth the father and the mother had discussions about the name of their child. The mother was aware of the father's wish that the child should be named Alexander David Bolden Dawson. She said that she agreed only that he should be called Alexander; the father said that she agreed to the full name but changed her mind after they had separated. That issue has not been resolved.
The Act of 1953 requires registration within 42 days of the birth of a child and where the parents are married the duty lies on both the father and the mother of the child. What the parents must furnish to the Registrar are such particulars concerning the birth as may be required by regulations. The regulations are the Registration of Births and Deaths Regulations 1987 (Statutory Instrument 1987 No. 2088) as amended by the Registration of Births and Deaths (Amendment) Regulations 1994 (Statutory Instrument No. 1948). Amongst the particulars required are the name and surname of the child. Regulation 9(3) of the 1987 Regulations provides:
In the case of a child whose father and mother were not married to each other at the time of his birth, the duty to register the birth is upon the mother alone. Furthermore section 10(1) of the Act of 1953 not only relieves the father of a duty to give information but prohibits the registrar from entering in space 4 of Form 1 the name of any person as father of the child except as provided in the circumstances defined in the following lettered paragraphs. By paragraph 6 of Schedule 12 to the Children Act 1989, "the 1989 Act," for the final lettered paragraph d was substituted more extensively paragraphs d to g. The circumstances defined in paragraphs a to f all require the mother's co-operation and consent. Therefore where her co-operation and consent is absent the registrar shall not enter the name of any person as father of the child in the register save where there is in force any of the orders defined in paragraph g and sub-section (1A). None of these orders was in force in this case.
On 13 May 1996, the father issued an application at Taunton County Court in relation to Alexander seeking:
1) a contact order under section 8(1) of the Act of 1989;
2) a parental responsibility order under the Act of 1989 sections 2(2),3(1) and 4(1)(a); and
3) a specific issue order as to Alexander's name under section 8(1) of the Act of 1989.
The father's case was set out in statements made by the father on 17 September 1996 and 6 January 1997 and by his father on 10 December 1996. The mother's case was set out in statements made by the mother on 2 January 1997 and by her sister on 13 January 1997. The Court Welfare Officer's report dated 18 December 1996 stated:
Because of the wider issues raised by the father's applications for a contact order and a parental responsibility order, the proceedings took a considerable time to come before the court. On 14 January 1997 His Honour Judge Cotterill made orders:
(i) by consent that Alexander have visiting contact to and with the father fortnightly on Sunday afternoons;
(ii) that the father should have parental responsibility for Alexander; and
(iii) that Alexander should be known as Alexander Guy Dawson and that the mother be prohibited from causing or permitting Alexander to be known by any other name.
In deciding to make the order relating to Alexander's surname the judge said:
Having stated that he must approach the question of the child's surname as though the matter had come before him at the time when the birth was to be registered and before the question had been resolved he gave reasons for his judgment which can be summarised as follows.
The name of a child is not a trivial matter but an important matter, and is not a question to be resolved without regard to the child's welfare. For this purpose it was necessary to consider the welfare checklist in section 1(3) of the Act of 1989. Whilst the mother is much more comfortable with Alexander being called Wearmouth rather than Dawson and while it is understandable she would be irritated, though not distressed, were she be required to use the name Dawson in relation to Alexander there was no suggestion that any such reaction was likely to be so extreme as to affect adversely her ability to bring Alexander up properly. The proposition that it is generally in a child's interest to have the same name as his mother when she is bringing up the child alone was rejected and he also rejected the proposition that a difference of names between children in the same household would embarrass or adversely affect either the mother or the child. He also rejected the suggestion that other children in the family might be unkind, if not downright cruel, to Alexander if he bore a different surname. He also rejected any convention that the child should bear the father's name. Alexander's awareness of his status as the mother's son could never be in question as he would be in her day-to-day care although his awareness of being his father's child was likely to be maintained by contact; how that contact would develop, and what changes and circumstances in the future might affect things, could only be a matter of conjecture. Alexander's interest is best served in his having the reminder of his father's place in his life by his bearing his father's name. He concluded that it was in Alexander's best interest that he be known by the name Dawson. He considered that his conclusion was reinforced by the authorities emphasising the importance of paternity and the child's right to know who his father is and the possibility that the mother might find a new partner, adopt his name and give that name to any children they had.
On appeal to the Court of Appeal the submission that the court had no jurisdiction to deal with the matter at all was rejected but the court held that His Honour Judge Cotterill had erred in principle in exercising his discretion so that it was incumbent upon the Court of Appeal to exercise the discretion afresh. Counsel for the mother had submitted that there was a fundamental error of principle in the judge's decision to approach the question as though the matter had been heard before the registration of Alexander's birth. Counsel for the father accepted that this was going somewhat too far and suggested that it would have been more appropriate for the judge to say that he had put the registration on one side or words to that effect. The court observed that as a matter of principle, registration is a profound matter and consequently a major factor to be taken into account in the exercise of the court's discretion and one which it is totally inappropriate for the court to put on one side as of no more than marginal significance, let alone to disregard it entirely. The court concluded that the name Wearmouth was the mother's actual name at the time it was chosen by her as well as being that of Alexander's half-brother and half-sister. It was therefore a perfectly natural and logical choice for her to make and could not in their view be justly criticised as alien merely because it is also the name of the mother's ex-husband. These circumstances, coupled with the all-important fact already stressed that this was the child's duly registered name seemed to the Court of Appeal to be very powerful factors in the mother's favour which can only be displaced by strong countervailing considerations. They found no such strong countervailing considerations.
In considering the submission made by counsel for the mother that the court had no jurisdiction to make an order such as the learned County Court Judge had made the Court of Appeal considered the submission that this matter could be dealt with only under section 13 of the Act of 1989. Section 13 so far as relevant provides:
This submission for the mother rested largely on the judgment of the Court of Appeal in In re B. (Change of Surname)  1 F.L.R. 791. In that case the mother sought to change the surname of the three children of the family from that of her divorced husband to that of the husband whom she had subsequently married. Her application for leave was refused by the circuit judge and the Court of Appeal (Stuart-Smith L.J. and Wilson J.) upheld his refusal. Counsel for the father had sought to argue that the application was for a specific issue order under section 8. The Court of Appeal in the present case interposed that it might be assumed that the underlying strategy was then to advance the argument that, since the determination of a section 8 application was subject to the section 1(3) checklist, the views of the three children aged between 17 and 12 were almost decisive. However, the submission was rejected by Mr. Justice Wilson, in an opinion with which Stuart-Smith L.J. agreed.
The Court of Appeal in the present case concluded that that ruling might well be apt in any case where a residence order is in force with respect of a child whose name the application seeks to change but that this is an apt example of an area in which the court has power to make a specific issue order so long as no residence order is in force. They accordingly concluded that the court had jurisdiction to make the section 8 order if it was thought to be appropriate in the circumstances of the present case.
Against this decision no appeal is taken. The court went on to say that whether that jurisdiction should be exercised is another matter. They concluded as I have said that if there is a general principle underlying this appeal it is that the registration of change of a child's surname is a profound and not a merely formal issue whatever the age of the child. Any dispute on such an issue must be referred to the court for determination whether or not there is a residence order in force and whoever has or has not parental responsibility. No disputed registration or change should be made unilaterally. On the facts of this case the mother, they said, was not in breach of that principle.
From this passage in the Court of Appeal's judgment I take it they were saying that at the stage of registration in the circumstances of this case the mother had a duty to register the child with the surname by which at that time she intended that the child should be known. It is common ground that the father had neither power nor duty to intervene in the registration process. The Court of Appeal's ultimate decision may be summarized by saying that in order to justify an order requiring a change of name, considerations relative to the child's welfare will have to be advanced for that purpose. The name chosen and registered was the mother's actual surname at the time as well as being that of Alexander's half-brother and half-sister. It was therefore a perfectly natural and logical choice to make and to justify making an order for changing that name strong countervailing considerations would be required. The only one really suggested was that a change to the father's name would assist in maintaining Alexander's connection with him and emphasise his paternal connection. They point out that this would apply in virtually every case to an illegitimate child where the father seeks to play some role in the child's life. In the circumstances they concluded that there was no justification for ordering an alteration in the child's name particularly as his first name was that chosen by the father.
Counsel for the father submitted that the Court of Appeal had given far too much emphasis to the registration, that while a period of usage of a name might justify making it difficult to order a change, there was no such usage in the present case and that it would be positively in the interest of the welfare of the child to have the surname which linked the child with his father and thus helped to maintain that relationship which would be beneficial for his welfare. A number of cases were cited to us in which the importance of a change of name and in which the aspect of connection with the child's father were emphasised but in these cases the change sought by the mother was normally from a surname which was the father's established by usage, to a name which was either that of another man or her own.
The facts of this case distinguish it from these as there is no suggestion of any substantial usage and ultimately the right course, in my opinion, must be to apply the criteria in section 1 of the Act of 1989 including section 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 this connection the Welfare Officer's conclusion, to which I have already referred, is relevant.
The application of section 1 so long as they take account of the criteria there in question is a matter within the discretion of the Court of Appeal and I can see no ground for suggesting that they have erred in principle. The heavy emphasis on the registration is, I think, a reflection of the fact that they considered that the judge had wrongly left that out of account and that the application must be understood as for a change from a name already registered and therefore that in the light of section 1 of the Children Act some circumstances required to be pointed to which would justify making that change in the interest of the child's welfare. In fairness to the Court of Appeal it must be pointed out that, although they described the fact that the name sought to be changed was the duly registered name as all-important, they coupled that with the circumstances that the name Wearmouth was the mother's actual name at the time it was chosen by her, as well as being that of Alexander's half-brother and half-sister, in stating their view that their discretion should be exercised against the making of the order for change.
Counsel for the father also referred to the provisions of the European Convention on Human Rights and suggested that, in the light of the decision of the Court of Human Rights in Strasbourg in the case of Keegan v. Ireland (1994) 18 E.H.R.R. 342, 362, if the provisions of the system for the registration of births and the emphasis of the Court of Appeal in the present case on registration were taken together, this deprived the father of his rights in terms of article 8 of the Convention.
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. In that situation, in my opinion, the argument on the Convention has no separate validity from the earlier arguments for counsel for the father to which I have referred.
This is a difficult and narrow case but on a fair reading of the judgment of the Court of Appeal as a whole, I am satisfied that they correctly applied the provisions of the Children Act and in particular section 1 in the exercise of their discretion to refuse to make an order for change of name in the present case. For these reasons I would dismiss this appeal.
LORD JAUNCEY OF TULLICHETTLE
The speech of my noble and learned friend Lord Mackay of Clashfern, which I have had the advantage of reading in draft, sets out the factual and legislative background of this appeal which account I gratefully adopt. It is, therefore, unnecessary for me to say more than that the appeal arises out of an application by a father for a Specific Issue Order under section 8 of The Children Act 1989 requiring that his son should be known by his name.
The researches of counsel revealed some sixteen reported decisions involving change of a child's surname since 1963, in thirteen of which the child's surname had been registered as that of the father and in two of which it had been registered as the maiden name of the mother. In the remaining case (D. v. B.  Fam. 38) a child conceived during wedlock was registered in the surname of another man with whom the mother had gone to live shortly before its birth, although the husband was declared by her to be the father. In the present case, the child who was illegitimate was born in 1996 and registered in the name of the mother's former husband from whom she has been permanently separated since 1993 with no reference in the register to the appellant, his natural father. The child has accordingly no connection either biological or directly familial with the man whose surname he bears. The father's wish that his son should bear his surname rather than that of this man is understandable. The child has after all not a drop of Wearmouth blood in his veins.
The aforesaid lack of biological connection does not of itself determine whether the child's surname should be changed. In determining whether a Specific Issue Order should be made under section 8 the court must consider the welfare of the child as the paramount consideration (section 1). The Court of Appeal having determined that the judge, in making the order, had erred in principle in putting the fact of registration to one side exercised their discretion afresh and refused to make the order. I understand that your Lordships have had little difficulty in concluding that the Court of Appeal exercised their discretion according to correct principles. Unfortunately, I have not found the matter so easy and while I do not feel justified in formally dissenting from those views I wish to comment on two matters.
The Court of Appeal expressed the view that as a matter of principle registration of a birth is a profound matter and a major factor to be taken into account in the exercise of the court's discretion. I do not dissent from the proposition that it is a factor to be taken into account but I do not accept that it is necessarily a major factor in every case. 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 surname, 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.
Before the Court of Appeal counsel for the father argued that the mother had chosen not her maiden name but one which signified a factually incorrect nexus between the child and her ex-husband. Common sense favoured the name of the father with whom the child was connected rather than the mother's ex-husband with whom he was not. This argument was rejected as substantially flawed inasmuch as the name Wearmouth was that of the mother and the child's half-siblings. While this is no doubt a factor to be taken into account I do not consider that it justifies outright rejection of the argument which, had I been called upon to exercise my discretion, I should certainly have treated as meriting consideration.
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 the 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.