Judgment - Dawson v. Wearmouth (A.P.)  continued

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The importance of a child bearing its father's name has been emphasised on many occasions. In In re T. (orse. H) (An Infant) [1963] Ch. 238, a case where a mother had by deed poll changed the paternal surname of her daughter by her first husband to that of her second husband, Buckley J. said, at p. 242:

      "In the case of a divided family of this sort it is always one of the aims of the court to maintain the child's contact, respect and affection with and for both of its parents so far as the circumstances will permit. But to deprive the child of her father's surname, in my judgment, is something which is not in the best interests of the child because, I think, it is injurious to the link between the father and the child to suggest to the child that there is some reason why it is desirable that she should be called by some name other than her father's name."

In In re W. G. (1976) 6 Fam.Law 210, where the facts were similar to those in In re T. (supra), Cairns L.J. giving the judgment of the Court of Appeal said that:

     "it should be realised that the mere fact that there had been a divorce, that the mother had remarried and had custody of the child, and had a name different from that of the child, was not a sufficient reason for changing the child's surname. The courts recognised the importance of maintaining a link with the father, unless he had ceased to have an interest in the child or there were some grounds--having regard to his character and behaviour--which made it undesirable for him to have access to the child at all."

In L. v. F., The Times, 31 July 1978 Latey J., after referring to having heard the evidence of a distinguished child psychiatrist to the effect that "when they grew older, children were often greatly concerned with their biological origin" stated that:

      "Today divorce was commonplace. The fact that the children's surname was different from that of the mother and their half-sister would not cause embarrassment. The children would have a better sense of security if there was cooperation between the parents and the step-father."

In that case the child was living en famille with its mother, stepfather and half-sister but the mother's application to change the child's surname was refused. In the present case, as I have pointed out, there never has been a step-father. In W. v. A. (Minor: Surname) [1981] Fam. 14, where the facts were similar to those of the three previous cases, Dunn L.J., in refusing the mother's application, referred with approval to L. v. F. and In re W. G., and at p. 21B included the importance of maintaining the child's links with the paternal family as one of the factors to be considered by the judge in an application by a mother for change of a child's patronymic. The above-mentioned cases involved a change from an entirely appropriate registered surname to one allegedly rendered more appropriate as a result of supervening circumstances. In the present case it is the registered surname which is said to be inappropriate.

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 W. G. (supra), In re C. (Change of Surname) [1998] 2 F.L.R. 656) so the fact that mother and child bear the same name should not necessarily be sufficient reason for refusing a change if there are valid countervailing reasons.

Where an illegitimate child has been registered in the name of the separated husband of a young mother instead of the father I consider that any court adjudicating upon an application by the father for a change of its surname should have regard not only to the importance of maintaining a paternal link as expounded in the cases above-mentioned but should consider the very real possibility that the mother might re-marry and doubtless take her husband's surname. Furthermore the probability that the child when older may be interested in his biological origin and wonder why it bears a name which is neither that of its mother nor of its father but rather that of a man with whom it has no connection and whom it may never have seen is a further factor to be considered. Is it necessarily in the best interests of the child that it may in the future be clothed with a patronymic with which it has no connection of any kind and so present itself to the world? I am left in doubt as to whether the Court of Appeal gave proper weight to these important matters in exercising their discretion.

LORD CLYDE

My Lords,

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 has given, I too would dismiss this appeal.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

I have had the advantage of reading in draft the speech prepared by my Noble and Learned Friend, Lord Mackay of Clashfern. I agree that this appeal should be dismissed for the reasons which he gives and those which I will now add.

On 13 May 1996 Mr. Mark Dawson made three applications under the Children Act 1989. They all related to the child Alexander born on the 26th of March 1996. He asked for a Contact Order, a Parental Responsibility Order, and a Specific Issues Order as to the name of the child. It was accepted by the mother of the child, Dawn Wearmouth, that Mr. Dawson was the natural father of the child. It was agreed that a Parental Responsibility Order should be made in his favour and a Contact Order in satisfactory terms was also agreed and approved by the court. The point remaining in contention was whether or not a Specific Issues Order should be made regarding the surname which should be used by the mother for the child. The mother and father were not married at any time. The mother therefore was, until the Parental Responsibility Order was made, the person having the sole parental responsibility for the child. It was her sole duty to register the birth of the child under the Births and Deaths Registration Act 1953. She did so within the 42 days permitted by the Act. She was required, among other things, to register "the surname by which at the date of the registration of the birth it is intended that the child shall be known." It was at that time her intention that the surname by which the child shall be known was Wearmouth which was the name that she herself was using at that time and was the name used also by her two other young children. The application of the father was that the wife should be required to use the surname Dawson being his own name.

On 14 January 1997, after a contested hearing at which both the father and the mother were represented and at which documentary evidence was placed before the court, the County Court Judge, His Honour Judge Cotterill, ordered that the mother henceforth use the name Dawson as the child's surname. The mother appealed to the Court of Appeal. The Court of Appeal (Hirst and Thorpe L.JJ) held that the County Court Judge had not properly exercised his discretion in accordance with the terms of the Children Act and exercised their own discretion to set aside his order and make no order on the application for a Specific Issues Order. With the leave of Your Lordships' House, the father has appealed to this House asking that the Judge's order be reinstated or, in the alternative, that the Court of Appeal's exercise of the discretion be set aside and the application remitted to the Family Division.

The application made by the father was both in form and substance an application made under section 8 of the Children Act. No residence order had been made. The child has throughout its life been residing with the mother. No point arises under section 13 of the Act. The criteria to be applied by the court in deciding whether or not to make a specific issue order are those laid down in section 1 of the Act. They require the court to take as the paramount consideration the child's welfare. A court has to have regard in particular to the seven points listed in subsection (3), the 'check list'. Subsection (5) further provides that the court shall refrain from making an order "unless it considers that doing so would be better for the child than making no order at all." It was the duty of both the County Court Judge and the Court of Appeal to apply these criteria. Both courts purported to do so. The question raised by the present appeal is how the court should take into account the fact that at the time of the making of the application and the exercise of the discretion the child had already been registered with the surname which was currently being used for the child albeit that the child was still only an infant and had no awareness of any such matters.

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 affect the welfare of the child.

However, the question in the present case comes before the court at a time when the mother has already performed her sole duty (and right) of choosing a surname for the child and having that surname entered in the Register of Births. That fact is part of the existing circumstances which represent the status quo and provide an important part of the background against which the court has to assess what will be in the interests of the child's welfare. The court cannot change the registration. It can only make a section 8 order requiring the mother to use a different name from that which has been registered. This fact also governs the procedural position under the Children Act. The mother having registered the child and having commenced to use the registered surname, it is necessary for the father to apply to the court under section 4 for an order granting him parental responsibility and under section 8 for a Specific Issue Order requiring the mother to use a different surname. The father then has to make out a positive case in accordance with section 1 of the Act that it is in the interests of the child that the order should be made. If he fails to make out that positive case, his application will fail.

The County Court Judge saw the case in a rather different light. His approach can be summarised in the following quotation:

     "It seems to me that I must approach this question of how he should be named as though the matter had come before me at the time when the birth was to be registered and before the question had been resolved, because otherwise Mr. Dawson falls foul of the law's delay rather than of his own acquiesence in a state of affairs of which he never for one moment approved."

The Judge therefore wholly disregarded the fact that the mother had registered the birth of the child with the surname Wearmouth. He was clearly in error in so doing. The registered surname of a child is relevant and, indeed, no precedent has been cited to your Lordships of the making of an order under section 8 (or any other relevant power) which required the use of a surname which was not the registered surname. The County Court Judge was obviously wrongly influenced by the idea that the mother had in some way violated the father's rights in registering the birth of the child as she did. As earlier observed the mother was simply carrying out her statutory duty and correctly communicating her intentions to the Registrar. The Court of Appeal were right to take the view that they should exercise the relevant discretion afresh.

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. The father has pointed out that it is well recognised that the use of the father's surname helps to support the relationship between the child and his or her father and that in many cases applications by a mother for a change of the child's surname to her own have failed on this ground. The father also points out that the mother sometime in the future may cease to use the name Wearmouth either because she remarries or because she chooses to revert to her maiden name. Wearmouth is not her maiden name: it is the name of her former husband who is the father of her two other children. If the child is known by the surname Dawson that will give him a clear link to his father as well as publicly recognising his paternity.

On the other hand it is submitted that the name Wearmouth is a convenient and suitable name having regard to the welfare of the child. The relationship between the father and the mother had broken down with acrimony shortly after the birth of the child. The child was left in the sole care of the mother along with his two half-brothers who were also known as Wearmouth. The mother was and is using the name Wearmouth and there is no evidence of any intention on her part to cease doing so. As regards the child's relationship with his father, the father has regular access to the child which will continue until either the father no longer wishes to avail himself of it or some other circumstance concerning the welfare of the child inter venes. This is not a case where the child has ever used the father's surname nor is it a case where the continued use of that surname would be necessary to preserve a link with the father.

When one adds to these considerations the fact that the registered surname of the child is Wearmouth and will remain so for the rest of his life, it will be seen that there is an increased argument in favour of not disturbing the status quo. 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 interests of the child that the name by which he is known should also be the name which appears on his birth certificate. The County Court Judge was wrong wholly to disregard this feature of the case.

The terms in which the Court of Appeal have expressed themselves in their Judgment do however present problems as a result of some of the statements made. The Judgment of the Court was divided into two parts the first of which dealt with a jurisdiction dispute which has not been re-opened on this appeal and the second of which dealt with the exercise of the discretion whether or not to make the section 8 order. The Court of Appeal discussed the applicable criteria in the jurisdiction part of their judgment and did not revisit them in the discretion part. Therefore, it was possible for the father to submit on this appeal that the Court of Appeal had not had adequate regard to or properly applied the relevant criteria. It was further submitted that the Court of Appeal were over dismissive of the arguments of the father and gave wholly inappropriate weight to the question of registration. The Court of Appeal said:

     "These circumstances, coupled with the all-important fact already stressed that this was the child's duly registered name, seem to us to be very powerful factors in the mother's favour, which can only be displaced by strong countervailing considerations."

It can be persuasively argued that this statement makes the same kind of error as that made by the Judge. Instead of wholly disregarding the registration aspect (as did the Judge), the Court of Appeal appears to elevate it into an overriding factor. If this were the tenor of the Judgment read as a whole, the exercise of the discretion by the Court of Appeal would not, in my judgment, be able to stand. The statement that I have quoted goes too far. The fact of registration is a relevant and, maybe, important factor in assessing where the balance of advantage for the child's welfare lies. But it is not "all-important." Similarly, it does not as such render irrelevant the well recognised considerations which weigh in favour of a child having the same surname as its natural father and does not alter the need for making an overall assessment of where the child's interests lie. Therefore, to say that the importance of the registration "can only be displaced by strong countervailing considerations" overstates the true position and if used as a criterion in later cases will be liable to distort a proper evaluation of the section 1 criteria.

But in my judgment the Court of Appeal were, on the evidence before them, entitled to take the view that the father had not made out his case that the welfare of this child made it appropriate to order the mother to cease to use the surname Wearmouth for this child. The Court of Appeal were also right to treat as one of the clearly relevant factors the fact that the child's birth certificate bears the name Wearmouth. The conclusion at which they arrived was in my judgment the appropriate one. Having regard to their judgment as a whole I accept that they did apply the relevant criteria.

However, I must express my disapproval of the way in which they chose to express themselves. In my judgment courts or judges, faced with a similar situation where an order is being applied for for a change of surname from the registered name to a different name, should take into account the implications of adopting such a course. The Court of Appeal in the present case were right to take it into account as have been the other courts which have followed that decision. But it should not be treated as an "all-important" factor which requires to be "displaced by strong countervailing considerations." Each case depends upon its own facts. In any given case all the facts and circumstances relevant to the welfare of the child need to be taken account and weighed up against each other. Whether or not any one factor tips the balance one way or the other will vary from one case to another. The value of the decision of the Court of Appeal in the present case is that it has brought to the attention of those deciding applications under section 8 of the Act relating to change of surname the fact that the registered surname is a relevant factor which must be taken into account and may, in certain cases, like any other relevant factor make the difference between whether an order is made or not.

A final argument on behalf of the father to which I shall shortly refer was that in some way the European Convention on Human Rights should influence Your Lordships to uphold the decision of the Judge. It is submitted that the father's rights under Article 8 are being infringed. There is no basis for this submission. The present case is concerned with the welfare of the child not with the rights of the father. There is nothing in the Convention which requires the courts of this country to act otherwise than in accordance with the interests of the child. In so far as the father has an interest in having his paternity of the child recognised and being granted appropriate access to the child, those interests have already been accommodated in the consent orders made in the County Court.

Accordingly I agree that this appeal should be dismissed.

 
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