The issue of a child’s surname can become a source of tension particularly where parents are separated or there are additional people who share responsibility for a child.
If you are in a position where you are considering changing your child’s surname, it is important to understand what the law requires in order for you to do so. You may be wanting to reflect a new family arrangement or move on from a difficult chapter. There may be good reasons that you wish to do this because of questions about identity, belonging, l or a sense of what is right. However, you cannot simply change a child’s surname without meeting a number of requirements.
In simple terms, someone wanting to change the surname of a child must obtain the agreement of everyone who holds parental responsibility for them. If agreement is not provided then a court order is likely to be required.
Who can change a child’s surname?
In the event that there is a Child Arrangements Order in place relating to the child in question, there will be wording on the face of that Order which prevents a child being known by a new name without written consent of everyone who holds parental responsibility for them.
It is also a requirement for there to be consent of all those with parental responsibility for a child if no orders are in place.
Whether a person is the primary carer of a child does not override this rule and if you are somebody who holds a Special Guardianship Order for a child you must still obtain the permission of those other people who hold parental responsibility for that child in order to change their name.
It is always good practice to record the agreement at the same time as the change of name.
HM Passport Office and some other organisations or agencies are likely to require some written record of the change of name.
Who has parental responsibility?
Parental responsibility is conferred on people in a number of ways but most often is held by:
• Parents who are married
• Parents names as such on a child’s birth certificate
• Those with whom a child is to live under a Child Arrangements Order or
• Those who have an order from the court for parental responsibility specifically.
Parental responsibility confers a responsibility to make decisions in respect of a child which could include medical or religious decisions as well as many others.
A change of name by agreement
Whilst it is not a legal requirement for a Deed Poll to be entered into or executed in respect of a change of name, it is good practice to record a change of name and the consent provided by all parental responsibility holders in a formal way.
This can be done by a Change of Name Deed which all parties would sign and which would be executed on behalf of the child confirming their new name. This will be a helpful document and may be required by GPs or the passport office for example.
A Change of Name Deed is something that Timms are able to help with if you would like us to do so.
What to do if consent is refused
If any of the people who hold parental responsibility for the child refuse to provide consent, then a court application will be required.
The application would be made under Section 8 of the Children Act 1989 for a Specific Issues Order for a change of name. If a Child Arrangements Order is already in force this application would instead be made under Section 13 of the Children Act.
In any event, the courts would be making their decision based on the child’s welfare as the paramount consideration. The court would apply what is often known as the ‘welfare checklist’ which is set out at Section 1(3) of the Children Act. The court must therefore also consider whether it is in the child’s best interest to make any order at all.
The House of Lords set out the principle in the case of Dawson -v- Wearmouth [1999] which is often considered. The principle is that the court should not make an order to change a child’s surname unless there is some evidence that it would lead to an improvement in the child’s welfare; the fact of registration of a name is significant but not determinative.
The court could consider as part of this:
- The current registered surname of the child and reasons for registration. This could be the recognition of the biological link with their father for example and is always a relevant and important consideration but does not decide the matter.
- How long the child has been known by this surname.
- The reasons for an earlier decision to change a child’s name unilaterally.
- Changes of circumstances for the child since the original registration.
- If the child is old enough what their wishes and feelings are about this.
- The effect of the change on this child emotionally, socially and on their sense of their own identity if allowed.
- The effect of refusing to make the order and so the consequences if the name stays the same.
- The motivation of the parents. Whether the application itself is child focused or driven by convenience or in some cases animosity.
- In the case of unmarried parents, and where the mother had control over registration, if the father is wishing to change the surname of the child to include his own, his degree of commitment to the child, quality of contact if any and the existence or absence of parental responsibility.
- Consideration of stability in the names of siblings and new family units.
- Safety or protection concerns such as abuse or the ability of another person to locate or care for a child.
- Whether the existing name may be associated with a parent convicted of a serious offence against a child
The court may refuse to change a child’s name in circumstances where:
- The current name has no effect on the relationships that either parents or any of the parental responsibility holders have with the child.
- There may be a motivation to align a child with a new partner or household which may not be in their best interests.
- People wishing to change a child’s name based on the fact that the child’s name was not the same as the parent making the application are. It generally successful.
- Where the application is framed around parental preference rather than the welfare of the child or where that change is for simple convenience.
My child wants to change their name, do they get a say?
As mentioned above, the court will consider their welfare as paramount and may consider their wishes and feelings.
Children who are older are often able to be clearer in their wishes and feelings about what they want. They may also understand the significance of the change that is being suggested. Therefore, their views can carry more weight than those of younger children but even then are not determinative.
The court would need to consider and assess how these wishes were being expressed, whether there was any parental influence being imposed on the child, the maturity of that child and their reasoning.
There is also a possibility for adolescences to independently petition for a change of name but those cases are rare.
How to apply for a Court Order
If you are in a position where you are unable to agree the change of name and need to apply for a Court Order, you would need to do the following:-
1. First consider mediation. It may be possible for those with parental responsibility to meet with an independent trained family mediator who might be able to assist you in reaching an agreement in relation to the proposed change of name.
2. In the event that mediation is unsuccessful, a Court Order would be required for the change to be approved and therefore an application for a Specific Issues Order would need to be made using Form C100.
3. The application would need to be submitted by you or your family lawyer to the courts. They will then confirm the next steps which are likely to be an initial interview with Cafcass (the Family Court advisers) who would be able to give an initial view on whether any additional evidence will be required to enable the court to consider the application and whether a separate report in respect of the child’s welfare will be required.
How can Timms help with changing your child’s surname
If you are considering a change to your child’s surname it is important to understand where you stand legally. Our Family Law team would be happy to help and provide advice specific to your case. We are experienced in such matters and can talk you through the available options and likelihood of success. Call us on freephone 0800 011 6666 or email legal@timms-law.com.
Frequently Asked Questions
Can I change my child's surname without the other parent's consent?
No. If the other parent has parental responsibility, you need their consent or a court order. Changing a child’s name unilaterally, even by deed poll, is unlawful and could damage your position in any future proceedings.
What order do I need to apply for?
You’ll need to apply for a Specific Issue Order under the Children Act 1989. This is done using a C100 application form, and the court will consider whether the proposed change will further your child’s welfare.
What factors will the court consider?
The court will look some of the factors outlined above such as how long your child has used their current name, their wishes (if they’re old enough), the reason for the proposed change and the likely impact of the change on their identity and wellbeing. Parental convenience alone won’t be enough.
Will the court listen to what my child wants?
Yes, but it depends on their age and maturity. Older children’s views carry more weight, though the court will also consider whether those views are genuinely held or influenced by a parent.
What should I do before applying to court?
Try to reach agreement with the other parent first, mediation can help. If that’s not possible, gather evidence that supports how the change would benefit your child, and seek legal advice early to understand your prospects before incurring court costs.
