Dawson v Wearmouth
| Jurisdiction | UK Non-devolved |
| Judge | LORD SLYNN OF HADLEY,LORD MACKAY OF CLASHFERN,LORD JAUNCEY OF TULLICHETTLE,LORD CLYDE,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 25 March 1999 |
| Judgment citation (vLex) | [1999] UKHL J0325-1 |
| Date | 25 March 1999 |
| Court | House of Lords |
[1999] UKHL J0325-1
HOUSE OF LORDS
Lord Slynn of Hadley
Lord Mackay of Clashfern
Lord Jauncey of Tullichettle
Lord Clyde
Lord Hobhouse of Woodborough
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 gives, I, too, would dismiss the appeal.
My Lords,
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:
"With respect to space 2 (name and surname) -
(a) if a name is not given, the registrar shall enter only the surname, preceded by a horizontal line;
(b) the surname to be entered shall be the surname by which at the date of the registration of the birth it is intended that the child shall be known."
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:
"In respect of Mr. Dawson's application to have the child's surname changed to his, I would see [sic] that at this stage his surname would have no impact on the welfare of the child, and is more an issue which is in the realms of case law."
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:
"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 acquiescence in a state of affairs of which he never for one moment approved."
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...
To continue reading
Request your trial
-
H & B (1st & 2nd Applicants) v S (1st Respondent) M (A Child) (by her Children' Guardian) (2nd Respondent)
...order. 13 In determining whether the child's surname should be changed I have applied the law as confirmed by the House of Lords in Dawson v Wearmouth [1999] 1 FLR 1167, HL and summarised by Lady Justice Butler-Sloss in Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930 namely i) each case ......
-
W (Children)
...permission to appeal the order for the change of one of D's middle names on the basis the judge had not considered the principles in Dawson v Wearmouth [1999] 2 AC 308. I do not propose to rehearse the detailed bases upon which I refused permission, which can be found at [2013] EWCA Civ 735......
- Re X and Y (Leave to Remove from Jurisdiction: No Order Principle)
-
Re H (Children) (Residence Order: Condition)
...11 at page 430 in the report, were dicta in the House of Lords in the Scottish case of S v M (Access Order) 1 FLR 980, and the case of Dawson v Wearmouth [1999] AC 308. But I do not consider that these dicta will bear the weight of the edifice that Munby J sought to build on them. In reloca......
-
Parental Responsibility
...without an order of the court. See Re PK, Re A, and Re B (Change of Name) [1999] 2 FLR 930 and the House of Lords in Dawson v Wearmouth [1999] 1 FLR 1167, but note joint registration of birth at para 3.4.3. Also consider the case of F v F [2007] EWHC 2543 (Fam), [2008] 1 FLR 20 Child Care a......
-
Essential Daily Guidance for Proceedings Concerning Children
...website, www.icca.ac.uk/youth-justice-advocacy), and Guidelines for Judges Meeting 29 Dawson v Wearmouth [1997] 2 FLR 629, CA, but note [1999] 1 FLR 1167, HL; Re C (Change of Surname) [1998] 2 FLR 656, CA; Re W, Re A, Re B (Change of Name) [1999] 2 FLR 930; Re T (Change of Surname) [1998] 2......
-
Other Orders available to the Court in Family Proceedings
...back to it for a decision. An example is an application to stop a child being known by a different surname, as in Dawson v Wearmouth [1999] 1 FLR 1167. 13.5 Residence (living with) A child arrangements order regulating residence means an order settling the arrangements to be made as to the ......