Re C (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice David Richards,Lady Justice Gloster |
| Judgment Date | 14 April 2016 |
| Neutral Citation | [2016] EWCA Civ 374 |
| Docket Number | Case No: B4/2015/2696 & C |
| Court | Court of Appeal (Civil Division) |
| Date | 14 April 2016 |
[2016] EWCA Civ 374
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Swansea Civil And Family Justice Centre
His Honour Judge Sharpe
SA15C00443
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster
Lady Justice King
Lord Justice David Richards
Case No: B4/2015/2696 & C
Kathryn Skellorn QC & David Johns (instructed by Humfreys & Symonds Solicitors) for the Appellant
Ruth Henke QC & Rhys Evans (instructed by Powys County Council) for the 1st Respondent
James Tillyard QC & Rhian Jones (instructed by Humphrys & Co Solicitors) for the 2nd Respondent
Hearing date: Wednesday 16th December 2015
This is an appeal by the Appellant (mother) from an order made by His Honour Judge Sharpe at the Swansea Family Court on 25 June 2015.
The issue to be determined is whether there is power in this jurisdiction to prevent a parent with parental responsibility from registering a child with the forename of his or her choice. If the answer to that question is 'Yes', the second question (and one which rather unexpectedly requires a detailed consideration of somewhat labyrinthine technicalities) is by what procedural route the court should exercise that power.
For reasons set out below I am entirely satisfied that the court has such a power. I am equally satisfied that it is a power which should be used only in the most extreme cases and only with the sanction of a High Court Judge. Due to the delay which had occurred prior to the hearing of the appeal, the parties were informed of the decision of the court at the conclusion of oral submissions with reasons to follow.
Background
The mother was born on 12 July 1985 and is 30 years old. The twins, the subjects of this appeal (a boy and a girl) were born on 14 May 2015 (8 months). The children were said to have been conceived as a result of rape and there is no known respondent father.
The mother has a long standing diagnosis of a psychotic disorder and of schizophrenia of an "undifferentiated type with an underlying personality disorder". She does not accept this diagnosis and has been unable to comply with her treatment.
On 10 May 2013, the mother's three older children A (d.o.b: 12 February 2005); T (d.o.b: 30 November 2006); and L (d.o.b: 7 September 2011) were made the subject of care orders. In those first care proceedings, the local authority concerns related to the mother's mental health difficulties which had seriously impacted upon her ability to care for her children. Her parenting capacity was further impaired by drug and alcohol misuse, chaotic home conditions, abusive male relationships and an inability to work with professionals in an 'open, honest and consistent manner'.
A and T now live with long term foster carers. L lives with a family member under a special guardianship order.
The mother's mental health continued to deteriorate following the conclusion of the first care proceedings. When it became known that the mother was pregnant there were, inevitably, considerable concerns about the mother's ability to care for the unborn twins and the local authority therefore issued care proceedings the day after their birth. An interim care order was made on 18 May 2015, and the local authority's interim care plan, to place the children in foster care until long term plans were formulated, was approved. A capacity assessment concluded that, notwithstanding her mental health difficulties, the mother had capacity to litigate.
Meanwhile, on 15 May 2015, the midwife at the hospital where the mother had given birth to the children, contacted the local authority to tell them of her concern that the mother was proposing to name the children respectively "Preacher" (for the boy) and "Cyanide" (for the girl). The local authority were equally troubled about this proposal and brought it to the court's attention at the interim care order hearing.
In the days following the birth of the twins, the local authority quite rightly decided that, rather than issue an application in relation to the proposed names of the children, they would attempt to work with the mother and encourage her to choose names other than the ones identified to the midwife.
On 22 May 2015 there was a case management hearing before Her Honour Judge Garland-Thomas. At that hearing the mother gave an undertaking that she would not to register the birth of the children until the naming issue was resolved. The local authority indicated that in the event that the mother's position regarding the names remained unchanged, it was considering making an application to the court to invoke its inherent jurisdiction under section 100 Children Act 1989 ('CA 1989'). During the course of the next few weeks, further efforts were made to discuss with the mother the appropriateness of the names she had chosen. At a LAC review (Looked After Children Review) on 8 June 2015, the mother said that she had chosen the name "Cyanide" because "this is how Hitler killed himself". The mother remained determined that the children should be called "Preacher" and "Cyanide" and accordingly, the case was transferred to the High Court for consideration of an application made by the local authority to invoke the inherent jurisdiction of the court under s100 CA 1989.
The matter came on before His Honour Judge Sharpe sitting as a deputy high court judge on 19 June 2015 when the babies were 5 weeks old. All parties were represented by counsel and the judge had the benefit of skeleton arguments and detailed oral submissions. In preparation for the hearing the mother filed a statement setting out her position and her reasons for wishing to call the children by her chosen names:
"6. I confirm that I believe it is my right to name the children the names that I have chosen as their mother and I believe it is my human right to exercise my right to choose their names and register my children's names without the interference of the local authority.
7. I confirm that I have chosen Preacher for my boy child as it is a strong spiritual name. It is a name that suggests proclamation and advocacy and being able to communicate with a wide community.
8. I also consider that Preacher is a rather cool name which will stand my son well for the future and I do not consider that it will impact on his development, emotionally, physically or mentally.
9. I confirm that I have chosen the name Cyanide as I believe that it is a lovely pretty name.
10. I further confirm that the name is linked with flowers and plants, that elderberry, hydrangea, cherry laurel and roses all have compounds of Cyanide found in the leaves and the fruits.
11. I believe that Cyanide will be a strong name that will stand my daughter well for the future and that I believe that it is a poison that has been used since the ancient Egyptians and it is derived from the Greek meaning dark blue.
12. I also consider that Cyanide was responsible for killing Hitler and Goebbels and I consider that this was a good thing and therefore Cyanide can be considered as a positive name, reflecting positive action that destroyed very bad people in the war.
13. I do not accept that it will have an adverse impact on my daughter during her formative years or later in her life."
The judge, having heard submissions, adjourned the case for judgment to be given on 25 June 2015. Unsurprisingly, given the novelty of the point, HHJ Sharpe had not had time to prepare a final judgment by 25 June 2015. Instead, he announced his decision and indicated that his detailed judgment would be handed down later. The judgment was not handed down until 10 September 2015 which delayed the ability of the mother to appeal the judge's decision.
Unfortunately as a consequence of the delay in handing down judgment, the twins had, until the conclusion of the appeal hearing, no names. Their foster carers called them "Harry" and "Annie" some of the time, but largely they have been called by terms of endearment in the absence of a final decision. In October 2015 the twins moved permanently to live with the foster family with whom their two eldest half siblings live. AC and TC have chosen names which they would like their brother and sister to be called (in the event that they are not to be called "Preacher" and "Cyanide").
By his order the judge:
i) declared that the local authority were permitted to restrict the extent to which the mother exercised her parental responsibility so as to prevent her registering the forenames "Preacher" and "Cyanide"; and
ii) made an injunction prohibiting the mother from so registering the children or referring to either of them by those forenames in contact.
The judge, in reaching his decision that the mother should not be allowed to call the children "Preacher" and "Cyanide", held that the local authority had wrongly sought to invoke the inherent jurisdiction under section 100 CA 1989, a jurisdictional route which he found was not open to the court. The judge preferred a statutory jurisdictional route and held that:
i) Both the registration of a child's birth and the naming of a child are "aspects of parental responsibility". As a consequence the mother's exercise of parental responsibility could be limited, including preventing her registering the forenames of her choice pursuant to section 33(3)(b) CA 1989;
ii) "Even allowing for changes in taste, fashion and developing individual perception…the names the mother has chosen for her children, in particular the name "Cyanide", are not obviously indicative of a parent who is acting so as to contribute or otherwise secure the welfare of her children, which is the basis upon which a parent exercises their parental responsibility".
Having decided that the court had the power to prevent the mother from naming the children "Preacher" and "Cyanide",...
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