Re C (A Minor) (Change of surname)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE KENNEDY |
| Judgment Date | 23 January 1998 |
| Date | 23 January 1998 |
| Docket Number | No CCFMI 97/1417/F |
| Court | Court of Appeal (Civil Division) |
[1998] EWCA Civ J0123-12
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE COLLYER QC
Royal Courts of Justice
Strand
London WC2
Lord Justice Kennedy
Lord Justice Ward
No CCFMI 97/1417/F
MR M BATEY (Instructed by Baily & Goff of Dartford) appeared on behalf of the Appellant
MISS J MOORE (Instructed by Hewitt Burrough & Co of Dartford) appeared on behalf of the Respondent
Lord Justice Ward will give the first judgment.
This is an appeal with leave from the order of His Honour Judge Collyer QC made on 29th May 1997 when he dismissed the appellant's application relating to the name by which the daughter of the parties should be known.
The child concerned is little girl called Gemma. She was born on 19th November 1992 so she is now 5 years of age. Her parents never married. They began to cohabit some time in about 1985 and that relationship lasted until they separated in September 1994, by which stage the child was a couple of months short of her second birthday. It was therefore a cohabitation of some time and a relationship which, whether or not it was happy, was at least established. The parties may have separated in circumstances of some acrimony, although the detail of this is more hinted at than revealed.
The sense of unhappiness no doubt felt by the mother, one of whose main complaints was that the father never married her which she believed he had promised to do, is demonstrated by the fact that within weeks of the separation she effected a change of the child's name by deed poll executed on 18th November 1994. The effect was to change the child's name from Gemma C, which was the name the parties had agreed to call her and which was the father's surname, and henceforth to call her Gemma H which was to give her her mother's surname. There was a dispute between the parties at or about that time over what was happening about this change of name. It is not a dispute which the judge resolved. On the mother's evidence, as we have seen it transcribed, she had made plain to the father that she was minded to give the child her name. He objected vociferously and strongly. There was a quite serious disagreement between them about that plan to change the name. Her evidence was that she took advice and was given the advice, later relayed to the father, that in view of the fact that they were not married she alone had the right to decide by what name their child should be known and was intent upon exercising that right. His evidence, in summary, was that he had no knowledge that she had in fact carried out what he at least understood to be the threat to change the name.
There was correspondence between the parties' solicitors to which I shall shortly refer. On 28th November—which was 10 days after the execution of the deed poll—the father's solicitors wrote to the mother's solicitors and said:
"A final point has come to our attention in that our Client says that he has received a message from your Client to the effect that there has been an order made in the Court on 18th November to change the surname of Gemma. Will you please let us know the position and send us a copy of this order if it has been made. We have to say that our Client has at no stage received notice of a Court hearing or proceedings to apply for the change of Gemma's surname."
I add the emphasis to show that the date of what was said to be an order was in fact the date of the deed poll.
The response from the solicitors who, according to the mother, were the solicitors who advised her about her right to change the name and whose advice she conveyed to the father was this, dated 15th December 1994:
"Finally, your Client is mistaken in believing that our Client obtained a Court order to effect a change of name in respect of Gemma. You will no doubt have advised your client that as an unmarried father, he has no legal rights whatsoever in respect of the child. He can only acquire such rights on application to the Court. Therefore there is no prohibition on our Client changing Gemma's surname to her own."
That, in my judgment, was the most unfortunate response to a perfectly proper inquiry. It asked, on the father's behalf, to be informed as to the position with regard to the child's name. For her solicitors to vouchsafe the truth and to declare, as they must have known, that the name had already been changed, but by deed poll, not order of the Court was a less than frank response to a perfectly proper inquiry. It is something that I deprecate. In the result the father seems to have been lulled into inactivity if not into acceptance of that position.
It was not the end of litigation because, on the contrary, the father made his application for parental responsibility in March 1995 and later applied for an order that the child reside with him with contact to the mother. I need not go into the reasons which prompted that application in any great detail. He was concerned about a relationship, since ended, with another man whom he regarded in the interests of his daughter to be unsuitable. That application led to a hearing before Judge Collyer in September 1995. In the course of that hearing she was cross-examined about the change of name, indicating that the father had not buried his suspicions of what had been happening. In answer to those questions the mother revealed that she had changed Gemma's surname, giving as her reason that she thought people would inquire at school, or words to that effect. One observes that that evidence was given 2 years after the event and that she was attempting to justify an act which had been taken before the child was anywhere near school age. That moment fixes with certainty the father's knowledge that this change had been effected.
The litigation rumbled on. fortunately in February 1996 the parties, with commendable good sense, did come to terms and, by consent, the father was given parental responsibility. Staying contact was ordered and his application in respect of residence was dismissed. At that stage no order was made for the residence of this child although Judge Collyer later made it in the course of proceedings now under appeal.
In February 1996 the father's solicitors began to write inquiring about the change of name and requesting that the name be changed back to "C". The mother's solicitors say they replied but the reply was apparently not received. Legal aid was not granted until August. In January the father launched these proceedings in which he sought, in effect, the determination of a specific issue pursuant to Section 8 of the Children Act 1989 for an order, as that application spelt it out, "changing the surname of the said child from "H" to that of "C". That was the matter with which the judge had to deal.
I propose to consider the judge's judgment, indicating where I disagree with his approach, and then deal with the law in an attempt to summarise some of the principles that should be applied. The judge recited the facts. He spent a considerable time dealing with the disagreement between the parties as to whether or not there was a promise to marry. He found that the parties had been in some agreement to register the child's birth as "C". He said this:
"It is sufficient to say that clearly she [the mother] concurred in—I try and use as neutral a word as I can—the child being registered in name of C, and in my view, and I find as a fact, she did so because she believed that ultimately, if not very immediately, the three of them would form a family unit all having the same surname."
He dealt with the father's objections to being married and he dealt with the acrimony at the time of separation. He said this:
"There was considerable acrimony at the time of the separation, but that has calmed down and, although not the best of friends, the parties were able to agree in relation to contact and eventually the contact is working reasonably well. I do not say 'very well'. There have been, as I understand it, some difficulties, Gemma not liking to sleep away from home. Very sensibly, the alternate week-ends contact has been turned temporarily at least, while Gemma is having these problems, into contact during the day for alternate week-ends….. "
That is a finding which has had its impact on my general approach to this case. The judge then went on to deal with this application. He said this:
"I see no reason why this application was not made considerably sooner. It is sufficient that I say that the application, in my view, could well have been linked with the other reliefs [which] were sought in February 1996."
That is a fair and legitimate criticism of the father's case. I do not underestimate the difficulties he may have had in obtaining legal aid and the delays implicit in that decision. But it is at least a pity that it has taken all this time for this issue to get to court; important years in which the child has advanced in age from under 2 to over 5, as she comes before us today.
The judge dealt with some of the authorities and, in particular, with a decision of this court in Re L (unreported, Court of Appeal 3rd March 1993), as authority for the proposition that the court does have the power to order an unmarried mother to resort to the name by which the child had been born, in other words, to give the relief which the father was seeking. The judge identified the ratio of that case as the need to preserve the very important link to the father, observing, perhaps en passant in that case, that that is the only link the father there had. He then dealt with the present position which is, as he...
To continue reading
Request your trial
-
Dawson v Wearmouth
...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 vali......
-
Irish Hospital v H (R) & McG (J)
... ... Hospital v H (R) & Ors WARDS OF COURT IN THE MATTER OF SR (A MINOR) BETWEEN AN IRISH HOSPITAL APPLICANT AND R. H. AND J. McG ... ...
-
Re A (children)
...surname from the child is not a sufficient reason for changing the child's surname (in re WG 6 Fam Law 210; in re C (Change of Surname) [1998] 2 FLR 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......
-
Essential Daily Guidance for Proceedings Concerning Children
...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 FLR 620. 30 Re W, Re A, Re B (Change of Name) [1......