Re R (A Child) (IVF: Paternity of Child)

JurisdictionEngland & Wales
JudgeLADY JUSTICE HALE,LORD JUSTICE THORPE
Judgment Date20 July 2001
Neutral Citation[2003] EWCA Civ 182,[2001] EWCA Civ 1344
Date20 July 2001
Docket NumberB1/2001/1411
CourtCourt of Appeal (Civil Division)

[2001] EWCA Civ 1344

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE BRIGHTON COUNTY COURT

(His Honour Judge Kemp)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Thorpe and

Lady Justice Hale

B1/2001/1411

Re: R (a Child)

Mr A Turner (instructed by Messrs Stephen Rimmer & Co, Eastbourne) appeared on behalf of the Applicant Father.

Mr M Valks (instructed by Messrs Atfield Mullaney, Eastbourne) appeared on behalf of the Respondent Mother.

LORD JUSTICE THORPE
1

This appeal raises what is a comparatively small issue in relation to the future of a little boy named G, who was born on 25th April 1998 to GWL (the father) and JLR (then JLS) (the mother). The parties had come together in August 1996 and they had lived together from December 1996. They separated in August 1999, when G would have been about 15 months old, although the final end of their relationship did not come until April 2000. After his birth G was registered as GAL.

2

There were initial difficulties over contact following the breakdown of the relationship between the parents. On 4th May 2000 solicitors for the father, Mr L, wrote to the mother seeking clarification or formalisation of contact arrangements. There was a response of 10th May which offered supervised contact once a fortnight, but that was not acceptable to the father and county court proceedings followed. It is perhaps of some significance that on 12th May, at the time of this developing dispute, the mother changed G's surname from L to R by executing a deed which was not thereafter formally registered. So it is an indication of her state of mind and intent, but it did not achieve that intent in law. She had herself apparently adopted the surname of R with some formality on 4th June 1998. The name of R is the name of her mother's partner and it is the name by which her mother is ordinarily known, certainly socially, although she continues to use her name of M for certain purposes and perhaps on more formal documents.

3

The father's knowledge of these developments came from a solicitors' letter of 17th July 2000. The mother's solicitors, in the final paragraph of their letter, said:

"Incidentally we should point out to you that [G] is known as [GR] and not [L] as in the court papers."

4

In response, the father's solicitors said that their client was very disappointed to hear of this usage. In reply, the mother's solicitors proffered an explanation which was all to do with the fact that father and son had the same initials and that there had been some confusion over a letter offering a hospital appointment which had either been opened by the father or had not been received by the son.

5

The court proceedings developed into an application by the mother to remove G permanently to Spain, where she intended to live in accommodation immediately adjoining accommodation acquired by Mr and Mrs R. There was therefore to be decided that primary application, together with the issues of contact and the issue as to G's surname. The parties came to a very sensible agreement at the listing on 8th May 2001 before His Honour Judge Kemp. The father accepted the mother's proposals for G's future. The mother accepted that there should be full continuing contact: visiting contact during a minimum of two visits a year in this jurisdiction, each of one week's duration, with an open invitation to the father to have visiting contact to G in Spain. The mother also conceded that the father should have parental responsibility. So the only issue for the judge to decide was the relatively minor issue of by which name G should be known.

6

It is important to emphasise that the judge heard no oral evidence: he simply decided the issue on the statements that had been filed and on the submissions of Mr Turner, for the father, and Mr Valks, for the mother. We do not have a transcript of his judgment, but we do have a brief note which has been agreed between counsel. That shows the judge reciting the rival submissions advanced by counsel and referring to the authorities that had been cited to him, namely the decision of the House of Lords in Dawson v Wearmouth [1999] 2 AC 308 and the decision of this Court in In re W [2000] 2 WLR 258. What the judge then said in conclusion was this:

"I have to apply the welfare checklist. The welfare of the child is paramount his recent experience is `[R]' rather than `[L]' though there is no specific evidence of this. I have to look at the future. His circumstances are about to change dramatically. I have to consider the likely effect of change, age, sex and background, harm, capability, range of orders. I have to consider the `no order' principle, but to make no order is not an option. The matter cannot rest in limbo.

I have to consider the educational and other needs of the child in these peculiar circumstances. The child is about to start a new stage in his life. The proposed choice of names is unusual in that it is not the surname of a partner or husband or of any other child in the family. Whatever its origin, should he be singled out with a different name, thus making life potentially more awkward? I have heard no evidence regarding life in Spain and I, therefore, consider it to be similar to life in England. It is in his overriding interests to be known by the same name as the rest of the family unit. His long-term interests are in favour of the change of name. I have no doubt that father will continue to have contact. I permit the change of name from `[L]' to `[R]'.

Of course, I bear in mind that this is only a brief and rough note of what the judge said. I also bear in mind that this is a very experienced judge, particularly in this field. But he did not have the opportunity of hearing from the parties and perhaps exploring what was really going on in the family; what was really the motivation of the mother and the motivation of the father. He was in no better position than we to make an assessment and to arrive at a proper conclusion.

There are a number of factors which seem to me to militate against the judge's...

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