Re W, F, C and D (minors)(Name changes disclosing gender reassignment and other matters)
| Jurisdiction | England & Wales |
| Judge | McCloud |
| Judgment Date | 11 February 2020 |
| Neutral Citation | [2020] EWHC 279 (QB) |
| Date | 11 February 2020 |
| Court | Queen's Bench Division |
[2020] EWHC 279 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MASTER McCloud
In the Matter of the Enrolment of Deeds (Name Change) Regulations 1994 and s.133(1) Senior Courts Act 1981
In the Matter of the Human Rights Act 1998
Keywords:
Children — gender reassignment — Deed Poll — name change — welfare considerations — parental consent to name change — child's consent — ECHR — Gender Recognition Act 2004 — Human Rights Act 1998 — privacy — Children Act 1989 s.1 — procedure — Article 8 — Article 14 — specific issue order
This decision relates to the ‘Deed Poll’ process currently in use in the Queen's Bench Division, and in particular the formal Deed Poll process relating to children. It has particular relevance, but not exclusively, to children who are changing their forenames as a result of re-assigning their gender. In recent times the numbers of name change applications to this court which seek to use the formal Deed Poll process has very greatly increased. A figure of 2000 such applications in total (perhaps half of which related to children but by no means all to gender reassignment) was mentioned to me by staff when I inquired as to practice and procedure in the last year.
I am giving this decision urgently in view of the potential impact on the affected children, of delay in the context of for example school examination board requirements about proof of name, which have led to parents expressing concern to court staff and pressing for the backlog of applications to be dealt with.
. I express my gratitude to the staff here who assisted me by informing me of how the process works from their perspective and briefing me as to the problems they and court users have encountered and to the pressure this has placed on them as civil servants committed to promoting diversity and the interests of the public. Their input was helpful in writing this judgment. They produced for me a briefing on some the problems they have been encountering and raising about this process for a while now, within just one day of them discussing it with me. I am also grateful for input from Master Sullivan who at the time of drafting this judgment had a number of applications before her for consideration.
. This decision is made in relation to the specific applications presently before me in a judicial capacity relating to children ranging in age from 4 to 17. It may be of interest and use in informing others, if only to enable them to disagree with me, but my focus must be on the particular young people whose interests are engaged in these applications. I direct that nothing be published without the leave of the court which identifies them in relation to this decision and application, subject to what I say below about publication of the Deeds themselves. However this judgment is not confidential.
. To assist the reader I shall set out below a table which provides a summary of my conclusions in these applications and also includes an analysis of the position in other contexts arising from the regulations and so forth which are cited in this decision.
Background
| Facts | Approach taken | Basis |
| Name change due to gender reassignment, child UNDER 16 | (1) Publication limited to surname only. (2) Deeds to be retained in court pending consideration of arrangements relating to storage in National Archives. (3) File to be marked Private and may be inspected only on application to the court. | Case of W, see reasons in this judgment. Arts. 8, 14 ECHR |
| Name change due to gender reassignment, child 16 or 17 and unmarried/not civilly partnered | (1) Publication limited to surname only. (2) Deeds to be retained in court pending consideration of arrangements relating to storage in National Archives. (3) File to be marked Private and may be inspected only on application to the court. (4) Deed MUST (in addition to other requirements) be endorsed with the consent of the child and signed in new and old names, and duly witnessed. | Case of F, see reasons in this judgment, Arts. 8, 14 ECHR, and Reg. 8(4) of the 1994 Regs. |
| ANY child aged 16 or 17 if unmarried/not civilly partnered | Deed MUST (in addition to other requirements) be endorsed with the consent of the child and signed in new and old names, and duly witnessed. | Reg. 8(4). |
| Married or civilly partnered child of 16 or 17 | Adult provisions apply | Reg. 8(2). |
| Child under 16, unmarried/not civilly partnered AND the applicant has by any order of the High Court, County Court or Family Proceedings Court been given parental responsibility for a child and applies for the enrolment of a Deed Poll to change the surname (family name) of the child who is under the age of 18 years. OR as above but where the application is to change surname AND there is a Child Arrangements Order affecting residence: see s.13 of the 1989 Act. | The application must be supported by the production of the consent in writing of every other person having parental responsibility. | Practice Direction 5A para. 6.3(1) and (2). In the absence of that consent, the application will be adjourned generally unless and until permission is given in the proceedings, in which the order was made, to change the surname of the child and the permission is produced to the Central Office, QBD. The wording of the PD does not sit perfectly with the wording of s.13 Children Act 1989, but is presumably intended to cover such cases. |
| Child under 16, unmarried/not civilly partnered. (But see above where there is an order granting PR or a Child Arrangements Order). | The application for enrolment must be supported— (a) by an affidavit showing that the change of name is for the benefit of the child, AND (i) that the application is submitted by all persons having parental responsibility for the child; OR (ii) that it is submitted by one person having parental responsibility for the child with the consent of every other such person; OR (iii) that it is submitted by one person having parental responsibility for the child without the consent of every other such person, or by some other person whose name and capacity are given, for reasons set out in the affidavit; AND (b) by such other evidence, if any, as the Master of the Rolls may require in the particular circumstances of the case. | Reg. 8( 5), PD 5A para. 6.3(3). See also Cases of C and D, where only one parent with PR has signed and reasonable diligence has not been used to find the other parent. In the case of surnames, PD 5A 6.3(3) indicates that the court will grant an application even without the consent of one or more persons having PR if the other person(s) with PR is/are “ overseas or despite the exercise of reasonable diligence it has not been possible to find him or her for other good reason” HOWEVER I have expressed doubt (where the other person(s) (with PR) is/are living and their consent has not been obtained), that an application for any change of name (but especially surname) should be approved in most cases without a Specific Issue order under s.8 of the Children Act 1989 (or a s.13 order if the case concerns surname and there is a Child Arrangements order in force affecting residence) from the Family Court so that the child's interests can be properly considered, applying Re Q, Re A, Re B (change of name) [1999] 2 FLR 930 at 933F, applying Dawson v Wearmouth [1999] UKHL 18 (and see also Re W (Children) [2013] EWCA Civ 1488). See discussion in judgment in Re C and D below. |
Masters generally in the last few years have had more experience of the process than would in the past have been the case. That is because such applications were conventionally handled solely by the Senior Master, but a change occurred in around late 2014 by which applications were directed to be allocated to ordinary Masters. However parts of the relevant Practice Direction (5A) still seem to imply that Deed Poll issues are a matter for the Senior Master and public guidance states that “All applications for change of name of a minor are referred to the senior master for permission to enrol.” (form LOC019). It may be that the PD and guidance need to be amended in that regard. I note also that PD5A refers to ‘the Practice Master’ which was a role abolished about 2 or 3 years ago and hence may also need to be modernised in the text of the PD.
A significant number of applications for name change deeds to be enrolled relate to matters such as hyphenation of surnames after a marriage or civil partnership between the parents, a change of surname to adopt (say) the father's surname after marriage between the spouses, and so on. The process and practice of the court and the relevant regulations appears to have evolved with such things in mind.
This judgment
This judgment deals with applications of types which have given rise to inconsistency of approach by the court and in some instances concerns expressed, formally or informally to staff by members of the public using the procedure, and also by Masters including myself in seeking guidance for the last year or two.
Those concerns include issues over the clarity of the process, the relationship between what is said in the relevant practice direction (PD5A) and the Enrolment of Deeds (Name Change) Regulations ( SI 1994/604), and as to significant matters such as concerns by parents and others over the way in which the Regulations and PD interrelate with the rights of applicants.
Issues are especially acute where children who seek a change of name are adopting a reassigned gender relative to the gender they were assigned at the time of registering their birth (which is typically a presumed cis-gender based on the view taken by adults present at birth on visual examination of the child). This judgment is necessitated by urgency in these cases partly...
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