Names are central to our identity and how we construct a sense of self, both on an individual level and in terms of how we relate to our families and the wider world. They affect how we are seen and how we see ourselves.
The definition of a surname as “a hereditary name common to all members of a family” offers further insight into why wanting to change it can form such an emotive issue. If a surname has passed seamlessly down generations, changing it could be seen to create distance between a child and their extended family, as well as between the extended family and generations yet to come.
However, the change of a surname can also be seen to reinforce family ties, should the mother revert back to her maiden name following a divorce and wish to maintain the nominal link between the child and their maternal family.
The Family Courts recognise this significance of a child’s name to their identity, and as such will not allow parents to change it a whim. The court’s primary aim is, however, to avoid the child’s name becoming a battleground and, as set out below, it is the child in question who must benefit from the change in name, with the interests of the wider family kept only as a secondary consideration.
Any individual with parental responsibility (PR) for a child has the power to change their surname. PR is defined in the Children Act as the bundle of rights, powers and responsibilities you have in relation to a child. This entails that those with PR have the power to make significant decisions, and receive certain information, regarding their children’s life.
As such, if you are an individual with sole PR for your child, you are entitled to change your child’s name by deed poll, the process for which is detailed below. A father without PR in this instances is not entitled to object. On the other hand, where PR is shared between two or more parties, the written consent of all parties must attained before the deed poll process is begun. If one or more parents refuse to consent, a Specific Issues Order must be obtained by the parent wishing to effect the surname change. This is detailed below.
It is important to note that even informal arrangements for a child to be known by a new surname ought to be consented to in this way by all parties with PR.
Individuals who attain PR automatically are unmarried mothers and married parents. Unmarried fathers and second female parents can acquire PR via a child arrangements order, a court order giving PR, a formal PR agreement made with the mother or their registration on the child’s birth certificate. More information on PR, including how it can be obtained by the likes of step-parents and local authorities, can be found here.
Crucially, a divorce does not remove PR. It can only be removed by court order, or otherwise ends automatically on the child’s reaching 18. Also important to note is that PR for a child can diminish as they grow older, with their increasing capacity to understand and make decisions of their own volition.
Given the need for all parties with PR to consent, one must take the route of obtaining a Court Order to change the surname of the child where this consent is not received. This is called a Specific Issue Order and is detailed below.
While parental responsibility ends at age of 18, it nonetheless diminishes before then, as the child ages and forms the capacity to make their own decisions. While there is no set age given for this, it is important to note that heed will be given to the child’s wishes if they can display sufficient understanding of the decision being taken. Where this is the case, the significance of the parental right to respect for family life decreases, and so if a court order is made in these instances it may well be difficult to obtain court permission to effect surname change.
It is advised that parties reach an agreement before seeking a court order, however where the requisite consent is unable to be obtained, one can make an application to the Courts to otherwise override this and grant permission for the name change. The parent who wishes to change the child’s surname will need to file a specific issue application (Form C100) with their local court, detailing how they believe the change of name would benefit the child and why it is in their best interests. A judge would then consider the application and make their decision based on a number of factors, but most importantly the likely impact on the welfare of the child.
Section 1 of the Children Act 1989 contains the ‘paramountcy principle’ which states, unequivocally, that the welfare of the child in question shall be treated by the court as its paramount concern. With this in mind, parents must satisfy the court that they are not seeking to change their child’s surname on a whim or for purely selfish reasons, but that to do so would be in the best interests of the child concerned.
Should the child in question be old enough to express their own wishes, these will also be taken into account. There is no set age given at which a child may decide for themselves, however the older the child, the more weight will be given to their wishes over those of the parent making the application.
If all the requisite parties consent to the child’s name change, or an SIO is achieved to this effect, deed polls (available on the Gov.uk website) will then need to be filled out, including an ‘affidavit of best interest’ in which they are required to set out how the change of name is in the best interests of the child in question. These forms are then sent to the Queen’s Bench Division for Issue and the child’s new name published in the Gazette.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.