How do I change my child’s name now that we are divorced? 

Director James Pirrie of Family Law in Partnership discusses the legal principles surrounding changing a child’s name following a divorce.

Case law suggests that the courts are generally reluctant to change a child’s name following divorce or separation.

The principle adopted has been laid out often:

Lady Justice Butler Sloss in 2003:

“To change a child’s name is to take a significant step in a child’s life. Forename or surname, it seems to me, the principles are the same, in general. A child has roots. A child has names given to him or her by parents. The child has a right to those names and retains that right, as indeed, the parents have rights to retention of the name of the child which they chose. Those rights should not be set to one side, other than for good reasons…  Having said that, one has to recognise, in reality, that names do change. Children acquire nicknames and even nicknames sometimes take over from the name that they were given as their chosen name. Children do have diminutives and they may themselves, as they get older, prefer their third name to their first name and choose to be called by it.”  

In re W. G. 1976, Court of Appeal:

“…the mere fact that there had been a divorce, that the mother had remarried and had custody of the child, and had a name different from that of the child, was not a sufficient reason for changing the child’s surname”

Forty years on and the position is stated by Cobb J:

B and C (Change of Names – Parental Responsibility – Evidence) [2017] EWHC 3250 (Fam):

“A surname defines, and is defined by, familial heritage and genealogy.  A person’s forename invariably identifies gender, and often personifies culture, religion, ethnicity, class, social or political ideology.  A forename and surname together represent a person’s essential identity”

Key points in the legal overview include these:

1. A child’s birth must be registered under the Births & Deaths Registration Act 1953 and this should be done within 42 days of the birth. This will include the registration of the child’s chosen names.

2. The subsequent changing of names is not something to be taken lightly. It is seen as a major decision, which will require agreement between all those with parental responsibility or a court order.
3. Parental responsibility is always held by the woman who carried the child during its pregnancy and is held by the other legal parent(s) of a child in the following circumstances:

• if they were married or in a civil partnership at the time of the birth;
• from the point that they subsequently marry or enter a civil partnership (legitimisation); or
• if that other parent is registered as such under the Births & Deaths Registration Act 1953; or
• if that person is granted parental responsibility by the mother by completing a parental responsibility agreement; or
• if the court so grants it.

4. A ‘catch 22’ might therefore be seen to exist for the parent who is in disagreement with the birth mother as regards the names of the child in scenario 3.c.

Here the parent needs parental responsibility to object to the birth mother’s decision but can only acquire it by being named on the birth certificate.

An application to the court for the relevant orders should be made at an early stage by the objecting parent and prior to the mother taking steps to register.  Otherwise an application should be made soon afterwards, bearing in mind that for a very young child a change may not be as weighty a matter as it may be later on.

5. Over later years, parents may come to disagree over the names of the child, particularly after separation. No changes should be taken lightly and where there is a disagreement the situation will be decided by what is in the child’s best interests.

6. Schools, medical authorities and other similar institutions are encouraged to be vigilant against surreptitious changing of a child’s name:

“No responsible school, doctor, education or health authority, or similar body could want unwittingly to aid or implement an unlawful act. Any change of surname is an important act in the life of a child, carrying with it emotional and psychological as well as social and practical consequences. It is hard to reverse. Any doubt about its lawfulness needs to be resolved before, not after, any formal steps to implement the change have taken place.”  Holman J in re PC (Change of Surname) [1997] 2FLR 730.

7. A change of name can be made by agreement between all those with parental responsibility, but should not be done without the child’s views being given due weight – according to the child’s age and understanding; and:
   • Otherwise a change will require a court order, which will be exceptionally challenging to secure in situations of disagreement.
   • This restriction may apply as much to forenames as it does to surnames.

8. Where a ‘living with’ or ‘spending time with’ order under s8 of the Children Act 1989 is in force then, under s13 of the Children Act 1989, there is an express prohibition on changing the child’s surname without the consent of all those with parental responsibility or leave of the court. (Though this merely restates the principles that are of general application anyway.)

9. S 8(6) CA’89 makes it clear that orders are not to be made in relation to a child once they have reached sixteen unless the circumstances are exceptional. It follows that in many circumstances a child will at this point escape the restrictions upon the change of a name for a child, and will be in a position to determine the point themselves.

So, coming full circle back to the question “how do I change my child’s name?”

A deep breath may be needed to really think through what is motivating your desire for a change of name.

• Identify why the change of name may be needed and what the possible solutions might be. Sometimes an expert in relationships, family systems and child development may be better placed to help here.
• The law will generally approach the proposed change of name from a place of resistance to the symbolism of the change of name; for example, to protect the connection with the parent who may be less present in the child’s life following separation.

If in doubt, do talk this through with an experienced family lawyer so that you can understand the legal (and emotional) landscape that you are dealing with.