It is not uncommon that a parent will wish to change their child’s surname, usually when their own surname has changed.
Perhaps the most common scenario here is that the child was given his or her father’s surname on birth but the parents subsequently separate, after which the child lives with the mother. The mother then (re)marries, taking her new husband’s surname in the process.
As a result, the child is the only one in the new, blended family who does not share the new husband’s surname. Concerned at this, the mother may wish to unify the new family, by changing her child’s surname to her new surname.
But a sole parent cannot necessarily change their child’s surname just because they wish to do so.
So what is the law relating to changing a child’s surname, and how does it work?
As we will see, the answer largely relates to the issue of parental responsibility.
We will start with the simplest scenario: where only one person has parental responsibility for the child.
This may be the situation where one of the child’s parents has died, or where the parents were not married and the father did not acquire parental responsibility by being registered as the father on the child’s birth certificate, with the mother’s agreement or via a court order.
In such a situation the person with parental responsibility may change the child’s name without any other permission or consent.
But it is of course more often the case that more than one person will have parental responsibility for the child, usually both parents.
Where a child arrangements order is in force with respect to the child, no person may cause the child to be known by a new surname without either the written consent of every person who has parental responsibility for the child, or the permission of the court.
Similarly, where there is no child arrangements order a child’s name may only be changed with the agreement of anyone who has parental responsibility for the child, or the permission of the court, but here there is no requirement that the agreement must be in writing (although that is still advisable).
In short, if you wish to change your child’s name and the other parent does not agree to the change then you will need to apply to a court for an order allowing the change.
There is one proviso to this: it has been suggested that once the child has reached the age of 16 then their consent to the change of name is necessary (generally speaking, 16 and 17-year-olds can change their name without the consent of their parents).
If the court’s permission for the change of name is required, then the person seeking permission should apply for a specific issue order allowing the name change.
The court will only allow the change of name if it decides that this is best for the child’s welfare. In making the decision it will consider a checklist of factors, including the ascertainable wishes of the child (considered in the light of the child’s age and understanding); the effect of the change upon the child, if any; and any harm that the child may suffer.
The court will also have regard to the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child’s father. Registration is always a relevant and an important consideration, but it is not in itself decisive. Any changes of circumstances of the child since the original registration may be relevant.
Note that reasons given for changing or seeking to change a child’s surname based on the fact that the child’s name is or is not the same as the parent making the application do not generally carry much weight.
In the case of a child whose parents were married to each other, the fact of the marriage is important and it has been suggested that there would have to be strong reasons to change the name from the father’s surname if the child was registered with that name.
Lastly, where the child’s parents were not married to each other, the mother has control over registration. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, and the existence or absence of parental responsibility are all relevant factors to take into account.
In summary, it can be quite difficult to persuade a court to agree to a change of a child’s surname against the wishes of the other parent. Accordingly, if you are contemplating making such an application then you should first seek expert legal advice.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. Please contact the team to speak to one of our specialist solicitors.
