This blog post has been contributed by Professor Robert Jago, Module Convenor for Family law.
Students will know from their studies that s13 Children Act 1989 confirms the conditions for when a child’s surname can be changed. If a Child Arrangements Order is in force, then the written consent of every person with parental responsibility or the leave of the court must be provided for the change to be made. This is confirmed in Re C (Change of Surname)[1998] 2 FLR 656. This dispute is likely to arise in private law proceedings and Dawson v Wearmouth [1999] 1 FLR 1167 outlines the circumstances which are required to justify changing a child’s surname.
What then happens with a child’s forename and in public law proceedings? This issue was raised in the recent case of Re C (Change of Forename: Child in Care) [2023] EWHC 2813 (Fam). In this case an 8-month-old baby boy was currently being looked after by a Local Authority and was subject to an interim care order under s38 Children Act 1989. The child had been given the forename ‘Mia’ by their mother and this had been registered in the normal way. The Local Authority wanted to change the forename back to a name that was given to the child at birth before the mother then changed the name to Mia. The name Mia is traditionally associated with a child who is female. The application by the Local Authority was supported by the father, the paternal grandmother and the Children’s Guardian. The mother opposed this change.
For the application to be brought the Local Authority required leave under s100(3) Children Act 1989. Section 33(3) Children Act 1989 provides that parental responsibility will be vested with a local authority where it has either a care order or an interim care order in place and under s33(7) Children Act 1989 it is prohibited for a child to be known by a new surname without the permission of the court and the written consent of everyone who has parental responsibility. However, s33(7) Children Act 1989 does not deal with forenames. In the case of forenames there are two concerns identified with the state making such decisions. Firstly, it would appear to trump a mother’s Article 8 ECHR rights with no possibility of recourse to the courts and secondly, s33 Children Act 1989 does not provide a route to the court for the changing of a forename. On that basis leave can only be granted under s100 Children Act 1989 for the Local Authority application if it can be shown there is firstly no other statutory provision to make the application and secondly if a decision is not made (under the courts inherent jurisdiction) regarding the child then they are likely to suffer significant harm.
Mr Justice Cobb then explored this question of whether the child would suffer significant harm if their forename was not changed. The Local Authority argued that there were reasonable grounds to believe that the child would suffer significant harm due to teasing, ridicule and bullying if they were to keep the name Mia. Counsel for the Local Authority, relied on the judgment of Re C [2016] EWCA Civ 374 at 42 where it was stated that:
‘A name which attracts ridicule, teasing, bullying or embarrassment will have a deleterious effect on a child’s self-esteem and self-confidence with potentially long-term consequences for him.’
Mr Justice Cobb was not persuaded by this argument in this case. He concluded that given the multi-cultural nature of society and the constant shift around the availability of forenames, the argument of the mother (at 35 in the judgment) that:
‘[t]radition is not the same as it used to be, and Mia can be whoever or whatever he wants to be.’
was more persuasive, noting that whilst Mia, as a name, could be a given name for a female or it can be an abbreviation for Amelia or Emilia, it could also be an abbreviation of Jeremiah or Miguel or Domiano which are all names traditionally given to a male.
However, Mr Justice Cobb was more persuaded that if the current care plan for the child to be placed with the paternal family was approved, then retaining the name Mia would place the child at risk of significant harm due to the risk of intra-family conflict and confusion. There would be intra-family conflict because the paternal family so strongly disliked the name Mia, and confusion because if the care order was granted then the paternal family could apply to change the forename in private proceedings and by that time it might be deemed to be too late as the child’s identity has already been fixed.
On that basis Mr Justice Cobb did grant leave to the Local Authority to make the application under s100 Children Act 1989 and the order to change the forename was granted ,but only if the care plan for the child was approved. If the care plan for the child was not approved, then it was correctly concluded that there would be no proper basis for the court to intervene. In this case it was deemed to be a proportionate interference with the mother’s Article 8 rights under the ECHR. The decision was taken to protect Mia’s welfare best interests as all decisions around children should be.
In conclusion, Mr Justice Cobb was keen to link this unusual decision with welfare considerations as a way of explaining, and indeed justifying, the correct role of the state. As a coda, Mr Justice Cobb had previously commented in Re B & C (Change of Names: Parental Responsibility; Evidence) [2017] EWHC 3250 (Fam) at 33 that:
‘A person’s forename invariably identifies gender, and often personifies culture, religion, ethnicity, class, social or political ideology.’
but six years later he reflected that the use of the term ‘invariably’ may not now be appropriate. It remains to be seen what the impact of this decision might be moving forward.