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Changing Childrens’ Surnames

The Short Version

Anyone under 18 can only have their change of name recorded by a Change of Name Deed or Deed Poll by a person who has parental responsibility.

If both parents have responsibility they both have to agree the change.

If this is not possible there would need to be an application to the court, which we can help you with. If the child is over 16, they must also consent to their name being changed.

Under s18[1] Children Act 1989 says where a Residence Order [ RO ] is in place then no person may cause the child to have a new surname without first obtaining :

The written consent of every adult with parental responsibility of the child or:
With leave of the Court.
If the application is made after refusal by the other/s then and a RO is already in place then a free standing application under s13 is appropriate rather than the s8 application.
In the case of Dawson v Wearmouth [1999] the House of Lords set out the procedure:
Consult with anyone with parental responsibility whether or not a RO is in place
Consult unmarried fathers without parental responsibility [to avoid any subsequent s8 application by him even though no parental responsibility]
If consent given get it in writing
If not then apply under either s13 or s8
The guidelines per Re W [1999] are that the interests of the child come first, the welfare of the child is paramount and s1[3] criteria apply.

Where the parties were married and the child’s name was registered it will be difficult to change the name just because of re-marriage. Strong reasons will be required.

An example of this was the fact that one fathers name was given lots of press coverage as a result of a crime.

All cases are on their facts however and future circumstances may be relevant too

Here is a list of the people you may wish to notify when changing your child’s name:

HM Revenue and Customs (HMRC) (if they are over 16)
Bank and/or Building Society
Driver and Vehicle Licensing Agency (DVLA) (if they hold a licence or provisional licence)
Passport Office (you will need to apply for a new passport)
Their school or college & family doctor and dentist plus any social or health workers

The Slightly Longer version

Changing a child’s surname is often an issue in divorce in England along with custody of children or access to children.

If the parents are not be married the father may wish to have the child carry his surname or the mother may wish to revert to her maiden name after a divorce and also change the child’s surname.

Changing surname is invariably contentious and the law is that on birth, the name of the child, including the surname, has to be registered within 42 days.

In the case of a married couple this is the responsibility of both parents. In the case of an unmarried couple the responsibility is the mother’s alone.

A child born to a married couple will bear the surname of the father but in the case of an unmarried couple the child can only bear the surname of the father if the father consents.
When one parent wants to change the surname of the child following divorce, separation or for some other reason what is the position?

Where both parents consent then the child will be called by whatever surname they agree.
If no agreement and the child’s name has been changed or one party wishes to then you can apply to the court under the Children Act and ask the court to decide a “specific issue” – namely, whether the child’s surname should be changed or not.

The test is what is in the best interests of the child namely rules have been distilled from previous cases.

In case where there was a marriage most fathers do object and courts will not normally allow a change of name here. This is because of the period of time that the children are likely to have had their surname and because of the link it establishes to their paternity.

In the case of an unmarried couple children cannot be registered with the surname of their father if the parties are unmarried unless the father consents.

The issue is really how long mother and father lived together and how long their life as a family lasted. An unmarried couple who have lived together with the children for many years and where the children were registered with the surname of their father the courts would regard the matter as with a couple who were married and probably refuse to agree to a change of surname. The living together as a family unit and the sense of identity with their father would be important.

The courts are in general more likely to agree to a change of surname for children in the case of unmarried parents.

In the House of Lords – Dawson v Wearmouth – said the question, as always, was what was in the child’s best interests. In this case mother, Mr Dawson and the child had not really lived together as a family unit for any length of time. Mother not unnaturally argued that she and the two other children had one surname and it would do more for the unity of the family if all the children had the same surname. The court agreed with her.

An unmarried father who has never lived with the mother and who has not agreed to let the child be registered with his surname is in a very weak position.

There are other cases for example, father and mother may have been married and divorced but the father may have been sent to prison for a crime which has attracted publicity.

After divorce wives often wish to revert to their former name and there are few rules about what one can call oneself and few formalities even though solicitors are often asked about changing a name by “deed poll”.

This usually involves registering the change of name at the High Court and advertising the change in the London Gazette.

In fact it is sufficient simply to tell everyone – employer, bank, utility companies, friends, acquaintances etc – that one has changed one’s name.

The Passport Agency will almost certainly ask that you provide what is called a Statutory Declaration explaining the change of name formally and it is something that a solicitor should be able to do for modest cost.

But you will not be able to change the name on a birth certificate unless it is the case in which a child is born to a couple who are unmarried and they subsequently marry. In that case it is possible to change the birth certificate to indicate the married surname. However, in most cases changing what is on a birth certificate is not possible.

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