Dawson v Wearmouth

A dispute about a child’s surname is a profound welfare issue, not a mere formality. Where no residence order is in force, the court may determine the dispute by a specific issue order under section 8 of the Children Act 1989. Section 13 applies where a residence order is in force. The child’s duly registered surname is a major factor and should not be disregarded. A natural maternal surname shared with siblings should be changed only where strong countervailing considerations exist. Routine considerations, such as the father’s paternity, contact or likely future involvement, are insufficient by themselves. A disputed registration or change should be referred to the court rather than made unilaterally.

The mother registered her son as Alexander Guy Wearmouth. The child’s father applied for a specific issue order under section 8 of the Children Act 1989, seeking an order that the child be known as Dawson, together with orders for parental responsibility and contact.

The parental responsibility and contact orders were made by consent. The Taunton County Court nevertheless ordered that the child be known as Alexander Guy Dawson and prohibited the mother from allowing any other surname. The mother appealed, challenging both the court’s jurisdiction and the exercise of discretion.

The central issues were whether section 8 permitted a surname-change order where no residence order was in force, and what weight should be given to the child’s existing registration.

The Court of Appeal allowed the appeal and exercised the discretion afresh.

1. Jurisdiction. The Births and Deaths Registration Act 1953 and the Registration of Births and Deaths Regulations 1987 establish the registered surname, particularly where the parents are unmarried. They do not exclude the jurisdiction under section 8 of the Children Act 1989 to determine what surname a child should use.
2. Interaction between sections 8 and 13. Section 13 governs an application to change a child’s surname where a residence order is in force. Where there is no residence order, a parent may apply under section 8 for a specific issue order concerning the surname, whether both parents have parental responsibility or only one does. Re B (Change of Surname) [1996] 1 FLR 791 was apt to the residence-order situation but did not establish that section 13 was the exclusive route in every case. The court also declined to extend the restriction beyond the statutory circumstances. A disputed registration or change should not be made unilaterally.
3. Exercise of discretion. Registration is a major factor. It was wrong to approach the matter as if it arose before registration or to put the registered surname aside as marginal. Wearmouth was the mother’s actual surname, and that of the child’s half-siblings, making it a natural and logical choice. Those considerations could be displaced only by strong countervailing factors.
4. The father’s paternity, the importance of the child knowing his father, agreed contact and the possibility of future changes in the mother’s relationships were routine considerations. They would arise in virtually every comparable case and did not justify changing the registered surname. The fact that the father had chosen the child’s first name was also relevant.

The surname orders were reversed. Reporting restrictions were lifted. There was no order as to costs below, and legal aid taxation was ordered for each side in the Court of Appeal.

1. Court of Appeal: Appeal allowed. The surname orders made below were reversed; reporting restrictions were lifted and costs directions were made. Citation: [1997] EWCA Civ 2272.
2. Taunton County Court: Judge Cotterill ordered that the child be known as Alexander Guy Dawson and prohibited the mother from permitting any other surname. The parental responsibility and contact orders were made by consent.