Dawson v. Wearmouth

This appeal concerned an application by the natural father for a specific issue order under section 8 of the Children Act 1989 requiring that his infant son be known by the father’s surname rather than the mother’s registered surname. The court affirmed that the child's welfare, governed by section 1 of the Children Act 1989 (including the subsection (3) checklist and subsection (5) requirement that an order be better for the child), is the paramount consideration.

The House of Lords held that a child’s registered surname is a relevant and sometimes weighty factor in deciding whether to order a change of name, but registration is not conclusive. Where a child’s name has already been registered the applicant must show evidence that changing the name would improve the child’s welfare; the father had not done so. The Court of Appeal had therefore properly exercised its discretion in refusing the order and the appeal was dismissed.

This is an appeal by the father against the Court of Appeal's refusal to uphold a County Court order which had required that the infant child Alexander be known by the father's surname.

Background and parties

• The mother (the respondent) had two children by a former husband and continued to use his surname, Wearmouth. She later lived with the appellant (the father) and bore a child, Alexander, in March 1996.
• The mother, as the person required to register the birth under the Births and Deaths Registration Act 1953, registered the child within 42 days as Alexander Guy Wearmouth without consulting the father.
• The father accepted paternity and sought three orders at Taunton County Court on 13 May 1996: a contact order (section 8), a parental responsibility order (sections 2(2), 3(1) and 4(1)(a)), and a specific issue order under section 8 as to the child’s name.

Procedural history

• His Honour Judge Cotterill (County Court) made consent orders for contact and parental responsibility and, after hearing argument, ordered that the child be known as Alexander Guy Dawson and prohibited the mother from permitting any other name.
• The mother successfully appealed to the Court of Appeal (Hirst and Thorpe L.JJ.), which set aside the County Court judge's specific issue order on the ground that he had erred in principle by effectively disregarding the fact of registration; the Court of Appeal exercised the discretion afresh and refused to order a change of surname.
• The father obtained leave to appeal to the House of Lords.

Issues before the House of Lords

1. Whether the court had jurisdiction to make a specific issue order under section 8 where no residence order was in force (not contested on further appeal).
2. How the fact of registration under the 1953 Act and the Registration Regulations should be weighed in the exercise of the section 8 discretion.
3. Whether the father's Convention rights under Article 8 required a different outcome.

Reasoning and decision

• The House emphasised that the paramount consideration is the child’s welfare under section 1 of the Children Act 1989, including the checklist in section 1(3) and the requirement in section 1(5) that any order be better for the child than making no order.
• The registered surname and the status quo are material background facts and may be an important factor, particularly where there has been some usage or other practical consequences; however registration is not determinative and must be weighed with other welfare considerations.
• The father bore the burden of showing that a change from the registered name would be better for the child's welfare; the evidence did not demonstrate that the change would improve welfare. The Court of Appeal had therefore properly exercised its discretion, and arguments based on the European Convention did not add a separate ground for the father's case.

Relief sought: the father sought a contact order, parental responsibility, and an order requiring the child to be known by the father's surname. Parental responsibility and contact were agreed; the specific issue order about the surname was refused.

This was an appellate appeal which was dismissed. The House of Lords held that the Court of Appeal had correctly exercised its discretion under the Children Act 1989, applying the welfare checklist in section 1 and giving appropriate weight to the child’s registered surname and the status quo; the father had not shown that ordering a change of name would be better for the child.

County Court (Taunton): HHJ Cotterill ordered change of name and other orders on 14 January 1997. Court of Appeal (Hirst and Thorpe L.JJ.) allowed the mother's appeal and set aside the County Court judge's order on 31 July 1997. Leave to appeal to the House of Lords was granted on 23 July 1998; the House of Lords dismissed the appeal on 25 March 1999. (Neutral citation: [1999] UKHL 18.)