R v P (No 2)

In determining applications concerning a child’s surname and disclosure of identifying information, the child’s welfare is paramount and the court must apply the Children Act 1989 welfare checklist. A surname change is an important step. The fact that a child’s surname differs from that of the applying parent or the rest of the household carries limited weight, and present wishes must be balanced against longer-term welfare interests, identity and family relationships. Information about a child’s school or general practitioner may be withheld in identifying form where the evidence shows a real risk to the child’s stability or safety. Any interference with a parent’s Article 8 rights must be proportionate. A proposed change may be reconsidered if circumstances materially improve, including through demonstrated behavioural change.

The proceedings concerned a seven-year-old child living in England with her mother, stepfather and half-sibling. The father, who lived in Lithuania, applied under article 21 of The Hague Convention for contact. The mother applied to change the child’s surname, retaining her existing surname as a middle name, and sought to withhold identifying details about the child’s school and general practitioner.

The parties agreed arrangements for indirect contact and the father’s participation in a domestic-violence programme. They agreed that the court could determine the outstanding issues on the evidence before it. The central questions were whether the identifying information should be disclosed and whether the proposed surname change served the child’s welfare.

The court determined the outstanding applications on the evidence before it.

1. Welfare assessment. The child’s welfare was the paramount consideration, having regard to the matters in section 1(3) of the Children Act 1989.
2. School and medical information. The school was integral to the child’s educational, emotional and psychological stability. The father’s history of repeated breaches of orders, together with his continuing failure to acknowledge the findings about his behaviour or its impact, meant that he remained a risk if he tried to locate the child without the mother’s knowledge. His proposed domestic-violence work was welcome but very late and untested. The mother’s agreement to provide information about the child’s education, subject to removal of identifying details, made the interference with the father’s Article 8 rights proportionate. The identifying details of the school and general practitioner were therefore withheld.
3. Surname. The proposed change accorded with the child’s wishes and partly addressed the concerns of the father and Guardian, but those considerations did not determine the issue. The court had to balance them against the child’s wider welfare interests, including her identity, knowledge of her father and paternal family, and the tentative stage of rebuilding that relationship. The fact that the proposed surname would reflect the household or make day-to-day life more convenient was insufficient, particularly where the stated safety justification lacked supporting information and the agreed order could be registered in Lithuania.
4. The mother’s application to change the child’s surname was refused. The court indicated that the question could be revisited if the child acquired greater knowledge of her father and paternal family and the father demonstrated a genuine change in behaviour and attitude.