RQ v TS

Changing a child’s registered surname is an important decision requiring a fair process. Where the issue is raised informally, the judge must ensure that each party understands it will be determined and has a proper opportunity to present evidence and submissions. Relevant welfare evidence must address the particular child, including wishes and feelings where material, rather than relying on generic observations. A procedural irregularity is serious where it prevents the court from receiving and weighing a party’s case. On appeal, the court must respect the trial judge’s evidential advantages and discretionary role, but may intervene where the decision is wrong or unjust because of serious procedural irregularity.

This was an application for permission to appeal, with the appeal to follow, from an order of HHJ McPhee in the Family Court at Watford changing the child U’s surname to a hyphenated surname incorporating both parents’ names. The mother argued that there had been no proper application, evidence or adequate reasoning concerning the proposed name change.

The issue had previously been raised in proceedings in 2020, but the father’s application had been dismissed by agreement. In the later proceedings, the issue was raised informally and was not addressed in the Cafcass reports. The central question was whether the judge had acted fairly and lawfully in determining the name-change issue without a formal application or evidence directed to it.

1. Permission and appeal test. Permission could be granted only if the appeal had a real prospect of success or there was another compelling reason for it under rule 30.3(7) of the Family Procedure Rules. Under rule 30.12(3), an appeal could be allowed where the decision was wrong or unjust because of a serious procedural or other irregularity.
2. Appellate restraint. Applying Piglowska v Piglowski and GK v PR, the appellate court had to respect the trial judge’s advantages in seeing and hearing witnesses and avoid substituting its own discretion. That restraint did not prevent intervention where the process was procedurally unfair or the decision fell outside the range of reasonable judgment.
3. Name-change applications. The principles in Dawson v Wearmouth and Re W, Re A, Re B (Change of Name) required the child’s welfare to be treated as paramount, with relevant factors including the registered surname, the reasons for registration, present and future circumstances, the child’s wishes and feelings where relevant, and the nature of the parents’ relationship and commitment. Re R (A Child) (Surname: Using Both Parents’) recognised the importance of balancing the child’s long-term interests and continuing links with both parents.
4. Procedural irregularity. Whether or not the court had power to consider a section 13 application of its own motion, an informal application required particular care. The Cafcass officer had not assessed the name change in her reports, her evidence was generic rather than directed to U, and the mother had not understood that the issue would be determined. Neither parent had given evidence about it. The judge therefore lacked the mother’s case and could not properly balance the relevant considerations.
5. The procedural irregularity was serious and, on that ground alone, the order had to be set aside. Permission was granted and the appeal was allowed. The court expressed sympathy for the trial judge and urged the parties to consider compromise.

• High Court (Family Division): Permission granted and appeal allowed from the order of HHJ McPhee in the Family Court at Watford. The name-change order was set aside.