In the aftermath of separation and divorce, issues often arise in relation to whether a child’s surname can be changed from that which is registered on their birth certificate. Ordinarily, this is done by obtaining the consent of all those with parental responsibility. When consent cannot be obtained, permission must be sought from the court.
Topics to be answered in this article
What is parental responsibility?
Parental responsibility empowers a parent or other person to make all important decisions in relation to a child (Section 3(1) of the Children Act 1989).
Parental responsibility is automatically acquired by a mother, for their child, when born. However a father will only automatically have parental responsibility if he is married to the mother when the child is born. If unmarried, the father will only acquire PR if he is registered as the father on the child’s birth certificate, subsequently marries the mother, or applies to the court to be granted parental responsibility. Others can acquire parental responsibility by obtaining a child arrangements order from the court, which names them as a person who the child is to live with.
A divorce or separation does not remove parental responsibility.
How to change child's surname
Changing a child’s surname is regulated by Section 13 of the Children Act 1989. According to section 13, until a child is 16, “no person may cause the child to be known by a new surname… without either the written consent of every person who has parental responsibility for the child or the leave of the court”.
So, a child’s surname can be changed provided all those with parental responsibility consent to this. If permission is not given, the change of surname may not be made unless the court gives permission to the change.
EVERYONE WITH PARENTAL RESPONSIBILITY CONSENTS
If everyone with parental responsibility agrees to the change of surname, the parent wishing to action the change can do so via statutory declaration or deed poll.
Statutory Declaration
A change of name by statutory declaration is a legal document, drafted by a solicitor, formally confirming the change of surname. This document will serve as evidence of the change of surname for most organisations that require it however it does not change the child’s birth certificate.
Most organisations will accept a statutory declaration as evidence of name change. Although the document is insufficient proof of the change for official documents such as a passport.
Change of Name Deed
Most commonly, a child’s surname will be changed by a Change of Name Deed (also known as Deed Poll), as this serves as legal recognition of the change. A Change of Name Deed, properly prepared and signed, usually serves as sufficient evidence of the change for all purposes, including for official documents. A Change of Name Deed can be enrolled at the Royal Courts of Justice for £70, however this is optional. The decision to enrol the change does not affect the validity of the change.
As with statutory declarations, the Change of Name Deed does not change the child’s birth certificate.
Why not change the Birth Certificate?
It is uncommon to change a child’s surname by altering their Birth Certificate, as it is a document of historical record. A Birth Certificate will generally only be changed to correct a spelling mistake or re-registering the birth to include the child’s biological father or where the child’s parents subsequently marry or enter into a civil partnership; it will not be altered to reflect a change of name in later life. This is why statutory declarations and Change of Name Deeds do not alter a child’s birth certificate.
What happens if consent is not provided to change the child’s name?
DISPUTE OVER THE CHANGE: Court Route
Where consent to a change of surname cannot be obtained by everyone with parental responsibility, the issue must be referred to the court. The court will grant a specific issue order in relation to the dispute.
When deciding whether to grant or prevent the change of name, the court will consider what is in the best interests of the child. This is the most important factor. Other factors the court considers relevant include: why the current surname was chosen, whether the parents were married and any change in current circumstances as well as factors which may arise in the future. Arguments based on the fact that the child’s surname will or will not be the same as one of the parents do not carry much weight.
If the court denies the application, the child’s surname may not be changed.
If the court grants the application, it may state that the child in the specific issue order that the child is now to be known by the changed name. This serves as sufficient evidence that the child’s name has been changed. No further steps need to be taken. If the specific issue order states that the parent has permission to change the child’s name, the parent must apply to change the name either by a Change of Name Deed or Statutory Declaration (discussed above).
What can be done if one of the parents is absent from the child’s life?
If a parent or person with parental responsibility is absent from a child’s life and/ or is not present to consent to or contest a change of surname, the parent wishing to make the change should again apply for permission for the court to make the change. However, their whereabouts must be unknown and reasonable efforts to establish contact must have been made.
The fact of absence will be a factor the court takes into account when deciding whether to grant a specific issue order giving permission to make the change. However, the most important factor will be whether the change is in the best interests of the child.
Is there anything I can do if I do not have parental responsibility for the child?
An interested party, such as a father without parental responsibility, would be expected to be contacted prior to changing the name of the child. If a dispute arose with regards to a proposed change of surname, the matter would be taken to the court.
If a child’s surname has already been changed, an interested party can apply to the court to have the change of name reversed, via a specific issue order.
Are there any restrictions on names?
According to the UK Deed Poll Service, an application for change of name:
- Must include a first name and surname,
- Must not be impossible to pronounce,
- Must not include numbers, symbols or punctuation marks that do not have phonetic significance,
- Must not be vulgar, offensive or blasphemous,
- Must not ridicule people, groups, government departments, companies or organisations,
- Must not promote criminal activities, racial or religious hatred or drug use.
- Must not result in others believing that you have conferred or inherited honour, title, rand or academic award, and
- Must not exceed 150 characters.
How can Goughs help?
If you require assistance with your divorce or separation and are seeking to change your child’s surname in the process, you can book a free initial consultation with one of our experienced family solicitors. We understand that this is often a very tough time and would be more than happy to assist.
