Richard Harrington appears in the High Court on the first case to involve a change of both forename and surname in relation to a looked after child

It may be a surprise to many practitioners that until the decision of Re BC (Child in Care: Change of Forename and Surname) [2024] EWHC 1639 (Fam) there have been no reported cases concerning an application made by a looked after child to change both their forename and surname. In fact, this was the very first reported case to consider the principle of a child wanting to change both of their respective names.

Background

The child, BC, is a Gillick competent 15-year-old girl who was made subject to a care order on 22 June 2022. During care proceedings, serious findings were made, including that BC’s father had raped her and sexually assaulted her. Criminal proceedings remain ongoing, and father begins his trial later this year. Mother does not accept the findings made against father.

BC confirmed that since November 2021, she has wanted to change her name due to both names having a strong association with her father and the considerable trauma she suffers when she is called BC; the proposed name chosen by BC is well-considered and non-controversial. Despite mother not accepting the findings made, BC continued to have supervised contact with her mother and brothers; BC has remained keen for this relationship to continue and develop. Despite the wishes of BC, her mother opposed the application on the basis that BC should use her surname instead and that calling BC this name would make her feel that BC is not her daughter anymore.

The Local Authority opposed BC’s application. It was the position of the Local Authority that BC’s actions did not match her expressed wishes. The Local Authority made submissions that BC had not used her preferred name widely at school despite having numerous opportunities to do so, she voluntarily introduced herself as BC at her recent work experience placement, and she would not speak to professionals about her proposed change of name (save for her teachers). It was the case of the Local Authority that due to such hesitation and indecision, changing her name legally would risk causing further emotional harm to BC. The Local Authority submitted that there was a likelihood of her peers asking questions as to why she has changed her name and given BC has not been able to talk to professionals and her therapist about the harm inflicted by father, this may result in her feeling pressured to talk about the significant trauma she has suffered before she is ready to do so. The Local Authority was also concerned about the importance of BC having flexibility and control as to the situation, and the importance of BC having a relationship with her family. The Local Authority suggested there should be further therapeutic work undertaken with BC, BC should use her preferred name more widely at school first before considering to change her name legally, and she should await making such a significant decision until she turns 18.

Law

Section 33(7) of the Children Act 1989 (“CA”) confirms that while there is a care order in force, no persons can cause a child to be known by a new surname without either written consent of every person who has parental responsibility or the leave of the court; similar rules apply to children who are subject to a child arrangements order (section 13(1) CA 1989)  or a special guardianship order (section 14C(3) CA 1989). In contrast, a 16-year-old not subject to the aforementioned orders can change their name by unenrolled deed poll.

In relation to forenames, as confirmed by the recent decision of Re C (Change of Forename: Child in Care) [2023] EWHC 2813 (Fam) (“Re C”), to change a forename requires the court to invoke its inherent jurisdiction. Re C confirms the principles relating to change of forename and surname are the same and Re C provides guidance for the court to consider when faced with such applications.

As highlighted by Justice Poole at paragraph 32 of his Judgment, Re C concerned a very young child and Mr Justice Cobb noted that it will only be in rare or exceptional circumstances where the court would interfere with a forename chosen by a parent. Nevertheless, given BC was a Gillick-competent 15-year-old, Justice Poole questioned whether the approach set out in Re C should be different for older children who have capacity to make decisions for themselves.

The most relevant case in this matter was the Court of Appeal decision of Re S (Change of Surname) [1998] EWCA Civ 1950 (“Re S”) where an application was made by a 15-year-old to change her surname to her maternal surname following allegations made that her father had sexually abused her sister. In this matter, Thorpe LJ relied heavily on the wishes and feelings of the child wanting to change her name.

At paragraph 34, Justice Poole confirmed the following principles apply to an application made by a competent child in care to change their forename and/or surname:

i) The court’s paramount consideration is the child’s best interests.

ii) In assessing best interests, the wishes, feelings, needs and objectives of an applicant who is competent to make a decision about changing their name(s) should be given careful consideration.

iii) The motives and objectives of any family member who objects to the application will require careful scrutiny.

iv) Advice from a guardian will be valuable to the court.

v) The principles to be applied to a change of name are the same regardless of whether the change is to a forename or surname. If the application is to change both, then the implications will need to be considered accordingly.

vi) Regard should be had to the fact that at 18 the child will be free to change their name(s) without hinderance and that at 16 a child who is not in care or subject to a child arrangements order or special guardianship order is free to change their name by deed poll without the consent of any person with parental responsibility.

vii) The views of others and proposed carers are relevant only as they may affect the conduct of those persons and therefore indirectly affect the welfare of the child.

viii) The name(s) chosen by the child’s parent(s) may link them to particular religious or cultural backgrounds which are of significance to the child’s identity.

It was also noted that the views of any Local Authority who have parental responsibility must be taken into account. Justice Poole confirmed that any application made by a child to change their forename should be made to the High Court.

Analysis and Conclusion

Justice Poole acknowledged the differences between Re S and the facts in this matter but on balance, determined that the court should follow the authority of Re S. Justice Poole confirmed the need to give very careful consideration to the wishes, feelings and objectives of BC. It was noted that BC was mature and that she would be entitled, if not subject to a care order, to change her name by deed poll at the age of 16. It was further of note that BC had been settled on her preferred name since 2021 and on such basis, the court rejected the suggestion that she was hesitant or indecisive about wanting to change her name.

It was determined by Justice Poole that BC had good reason for wanting to change her names and to be dissociated from her father. BC’s statement was regarded as being powerful, noting that she has given considerable thought as to the implications of this decision and she has consistently remained of the view that she wishes to change her names.

Justice Poole rejected the Local Authority’s submission that changing BC’s name would set back the ongoing re-building of the family relationship. BC was clear that she would permit the family to call her BC despite the impact it would have on her. While it was accepted that the family relationship may come under considerable strain during father’s criminal trial, the court determined that the change of name would not be a significant contributor to any strain on the relationship; rather the father’s conduct, the verdict and the sentence will be much more important.

In conclusion, Justice Poole provided the following remarks at paragraphs 61 and 62:

A change of forename and/or surname for a child is a serious decision whatever the age of the child. The court’s paramount consideration is the best interests of the child. The views of others, in particular of those with parental responsibility, are to be taken into account. The family’s views are relevant insofar as they may affect their conduct and attitude and therefore affect the welfare of the child. The views of the Local Authority, having parental responsibility in respect of a child in care, are of importance. The court must take into account the child’s competence to make the decision, their age and maturity, the steadfastness of their wish to change their names, and the reasons behind the wish to make the changes. The court should consider the choice of name(s) – are they frivolous or would they be liable to be detrimental to the welfare of the child because of their nature or associations? The court should have close regard to the impact on the child of allowing them to change their name(s) as well as the impact of refusing them leave to do so. In the case of an older child, the court can have regard to the fact that a 16 or 17 year old not in care and not subject to a relevant child arrangements order or special guardianship order, could change their name without consent or leave, as could any 18 year old. [61]

Having regard to the legal framework and all the evidence and circumstances in this case, I have little hesitation in allowing the application and in giving leave to BC to change her forename and surname so that she shall be known as JKL. I suggest that if she wishes to do so, once she is 16 years old, she should be assisted to change her name by unenrolled deed poll. My order gives her leave to do so. I give considerable weight to the settled wishes of a mature, competent 15 year old who has good reason to wish to change both her forename and surname, who has chosen sensible new names that are not frivolous or provocative or liable to be detrimental to her welfare in any way. I am content that she has thought through the decision and is aware of the significance of the changes proposed. I am confident that she will be well supported at school and in her foster placement in the change process, that she will enjoy psychological and emotional benefit from the changes, and that she would be liable to suffer psychological and emotional harm were her application to be refused. The Local Authority might consider funding further therapy to support her though the process of the name changes (and the pending trial of her father). I do not believe that her family relationships will be harmed by the proposed name changes. In my judgement it is clearly in BC’s best interests to allow this application. [62]

Richard Harrington acted for the Local Authority in this matter. Should you wish to instruct Richard, please contact his clerks on 0330 390 4303 or FamilyClerks@parklaneplowden.co.uk.