{"id":5521,"date":"2019-07-22T14:54:54","date_gmt":"2019-07-22T18:54:54","guid":{"rendered":"http:\/\/martingeorge.net\/?p=5521"},"modified":"2019-07-22T14:54:54","modified_gmt":"2019-07-22T18:54:54","slug":"dawson-v-wearmouth","status":"publish","type":"post","link":"https:\/\/martingeorge.net\/v2\/index.php\/2019\/07\/22\/dawson-v-wearmouth\/","title":{"rendered":"Dawson\u00a0v\u00a0Wearmouth"},"content":{"rendered":"<p>Dawson\u00a0<em>v<\/em>\u00a0Wearmouth<\/p>\n<p style=\"text-align: right;\">Reference:\u00a0<strong>Dawson\u00a0<em>v<\/em>\u00a0Wearmouth [1997]\u00a0EWCA Civ\u00a02272<\/strong><\/p>\n<p style=\"text-align: right;\">Also referenced as:<\/p>\n<ul>\n<li style=\"text-align: right;\"><strong>[1998] 1\u00a0All ER\u00a0271<\/strong><\/li>\n<li style=\"text-align: right;\"><strong>[1997] 2\u00a0FLR\u00a0629<\/strong><\/li>\n<li style=\"text-align: right;\"><strong>[1998] 1\u00a0FCR\u00a031<\/strong><\/li>\n<li style=\"text-align: right;\"><strong>TLR\u00a022<\/strong><strong><sup>nd<\/sup><\/strong><strong>August 1997 (CA)<\/strong><\/li>\n<\/ul>\n<p><a href=\"https:\/\/www.justice.gov.uk\/courts\/rcj-rolls-building\/court-of-appeal\/civil-division\"><strong>Court of Appeal (Civil Division)<\/strong><\/a><strong><br \/>\n31<\/strong><strong><sup>st<\/sup><\/strong><strong>\u00a0July 1997<\/strong><\/p>\n<p>On Appeal from Taunton County Court<br \/>\nCCFMI 97\/0470\/F<\/p>\n<p>Appealed in the House of Lords<br \/>\n\u2014 see\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/case-law\/Dawson-v-Wearmouth-1999-UKHL-18\">Dawson\u00a0<em>v<\/em>\u00a0Wearmouth [1999] UKHL 18<\/a><\/p>\n<p>Before\u00a0(the judges sitting on the bench)<\/p>\n<ul>\n<li><a href=\"https:\/\/en.wikipedia.org\/wiki\/David_Hirst_(judge)\"><strong>Lord Justice Hirst<\/strong><\/a><\/li>\n<li><a href=\"https:\/\/en.wikipedia.org\/wiki\/Mathew_Thorpe\"><strong>Lord Justice Thorpe<\/strong><\/a><\/li>\n<\/ul>\n<p>Counsel\u00a0(the barristers representing the parties)<\/p>\n<ul>\n<li><strong>Mr R. Hayward Smith\u00a0Q.C.<\/strong>and\u00a0<strong>Mr R. Harrison<\/strong>\u00a0(instructed by Messrs Battens, Taunton, Somerset) appeared on behalf of the mother,\u00a0<strong>Dawn Ann Elaine Wearmouth<\/strong>\u00a0(the\u00a0<em>Appellant<\/em>\u00a0and original Respondent)<\/li>\n<li><strong>Miss C. Duthie<\/strong>appeared on behalf of the father,\u00a0<strong>Mark Richard Bolden Dawson<\/strong>\u00a0(the\u00a0<em>Respondent<\/em>\u00a0and original Applicant)<\/li>\n<\/ul>\n<p>Judgment<\/p>\n<p><strong>Lord Justices Hirst &amp; Thorpe<\/strong>\u00a0\u2014<\/p>\n<p>This is the judgment of the Court to which we have both contributed.<\/p>\n<p>The case concerns the surname of a boy called\u00a0<em>Alexander<\/em>\u00a0who is now nearly 16 months old having been born on 23<sup>rd<\/sup>March 1996.\u00a0 His mother, the present appellant, is\u00a0<em>Dawn Wearmouth<\/em>, which is the surname of her former husband\u00a0<em>Tony Wearmouth<\/em>, by whom she had two children, a daughter born in May 1986 and a son born in April 1988.\u00a0 The husband and wife separated in June 1993 and they have subsequently divorced.<\/p>\n<p><em>Alexander<\/em>\u2019s father is\u00a0<em>Mark Dawson<\/em>, with whom she began living in April 1995, their relationship having started in June 1994.\u00a0 They never married, and in fact separated less than a month after\u00a0<em>Alexander<\/em>\u2019s birth.\u00a0 Since then\u00a0<em>Alexander<\/em>\u00a0has been looked after by his mother, together with the two legitimate children.<\/p>\n<p>On 19<sup>th<\/sup>\u00a0April 1996 the mother registered\u00a0<em>Alexander<\/em>\u2019s name as\u00a0<em>Alexander Guy Wearmouth<\/em>.<\/p>\n<p>On 13<sup>th<\/sup>\u00a0May 1996\u00a0<em>Mark Dawson<\/em>\u00a0issued his present application for a specific issue order under\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-8-children-act\">section 8<\/a>\u00a0of the\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/1989\/41\/contents\">Children Act 1989<\/a>\u00a0, seeking an order that\u00a0<em>Alexander<\/em>\u00a0be known as\u00a0<em>Dawson<\/em>\u00a0and not\u00a0<em>Wearmouth<\/em>, together with orders for parental responsibility and contact in relation to\u00a0<em>Alexander<\/em>.<\/p>\n<p>On 14<sup>th<\/sup>\u00a0January 1997 Judge Cotterill sitting in the Taunton County Court made consent orders for parental responsibility and contact which are not in issue.\u00a0 In addition, he further ordered that:<\/p>\n<ol>\n<li>(a)The child shall be known as\u00a0<em>Alexander Guy Dawson<\/em>.<\/li>\n<li>(b)The mother is prohibited from causing or permitting the said child to be known by any other name.<\/li>\n<\/ol>\n<p>It is against these orders that the mother presently appeals on the basis first that the judge had no jurisdiction to make the order under\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-8-children-act\">section 8<\/a>, and secondly that even if he did have jurisdiction, he erred in principle in the exercise of his\u00a0<a href=\"https:\/\/en.wikipedia.org\/wiki\/Judicial_discretion\">discretion<\/a>\u00a0.<\/p>\n<p>The judge\u2019s jurisdiction was never challenged in the court below, but clearly this raises a question of importance which this court should consider.<\/p>\n<p>In the exercise of his discretion the judge rejected as irrelevant reliance upon the mother\u2019s inevitably adverse reaction to the use of the name\u00a0<em>Dawson<\/em>, since it was unlikely to be so extreme as to affect adversely her ability to bring up\u00a0<em>Alexander<\/em>; he also rejected the submission that it was generally in a child\u2019s interest to have the same name as its mother who, it was contended, was exercising her primary right to confer upon the child the name of her choosing.<\/p>\n<p>He then went on to say that he based his decision on the following grounds:<\/p>\n<p>\u201cI base my decision, a decision that this child shall be known by the name\u00a0<em>Dawson<\/em>, upon this.\u00a0 This child has two parents.\u00a0 His awareness of his status as the son of Mrs\u00a0<em>Wearmouth<\/em>\u00a0can never be in question.\u00a0 He will have a day-to-day reminder of that by his being in her care.\u00a0 His awareness of his being the child of Mr\u00a0<em>Dawson<\/em>\u00a0is likely to be maintained by the contact which has been agreed between the parties and is the subject of a consent order in these proceedings today, but how that contact will develop, what change in circumstances will affect mother in the future, or indeed father in the future, can only be a matter for conjecture.\u00a0 It seems to me that this child\u2019s interest is best served in his having the reminder of his father\u2019s place in his life by his bearing his father\u2019s name, without regard to convention and without regard to any notion of proprietorial rights vested in the father.<\/p>\n<p>\u201cI am reinforced in that view by the fact that the authorities emphasise the importance of paternity and a child\u2019s right to know who his father is, and I am further reinforced by the fact that this mother has in the past elected to adopt the name of her husband and the father of her children, and being a young mother is certainly a candidate for entering a fresh relationship in the future.\u00a0 Whether that will lead to re-marriage or whether that will lead to the birth of other children cannot, at this stage, be more than the subject of conjecture, but at least it must be a distinct possibility and if that possibility were to turn into reality then it seems, on past practice in Mrs\u00a0<em>Wearmouth<\/em>, a distinct probability that she would adopt the name of the new partner and that his children would be known by his name, certainly during the subsistence of friendly relations between those two.\u201d<\/p>\n<p>Earlier in his judgment he had stated:<\/p>\n<p>\u201cIt seems to me that I must approach this question of how he should be named as though the matter had come before me at the time when the birth was to be registered and before the question had been resolved, because otherwise Mr\u00a0<em>Dawson<\/em>\u00a0falls foul of the law\u2019s delay rather than of his own acquiescence in a state of affairs of which he never for one moment approved.\u201d<\/p>\n<p>Jurisdiction<\/p>\n<p>Mr Hayward-Smith\u00a0Q.C.\u00a0submits that there is no jurisdiction to entertain an application to effect the\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\">change of a child\u2019s name<\/a>, as opposed to prohibit the change of a child\u2019s name, save under\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-13-children-act\">section 13<\/a>\u00a0of the Children Act 1989.\u00a0 He submits more specifically that the court has no jurisdiction to entertain an application for a specific issue order under\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-8-children-act\">section 8<\/a>\u00a0of the Children Act 1989 that would have the effect of changing a child\u2019s name.\u00a0 He mounts his submission upon the foundation of a detailed scrutiny of the provisions of the\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/contents\">Births and Deaths Registration Act 1953<\/a>\u00a0.<\/p>\n<p>In response Miss Duthie does not challenge any of his submissions as to the provisions of the Births and Deaths Registration Act 1953.\u00a0 She is, I think, driven to the submission that the 1953 Act is irrelevant to the points raised by this appeal.\u00a0 She realistically concedes that the application which succeeded below cannot be brought within\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-13-children-act\">section 13<\/a>\u00a0of the Children Act 1989.\u00a0 Her response stands on the single submission that specific issue orders under\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-8-children-act\">section 8<\/a>\u00a0of the Children Act 1989 were introduced to replace the court\u2019s unfettered pre-existing jurisdiction in wardship, that some text book writers support her contention that the range of the specific issue order jurisdiction extends to orders in relation to a child\u2019s name and that unless this court upholds her submission the father of an\u00a0<a href=\"https:\/\/en.wikipedia.org\/wiki\/Legitimacy_(family_law)\">illegitimate<\/a>\u00a0\u00a0child is bereft of any remedy when confronted with a mother who for whatever motive seeks to abuse the responsibility arising from the performance of her duty under the 1953 Act.<\/p>\n<p>The basic scheme of the 1953 Act is to require registration within 42 days of the birth and where the parents are married the duty lies on both the father and the mother of the child: see\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/2#section-2-a\">section 2(a)<\/a>\u00a0.\u00a0 What the parents must furnish to the Registrar are such particulars concerning the birth as may be prescribed: see\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/1#section-1-1\">section 1(1)<\/a>\u00a0.\u00a0 Prescription is by the\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1987\/2088\/contents\/made\">Registration of Births and Deaths Regulations 1987<\/a>\u00a0,\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1987\/2088\/regulation\/7\/made\">regulation 7<\/a>\u00a0\u00a0of which declares that the particulars shall be those required in spaces one to thirteen in\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1987\/2088\/schedule\/2\/made#fig1\">form 1<\/a>\u00a0.\u00a0 Form 1, which appears in\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1987\/2088\/schedule\/2\/made\">schedule 2<\/a>\u00a0\u00a0to the Regulations, requires in space two the name and surname of the child.\u00a0\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1987\/2088\/regulation\/9\/made#regulation-9-3\">Regulation 9(3)<\/a>\u00a0\u00a0provides as follows:<\/p>\n<p>\u201cWith respect to space 2 (name and surname)\u00a0\u2014<\/p>\n<ol>\n<li>\u201c(a)If a name is not given, the Registrar shall enter only the surname, preceded by a horizontal line;<\/li>\n<li>\u201c(b)The surname to be entered shall be the surname by which at the date of the registration of the birth it is intended that the child shall be known.\u201d<\/li>\n<\/ol>\n<p>In the case of a child whose father and mother were not married to each other at the time of his birth then the\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/2\">section 2<\/a>\u00a0duty is upon the mother alone: see\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/10\">section 10<\/a>\u00a0\u00a0with its side note \u2018Registration of Father where Parents not Married\u2019 and particularly\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/10#section-10-1\">subsection (1)<\/a>\u00a0.\u00a0 Furthermore section 10(1) not only relieves the father of such a child from the duty to give information but prohibits the Registrar from entering in space four of\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1987\/2088\/schedule\/2\/made#fig1\">form 1<\/a>\u00a0\u00a0the name of any person as father of the child except as provided in the circumstances defined in the following lettered paragraphs.\u00a0 By\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/1989\/41\/schedule\/12\/paragraph\/6\">paragraph six<\/a>\u00a0\u00a0of\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/1989\/41\/schedule\/12\">schedule 12<\/a>\u00a0\u00a0of the Children Act 1989, for the final lettered\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/1987\/42\/section\/24\">paragraph (d)<\/a>\u00a0\u00a0was substituted more extensively paragraphs\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/10#section-10-1-d\">(d) to (g)<\/a>\u00a0.\u00a0 The circumstances defined in paragraphs\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/10#section-10-1-a\">(a) to (f)<\/a>\u00a0\u00a0all require the mother\u2019s co-operation and consent.\u00a0 Therefore absent her co-operation and consent the Registrar shall not enter the name of any person as father of the child in the register save where there is in force any of the orders defined in\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/10#section-10-1-g\">paragraph (g)<\/a>\u00a0\u00a0and\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/10#section-10-1A\">subsection 1(a)<\/a>\u00a0.\u00a0 None of these orders was in force in this case.<\/p>\n<p>In summary this broad survey of the statutory requirements for the registration of a birth demonstrate that in the case of an illegitimate child the duty is on the mother alone and without her consent and co-operation the father, who is in any event free from duty, can play no part in the provision of particulars for entry on the prescribed form, save and except where a specified order is in force.<\/p>\n<p><a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/10A\">Section 10A<\/a>\u00a0, with its side note \u2018<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/1975\/72\/section\/93#section-93-2\">Re-registration of births of illegitimate children<\/a>\u00a0\u2019, permits re-registration so as to show a person as the father, but again, as in the case of\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/10\">section 10<\/a>\u00a0, only with the consent and co-operation of the mother.\u00a0 Throughout the Act and the Regulations a very clear distinction is drawn between a name and a surname.\u00a0 Indeed the interpretation\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1987\/2088\/regulation\/2\/made#regulation-2-1\">regulation 2(1)<\/a>\u00a0\u00a0states, \u2018\u201cname\u201d, in relation to a person, excludes surname.\u2019\u00a0 Finally the power to correct the register is closely confined by\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/29\">section 29<\/a>\u00a0\u00a0and essentially does not extend beyond clerical errors and errors of fact or substance.\u00a0 Accordingly once the mother of an illegitimate child has fulfilled her duty to register and exercised her right to register the surname of her choice there is nothing to permit that registration to be changed.<\/p>\n<p>Against that background we turn to the Children Act 1989.\u00a0 In almost every case, before the court exercises any jurisdiction in respect of a child, the child in question will possess what might be described as his surname of origin, by which we mean the surname under which his birth has been registered.\u00a0 Mr Hayward-Smith\u2019s submission is that the court\u2019s jurisdiction to entertain an application to change such a surname is limited to\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-13-children-act\">section 13<\/a>\u00a0with its side note \u2018Change of child\u2019s name or removal from jurisdiction\u2019.\u00a0 The relevant words of the section are then as follows:<\/p>\n<p>\u201cWhere a residence order is in force with respect to a child, no person may\u00a0\u2014<\/p>\n<ol>\n<li>\u201c(a)cause the child to be known by a new surname; or<\/li>\n<li>\u201c(b)remove him from the United Kingdom;<\/li>\n<\/ol>\n<p>\u201cwithout either the written consent of every person who has parental responsibility for the child or the leave of the court.\u201d<\/p>\n<p>That specific provision he submits excludes the exercise of a general power under\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-8-children-act\">section 8<\/a>\u00a0to make a specific issue order in relation to a child\u2019s surname.\u00a0 However he accepts that there would be jurisdiction under section 8 to make a prohibited steps order in relation to a proposed change of a child\u2019s surname.\u00a0 The submission rests largely on the judgment of this court in the case of\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/case-law\/Re-B-Minors-Change-of-Surname-1996-1-FLR-791\"><em>Re<\/em>\u00a0B (Change of Surname) [1996] 1\u00a0FLR\u00a0791<\/a>.\u00a0 In that case the mother sought to change the surname of the three children of the family from that of her divorced husband to that of the husband whom she had subsequently married.\u00a0 Her application for leave was refused by the circuit judge and this court upheld his refusal.\u00a0 The case was transitional in that the order in relation to the children had been a custody order made in the suit prior to the commencement of the Children Act 1989.\u00a0 However it was rightly treated as a deemed residence order and her application was therefore rightly treated as an application for leave under\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-13-children-act\">section 13<\/a>.\u00a0 Counsel for the father sought to argue that the application was for a specific issue order under section 8.\u00a0 (It may be assumed that the underlying strategy was then to advance the argument that, since the determination of a section 8 application was subject to the\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-1-children-act#section-1-3\">section 1(3)<\/a>check-list, the views of the three children aged between 17 and 12 were almost decisive.)\u00a0 The submission was rejected by\u00a0<a href=\"https:\/\/en.wikipedia.org\/wiki\/Nicholas_Wilson,_Lord_Wilson_of_Culworth\">Wilson\u00a0J<\/a>\u00a0\u00a0in these terms:<\/p>\n<p>\u201cFor Miss Moulder, on behalf of the father, submits that an application relating to a child\u2019s surname under the 1989 Act is a type of application for a specific issue order within the meaning of\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-8-children-act\">section 8<\/a>\u00a0rather than a free standing application under\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-13-children-act\">section 13<\/a>\u00a0of the Act.\u00a0 In that submission she is supported by the editors of Rayden &amp; Jackson Divorce &amp; Family Matters (Butterworths 16<sup>th<\/sup>\u00a0Edition 1991)\u00a0vol.\u00a01\u00a0pp.\u00a01081\u20131082.\u00a0 She contends that on a proper reading section 13 is purely prohibitory and does not itself give jurisdiction for an order to be made.<\/p>\n<p>\u201cIn that\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-13-children-act\">section 13<\/a>\u00a0specifically refers to the leave of the court I find myself in disagreement with that contention.\u00a0 Indeed I disagree with the general submission of Miss Moulder that an application in respect of a change of name is an application for a specific issue order.\u00a0 They are separate applications, as is made clear by\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1991\/1247\/article\/4.1\/made#article-4.1-2-a\">Rule 4.1(2)(a)<\/a>\u00a0\u00a0and\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1991\/1247\/article\/4.1\/made#article-4.1-2-c\">(c)<\/a>\u00a0\u00a0of the\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1991\/1247\/contents\/made\">Family Proceedings Rules 1991<\/a>\u00a0\u00a0and by the different form of the order under section 13 (namely\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1994\/3155\/made#schedule-1\">form C44<\/a>\u00a0\u00a0as opposed to form C43) which is required by\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1991\/1247\/article\/4.21\/made#article-4.21-5\">Rule 4.21(5)<\/a>\u00a0.\u00a0 It follows that although pursuant to\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-1-children-act#section-1-1\">section 1(1)<\/a>\u00a0of the Act the welfare of the child must be the court\u2019s paramount consideration in an application under section 13, reference to the check-list of particular factors under\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-1-children-act#section-1-3\">section 1(3)<\/a>\u00a0is not, by statute, mandatory.\u00a0 That is not to deny that the check-list remains a most useful aid memoire of the factors that may impinge on the child\u2019s welfare.\u201d<\/p>\n<p>That ruling may well be apt in any case where a residence order is in force with respect to a child whose name the application seeks to change.\u00a0 However the fact that the Family Proceedings Rules 1991 both in\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1991\/1247\/article\/4.1\/made#article-4.1-2\">rule 4.1(2)<\/a>\u00a0\u00a0and in its\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1994\/3155\/made#schedule-1\">forms C43 and C44<\/a>\u00a0\u00a0treat\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-8-children-act\">section 8<\/a>\u00a0and\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-13-children-act\">section 13<\/a>\u00a0as distinct sections does not in our judgment support the submission that applications in relation to children\u2019s surnames must be brought under the latter and not the former section.\u00a0 Further the paragraphs in Rayden at pages 1081 and 1082 are directed to the general scope of the power to make specific issue orders followed by examples of specific usage including orders in relation to a change of surname.\u00a0 In our judgment that is an apt example of an area in which the court has power to make a specific issue order, so long as no residence order is in force.\u00a0 The purpose of section 13 is surely to emphasise that the rights and duties consequent upon the grant of a residence order are not so extensive as to permit a change of surname or a removal from the jurisdiction without either the written consent of every person having parental responsibility or the leave of the court.\u00a0 For the section re-enacts the same limitation that had been put upon custody orders by\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1974\/2168\/contents\/made\">rule 92(8)<\/a>\u00a0\u00a0of the\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/uksi\/1973\/2016\/contents\/made\">Matrimonial Causes Rules 1973<\/a>\u00a0.\u00a0 But there will be many cases in which no residence order is in force with respect to a child.\u00a0 After all, one of the cornerstones of the statute expressed in\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-1-children-act#section-1-5\">section 1(5)<\/a>\u00a0is that the court shall not make an order unless it considers that doing so would be better for the child than making no order at all.\u00a0 Where two parents have parental responsibility but no residence order is in force, in the event of disagreement, whether in relation to a surname or in relation to any other matter either party has the right to apply to the court for any of the four orders mentioned in\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-8-children-act#section-8-1\">subsection (1) of section 8<\/a>.\u00a0 In our judgment precisely the same right exists where one has parental responsibility and the other does not.\u00a0 It is only if a residence order is in force that the application falls to be brought under section 13.\u00a0 We accept Mr Hayward-Smith\u2019s submission that in practice it is inconceivable that such an application would ever be brought other than by the parent in whose favour the residence order had been made.\u00a0 For practically speaking it is only the person with whom the child resides who has the opportunity to cause a child to be known by a new surname.\u00a0 Mr Hayward-Smith relies on the fact that nowhere in the reported cases is there a single instance of the father of an illegitimate child applying for an order to change a child\u2019s surname, still less a decision ordering the mother of such a child to change the surname against her will.\u00a0 That negative consideration no doubt illustrates the reality that, absent co-operation between the parents, the mother of an illegitimate child is recognised to have the right to determine the initial surname of her child save in extreme cases involving perhaps a malicious or manifestly absurd choice.\u00a0 The inter-relationship between sections 13 and 8 of the statute is not particularly happy.\u00a0 Restrictions on making\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-8-children-act#term-a-section-8-order\">section 8 orders<\/a>\u00a0are specifically defined in\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/1989\/41\/section\/9\">section 9<\/a>\u00a0\u00a0and we would not extend the restriction perceived by Wilson\u00a0J\u00a0beyond the case in which the applicant for change had been granted a residence order.\u00a0 Even in that case the effect of this distinction seems to us to be more theoretical than real.\u00a0 The judge entertaining the application under section 13, rather than under section 8, will invariably have regard to the considerations identified in\u00a0<a href=\"https:\/\/deedpolloffice.com\/change-name\/children\/law\/section-1-children-act#section-1-3\">section 1(3)<\/a>\u00a0in his search for welfare as the paramount consideration even if under no specific statutory duty so to do.<\/p>\n<p>Finally, as Mr Hayward-Smith accepted, the High Court in the exercise of its wardship jurisdiction prior to 1<sup>st<\/sup>\u00a0October 1991, would have had jurisdiction to make the order sought by Mr\u00a0<em>Dawson<\/em>\u00a0in this case.\u00a0 The statutory restriction on the use of that jurisdiction contained in\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/1989\/41\/section\/100\">section 100<\/a>\u00a0\u00a0of the Children Act 1989 are of no application to this case.<\/p>\n<p>Therefore our clear conclusion is that the jurisdiction is there.\u00a0 Whether it should have been exercised is another matter.\u00a0 If there is a general principle underlying this appeal it is that the registration or change of a child\u2019s surname is a profound and not a merely formal issue, whatever the age of the child.\u00a0 Any dispute on such an issue must be referred to the court for determination whether or not there is a residence order in force and whoever has or has not parental responsibility.\u00a0 No disputed registration or change should be made unilaterally.\u00a0 On the facts of this case the mother is not in breach of that principle.<\/p>\n<p>Discretion<\/p>\n<p>Mr Hayward-Smith submits that there was a fundamental error of principle in the judge\u2019s decision to approach the question as though the matter had been heard before the registration of\u00a0<em>Alexander<\/em>\u2019s birth.\u00a0 Miss Duthie accepts that this was going somewhat too far, and suggests that it would have been more appropriate for the judge to say that he would put the registration on one side, or words to that effect.<\/p>\n<p>As we have already observed, as a matter of principle registration is a profound matter, and consequently in our judgment a major factor to be taken into account in the exercise of the court\u2019s discretion, and one which it is wholly inappropriate for the court to put on one side as of no more than marginal significance, let alone to disregard entirely.<\/p>\n<p>We thus conclude that in this respect the judge erred in principle, so that it is incumbent upon us to exercise our discretion afresh.\u00a0 We would add at this stage that, with respect, we do not understand the judge\u2019s suggestion in this context that in some way the father fell foul of the laws\u2019 delays, seeing that\u00a0<a href=\"https:\/\/www.legislation.gov.uk\/ukpga\/Eliz2\/1-2\/20\/section\/2\">the registration was obligatory not later than 4<sup>th<\/sup>\u00a0May 1996<\/a>\u00a0, and his application followed a week or so later.<\/p>\n<p>Mr Hayward-Smith criticises the judge\u2019s rationale in favour of the father, and submits that if these reasons are sufficient, it would follow in virtually every case that the mother of an illegitimate child could be compelled against her wishes to give the child the father\u2019s surname when the father seeks to play some role in the child\u2019s life.<\/p>\n<p>He stresses, as is common ground, that in the authorities the courts have emphasised the significance of changing a child\u2019s name and have shown themselves slow to accede to such an application.\u00a0 He also submits that the judge gave insufficient weight to the mother\u2019s objections, and above all, to the registration, and contends that the mother\u2019s choice was a perfectly reasonable and logical one, seeing that\u00a0<em>Wearmouth<\/em>\u00a0was her own name at the date of registration, and also the name of her two legitimate children.<\/p>\n<p>Our attention was also drawn to the mother\u2019s evidence, showing that the child\u2019s first name (<em>Alexander<\/em>) was that chosen by the father.<\/p>\n<p>Miss Duthie supports the judge\u2019s reasoning and submits that he correctly identified the rights of the child.<\/p>\n<p>She characterises the mother\u2019s objections which the judge rejected as no better than routine, and submits that they should carry little weight.\u00a0 She also points out that the mother had not chosen her own family name, but rather a name which had only been acquired through marriage, and which (she argues) signified a factually incorrect\u00a0<em>nexus<\/em>\u00a0between the child and the mother\u2019s ex-husband.<\/p>\n<p>In summing up her arguments she submits that the mother was seeking to use the name of a former partner which she had only acquired by convention on marriage, and that when thinking of the name of a child, common-sense dictated that one should look at the connection between the adults and the child, thus favouring the name of the father who had such a connection rather than that of the mother\u2019s ex-husband who had none.<\/p>\n<p>In our judgment there is a major flaw in Miss Duthie\u2019s concluding submissions, seeing that the name\u00a0<em>Wearmouth<\/em>\u00a0was the mother\u2019s actual name at the time it was chosen by her, as well as being that of\u00a0<em>Alexander<\/em>\u2019s half-brother and half-sister.\u00a0 It was therefore a perfectly natural and logical choice for her to make, and cannot in our view be justly criticised as alien merely because it is also the name of the mother\u2019s ex-husband.<\/p>\n<p>These circumstances, coupled with the all-important fact already stressed that this was the child\u2019s duly registered name, seem to us to be very powerful factors in the mother\u2019s favour, which can only be displaced by strong countervailing considerations.<\/p>\n<p>The considerations cited by the judge, and re-asserted by Miss Duthie, do not in our judgment qualify as such, seeing that, as Mr Hayward-Smith rightly submits, they would apply in virtually every case to an illegitimate child where the father seeks to play some role in the child\u2019s life.\u00a0 Indeed they, unlike the mother\u2019s objections, are properly to be regarded as routine in the circumstances.<\/p>\n<p>We also think that it is not without relevance that the mother did not have things all her own way, since she gave the child the first name chosen by the father.<\/p>\n<p>In all these circumstances we are quite satisfied that our discretion should be exercised in the mother\u2019s favour, and would allow this appeal.<\/p>\n<h4>Orders\u00a0of the court<\/h4>\n<p>Appeal allowed.<br \/>\nReporting restrictions in relation to naming the parties lifted.<br \/>\nNo order as to costs in the court below.<br \/>\nLegal aid taxation for each side in the Court of Appeal .<\/p>\n<p>&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Dawson\u00a0v\u00a0Wearmouth Reference:\u00a0Dawson\u00a0v\u00a0Wearmouth [1997]\u00a0EWCA Civ\u00a02272 Also referenced as: [1998] 1\u00a0All ER\u00a0271 [1997] 2\u00a0FLR\u00a0629 [1998] 1\u00a0FCR\u00a031 TLR\u00a022ndAugust 1997 (CA) Court of Appeal (Civil Division) 31st\u00a0July 1997 On Appeal from Taunton County Court CCFMI 97\/0470\/F Appealed in the House of Lords \u2014 see\u00a0Dawson\u00a0v\u00a0Wearmouth [1999] UKHL 18 Before\u00a0(the judges sitting on the bench) Lord Justice Hirst Lord Justice Thorpe Counsel\u00a0(the barristers representing the parties) Mr R. Hayward Smith\u00a0Q.C.and\u00a0Mr R. Harrison\u00a0(instructed by Messrs Battens, Taunton, Somerset) appeared on behalf of the mother,\u00a0Dawn Ann Elaine Wearmouth\u00a0(the\u00a0Appellant\u00a0and original Respondent) Miss C. Duthieappeared on behalf of the father,\u00a0Mark Richard Bolden Dawson\u00a0(the\u00a0Respondent\u00a0and original Applicant) Judgment Lord Justices Hirst &amp;&#8230;<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_sitemap_exclude":false,"_sitemap_priority":"","_sitemap_frequency":"","footnotes":""},"categories":[73],"tags":[],"class_list":["post-5521","post","type-post","status-publish","format-standard","hentry","category-family-law-child-application-and-name-change"],"_links":{"self":[{"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/posts\/5521","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/comments?post=5521"}],"version-history":[{"count":0,"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/posts\/5521\/revisions"}],"wp:attachment":[{"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/media?parent=5521"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/categories?post=5521"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/tags?post=5521"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}