To be Known by Another Name: Discharging Parental Responsibility

Summary

The recent case of X and Y (private law – change of name – termination of parental responsibility) [2021] EWFC B24 provides a useful summary of the law around parental responsibility and any application to discharge parental responsibility in respect of one parent (and in this case, to change a child’s surname also).

Background

This was mother’s application to discharge parental responsibility of father (by way of being named on the birth certificates) regarding their two children, X (seven years old) and Y (two years old).

Following on from historic domestic abuse perpetrated by father against mother, father was (and is still) serving a term of life imprisonment after being convicted for the attempted murder of mother (amongst other offences against her). In 2019, he stabbed the mother multiple times as she was returning home from school with X. X was also injured in the incident. Both mother and X are continuing to receive professional therapeutic support from the incident.

It transpired in 2020 that father had made an anonymous call to Crimestoppers regarding mother (whilst in prison). Investigations into this call revealed that father was attempting to ascertain whether mother was in a new relationship and had failed to accept that mother may have moved on with her life.

The application by mother was to discharge father’s parental responsibility in respect of X and Y and to change their surname (from their father’s name).

Relevant Considerations

In being assisted by Justice Cobb in B and C (Change of Names – Parental Responsibility – Evidence) [2017] EWHC 3250 (Fam), the following principles were evoked in determining the application to discharge parental responsibility:

• Only the court can make an order discharging parental responsibility;
• Parental responsibility can be defined as an adult’s responsibility to secure the welfare of the child, which is for the child’s benefit, not the adult’s;
• Both parental responsibility and changing of a child’s surname evoke the paramountcy principle and the welfare checklist (with the latter being discretionary rather than a mandatory consideration);
• In this case, the degree of commitment shown by father to the children and the degree of attachment which exists are relevant factors; and
• As Article 8 rights are engaged, any interference with these rights needs to be justified.

Regarding changing a child’s surname, the list of relevant factors as set out in Re W, Re A, Re B (Change of Name) [1999] 3 FCR 337, [1999] 2 FLR 930 was referred to:

• On any application to change a child’s surname, the paramountcy principle and the welfare checklist must be considered;
• The reasons surrounding the initial registration of the child’s surname is a relevant and important factor to be considered;
• Any determination of an application should consider factors which may arise in the future as well as the present situation;
• An application to change a child’s surname simply based on the child’s surname not being the same as the parent making application is unlikely to carry any weight;
• Any reasons for an earlier, unilateral decision to change a child’s name may be relevant; and
• If there is a marriage that will be important (there would have to be strong reasons to change the child’s surname from the father’s surname if so registered), whilst where there was not a marriage the mother has control over registration (with the degree of commitment of the father to the child, the quality of contact if any, and the existence of parental responsibility or not being factors to be considered in the later scenario).

Also, to be considered in this case was father’s conviction as above. The Judge referred to CW v SG (Parental Responsibility: Consequential Orders) [2013] EWHC 854 (Fam) in applying the doctrine of res judicata (i.e., the conviction was assumed to be correct and subsequently accepted as evidence of the underlying factual basis of mother’s application).

At the hearing, it was determined as being disproportionate and unnecessary to hear evidence from either mother or father. Only the section 7 report author gave evidence (in supporting mother’s application, the author’s analysis was that the father’s convictions, his minimisation of his actions, lack of insight into the impact of his behaviour on the children and the mother, and his lack of understanding of the concerns raised by social services pointed towards a high risk of future harm).

In allowing mother’s application, as well as referencing the above case law and the welfare checklist, the Judge made the following points:

• As father will be in prison until at least March 2033 (when X will be an adult and Y a teenager), he will not be able to meaningfully exercise parental responsibility;
• The girls’ welfare can only be met by them having no direct or indirect contact with their father (i.e., there is no need for him to exercise parental responsibility, with there being a real risk of harm to the girls were he to do so);
• There is a real risk of the father using his parental responsibility to undermine mother as a parent, for the purpose of causing her and/or the children harm (for example, to contact schools or doctors to obtain information about them), and there is no prospect of the parties co-parenting;
• If father had not been registered on the children’s birth certificates there is no prospect of success in any hypothetical application for parental responsibility with father being registered on the girls’ birth certificates not carrying significant weight in this case;
• Father is still assessed as high risk to mother and the girls, with a change in surname being consistent with their welfare and protection;
• A change of surname is consistent with the strongly expressed wishes of X, and although Y has no memory of her father and no established relationship with him, the surname she has is a reminder of the experiences the family have been through and it is in both girls’ best interests for their surname to be changed; and
• The girls have no relationship with their extended paternal family and no positive associations with their given surname, with the change not representing a significant interference with theirs or their father’s right to a family life.

To conclude, X and Y (private law – change of name – termination of parental responsibility) [2021] EWFC B24 provides useful guidance on how courts should approach applications for discharging parental responsibility and changing a child’s surname.

The Family team at Becket Chambers provides representation and advice in all areas of private children law and accepts instructions from all parties in proceedings. If you require advice or assistance with a private children law matter, do not hesitate to contact our team at clerks@becket-chambers.co.uk.