When parents separate, an issue that can arise is that of changing the child’s surname, usually because the mother may wish to revert to her maiden name or perhaps if she meets a new partner and the new family unit wish to all share the same name. It might be that the child wishes to change their surname in order to have the same name as their step-parent and/or siblings.
However, there are some circumstances where a change of surname can be blocked by a court order or even where a court can order that a surname change be reversed. It is, therefore, important before taking this step to consider whether or not you are able to do so, particularly if you do not have the other parents consent.
So in what circumstances can you change your child’s surname?
It is not possible to change the child’s surname without the consent of their other parent if that parent has parental responsibility for the child. Parental responsibility means the legal rights, duties, powers, responsibilities and authority a parent has for a child and the child's property. A person who has parental responsibility for a child has the right to make decisions about their care and upbringing – decisions regarding surnames are of course part of the child’s upbringing and therefore cannot be unilaterally changed by one parent.
Who has parental responsibility?
A mother automatically has parental responsibility for her child from birth.
A father usually has parental responsibility if he is:
- married to the child’s mother
- has jointly registered the birth of the child with the mother and is therefore named on the birth certificate
- has a parental responsibility agreement with the mother
- has a parental responsibility order from a court
There are circumstances where you can have parental responsibility for a child without being one of their parents, if this is the case it is very important that you seek legal advice before attempting to change the child’s name.
If everyone with parental responsibility is in agreement with the change of surname then it can be changed as long as a written agreement is sought and provided.
What if an agreement can’t be reached?
If agreement cannot be reached, then things become more complicated. The parent who does not agree to the name change can apply to Court for an order stopping the change of surname or for it to be changed back, if the name has been changed without permission. It is therefore not advisable to make this change without consent.
If you have sought permission to change your child’s name and cannot agree then you can apply to Court to have the issue determined by a Judge. Similarly, if the other parent is absent and you cannot obtain consent you can make an application to Court so the issue can be determined.
How will the Court decide?
The Court considers a child’s surname as an important part of their identity and will only make an order that it can be changed if it is considered that this is in the child’s best interests. In order to determine what is in the child’s best interests, the Court takes into account a number of factors on a case by case basis. A recent case where it was determined not to be in the child’s best interests can be seen here.
This case is interesting as it highlights that even in situations where not changing the child’s surname meant having a different surname to their mother and half-sibling, the Court still did not consider it in the child’s best interests for the child’s name to be changed. This demonstrates that these matters can be complicated, how the Court takes a change of surname seriously and will look at a number of factors before making a decision.
If you cannot agree a change of name it is advisable to contact a solicitor. We have a dedicated Family Children team who are able to assist on matters relating to Court and child welfare. Please do not hesitate to contact us.
Please treat the contents of our blogs as general guidance only. Please do not take any action based on their contents unless you have sought specific legal advice. Brethertons cannot accept responsibility for any errors or inaccuracies, loss or damage in circumstances where there is no formal retainer between us and we have not given you personal and specific advice relating to a matter for which you have given us full background details. You must also bear in mind that the contents of our blogs are based on English Law, and because they contain archival material, that material is likely to go out of date. Therefore, it is important to consider the date that the blog was posted. Please also remember that the law may differ in different Jurisdictions.