Alex RKIn Re BC (Child in Care: Change of Forename and Surname) [2024] EWHC 1639 (Fam), Poole J approved a request by a 15 year old subject to a care order to change both her first and last name “because they are attractive to her and the actual initials of her new name would be of significance to her in relation to her recovery from the trauma inflicted by her father” (paragraph 2). The local authority opposed the application because it was concerned that “BC’s actions concerning her names do not match her expressed wishes, that the change of names will be detrimental to her relationship with her family, that she is vulnerable to the impact of others asking her why she has changed her names, and that she will regret the decision” (paragraph 5).
As Poole J noted:
20. An adult can change their name by usage. Now, however, changing one’s name by usage alone will not carry much weight with agencies such as the Passport Office or the DVLA. For an adult to change their name they should execute a deed poll. A deed poll is a declaration signed by two adult witnesses. Deeds poll can be enrolled which is a process governed by regulations involving notification in The Gazette and enrolment at the Royal Courts of Justice with the payment of a fee.
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22. I note that the GOV.UK website states that you can change a child’s name (a child being someone under 18) by an enrolled or unenrolled deed poll, but that a 16 or 17 year old child can change their own name by making their own unenrolled deed poll. The Mental Capacity Act 2005 applies to 16 and 17 year olds as well as to adults. It provides that a person is assumed to have capacity unless otherwise proven. I have not been referred to and am unaware of any statutory provision that a 16 or 17 year old who is not subject to one of the orders set out below may or may not change their name without the consent of those with parental responsibility, but it is clearly the convention, operating to allow people to change their names by unenrolled deed poll, that a 16 or 17 year old can do so without the consent of any person with parental responsibility or the leave of the court.
However, by operation of a number of parts of the Children Act 1989:
24. […] a 16 or 17 year old may not cause their own surname to be changed without the consent of every person with parental responsibility or the leave of the court if they are the subject of a care order, child arrangements order with a “lives with” order, or a special guardianship order. Other 16 to 17 year olds may cause their own surname to be changed without consent or leave. They could do so by executing an unenrolled deed poll. The Enrolment of Deeds (Change of Name) Regulations 1994, as amended, prevent any deed poll executed by a child under the age of 18 being enrolled except by someone with parental responsibility for the child (unless the child is a female aged at least 16 who is married). A child who is 16 or 17 has themselves to consent to the enrolment. But enrolment is not a pre-requisite for a formal change of name.
Poole J asked himself why the position of a 16 or 17 year should vary depending on whether or not they are subject to (amongst other things) a care order, and it is fair to say that he did not seem entirely convinced that there was a good reason. He directed himself by reference to the (now relatively old) authority of Re S (Change of Surname) [1998] EWCA Civ 1950, [1999] 1 FLR 672, the Court of Appeal was concerned with an application by a child in care aged 15 to change her surname (not their forename). He noted that:
42. In my judgment, care has to be taken in applying some of the authorities to the case of an application by a Gillick competent 15 year old, or indeed a capacitous 16 or 17 year old, in care. I reject the submission that the court may only permit the change of a name if the continued use of the current name would be likely to cause the child “significant harm”. In Re C [2023] Cobb J said that, “The issue of whether there is a power within the inherent jurisdiction to prevent a parent with parental responsibility from naming their child with a particular name is dependent on whether the court is satisfied that to allow such a name to be used would likely cause that child significant harm.” He was dealing with an infant whose name was said to be unsuitable, similarly to the name ‘Cyanide’ considered in Re C [2016]. As Thorpe LJ found in Re S, some of the principles in the authorities do not stand transplanting into an application of the kind now being considered.
43. I acknowledge that there are differences on the facts between Re S and the present case including that BC is asking to change both her forename and surname. I accept that the double name change requires particular consideration. BC is not asking to adopt her mother’s surname in place of her father’s surname. A request to change to a name that has no association with the family is a matter to be weighed in the court’s determination. On the other hand, it might be said that even more weight should be given to BC’s wishes and feelings than in the case of the young applicant in Re S because (i) BC was the actual victim of the sexual abuse by her father and so her motivation to make the change might be given even more weight, and (ii) the father has been found by the Family Court to have sexually abused her whereas no findings had been made in the Re S case. Findings have also been made against her mother as set out above.
44. I consider that I should follow the authority of Re S and consider very carefully the wishes, feelings, needs, and objectives of the applicant when giving paramount consideration to her best interests. It is not disputed that BC is competent to make a decision for herself about her change of name. The evidence from her school is very persuasive that she is mature for her age. She will be 16 in a few weeks from now. She will have capacity to make the decision to change her names. Change of name deeds poll are effective for 16 year olds who are not in care, and not subject to child arrangements orders or special guardianship orders.
47. A change of either a forename or a surname is a serious matter. Whatever the reason why the law requires the consent of those with parental responsibility or the leave of the court for a change in surname for a 16 or 17 year old in care or subject to relevant orders, but not for others of the same age who are not subject to relevant CA 1989 orders, the law is clear. The court should not give leave simply because a Gillick competent child applies for leave. The court must consider the benefits and harm to the applicant from either granting or refusing the application but taking into account also that rights under Article 8 of the European Convention on Human Rights are engaged and that when the child is 18 they will be able to change their name without consent or leave. The views of those with parental responsibility including the Local Authority, and other relevant individuals and agencies should be taken into account.
Having reviewed the material before the court, Poole J concluded as follows:
61. 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.
62. 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.
63. I have referred throughout this judgment to BC but from the making of my order she may be known as JKL. I wish JKL well for the future.
Comment
It is easy to see why Poole J was somewhat sceptical about why it should necessary make a difference that a child is subject to one of the relevant provisions of the Children Act 1989. The more important issue is arguably be whether they have the ability to make the decision themselves. Whilst it was common ground before the court that BC (now JKL) was competent to make the decision, there does not appear to have been any discussion of what the relevant information was that she needed to be able to process in order to make that decision, nor what (when she turned 16) she would need to be able to process in order capacitously to make that decision. In an unreported case I was involved in, the Court of Protection approved the following list of relevant information that a 16 or 17 year old needed to be able to understand, retain, use and weigh:
- You want to change your name and have people call you by your new name;
- You are making a document which has a legal effect;
- You are making a document which you can use as proof of your new name;
- You may not be able to do everything that you would like with this proof;
- When you turn 18 you can do something more formal which would allow you to prove to everyone that you have a new name; and
- If you want to have a formal proof now which everyone can accept, someone else will have to do this for you.
One important point to note is that enrolling a deed poll (which an adult can do, but must be done on behalf of a 16 or 17 year old) is a step which has some stark consequences which the 16 or 17 year would need to understand if they were to have the capacity to request someone to apply on their behalf. In the context of a change of gender, these were set out by Master McCloud in W, F, C and D (minors)(Name changes disclosing gender reassignment and other matters) [2020] EWHC 279 (QB) at paragraphs 27-28:
28. […] the current position in respect of formal Deeds is that the enrolment of a Deed is very public and leads to publication of the child’s new and old names on the internet by the Court office, by way of publication of a notice in the London Gazette.
29. The internet enables easy search for people and makes it very easy to identify that a child such as Child W was formerly known as X and was from a particular date known as Y. Enrolling a name change Deed to all intents and purposes makes permanently public the name change and will in many instances therefore amount to what will later be taken as disclosure of a change of social or legal gender, whether by child or adult. In other words it ‘outs’ them.
