The naming of a child could not be a more significant step in the life of a child – as parents, we
are tasked with the heavy responsibility of giving our children a name which will be with them
for the rest of their lives. This article explores what the case of Dawson v Wearmouth has to say about times when there is a disagreement over the child’s surname.
King LJ summed this up in the case of Re C (Children) [2016] EWCA Civ 374 at §40:
One of the first questions asked by friends and relatives following the birth of a child is
‘what is the baby’s name?…..the choice of the name of their child could be regarded as
other than their right as the child’s parents, and their first act of parental responsibility.
What happens in the case of a couple who have separated before the birth of the child, and particularly in the case of the father?
Tradition and societal convention have leaned strongly towards a child adopting the surname of
their father, irrespective of the parents’ marital status (although avid viewers of The Crown and
Royal historians will know that this is not the norm!) (1). As our society has evolved, more and
more children are born out of wedlock (2) and it is in these circumstances, in my view, where
disputes can and do arise with regards to the naming of the child.
The marital status of the parents is important. The law relating to parental responsibility is such
that a father who was married to the mother of his child at the time of the birth (or are
subsequently married) acquires parental responsibility automatically. A father who is not married
to the mother of the child does not acquire parental responsibility automatically and taking steps
to acquire it is not necessarily a quick process.
What steps can be taken by a father who doesn’t agree to the surname given to his child?
This is an issue which was considered by the House of Lords in the decision of Dawson v
Wearmouth [1999] UKHL 19, which expressed the view that ‘…the change of a child’s surname is a profound and not a merely formal issue whatever the age of the child. Any dispute on such an issue must be referred to the court for determination whether or not there is a [Child Arrangements Order] in force and whoever has or has not parental responsibility. No disputed registration or change should be made unilaterally.’
What should a father do if the mother registers their child’s birth using a surname which is not agreed?
Assuming that mediation or other forms of non-court resolution have been attempted and failed,
or deemed unsuitable, the parent who takes issue with the registration ought to make an
application to the Family Court for a Specific Issue Order, pursuant to section 8 of the Children
Act 1989.
As with any application for an Order pursuant to section 8 of the Children Act 1989, the Court’s
paramount consideration is the welfare of the child. In Dawson v Wearmouth, the House of
Lords agreed with the Court of Appeal ‘that in order to justify an order requiring a change of name,
considerations relative to the child’s welfare will have to be advanced for that purpose.’ The Court further
confirmed that to justify making an order for changing that name, strong countervailing
considerations would be required. The House of Lords drew the discussion towards a close by
ruling that the correct approach to be taken by a court faced with a dispute as to the surname of
the child must be to apply section of the Children Act 1989 and ‘not make an order for the change of
name unless there is some evidence that this would lead to an improvement from the point of view of the welfare of the child.’
The case of Dawson v Wearmouth: the important principles
It is important to note that, like each family, each case is different. Cases such as Dawson v
Wearmouth can be really useful as they offer important principles which the Courts can go on to
apply in subsequent cases. With there being an increasing focus on transparency in the Family
Court and the number of published judgments increasing, there is an understandable tendency to
rely more and more upon case-law. However, not all published judgments are binding on other
courts and therefore, care needs to be taken when seeking to rely upon a judgment. Very rarely
will two cases come to the Court which have identical issues and identical solutions and
therefore, it is always important to seek independent legal advice in order to ensure that advice
can be tailored to your specific circumstances. Because each family is unique, the Family Court
has a lot of discretion in its decision making and therefore which only serves to highlight the
need to take legal advice.
1 Prince Phillip, Duke of Edinburgh famously remarked that he was the only man in England unable to give his
surname to his children.
2 Of the 624,828 live births registered in England and Wales in 2021, 51.3% were born outside of wedlock
