No fault divorce: Angela Davis interview on BBC Radio Derby
On 27 March 2022, senior associate Angela Davis appeared on BBC Radio Derby to discuss the upcoming changes to divorce law.Read more
The changing of a child’s surname is regulated by Section 13 of the Children Act 1989, which states that, “no person may cause the child to be known by a new surname… without either the written consent of every person who has parental responsibility for the child or the leave of the court.”
It is not recommended to start using a different surname in everyday life without any official change in law, as there are areas where this can lead to problems. Once they reach adult life, they may wish to use their new family name for job applications, buying property and getting married. For these situations and more, an official legal name change is recommended.
Parental responsibility is generally defined as all the rights and responsibilities a parent has in relation to their child. A mother will automatically have parental responsibility for the child, whereas the father will only have parental responsibility automatically if he is married to the mother at the time of the child’s birth. Otherwise, the father will have to be named on the birth certificate or apply to the court to be granted parental responsibility.
The most straightforward way to change a child’s surname following divorce is via statutory declaration and with the express written consent of all parties with parental responsibility for that child.
The change of name process by statutory declaration is a straightforward and cost-effective process, providing all those with parental responsibility have given their express written consent to this.
A statutory declaration, when produced in combination with the child’s birth certificate, can be used to change the surname on the child’s passport.
Some websites may refer to a deed poll as an option, however, statutory declarations are far simpler and more likely to be accepted by the passport office when attempting to have the name changed on a passport.
If it has not been possible for consent to be obtained, then the party wishing to change the child’s surname would need to apply to the court for a Specific Issue Order. The court’s paramount consideration under all Children Act proceedings is the child’s welfare.
The case of Dawson v Wearmouth  UKHL 18 confirms that the court will apply the welfare test contained in Section 1 Subsection 3 of the Children Act 1989 before granting an order for a child’s surname to be changed. This case held: “the name of a child is not a trivial matter but an important matter and is not a question to be resolved without regard to the child’s welfare.” The court would also need to be satisfied that there is evidence that the change of the child’s surname would lead to an improvement in the child’s welfare.
Therefore, the party applying to the court would need to clearly demonstrate why the change of surname is in the best interests of the child. The court will have consideration for the child’s own ascertainable wishes and feelings.
However, it is important to note that court applications and proceedings can be lengthy and costly.
Overall, the most practical and cost-effective way of changing a child’s surname is through agreement and express written consent of the parties.
Whether you are using a statutory declaration or applying through court, the best way to achieve the best outcome for the child is with legal representation from an experienced family solicitor.
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