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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C (Children) [2016] EWCA Civ 374 (14 April 2016) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/374.html Cite as: [2016] 3 WLR 1557, [2016] Fam Law 666, [2017] 1 FLR 487, [2016] WLR(D) 204, [2016] EWCA Civ 374, [2017] Fam 137 |
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ON APPEAL FROM Swansea Civil And Family Justice Centre
His Honour Judge Sharpe
SA15C00443
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE KING
and
LORD JUSTICE DAVID RICHARDS
____________________
Re C (children) |
____________________
Skellorn
QC & David Johns (instructed by Humfreys & Symonds Solicitors) for the Appellant
Ruth Henke QC & Rhys Evans (instructed by Powys County Council) for the 1st Respondent
James Tillyard QC & Rhian Jones (instructed by Humphrys & Co Solicitors) for the 2nd Respondent
Hearing date: Wednesday 16th December 2015
____________________
Crown Copyright ©
Lady Justice King:
Background
"6. I confirm that I believe it is my right to name the children the names that I have chosen as their mother and I believe it is my human right to exercise my right to choose their names and register my children's names without the interference of the local authority.
7. I confirm that I have chosen Preacher for my boy child as it is a strong spiritual name. It is a name that suggests proclamation and advocacy and being able to communicate with a wide community.
8. I also consider that Preacher is a rather cool name which will stand my son well for the future and I do not consider that it will impact on his development, emotionally, physically or mentally.
9. I confirm that I have chosen the name Cyanide as I believe that it is a lovely pretty name.
10. I further confirm that the name is linked with flowers and plants, that elderberry, hydrangea, cherry laurel and roses all have compounds of Cyanide found in the leaves and the fruits.
11. I believe that Cyanide will be a strong name that will stand my daughter well for the future and that I believe that it is a poison that has been used since the ancient Egyptians and it is derived from the Greek meaning dark blue.
12. I also consider that Cyanide was responsible for killing Hitler and Goebbels and I consider that this was a good thing and therefore Cyanide can be considered as a positive name, reflecting positive action that destroyed very bad people in the war.
13. I do not accept that it will have an adverse impact on my daughter during her formative years or later in her life."
i) declared that the local authority were permitted to restrict the extent to which the mother exercised her parental responsibility so as to prevent her registering the forenames "Preacher" and "Cyanide"; and
ii) made an injunction prohibiting the mother from so registering the children or referring to either of them by those forenames in contact.
i) Both the registration of a child's birth and the naming of a child are "aspects of parental responsibility". As a consequence the mother's exercise of parental responsibility could be limited, including preventing her registering the forenames of her choice pursuant to section 33(3)(b) CA 1989;
ii) "Even allowing for changes in taste, fashion and developing individual perception…the names the mother has chosen for her children, in particular the name "Cyanide", are not obviously indicative of a parent who is acting so as to contribute or otherwise secure the welfare of her children, which is the basis upon which a parent exercises their parental responsibility".
i) that the judge was wrong in concluding that the naming of the child and the registration of the child's birth were each an exercise of parental responsibility;
ii) that the judge erred in concluding that a local authority has power under section 33(3)(b) CA 1989 to determine that the mother should not register her children's births with her chosen names;
iii) the judge erred in concluding that the mother's duty to register the particulars of the birth did not engage the provisions of section 33(9) CA 1989; and
iv) the judge erred in his use of section 37 Senior Courts Act 1981; in the absence of the statutory power asserted under section 33(3)(b) CA 1989, the judge was wrong to use this section to grant ancillary injunctive relief.
The legislative structure
i) Are either or both of the naming of a child and registration of a child's birth and the entry onto the register of a child's name under the Births and Deaths Registration Act 1953 (BDRA 1953) acts of parental responsibility?
ii) If the naming of a child is an act of parental responsibility :
a) Can a local authority under the powers given to it under the CA 1989 prevent a mother from naming and registering her child with the name of her choice; and/or
b) Can a court under its inherent jurisdiction (notwithstanding the limitations placed on the exercise of those powers under section 100 CA 1989) intervene in appropriate circumstances either to prevent the registration of a particular forename (or to change the name in question once registered)?
Parental Responsibility
"3 Meaning of "parental responsibility".
(1) In this Act "parental responsibility" means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property."
"[72] I wish to emphasise this, parental responsibility is more, much more than a mere lawyer's concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child."
Registration of a child's birth
i) the information which is to be provided;
ii) who is qualified to provide the information and in what circumstances;
iii) when the information is to be given.
"Subject to the provisions of this Part of the Act, the birth of every child born in England and Wales shall be registered by the registrar of births and deaths….by entering in a register kept for that sub-district such particulars concerning the birth as may be prescribed."
"7(1) The particulars concerning a live birth required to be registered pursuant to section 1(1) of the Act shall, subject to the provisions of these Regulations, be those required in spaces 1 – 13 in form 1".
a) Space 1 – date and place of birth.
b) Space 2 – the name and surname of the child.
c) Space 3 – the sex of the child to be registered.
"r.9(3) With respect to space 2 (name and surname) –
(a) if the name is not given, the registrar shall enter only the surname, preceded by a horizontal line;
(b) the surname to be entered shall be the surname by which at the date of the registration of the birth it is intended that the child shall be known."
"13 Registration of name of child or of alteration of name
(1)Where, before the expiration of twelve months from the date of the registration of the birth of any child, the name by which it was registered is altered or, if it was registered without a name, a name is given to the child, the registrar or superintendent registrar having the custody of the register in which the birth was registered, upon delivery to him at any time of a certificate in the prescribed form signed—
(a)if the name was altered or given in baptism, either by the person who performed the rite of baptism or by the person who has the custody of the register, if any, in which the baptism is recorded, or
(b)if a name has not been given to the child in baptism, by the father, mother or guardian of the child or other person procuring the name of the child to be altered or given, shall, without any erasure of the original entry, forthwith enter in the register the name mentioned in the certificate as having been given to the child."
i) Section 13(1)(b) provides for the registration of the (new) name to be given or altered under the section by the 'father, mother or guardian of the child or other person procuring the name of the child to be altered or given',
ii) A change in forename does not result in the original name being erased, but rather a line is put through the original name and it is 'replaced by the substituted name. It follows that any child seeking information about him or herself will be able to ascertain their original name. It follows that in the event that the female twin is registered as 'Cyanide,' that name will remain on the register for all time and, should she when she is older choose to look at the register, it will tell her that "Cyanide" is the name her birth mother chose to give to her.
"(2) The following persons shall be qualified to give information concerning a birth that is to say-
(a) the father and mother of a child;
(b) the occupier of the house in which the child was to the knowledge of the occupier born;
(c) any person present at the birth;
(d) any person having charge of the child."
"(i) In the case of every birth it shall be the duty – (my emphasis)
(a) of the father and mother of the child: and
(b) in the case of death or inability of the father or mother, of each other qualified informant,
to give the registrar, before the expiration of a period of forty-two days from the date of birth, information of the particulars required to be registered concerning the birth, and in the presence of the registrar to sign the register:
Provided that-
(i) the giving of information and the signing of the register by any one qualified informant shall act as a discharge of any duty under this section of every other qualified informant;
What is in a name?
"A name is a direct link with the parent who chose the name……A name is also a badge of association, sometimes reflecting cultural identity, nationality, tribal heritage or religion. Above all a name is a gift a parent gives to a child, reflective of personal wishes and traditionally unconstrained in its choosing by legal restriction.
Notwithstanding the above it is not unknown to those working in the Family Court to encounter children whose parents have chosen to give them forenames which can most kindly be described as unusual, idiosyncratic or even eccentric bordering on the bizarre and more accurately be regarded as an act of parental selfishness or thoughtlessness and wholly lacking in consideration of the impact upon the child.
The choice of such names may well be reflective of a general failure to adopt a child centred approach to their responsibilities in meeting the child's welfare but in my experience that choice of name has never been in of itself a reason for the involvement of the state in private family life."
Surname
"33(7) While a care order is in force with respect to a child, no person may—
(a) cause the child to be known by a new surname; or
(b)…..,
without either the written consent of every person who has parental responsibility for the child or the leave of the court."
Forenames
"[13] There are a number of points which should be made. The first is that none of the authorities that guide the court in determining disputes as to the surname by which a child should be known seems to be of any application to a dispute of this sort. The surname by which a child is registered and known is of particular significance insofar as it denotes the family to which the child belongs.
[14] Given names have a much less concrete character. It is commonplace for a child to receive statutory registration with one or more given names and, subsequently, to receive different given names, maybe at baptism or, maybe, by custom and adoption. During the course of family life, as a child develops personality and individuality, parents or other members of the family, may be attracted to some nickname or some alternative given name which will then adhere, possibly for the rest of the child's life, or possibly only until the child's individuality and maturity allow it to make a choice for itself as to the name by which he or she wishes to be known.
[18] If issues such as this arise, it seems to me that judges must look in a worldly, common-sense way at what is likely to be best for the child and must not place too much emphasis upon the statutory process of registration."
"To change a child's name is to take a significant step in a child's life. Forename or surname, it seems to me, the principles are the same, in general. A child has roots. A child has names given to him or her by parents. The child has a right to those names and retains that right, as indeed, the parents have rights to retention of the name of the child which they chose. Those rights should not be set to one side, other than for good reasons. It may be that foster parents do not appreciate the underlying importance for the child of a name, and it is significant. You would not, for instance, be likely to change the forename of a child of 7, 8 or 9, I suggest even, 5, 6 or 7, because by that time the child has made that name part of his or her identity and very young children know what their names are. You ask a very young child 'what's your name?', and they will certainly be able to give you the name he or she is called by. To change that is to affect the child's identity. The right of the child and both parents to respect for that part of family life still exists, even though the child has gone into a foster placement. It may be that foster carers have not yet been sufficiently made aware that this is not a technical point. There is an underlying importance to the principle that the name should not be changed."
And at 347:
"So, the first rule, in my judgment, is that no foster parent or carer, under whatever regulations, should unilaterally change the name of a child. If, for any reason, the foster parents or other such carers think the name should be changed, they should go straight away to the social worker in charge of the case or the adoption placement officer, whoever it may be, and ask for the change and explain why. That should then be a matter of careful consideration by the local authority, who does, of course, have shared parental responsibility. The parents, who remain with parental responsibility in all foster placements, though not, of course, in placements after freeing for adoption, should be consulted in foster placements, to be allowed to express their views, if they are capable of being found or able to express a view, and if it is a matter that cannot be achieved by consent, it may be necessary, and one would hope it would be rare that such a situation would arise, but it may be necessary to invoke the inherent jurisdiction of the court and ask the High Court to rule on whether the name should be changed. That has happened in a number of cases in surnames and I see no reason why it should not happen in, what I hope will be the rare case, for forenames."
Is the naming of a child an act of parental responsibility?
i) the choosing of a name (forename and surname) for a child by a parent with parental responsibility and
ii) thereafter the act of complying with the duty of the mother and the father to give to the registrar " information of the particulars required to be registered concerning the birth, and in the presence of the registrar to sign the register" (section 2(1) BDRA 1953)
are each acts of parental responsibility.
Local Authorities' powers and limitation to those powers
"determine the extent to which a parent may meet his parental responsibility for the child."
"(4) The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child's welfare."
"(9) The power in subsection (3) (b) is subject… to any right, duty, power, responsibility or authority which a person mentioned in that provision has in relation to the child and his property by virtue of any other enactment."
Section 37 Senior Courts Act 1981 (SCA 1981)
"(1) The High Court may by order (whether interlocutory or final) grant an injunction… in all cases in which it appears to the court to be just and convenient to do so."
European Convention on Human Rights, Article 8
"Article 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life……
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society……."
"[35] … under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child's welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family's Article 8 rights.
[36] In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority's removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA."
i) if the judge is right and the inherent jurisdiction has no role in a case such as this because section 33 CA 1989 provides the complete answer, then, unless a local authority needs to apply for an injunction under section 37 SCA 1981, this comprehensive invasion of the mother's Article 8 rights will require no prior sanction from the court.
ii) The matter came before the court only because an application was made under section 100 CA 1989 and not by way of an application under section 33 CA 1989. Section 33 CA 1989 provides for an application for leave to be made to the court with regards to the changing of a child's surname. There is no similar provision in relation to a forename. There is therefore no procedural route within section 33(3) CA 1989 (or by way of a general "catch all" within the Act) whereby a local authority can bring before the court that exceptional case where the court's guidance is needed as to the use by a local authority of its powers under section 33(3)(b)(i), in respect of the decision itself (as opposed to seeking the protection of the local authority's powers by way of injunction).
Alternative statutory routes
"Restrictions on making section 8 orders.
(1) No court shall make any section 8 order, other than a child arrangements order to which subsection (6B) applies with respect to a child who is in the care of a local authority.
(s9 (6B) relates to a child's living arrangements)."
By virtue of section 8(2) CA 1989 "a section 8 order" means: "a child arrangements order", a "prohibited steps order" or "a specific issue order". It therefore follows that a local authority cannot apply for a prohibited steps order or a specific issue order under section 8 CA 1989. That leaves section 33(3)(b)CA 1989 as the only statutory route open to a local authority to prevent the children being called "Preacher" or "Cyanide".
Inherent Jurisdiction
i) Section 100 CA 1989 prohibits its use to determine any question which has arisen in connection with any aspect of parental responsibility.
ii) The result sought could be achieved through the statutory code – namely section 33(3)CA 1989
iii) Absent an order the children would not suffer significant harm
"Restrictions on use of wardship jurisdiction.
100(2) No court shall exercise the High Court's inherent jurisdiction with respect to children—
(a)……;
(b)…….;
(c) so as to make a child who is the subject of a care order a ward of court; or
...d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
(3)No application for any exercise of the court's inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.
(4)The court may only grant leave if it is satisfied that—
(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
(b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.
5) This subsection applies to any order—
(a) made otherwise than in the exercise of the court's inherent jurisdiction; and
(b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted)."
"It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989."
"(1) So far as possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
[32] Cases such as this demonstrate the continuing need for a remedy which, despite its antiquity, has shown, and is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world."
"[7] So far as the local authority is concerned, they have invited the NHS trust to make this application because although they do in fact have, as a matter of statutory law, parental authority for this child arising from the care order, they felt that the parental authority did not invest them with sufficient authority to consent to this declaration. That is a nice point. I think that they are probably right."
"…for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child."
"(4) The court may only grant leave if it is satisfied that—
(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
(b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.
5) This subsection applies to any order—
(a) made otherwise than in the exercise of the court's inherent jurisdiction; and
(b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted)."
i) through the making of an order to which section 100(5) CA 1989 applies in the absence of a provision (or requirement) in section 33 CA 1989 for the local authority to make an application in relation to the giving or changing of a forename of a child or
ii) by way of a prohibited steps order or a specific issue order.
Discussion
Cyanide
i) in relation to her sense of identity and self-worth, particularly here as a child who cannot be brought up by either of her own parents. It is hard to see how (regardless of what justification may be given to her by loving carers) the girl twin could regard being named after this deadly poison as other than a complete rejection of her by her birth mother; a rejection not replicated, in her eyes, in respect of her twin brother.
ii) to her in her day to day life as a child. Whilst teasing and ridicule are a natural part of childhood and, in moderation, help to develop resilience, such a name potentially exposes the girl twin to treatment which goes far beyond acceptable teasing. Further it would be wilful of the court to fail to factor into its consideration the power of social media and the very real danger that a child called "Cyanide" would soon be a victim of "cyber bullying"
Preacher
"You start with an evenly balanced pair of scales. Of course, when you start to put into the scales the matters relevant to each child – and in particular those listed in s 1(3) – the result may come down in favour of the one rather than the other, but that is a balancing exercise which the court is well used to conducting in cases concerning children."
At 899E – G, Evans LJ put the matter like this:
"But the welfare of the two individuals cannot both be 'paramount' in the ordinary and natural meaning of that word. If that is the requirement of s 1(1) in the circumstances, then the Act presents the court with an impossible task. For this reason, I agree with Balcombe LJ that the requirement must be regarded as qualified, in the cases where the welfare of more than one child is involved, by the need to have regard to potential detriment for one in the light of potential benefit for the other. Only in this way, as it seems to me, can the subsection be applied and the manifest objects of the Act achieved."
Conclusion
Lord Justice David Richards:
Lady Justice Gloster: