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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> B and C (Change of Names: Parental Responsibility: Evidence)  EWHC 3250 (Fam) (12 December 2017)
Cite as:  EWHC 3250 (Fam),  4 WLR 19,  1 FLR 1471,  WLR(D) 848,  2 FCR 21
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Strand, London, WC2A 2LL
B e f o r e :
| Re B and C (Change of Names: Parental Responsibility: Evidence)
The father was neither present nor represented
Ms Penny Logan (Cafcass Legal) for the Children's Guardian
Crown Copyright ©
THE HONOURABLE MR JUSTICE COBB :
i) To permit the mother to arrange for the children to be known by new forenames and surnames;
ii) To grant a prohibited steps order restricting the extent to which the father is able to exercise his parental responsibility for the children.
iii) To proceed to final determination of the mother's applications (at (i) and (ii) above) in the absence of, or participation by, the father;
iv) To direct that the final witness statement of the mother containing details of the children's whereabouts shall not be served on the father.
"The children are not at risk of abduction…
I had no plans to remain in Iran [in 2014], I have a home, car, family and better life in the UK and I had no plans of moving to a third world country. My children are settled in the UK and it would have been detrimental to my children's education to take them back [to live in Iran] as they would have had to begin learning the language from scratch.
I deny that I pose a threat to the children and I have never made threats to remove them from the jurisdiction. My children are settled in the UK and this is their home. They attend school here and have friends here and I would not wish to destroy that."
"[B] stated that over the last 8 months he has been through a lot and said that it was the worst time of his life … he said it was awful in Iran … his father used to hit them and tried to make them lie to the police … [C] said that her dad had hit her because when they went to the police station to see their nan (mother's mum) she was supposed to tell them horrible things about her mum but she didn't and because of that her father beat her."
The children have further spoken to their General Practitioner of being physically abused in Iran, and placed in school to learn in a language which they did not fully understand, being punished when they fell behind in their studies.
Procedural (i): Proceeding in the absence of the father
Procedural (ii): Withholding the fourth witness statement of the mother
"The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling".
This view was amplified by Munby J (as he then was) in circumstances not dissimilar to this, in Re B (Disclosure to the Other Parties)  2 FLR 1017 in which he said at :
"… the decision-making process, although it must be fair to R [i.e. the party to whom it was said the documents should not be disclosed] (and to all the other parties), must also, so far as is compatible with that overriding requirement, be such as to afford due respect to the interests of the children, the other parties and the witnesses safeguarded by Art 8. So, a limited qualification of R's right to see the documents may be acceptable if it is reasonably directed towards a clear and proper objective – in other words, if directed to the pursuit of the legitimate aim of respecting some other person's rights under Art 8 – and if it represents no greater a qualification of R's rights than the situation calls for. There may accordingly be circumstances in which, balancing a party's prima facie Art 6 right to see all the relevant documents and the Art 8 rights of others, the balance can compatibly with the Convention be struck in such a way as to permit the withholding from a party of some at least of the documents. The balance is to be struck in a way which is fair, and which achieves a reasonable relationship of proportionality between the means employed and the aim sought to be achieved, having regard to the nature and seriousness of the interests at stake and the gravity of the interference with the various rights involved". (emphasis by underlining added).
Change of forename and surname: the law
"A surname which is given to a child at birth is not simply a name plucked out of the air. Where the parents are married the child will normally be given the surname or patronymic of the father thereby demonstrating its relationship to him. The surname is thus a biological label which tells the world at large that the blood of the name flows in its veins. To suggest that a surname is unimportant because it may be changed at any time by deed poll when the child has obtained more mature years ignores the importance of initially applying an appropriate label to that child".
"… the changing of a child's surname is a matter of importance and that in determining whether or not a change should take place the court must first and foremost have regard to the welfare of the child. There are many factors which must be taken into account, not only those pertaining to the present situation but also those which are likely to affect the child in the future."
i) on any application the welfare of the child is paramount, and the judge must have regard to the section 1(3) criteria;
ii) among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child's father. Registration is always a relevant and an important consideration, but it is not in itself decisive;
iii) the relevant considerations should include factors which may arise in the future as well as the present situation;
iv) reasons given for changing or seeking to change a child's name based on the fact that the child's name is or is not the same as the parent making the application do not generally carry much weight;
v) the reasons for an earlier unilateral decision to change a child's name may be relevant;
vi) any changes of circumstances of the child since the original registration may be relevant;
vii) in the case of a child whose parents were married to each other, the fact of the marriage is important; there would have to be strong reasons to change the name from the father's surname if the child was so registered;
viii) where the child's parents were not married to each other, the mother has control over registration. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, the existence or absence of parental responsibility
"The forename finally chosen forms a critical part of his or her evolving identity. The sharing of a forename with a parent or grandparent or bearing a forename which readily identifies a child as belonging to his or her particular religious or cultural background, can be a source of great pride to a child and give him or her an important sense of 'belonging' which will be invaluable throughout his or her life."
Plainly the longer the child has carried, and been associated with, that forename the stronger the connection with it, and the more powerful the reasons required to change it. As King LJ went on to say in Re C at :
"… given the fact that in the 21st century a child will predominantly use his or her forenames for most purposes throughout his or her life, that forename is now every bit as important to that child, and his or her identity, as is his or her surname".
"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… Having said that, one has to recognise, in reality, that names do change. Children acquire nicknames and even nicknames sometimes take over from the name that they were given as their chosen name. Children do have diminutives and they may themselves, as they get older, prefer their third name to their first name and choose to be called by it."
Restrictions on the exercise of Parental Responsibility
"… extends, in very exceptional cases, to making an order prohibiting a parent from taking any steps in the exercise of parental responsibility"  (emphasis by underlining added).
i) Parental responsibility "is an important status which is an incident of the family and private lives of the adults and child concerned and which is reflected in the way in which parents should exercise their responsibilities for their child. It should be rare for a father not to be afforded this status" (citing Re M (Parental Responsibility Order)  EWCA Civ 969,  1 FLR, at para );
ii) Parental responsibility describes an adult's responsibility to secure the welfare of their child which is to be exercised for the benefit of the child not the adult (at  1 FLR 166 );
iii) When considering whether to limit or restrict parental responsibility, the court is considering a question with respect to the upbringing of a child, and the paramountcy principle in section 1 CA 1989 applies (see );
iv) By section 1(4), there is no requirement upon the court to consider the factors set out in section 1(3) (the 'welfare checklist') but the court is not prevented from doing so and may find it helpful to use an analytical framework not least because welfare has to be considered and reasoned (see ); (note  below: in this case the mother applies for a prohibited steps order, so the section 1(3) checklist will apply);
v) The 'no order' principle in section 1(5) of the CA 1989 applies;
vi) The factors relevant to the court's consideration of the grant of parental responsibility (the degree of commitment which the father has shown to the child, the degree of attachment which exists between the father and the child and the reasons of the father for applying for the order) may be relevant at the point of considering whether to revoke or limit the exercise of parental responsibility (see );
vii) A child will ordinarily benefit from a relationship with both parents; the significance of parenthood of a married or an unmarried father should not be under estimated (see );
viii) The parental responsibility which attaches to parenthood may bring added commitment to the child which would be likely to be to the child's benefit (adapting the point made in Re G (Children) (Residence: Same-sex Partner)  UKHL 43,  1 WLR 2305,  2 FLR 629, at paras  and , and discussed at  of Re D);
ix) "[A] significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the "responsibility" which is so clearly given prominence in the Children Act 1989, section 3 and the likely circumstance that that responsibility is shared with the other parent, it is hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post separation contact than may hitherto been the case" (McFarlane LJ in Re W (Direct Contact)  EWCA Civ 999,  1 FLR 49).
x) Article 8 of the European Convention is engaged here in respect of all of the family members, and interference with these rights needs to be justified (see )
xi) The order is draconian (see );
xii) It is vitally important to encourage the exercise of parental responsibility by fathers. Children have a right to that benefit (see ).
Discussion and Conclusion
i) That in 2016 the father removed the children from the care of the mother and the jurisdiction of the court; this was in breach of a prohibited steps order of which he was aware; the circuitous route he took to Iran ( above) strongly reveals his appreciation of his wrongdoing;
ii) He removed the children from England, having expressly avowed in 2014 that he had no intention of abducting them, and having expressly indicated that he had a "better life" in England; he purportedly viewed removal of the children to Iran as being "detrimental to [his] children's education" ( above);
iii) Only through great courage and resourcefulness, and at considerable risk to herself, was the mother able to retrieve them;
iv) The children have described to their mother, the police, their GP and their psychological counsellor considerable and enduring trauma by reason of their experiences; B recalls it as "the worst time of his life". It is the objective view of the Guardian and of the mental health services working with the children that the children have been traumatised by their experiences;
v) The mother's case that she herself has been traumatised by her experiences at the hands of the father is supported by medical evidence; she is, and has been for some time, depressed and anxious – her condition caused by the abuse which she has suffered;
vi) The children and the mother live in obvious and constant fear of being located by the father and his associates;
vii) The father has sought and obtained legal orders in Iran which would have the effect of placing the children in his care, and achieving the arrest and near-certain incarceration of the mother should she enter the country; should the children be removed once again to Iran, they would almost certainly lose the relationship with their mother.
"… whilst clean and comfortable, [the home] was noticeably sparse of personal effects. The extra security measures provided also is a grim reflection of the everyday sense of threat they experience. [C] told me how many times they have had to move home and change schools in order to keep safe. She has had to leave some of her favourite possessions behind."
"… with severe stress of the abduction added to the pre-stressors they had already experienced – parental separation and family breakdown, concerns relating to domestic abuse which led to them, and [their mother] being accommodated in a refuge, and retention in Iran following a holiday"
"… she would miss her name because she has had it her whole life. She also knows that a name is important in helping people know a little bit about who you are. However, she would like to have it changed for her safety. She does not mind losing her dad's name and reflected that she even dislikes their physical resemblance."
i) B and C shall live with their mother, and shall have no contact with their father;
ii) The father shall be prohibited from taking any steps in the exercise of any aspect of his parental responsibility in relation to either child, until each child reaches the age of 18 or until further order of the court.
iii) For the avoidance of doubt, the mother may make all decisions and give parental consent unilaterally and without reference to the father, in all matters relating to the children's upbringing, including (but not limited to) such matters as the children's education, healthcare, foreign holidays and removal of the children from the jurisdiction;
iv) The father must not remove the children from the jurisdiction of England and Wales, or from the care and control of their mother, and must not instruct, encourage or in any way suggest that any other person should do so, until further order of this court.
v) The father is not to come within 100m of any location where he knows or has reasonable cause to know that the Applicant may be, until further order of this court;
vi) I shall in due course grant permission to the mother to change the children's given names and surname, and to do so without reference to the father, provided that the mother notifies me (though her solicitors by email to the Judge's Clerk, marked 'confidential') in writing within 28 days of this order of what those names will be;
vii) I shall direct that no person with notice of this order is to reveal to the father or anyone acting on his behalf or anyone known to be his associate, the new names of the children;
viii) I shall direct that the Wardship in respect of B and C shall be discharged forthwith;
ix) I shall continue the orders made under the Family Law Act 1996 by Roberts J.
x) I shall make an order containing the key provisions set out above, which bear the new names of B and C and of the mother herself.