Written by Marc Etherington

Senior Associate at Rayden Solicitors

Marc has experience in all areas of family law including acting for those seeking a divorce, advice on the breakdown of a cohabiting relationship or assistance on matters concerning their children. Marc has acted for clients who reside across the UK and those living abroad.

To answer the question, you first need to know who has parental responsibility. I have assumed this issue concerns the child(ren’s) biological mother and father as is often the case with this topic.

What is Parental Responsibility and who has it?

Parental responsibility is defined by section 3(1) Children Act 1989  as ‘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’. This means if you and/or your ex-partner have parental responsibility for your child(ren), you are recognised by law as having a responsibility to make day-to-day and important decisions on their behalf.

Once you understand who has parental responsibility, this should help you identify the law’s position in your case.  

The mother of the child(ren) automatically acquires parental responsibility for each child from their birth. The father does not have the same automatic right unless he was married or in a civil partnership with the mother on the day that child was born.

Nevertheless, there are various ways the father can acquire parental responsibility. This article won’t cover all of these options because there are quite a few, but the most common ways are:

  • Being registered on the child’s birth certificate as the father provided the child was born after 1st December 2003;
  • The father entering into a parental responsibility agreement with the mother; or
  • The father obtaining a court order granting him parental responsibility.

Once you understand who has parental responsibility, this should help you identify the law’s position in your case.

We both have Parental Responsibility

Section 13(1) of the Children Act 1989 makes it clear that when there is a court order regulating who the child(ren) live with (called a Child Arrangements Order), the written consent of all those with parental responsibility must be obtained in order to change the child(ren’s) surname.

If you have no court order regulating who the child(ren) live with, the same rule still applies because judges in a number of reported cases have confirmed all those with parental responsibility must be consulted and give their consent for a surname to be changed.

Hence, if you don’t agree to the surname of your child(ren) being changed, your ex-partner is forbidden from doing so, even if they want the surname hyphenated. The only way they can then change your child(ren’s) surname would be for them lodge an application to the family court asking a judge for permission to do so.

Only one of us has Parental Responsibility

The party with parental responsibility, most likely to be the mother because she has that automatic right as mentioned earlier, can act independently and change the child(ren’s) surname without consulting the other parent.  Yet, if the party without parental responsibility does object to the change of the surname, they can make an application to the family court asking for an order preventing the party with parental responsibility from taking this step.

What should I do next?

If there is a dispute as to the surname of your child(ren), explore first of all a whether a resolution can be found with your ex-partner. Each of you giving your reasons for adopting your respective positions and listening to the other may help find that solution. Mediation or a roundtable meeting, for example, may be tools you could explore.

If no agreement can be found, regardless of who the child(ren) live with and whoever has or has not got parental responsibility, this issue should be determined by a third party before any action regarding the surname is taken because this is a such fundamental decision concerning a child’s welfare.

As already explained, a judge could be the individual who makes the final decision. If you want to avoid court proceedings but still need someone to make the decision, an alternative option is to ask an arbitrator. To do this, you need to go through the arbitration process. These are private proceedings where you pay the arbitrator a fee for using their services. The decision of the arbitrator can then be made into a court order. If you want further information about arbitration, I suggest you go to the Institute for Family Arbitrators website.

What approach would a judge or arbitrator take at any final hearing in my case?

The outcome of your case, as with any other case, would be treated on its own merits with the decision being made on what is in the best interests of your child(ren). However, when cases concerning a change of surname have been reported, it appears that successfully changing a child’s surname can be difficult to achieve, especially when it is opposed by the other parent. As said in the report case of Dawson v Wearmouth [1999] 1 FLR 1167, a change of surname should not be permitted without evidence that it would improve the welfare of the child.

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