CHANGING A CHILD’S SURNAME

The law on changing a child’s surname is very clear.

Prior to the implementation of the Children’s Act 1989 in October 1991 the law governing the surname of the child was the Matrimonial Clause Act 1973, where:

On the certificate of satisfaction (for the divorce) for the arrangements for the children – that no one should take any action without the authority of the court which would result in the children being known by any other name.

The children of anyone divorcing before this date (October 1991) were automatically protected, and anyone taking action against this was in contempt of court.

The surname is also legally protected under the Children’s Act 1989. Where a residency order is in place then Section 13-1 of the Act clearly applies:

Where a residency order is in force with respect to a child, no person may cause the child to be known by a new surname without the written consent of every person who has parental responsibility for the child or by the leave of the court.

This means is that if as part of your divorce a residency order was made for the children (or in cases prior to 1991 a certificate of satisfaction), there is no way that the mum can legally change the name of your children. At school, and on the child’s legal documents (such as a passport) the name must be that of the father. Mum cannot simply make a change and have it stick.

There is, however, a problem for fathers who were not married, and where no residency order is in place. In these cases they must apply to the court for a prohibited steps order to stop their ex from making any changes to the surnames of their children. It is entirely possible for the mum not to put the father’s name on the birth certificate.

If you were an unmarried father then there is another law that may also affect you. The Registration of Births and Deaths Act 1953 governs the registration of names – and where the father and mother are not married it is the duty of the mother to register the birth within 42 days. Section 10-1 prohibits the registrar from entering the father’s name on the birth certificate without the co-operation and consent of the mum (unless there is a court order in force) and whilst Section 10 allows a re-registration, applying the father’s name, it is only done with the mother’s consent. Hence, it is not a legal requirement for a mother to state the name of the father when registering the child, so it may be quite a legal fight for the dad to have his child carry his name.