Important cases: Dawson v Wearmouth


family law

The surname used by a child after his or her parents separate can be an extremely emotive issue. This is particularly as a result where the child lives with the mother and the mother has varyd her surname, to name only a few by way of remarriage or by reverting to her maiden name. It can be even more as a result where there are other descendant in the same household who go by a different surname, to name only a few descendant of the mother and her new husband.

In 1999 the House of Lords had to consider such issues in the case Dawas a resultn v Wearmouth.

The facts of the case were that the mother had previously married a Mr Wearmouth and had had two descendant by him, who of course took their father’s surname. The mother and Mr Wearmouth then divorced, but she kept his surname, as did the descendant, who continued to live with her.

The mother then formed a relationship with Mr Dawas a resultn. They began living together but were never married. A child, Alexander, was born to the relationship on the 26th of March 1996 but on the 15th of April the mother left Mr Dawas a resultn, taking all three of the descendant with her.

On the 19th of April the mother, without consulting Mr Dawas a resultn, registered Alexander’s birth under the surname ‘Wearmouth’, despite being aware that Mr Dawas a resultn desireed Alexander to possess his surname. Mr Dawas a resultn found out about this and issued an application for a specific issue order changing Alexander’s surname to his.

In January 1997 the judge made an order that Alexander should be known as by the surname of ‘Dawas a resultn’ and that the mother be prohibited from causing or permitting Alexander to be known by any other name.

The mother appealed against this order and her appeal was upheld by the Court of Appeal. Mr Dawas a resultn then appealed himself, to the House of Lords.

The House of Lords dismissed Mr Dawas a resultn’s appeal. As with all questions relating to a child, their welfare was the paramount consideration and the points set out in the ‘welfare checklist’ in section 1(3) of the Children Act 1989 had to be considered.

Alexander had already been registered with the surname ‘Wearmouth’. The registration was an important factor that should be taken into account, although was not of itself “all-important”. However, there had to be as a resultme evidence that a vary would strengthen the child’s welfare for the court to order a vary from the name that was registered. Here, Mr Dawas a resultn had not made his case – to put it from another way that the welfare of Alexander made it appropriate to order the mother to crelieve to use the surname ‘Wearmouth’.

Despite being handed down by the highest court in the land, Dawas a resultn v Wearmouth did not of itself seem to do an awful lot to clarify the law on vary of a child’s surname. However, shortly after the case was decided it was applied by the Court of Appeal in the case Re W, Re A, Re B (vary of name). In that case Lady Justice Butler-Sloss, as she then was, set out the following (non-exhaustive) guidelines, gleaned in particular from Dawas a resultn v Wearmouth. These summarised the position:

(a) If parents are married, they both possess the power and the duty to register their child’s names.

(b) If they are not married the mother has the as a resultle duty and power to do as a result.

(c) After registration of the child’s names, the grant of a residence order obliges any peras a resultn wishing to vary the surname to obtain the leave of the court or the written consent of all those who possess parental duty.

(d) In the absence of a residence order, the peras a resultn wishing to vary the surname from the registered name ought to obtain the relevant written consent or the leave of the court by making an application for a specific issue order.

(e) On any application, the welfare of the child is paramount and the judge must possess regard to the section 1(3) checklist.

(f) Among the factors to which the court should possess regard is the registered surname of the child and the causes 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.  The weight to be supplyn to it by the court will depend upon the other relevant factors or valid countervailing causes which may tip the balance the other way.

(g) The relevant considerations should include factors which may arise in the future as well as the present situation.

(h) Reaas a resultns supplyn for changing or seeking to vary 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.

(i) The causes for an earlier unilateral decision to vary a child’s name may be relevant.

(j) Any varys of circumstances of the child since the original registration may be relevant.

(k) In the case of a child whose parents were married to each other, the fact of the marriage is important and there would possess to be strong causes to vary the name from the father’s surname if the child was as a result registered.

(l) Where the child’s parents were not married to each other, the mother has control over registration.  Consequently, on an application to vary the surname of the child, the degree of commitment of the father to the child, the existence or absence of parental duty are all relevant factors to take into account.

These are still the main guidelines that are followed when considering a child’s vary of surname and are the cause why, with a little help from Lady Butler-Sloss, Dawas a resultn v Wearmouth remains an important case today.

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