IN THE MATTER OF v H (A CHILD) [2002] EWCA Civ 190

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KINGSTON UPON HULL COUNTY COURT
(MR RECORDER HILL)
[2002] EWCA Civ 190Case No B1/01/2190Venue Royal Courts of Justice, Strand, London WC2, Tuesday 29 January 2002
Between
IN THE MATTER OFH (A CHILD)
Before
Lord Justice ThorpeLord Justice BuxtonMR M GORE (Instructed by Messrs Andrew M Jackson & Co, Hull, HU1 1XH) appeared on behalf of the ApplicantMS M ALLMAN (Instructed by Hamers, Sheffield, S1 2EZ) appeared on behalf of the RespondentDate 29 January 2002

LORD JUSTICE THORPE :

Mr

[1]and Mrs H were married, but they separated, finally, at a time when Mrs H was six weeks pregnant. She gave birth to a boy on 8 May 1999 in the Hull Maternity Hospital. The father visited on the day of the birth and on the day after the birth, accompanied by other members of his family. He asserts, and the judge found, that on those meetings he sought to discuss the names the son should be given with the mother. The judge found that the mother was at the time not only in the immediate aftermath of childbirth, but also, understandably, upset by these visits from a father who had had no contact with her for the duration of her pregnancy.[2]Mr Gore, on behalf of the mother, submits that there is a statutory duty on both married parents to register the birth of a child within 42 days. Without any communication or collaboration, the father registered his son's birth on 13 May and the mother registered the birth on 19 May 1999. The father chose MI as the given names for his son; the mother chose the single given name H. There have subsequently been exchanges between the Registrar of Births and Deaths in Hull and the National Statistics Office, the outcome of which was an administrative decision that the child's legal and only birth registration is the one created on 13 May by the father. The registration made by the mother on 19 May has been cancelled. This was, understandably, upsetting to the mother, not least because at the date of the father's action in achieving prior registration, he was apparently denying paternity.[3]It is not surprising that Children Act proceedings followed, not only in relation to the child's name but also in relation to contact. The mother issued an application on 30 November 1999 on form C2. The box under the heading "The order you are applying for" was unfortunately defective. It says no more than "specific issue order". What it should have stated, in precise terms was the very order under section 8 of the statute that the mother sought.[4]However her reasons for applying were concisely stated on the form. She said:
"I wish the court to make a decision with regard to my son's Christian names. Shortly after my son was born I registered his birth with the Hull Register Officer as [HH]. I later discovered that my husband had also registered the birth, at Sheffield and had given the Christian names [MI] to our son. As my husband registered the birth before I did, it has been ruled that his registration is the valid one. I believe that this is totally unfair, I do not agree the names given by my husband as these were given without reference to me. My husband and I separated when I was six weeks pregnant and we have not lived together since that time. Initially my husband denied paternity and despite offers of contact made by me has only seen the child twice since he was born. The names given by my husband also cause me administrative difficulty. The residence and prohibited steps order in these proceedings, and my Child Benefit claim and Home Office application re residence in this country all refer to my son as [H]. I have offered my husband a compromise, that the child be called [MIH], however my husband has not responded."
[5]Since that time the husband has shown commitment to achieving good contact with his son and the contact regime has progressively expanded. Furthermore, the idea that the mother should adopt the second of the two statutory registered given names, I, has become a reality.[6]When the case came before Mr Recorder Hill on 27 September 2001 in the Kingston-upon-Hull County Court, perhaps the more important issue for his decision was the expansion of the contact regime. On that he had the advantage of a written report from the reporting officer together with some oral evidence. However, it would seem that the application of 30 November was also treated as being before the court on that day. I am not at all clear why it had not been disposed of at some earlier stage.[7]The judge regarded the point as one of some significance and importance. He said that it was a problem that was cropping up quite frequently in that locality. Having decided the issue against the mother, he acceded to Mr Gore's application for permission to appeal. In granting the application he said: "This case concerns a dispute with the child's forename, not his surname. There is no guidance from the Court of Appeal on this issue which now comes before the lower courts regularly".[8]We have received in preparation for this hearing a skeleton argument from Mr Gore and a response from Miss Allman, both of whom appeared in the court below. Both counsel have given us every assistance.[9]At the outset of the hearing we tried to discover, in the absence of any elucidation on form C2, precisely what order the mother sought in the court below and which, accordingly, she seeks this court to make. The confusion was heightened by the terms of the order drawn in the court below which stated by paragraph 2 that:
"There be a declaration that the child [MIH] (dob 8.5.99) do be known as that name and his mother's application for a specific issue order under Section 8 of the Children Act to change his first name be refused."
[10]Mr Gore says he had not sought an order to change the child's first name in the court below. He says that what he essentially sought below, and what he essentially seeks today, is the deletion of paragraph 2 and the substitution in its stead of a specific issue order under section 8 of the Children Act in these terms:
"The mother be permitted to use the name [H] with educational, health and other authorities without representing that to be his registered name."
[11]The curiosity of this case is heightened by the fact that in his home the father does not use the given name of M for which he elected on registration. The little boy, when with him, is known as R. We have had some difficulty in understanding the significance of the problem, or the reason why it is seen as an issue upon which the guidance of this court is necessary.[12]There can be no doubt that the statutory scheme for the registration of a newborn child is a clear scheme and, necessarily, a concrete scheme. Once a child has received official registration, then that registration stands indefinitely, save perhaps in quite exceptional circumstances. This case is not concerned in any way with changing the names by which this little boy is registered. The judge himself recognised that in making the declaration that he did, the order could not prevent the mother from continuing to use the name [H] in the home. He was at pains to ensure that for all external purposes the only names by which the child should be known would be the names of statutory registration.[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 in so far 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.[15]The second point I would mention is that the judge was perfectly right to recognise that no order of the court could prevent the mother from using the name of her choice internally. Where I depart from the judge in this observation is in his attempt to inhibit the mother from using that chosen name in external dealings within the community of the primary home. It seems to me, as a matter of ordinary course, that when a child is registered for the purposes of national health services, local educational services or community activities, there is no formal need for the production of a birth certificate to establish given names. If the parents are separated, the primary carer simply establishes with the entry of the child, either for school, for general practice medicine or for hospital treatment, the given name that is customary in the primary home.[16]I find difficulty in accepting the judge's reason for his conclusion which, in any event, is extremely brief. He said that:
"Having found as a fact that father was, as he saw it, carrying out his duties, and that there was no sinister motives in the registration of 13 May 1999, and having regard to the fact that registration is valid in law, I have, in the best interests of the little boy, decided that his official name must remain as [MIH]. I find as a fact that it is not in his welfare to be known by a name other than his registered name for all official purposes. The mother's application for a Second 8 specific issue order is therefore refused."
[17]In my opinion that places altogether too much weight on the fortuitous fact that the father's registration was first in time. It also ignores all the realities which I have sought to discern.[18]If issues such as this arise, it seems to me that judges must look in a worldly, commonsense way at what is likely to be best for the child and must not place too much emphasis upon the statutory process of registration. In this case the judge was concerned with a 2½ year old boy, born to a mother in difficult circumstances. She is a single parent who has had to make shifts from the outset on her own. She has had to face an initial denial of paternity. She has had to cope with a lot of stress and anxiety. Any search for the welfare of the child must in the end lead to the question what order was likely to promote a sense of security and well being in the mother. The mother, as a single parent and primary carer, requires a good deal of support, both in the outcome of legal proceedings and in the recognition of her liberty, matching her responsibility, to make decisions in the daily life of the child.[19]It seems to me that the mother's initial complaint in her application of 30 November ws justified. To impose upon her the father's chosen name of M simply because he happened to be six days prior in time, would indeed be grossly unfair. I have no doubt that the judge was plainly wrong to seek to inhibit the mother's use of the name H in her dealings with external authority, providing that she always recognised the fact that he had an immutable series of names by statutory registration.[20]I would accordingly strike from the order the second paragraph, but I would not substitute in its place the order sought by Mr Gore, only for the reason that it seems to me superfluous to do so. As a matter of principle Children Act orders should not be cluttered with unnecessary verbiage. The mother's future security sufficiently rests in the outcome of this appeal.

LORD JUSTICE BUXTON: I agree.

Order

Application allowed as directed. Detailed assessment of public funding costs.

Cited in 8 later judgments