What happens when there is no agreement on the child’s surname?
The Family Law Act gives each parent parental responsibility for their children, which includes all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children. It is clear that one such area of authority is the capacity to give the child a name. Indeed, parents are under an obligation to name their children both by operation of local statute and international law.
Thus, the obligation to name a child, and the power to change a child’s name is clearly an aspect of parental responsibility.
A dispute between persons appropriately interested, including between the parents of a child, is ultimately to be resolved by the making of a Parenting Order.
The law requires those parties wishing to apply for a Parenting Order to attend upon a registered Family Dispute Resolution Practitioner in an attempt to try and resolve the matter. The object is to keep parents out of Court and to resolve such issues directly between themselves with an appropriately qualified practitioner who is generally not a lawyer but a psychologist or counsellor. Except in certain circumstances, such as urgency, no application can be filed with the Court unless the parties have a certificate called a Section 60 I Certificate stating that they have attended Family Dispute Resolution and have attempted to reach an agreement.
If there is no agreement, the parties can approach the Court for an Order in relation to the naming or the change of name of their child or children. Orders sought can be by way of an injunction or an Order relating to the welfare of the child. Generally speaking, the issues to be considered in making an Order relating to the name of the child is that, each case must be dealt with in a way that would promote the welfare of the child.
The Court considers the individual circumstances of each child both retrospectively and prospectively and evaluates the evidence of the parties.
Some factors which have been considered in the case law are:
effects of a change on the particular child or children;
any potential embarrassment to the child;
any confusion of identity for the child;
the degree of identification with the mother and father of the child;
the degree of identification with any new child of either parent.
Generally speaking, the welfare of the child is the paramount consideration in every case.
Our team at EFL are equipped to advise on all aspect of Parenting Orders.