November 2017 – “What’s in a name?”

Author: Mitchells Roberton
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  • When a child is born its birth must be officially registered within 21 days. Generally, part and parcel of that registration process is recording the child’s name.
  • Anyone whose birth is registered in Scotland may apply for a change of name to be recorded in the official Register. If the person is under 16 however then the application must be made on their behalf: usually by both parents.
  • These matters came up in relation to the naming of young children in a recent case at Edinburgh sheriff court (MRG v MD). Sheriff Holligan issued his judgment on 3rd November.

The facts in outline 

  • A couple lived together for over 12 years and had two young children together aged nearly 5 and 3 at the time of the court case. The couple separated however just before their younger child was born.
  • The couple were not married to each other but both registered the births and both children were given their father’s surname.
  • Subsequent to the parents’ separation the children then lived with their mother most of the time and generally came to be known by their mother’s surname.
  • Their birth certificates could not however be changed to reflect that without the agreement of both parents. The matter came before the court: the father wished the court to order that the children be known by the name recorded on their birth certificates i.e. the father’s surname; but the mother wanted an order that the children be known by her surname.

Some background law 

  • Having a name is one of the most fundamental elements of a person’s sense of self and personal identity. So, the parental “responsibility” to safeguard and promote the child’s health, development and welfare under the Children (Scotland) Act 1995 (“the 1995 Act”) includes a responsibility to provide the child with a name.
  • And, at least since the 1995 Act came into force, it is clear that parents have a “right” to name their child as an exercise of their parental responsibilities and parental rights and so the matter comes within the control of the court exercising its power to make an order under the Act.
  • In Scots law, however, the name under which a child has been registered is of little real legal significance: in general, a person simply has the name by which he or she is actually known. In the case of young children it lies within the practical power of parents to make a child known by a particular name.
  • Nevertheless, a  change of name may be registered under the Registration of Births, Deaths and Marriages (Scotland) Act 1965 though only on the application of both parents (assuming they both have parental responsibilities in relation to the child).
  • Again, however, registration has little legal effect and one parent will often have the practical power to change the name by which a child is generally known even against the wishes of the other. This may happen most frequently after the separation of parents, and particularly when the parent with whom the child resides enters into a new relationship and wishes to change the child’s name to that of the new partner.

The decision 

  • The sheriff identified various factors, in particular: (1) the parents registered the births using the father’s surname; (2) the passports had the father’s surname; (3) the mother was the main carer of the children; (4) the father had regular and generous contact with the children; (5) for medical and educational purposes the children were known by the mother’s surname; (6) in relation to the dentist, the children were known by reference to the father’s surname; and (7) the children were known by different surnames at each parent’s own home.
  • The sheriff said that he did not find resolving things an easy matter. Each such case was fact specific. Both children were too young to have any real understanding of the significance of a surname. The welfare test required that the court should look at the matter from the perspective of the children, not the parents.
  • It was noted that both names were in currency at different times. That led to confusion and uncertainty and could not be in the interests of the children, particularly as they grew up. Both parents played a significant role in the daily lives of the children.
  • In the end, the sheriff decided that the answer was for the children to use both surnames which would recognise the involvement of both parents in the lives of the children and would provide some certainty.
  • This seems a sensible solution and treats the resident and non-resident parent equally by focussing on matters from the perspective of the children.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Fiona Wayman: Fiona@mitchells-roberton.co.uk

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