Changing a child's name when the other parent is absent

First: do they have parental responsibility?#

GOV.UK lists agreeing to a change of name among the things parental responsibility covers, and both GOV.UK and HM Passport Office look for the agreement of everyone who holds it, or a court order. So an absent parent's consent matters only if they hold it. In England and Wales:

• The birth mother always has it, so if she is the parent who is absent, her consent is needed.
• If the parents were married to each other, or civil partners, at the time of the birth, the father has it automatically (section 2 of the Children Act 1989).
• An unmarried father holds it if he was registered as the father on or after 1 December 2003, made a parental responsibility agreement with the mother, has a court order, or later married her. For the rest of the UK, HM Passport Office gives the dates as 4 May 2006 in Scotland and 15 April 2002 in Northern Ireland.
• An unmarried father named on a birth registered before that date, with no agreement, order or later marriage, does not have it through the registration.

Absence does not end it, however long it lasts. Section 4(2A) of the Act says a father who acquired parental responsibility by registration, agreement or order loses it only if a court orders it, and HM Passport Office tells its staff that a father does not lose it by being taken off a birth certificate. The child's full birth certificate, the one with the parents' details, is where to start, and the passport office uses it to check.

If they do not have parental responsibility#

The law does not ask for their consent. A child deed poll needs only the agreement of the people who do hold parental responsibility, which may mean yours alone. Expect to explain the position. GOV.UK's child passport guidance asks for both parents' details, and for the reason if you cannot give them; where it is unclear whether you hold parental responsibility alone, HM Passport Office's guidance tells staff to ask you to confirm it in writing. If someone later claims to hold it, the passport office gives them one month to prove it, and accepts the change if they cannot.

A parent without parental responsibility is still a parent. Section 10 of the Act lets any parent apply for a section 8 order without first asking permission, including a prohibited steps order to stop a change.

If they do: what absence does not change#

HM Passport Office's guidance is direct. It will not accept a child's change of name unless everyone with parental responsibility has consented or a court order allows it, even when the new name is already used for all official purposes, such as with the NHS and Child Benefit. It recognises that some parents have no contact with the other; its staff then tell the applicant about the option of a court order, without insisting on one. Without an order, the passport is issued in the child's original name, and the passport office says it cannot accept responsibility for any difficulties that follow.

So a deed poll signed by one parent alone, because the other has disappeared, does not solve the problem. Two routes do.

Route one: an enrolled deed poll, with a judge's permission#

Enrolment is where the rules make room for absence. Regulation 8 of the Enrolment of Deeds (Change of Name) Regulations 1994 allows an application by one person with parental responsibility "without the consent of every other such person", for reasons set out in a sworn statement that must also show the change is for the child's benefit. The Civil Procedure Rules practice direction on enrolment says the court's permission will be granted where the person with parental responsibility is dead, overseas, or cannot be found "despite the exercise of reasonable diligence". GOV.UK's guidance says every application to change a child's name goes to a judge.

HM Passport Office accepts a High Court enrolled deed poll without the consent of everyone with parental responsibility, because, its guidance explains, the Regulations require either that consent or the reasons it could not be given, and the judge weighs its absence before allowing the change.

The fee is £53.05, and GOV.UK warns it may take several months. The forms include an affidavit of best interest, sworn before a solicitor or another person authorised to take oaths, and a statutory declaration by someone who has known you for at least ten years. The Gazette then carries the child's new name, though for a strong reason a judge can limit it to the first name or the surname. How to enrol a deed poll covers the forms.

This route is for absence, not refusal: GOV.UK's guidance on form LOC022 says that if a person with parental responsibility does not agree to sign, the other will need a court order. Take advice first if a child arrangements order says where the child lives, because section 13 of the Act then requires everyone's written consent or the court's permission for a new surname.

Route two: a specific issue order#

The family court can give permission for the change: specific issue orders explains form C100 and the £270 fee. Two points apply when a parent is absent. The requirement to attend a mediation information and assessment meeting still applies unless an exemption does, and an absent parent is not itself one of the exemptions in the Family Procedure Rules; GOV.UK says that if you attend and the other parent does not, you can still apply. The court serves the application on everyone you believe holds parental responsibility, at the address you give. Where no current address can be found, the rules let the court allow service by another method or at another place, or dispense with service (rules 6.35 and 6.36).

What counts as reasonable efforts#

Neither the Regulations, the practice direction nor the court rules list the steps, and the judge decides whether what you did was enough. What you can do is make the attempts real and keep a dated record: letters to the last known address, emails and messages to any accounts you know of, and questions to relatives or friends who may be in touch. GOV.UK suggests that if you cannot reach the other parent, or they do not reply, a legal adviser can try on your behalf. The record becomes your evidence, in the sworn statement for an enrolment or in what you tell the family court.

When contacting them would not be safe#

That is a different situation from absence. HM Passport Office has a safeguarding process, but its guidance says it will allow a child's name to change without a court order only in exceptional circumstances: clear evidence of danger to life, and evidence from the police or social services that applying to court would itself put you at risk. Evidence of domestic abuse is also an exemption from the mediation meeting, and GOV.UK says legal aid may then help with a legal adviser in court.

Getting advice#

This page sets out the rules, not advice on your case. A family solicitor can say which route fits; GOV.UK's find a legal adviser service lists them, and Citizens Advice gives free advice.