Can my ex change our child's surname?

Can my ex change our child's surname without my consent?#

Not lawfully, if you hold parental responsibility. GOV.UK lists naming a child and agreeing to any change of name among the things parental responsibility covers, and its rule for a child's name is the agreement of everyone who holds it, or a court order. The High Court put it the same way in 2017: one person with parental responsibility "can only lawfully cause a change of surname" if everyone else who holds it agrees or a court orders it.

Separation changes none of this. GOV.UK says a parent who does not live with the child must still be included in important decisions, and that a major decision needs everyone's agreement in writing.

Who has to agree?#

Everyone who holds parental responsibility: the birth mother; a father married to her at the birth or afterwards; an unmarried father named on the birth register from 1 December 2003 in England and Wales (4 May 2006 in Scotland, and for births from 15 April 2002 in Northern Ireland); and anyone with a parental responsibility agreement or court order. A father who gained it through the register, an agreement or an order keeps it until a court ends it. Who has parental responsibility? sets out each route.

What does HM Passport Office do if I object?#

Its guidance to its own staff is clear:

• Your consent is required for any change to the name of a child under 16, or under 18 where a care order or other court order applies, down to a new spelling or an added surname.
• Without it, there is no new name. Unless everyone consents or a court order allows the change, staff tell the applicant that a court order is an option and otherwise issue the passport in the child's original name, even if the new name is already used with the NHS and for Child Benefit.
• Consent is checked. A letter of consent must be dated, signed by hand and posted, not emailed.
• If your status is disputed, you have one month to prove that you hold parental responsibility.

You can also ask the passport office not to issue any passport for your child. If it agrees, it records a caveat and will then not issue or cancel a passport without the correct authorisation. GOV.UK's page on stopping a child's passport is written mainly for fears that a child will be taken abroad, though, and says the passport office will usually stop a passport only with a court order.

What does the school do?#

In England, the Department for Education's guidance says that if one parent asks a school to change the surname a child is known by, the school should not do so without written evidence that the other parent, and anyone else with parental responsibility, has consented, obtained independently of the parent asking. The exception is a name the child has already adopted informally at school, where going back would not be in their best interests: the school then decides, with those interests paramount. Schools are told to stay out of disputes and to point the parent who is unhappy towards the family court, so put your objection in writing. Updating a child's name at school covers Wales and Northern Ireland too.

How do I stop a change before it happens?#

Ask the family court for a prohibited steps order. Section 8 of the Children Act 1989 defines it as an order that a step of a kind it specifies, which a parent could take in meeting their parental responsibility, may not be taken without the court's consent. GOV.UK's example is taking a child abroad; an order can name a change of name instead, and HM Passport Office's guidance notes that the General Register Office checks for such an order when a father's details are added to a birth record.

1. Try to agree first. You will usually need a mediation information and assessment meeting (MIAM) with a mediator accredited by the Family Mediation Council, unless an exemption applies, such as urgency.
2. Apply online or on form C100, for £270, or less with help with fees. One fee covers an application for more than one kind of order, so you can ask at the same time for a specific issue order deciding the name.
3. In an emergency, HMCTS says the court may deal with the application without telling the other parent first.
4. The court decides on your child's welfare, and makes an order only if that is better for the child than no order. GOV.UK says a court order usually takes around 10 months.

What if the change has already happened?#

• A deed poll alone does not settle it. The passport office will not accept a change made without everyone's consent or a court order.
• If a passport was issued without your consent, its guidance treats it as issued in error. The applicant is asked to return it within two weeks, unless a court order consents to the change, and a passport in the old name is issued instead. If they do not respond, it flags the child's record for the next application, and a false declaration is referred for investigation.
• At school, write to say you do not consent, bearing in mind the exception for a name your child has settled into.
• In court, a specific issue order can decide which name your child uses, on the child's welfare as things stand. The Court of Appeal's factors, as the High Court summarised them in 2017, include the registered surname and why it was chosen, the reasons for any earlier change one parent made alone, and changes in the child's life since the birth was registered.

If you are a father without parental responsibility#

Your agreement is not legally required, but you are not shut out:

• As a parent, you can apply for a prohibited steps order or a specific issue order without first asking the court's permission (section 10 of the Children Act 1989).
• You can gain parental responsibility by an agreement with the mother, or by a court order on form C1 for £270. Timing matters: HM Passport Office accepts a change agreed by everyone who held parental responsibility at the time, even if someone gains it later.
• In court, the factors where the parents were not married include the father's commitment to the child, the quality of contact and whether he holds parental responsibility.
• Schools in England treat every biological parent as a parent, married or not, with a right to information such as school reports.

Scotland and Northern Ireland#

In Scotland, the sheriff court or the Court of Session can grant an interdict stopping a specified step, under section 11 of the Children (Scotland) Act 1995. The Children (Northern Ireland) Order 1995 defines a prohibited steps order in the same words as the law in England and Wales. See Scotland and Northern Ireland.

Where to get advice#

This page sets out the rules, not advice on your case. For mediation, use a Family Mediation Council mediator. Legal aid can cover mediation on a low income. GOV.UK's find a legal adviser service lists family solicitors, and the Department for Education points parents to Citizens Advice and Coram Children's Legal Centre.