Annex A - Children's change of name policy questions and answers

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1 Children's Change of Name England, Wales and Northern Ireland Scotland Re-registration of birth where a name has changed Annex A - Children's change of name policy questions and answers Annex B Standard response when an applicant is challenging our need for parental consent to a change of name for a child under 16 Please also see Children and Names. England, Wales and Northern Ireland Where the child s name is different to that shown on their birth certificate, documentary evidence of the change of name is required. Documents should be the original, a certified copy, or a photocopy that has been certified as a true copy by a responsible person. The evidence required is the same as that needed for an adult s change of name. That is: Enrolled deed poll Unenrolled deed poll Statutory Declaration / Affidavit Adoption order/certificate Certificate from the Court of the Lord Lyon of Scotland Certificate of record at the College of Arms Act of Parliament Certificate of naturalisation/registration Re-registered Birth Certificate Further details of these documents can be found in the Names policy. As a result of case law, a change of name deed, or deed poll changing a child s name will only be valid on the basis that all those with parental responsibility have consented, or a Court Order has been obtained to allow the change. The policy is based on the judgement in the Re P case. Re P found that a child s change of surname is fundamental and that no official body should allow a child to be known by a new name without the consent of every person with parental responsibility. (For changes of forename see paragraphs 1.15 and For 16 and 17 year olds, see paragraph 1.17.) When considering a child s change of name, examiners need to consider Who has parental responsibility Are there any court or custody orders existing for the child (including a parental responsibility order)

2 For information on Court Orders, Residence Orders, Special Guardianship Orders and other similar documents relating to parental responsibility, please see the Children page. Where a child is the subject of a current court order, including a care order, custodianship order, parental responsibility order or residence order made by a court in England and Wales or Northern Ireland the child's name cannot be changed without the written agreement of every person who has parental responsibility for the child, or by leave of the court as long as the court order remains valid. If such agreement has not been obtained the applicant should be advised to seek legal advice. The written consent must be submitted with the application. Where a child who is not subject to a Court Order has changed their surname, the Court of Appeal in May 1998 clarified the procedure to be adopted for changing the surname. It concluded that the change of a child's surname is fundamental and, in any case of dispute where both parents have parental responsibility, either the consent of both parents or a court order is necessary. IPS is not in a position to establish whether or not the child s change of name is a result of a dispute. Therefore, if the name of a child has been changed and the child is resident in England, Wales or Northern Ireland, and is not subject to a court order, we still need to be satisfied that the consent of everyone with parental responsibility has been given to the change of name. This can be established in two ways. The written consent from both parents may be submitted. Alternatively, a Statutory Declaration made by the person consenting to passport facilities is required, confirming that every person with parental responsibility is aware of, and consents to, the change of name. A statutory declaration is a short statement in a prescribed form, which has to be signed in front of a solicitor or notary. It is quite straightforward but falsely swearing a statutory declaration is a criminal offence and carried a penalty of up to two years in prison and/or fine, so it can be a strong deterrent. In all cases if the consent is not available, a court order specifically authorising the change of name will be acceptable. A Specific Issue Order under Section 8 of the Children Act 1989 is preferable, but any order that deals with the issue of permitting the change of name will be acceptable. The Specific Issue Order will give permission for a child s name to be changed in the absence of permission from everyone with parental responsibility; it doesn t usually change the name on its own. That means we would normally ask for a change of name deed or statutory declaration, in addition to the court order giving permission to change the child s name. However, if we have a court order that directs that the child is to be called by a specific name, then we cannot go against the court order and would have to issue in the name as directed by the court, irrespective of whether we have the change of name deed or not. The evidence of change of name, written consent (including the Statutory Declaration), or Court Order relating to the change of name should be scanned by Steria after issue, and the application case noted.

3 There are occasions when an unmarried mother will have changed a child s name by deed poll and the father has subsequently obtained a parental responsibility order. In these circumstances, legal advice has been that at the time the change of name deed was executed, the mother was the only one with parental responsibility and therefore we should accept the change of name as valid. A father who has gained parental responsibility following the official change of name, and who subsequently objects or applies for a passport in the original name, should be advised that we will be unable to proceed with the application with out the consent of the mother to the change of name. Alternatively he can obtain a Specific Issue Order changing the child s name. As previously mentioned, the Children s Act 1989, gives parental responsibility to both parents where they were married at the time of the child s birth. A number of enquiries have been made from mothers who have subsequently found her husband (or ex-husband) is not the biological father through DNA testing. Particular care should be taken when dealing with these cases. Our legal advice is that the person named on the birth certificate as the father should be presumed to have parental responsibility unless: (i) the court makes a declaration of parentage, (ii) he himself acknowledges that he is not the father, or (iii) clear evidence is produced that he accepts he is not the father. We will therefore require the consent of the registered father as well as the biological father if the mother subsequently divorces and then marries the biological parent to any change of name. Where the child s birth was registered, or re-registered after the introduction of the Children and Adoption Act 2002, the father will still have parental responsibility even if it is later established that he is not the biological father (see the Children page). When the person applying for a change of name for a child under 16 challenges our policy in regards to requiring the consent of all other parties who hold Parental Responsibility, a standard response drawn up by the Policy Department can be sent (see Annex B). It should be noted that the reply may need to be tailored to suit and is for guidance. All such cases should be referred to your line manager for approval before sending to relevant person. An enrolled Deed Poll is made in accordance with the Enrolment of Deeds (change of name) Regulations 1994 which require the application to be supported either by the consent of every person with parental responsibility, or if not, require reasons to be given why the consents cannot be obtained. The Judge will have to take into account any lack of parental consent in making a decision to proceed with the change of name. In view of this, such Deed Polls may be accepted for a child s change of name once the document has clearly been enrolled through the Supreme Court. Where the applicant is unable to produce either the consent of everyone with parental responsibility or a Specific Issue Order agreeing the change of name, the passport may be issued in the original name. No mention of the new name should be included in the passport.

4 The case law Re P deals with children s change of surname only. In these circumstances we should ask for evidence that everyone with parental responsibility has agreed to the change of names, and, in the absence of written consent from both parents a statutory declaration must be obtained confirming that both parents are aware of and have agreed the change of name. Where it is clear from the evidence produced that only one person with parental responsibility exists only their consent is required. Where an application is received and the child s forenames have been altered, for example by a different spelling (Lesley instead of Leslie), the order of the names changed to those shown on the birth certificate (John Robert instead of Robert John) or a forename being dropped or added, the passport should be issued as shown on the birth certificate (or previous passport), unless documentary evidence of the forename change has been produced in the form of a Deed Poll, Statutory Declaration, Naming certificate or Baptismal certificate. In the cases of minor changes of spelling we do not need the consent of everyone with parental responsibility. However if the forename has been completely changed then we will require that consent. Young people are legally entitled to execute a Deed Poll from the age of 16 years, and as a result are able to change their name without parental consent unless there is a court order still in force that forbids the change of name. Where an application is submitted with a Deed Poll or Statutory Declaration made by the parent, Re P should be applied. However, where the young person has changed their own name we may accept this. The application must be case noted to confirm deed poll completed by the 16/17 year old. Legally the decision to change their name is their own and there will in general not be good reason why the wishes of someone with parental responsibility should override the wishes of the 16 year old unless there are exceptional factors that need consideration. If someone with parental responsibility simply just does not want the child to change their name, this should not be considered as an exceptional factor. From 1 September 2009, the Children and Young Persons Act 2008 amended the Children Act 1989 so that a residence order, unlike other court orders granted under Section 8, will last until the child reaches 18 unless the courts direct the order should end earlier, or another order is made discharging the residence order before that date. As a result of this change, where a residence order is issued on or after 1 September 2009, consent to the change of name from everyone with parental responsibility will be required until the child reaches 18. Consent to the name change is also required when a Special Guardianship order is in force and when a Care Order under section 31 Children Act is granted. (See 1.4 that indicates consent is required as long as the order remains valid). Examiners will need to take particular care when giving out advice for young people subject to court orders who wish to change their name. Examiners should take care to ensure that a child s previous name has been checked on the system when dealing with these cases.

5 Where we need the consent of both parents to the change of name, and the applicant informs us that the other parent with parental responsibility has died, a statement confirming the facts of the matter, that there are no Court Orders existing, together with the full birth certificate, evidence of the child s change of name and parent s death certificate to back up the statement will be acceptable. If someone caring for a child informs us that the parent with parental responsibility has died and that the other parent does not have parental responsibility (or both parents have died) then, if we are satisfied with the documentary evidence produced that there is no one existing with parental responsibility for the child who could object to the change of name, we can accept a formal change of name made by the person who has care of the child (acting in loco parentis/the local authority). Where a passport has been issued incorrectly in the new name either because we did not make the necessary checks to establish that there was more than one person with parental responsibility, or because the applicant made a false declaration, we should attempt to reclaim the passport. The problem usually comes to light following a written complaint from the other parent. Customer Service staff need to establish whether a false statutory declaration was made, if both parents consent was given, or whether the application was not dealt with correctly. In cases where the statutory declaration confirms the other parent gave consent, and they dispute this, we require written confirmation from the parent objecting that this was not in fact the case. The file should then be referred to FIU with a view to taking legal action for a false declaration. Similar procedures should be taken when the other parent indicates that the written consent scanned on the form is not theirs. This action does not mean we should not attempt to reclaim the passport. Where an error was made during the examiner stage, Customer Service staff will need to write to the applicant explaining that a mistake was made at the time of issue and, as the passport remains the property of IPS it should be forwarded to us. The reason for the error should be explained and that a new passport in the birth names, valid until the expiry date of the original, will be issued unless there is a Specific Issues Order authorising the change of name. A new application form and pre-paid label should be enclosed together with confirmation we will reimburse the costs of additional photographs. Three attempts should be made to obtain the passport and the last letter should be sent by registered mail. It should include an explanation of what our next action will be if the letter is ignored. In areas where Secure Delivery signatures are mandatory, the letter can be sent by Secure Delivery. If the passport is still not forthcoming we should advise the complainant that we have done all that we can to retrieve the passport but that we are not an enforcement agency and cannot compel the return of the passport. The child s name should be entered on our Stop File browse to resolve the matter once the passport is returned for renewal and the passport should be cancelled on the system. Both parents should be advised of our action.

6 Where it is clear from the documents and the information provided that only the one person has parental responsibility, we need only the consent from that person. Scotland If the surname of a child has been changed and the child is resident in Scotland, then, in addition to the normal evidence of the change of name as detailed in 1.1 above, we will need a statement from the person who gave consent confirming that everyone with parental responsibility and rights, have as far as practical, been consulted and their views taken into account before the child s name was changed. Re-registration of birth where a name has changed Please see Birth Certificates for details of changing a name through reregistration of birth. Annex A - Children's change of name policy questions and answers 1) When dealing with a child renewal if we know the child s name is not the same as at birth, do we issue like for like or do we make further investigation? Re P should be applied on all first time applications. On a renewal, we are simply re-issuing in a name that is already in use, and we have the confidence that nobody has challenged our action of 5 years (or whatever time frame) previously. 2) If the Change of Name Deed states that the father s consent has been given, can we accept that or do we still need a Statutory Declaration? If the father s consent is included on the Change of Name document we may accept this, where the consent has not been included we will need to see it or request a statutory declaration confirming father s consent. 3) Statutory Declaration for a Change of Name for Children, will this information be provided in the Information notes? No the information is quite complex and there is limited space on the Information Leaflet. The current advice is that parents should contact our Adviceline for further information. 4) There is confusion when the parents are still married and we only need the consent of one parent to the child s change of name. Wouldn t it be easier to just ask for both consents in all cases?

7 We should request the consent from both parents in all cases, or a statutory declaration from one person confirming that everyone with parental responsibility agrees the change of name. Unless of course one of the parents are deceased, in which case we will need to see a copy of the death certificate. 5) If we can accept a Deed Poll made by a 16 or 17 year old, can we accept a deed poll made by a parent prior to the child s 16 th birthday provided the child is now over 16? No Young people are legally entitled to execute a Deed Poll from the age of 16 years, and as a result are able to change their name without obtaining parental consent. Where an application is submitted with a Deed Poll or Statutory Declaration made by the parent we should always consider the Re P ruling and request confirmation that everyone with parental responsibility is aware of and has not objected to the change of name. However, where the young person has changed his or her own name we may accept this. 6) Can a person acting in loco parentis change a child s name? Following clarification, public organisations must be satisfied that everyone with parental responsibility has agreed to the child s change of name. If we are satisfied with the documentary evidence produced that there is no one existing with parental responsibility for the child who could object to the change of name, we can accept a formal change of name made by the person who has care of the child (acting in loco parentis in this case). Examiners will need to be satisfied that the parents are deceased or if only the mother is deceased, that the father, if known does not have parental responsibility or has not obtained a parental responsibility order/agreement. 7) Can a child s change of name be accepted without the father s consent if the mother provides evidence that the father named on the full birth certificate is not the father? Our legal advice is that the person named on the birth certificate as the father should be presumed to have parental responsibility unless, (i) the court makes a declaration of parentage, (ii) he himself acknowledges that he is not the father, or (iii) clear evidence is produced that he accepts he is not the father. We will therefore require the consent of the registered father as well as the biological father if the mother subsequently divorces and then marries the biological parent to any change of name It should also be noted that under the Adoption and Children Act, where the child is born in England and Wales, the father will gain parental responsibility once his name has been jointly registered on the birth certificate after 30 November 2003 (including re-registrations), and even if the father s name is then officially deleted from the birth certificate by the Registrar, the father will not lose his parental responsibility. This will be evident by the notation on the

8 certificate. The legislation is similar in Northern Ireland and parental responsibility once gained can only be lost through a court order. 8) Do we need the consent of both parents to the child s change of name if they both have parental responsibility and are resident in Scotland? The law is Scotland is slightly different and there is no equivalent requirement under Scottish law to obtain the consent of everyone with parental responsibility. When the child is resident in Scotland, they will need to provide the normal evidence of the change of name (i.e. change of name deed or statutory declaration). In addition the person who provided consent will need to confirm that where practical, everyone with parental responsibility and rights have been consulted, and their views taken into account before the name was changed. Annex B Standard response when an applicant is challenging our need for parental consent to a change of name for a child under 16 A British passport is issued to a minor with the consent of a parent or guardian with parental responsibility for the child. Where both parents have parental responsibility, regardless of whether they are living together or not, a passport will be issued to whichever parent applies unless an objection has been raised by one of them. However care must be taken to issue the passport in the correct name, particularly in view of the risk of child abduction. The requirements for changing a child s surname when more than one person has parental responsibility were considered by the Court of Appeal in the case Re P (1997) 2 FLR 730, from which the Identity and Passport Service policy is derived. This case concerned the issue of whether a County Council was obliged to recognise a change of surname for three children when presented with a signed deed poll evidencing the change, but where someone who also has parental responsibility for the children (in this case, the father) has not consented to the change. The conclusion of the court was that the change of a child s surname is fundamental and in any situation of dispute, where both parents have parental responsibility, either the consent of both parents or a court order is necessary. In 1998 the Passport Agency amended its policy to reflect this clarification in the law. It is now necessary for any parent submitting an application for a child in a different name to that shown on the birth certificate, to confirm by statutory declaration that any other person who has parental responsibility for the child has consented to the change of name from that shown on the birth certificate, or to submit a court order allowing the change. This court order might take the form of a specific issue order under section 8 of the Children Act 1989 but any other court order will suffice if it addresses the issue of the

9 child s name. An order enrolling a deed poll, for example, will be acceptable as it will have had to have been made in accordance with the Enrolment of Deeds (Change of Name) Regulations 1994 which require the application to be supported either by the consent of all persons with parental responsibility or failing that, requiring reasons to be given. This pre-supposes, therefore, that the judge enrolling the deed has done so taking into account the fact that one of the persons with parental responsibility may not have consented and has nonetheless, ordered the change of name to be enrolled. The Identity and Passport Service is not in a position to decide whether or not there may be a dispute over a child s change of surname and must apply this ruling impartially. I have previously confirmed with our legal advisors that our interpretation is correct and I am unable to comply with your request that it will be in order for your client to apply for passports in the children s new name without the confirmation or court order required.