Can I change my child's surname without my ex-partner's consent?

Posted 12th January 2021

Written by Chris Newton

Before we can answer this question we must also ask whether your ex-partner has Parental Responsibility.

Changing a Child's Surname

Changing your child’s surname is an important decision which can feel quite challenging. If you are changing your child’s surname after divorce, it’s important to seek legal advice from a family law solicitor; they can put your mind at ease and support you throughout this process.

Before we can answer the question “can I change the surname of my child?”, we must discuss whether your ex-partner has parental responsibility.

What is the Meaning of Parental Responsibility?

Parental responsibility means the rights, duties, powers, responsibilities and authority by law a parent has for their child. This involves making important decisions for a child, such as the rights and duties regarding education, choice of religion and medical details. Under Section 3 of the 1989 Children Act, individuals with parental responsibility must home, provide for and protect their child until they are 18 years old.

Who has Parental Responsibility?

Parental responsibility is key when it comes to changing your child’s surname. Parental responsibility can be complicated if the child’s mother and father aren’t amicable; however, it’s recommended both parents put their child’s preference at the forefront.

  1. Mothers

Mothers will automatically have parental responsibility for their child from birth. However, a mother’s parental responsibility can be revoked by an Order, such as an adoption order.

  1. Fathers

A father has parental responsibility if he:

  • Is married to the child’s mother at birth; a divorce will not remove parental responsibility
  • Is listed on the birth certificate from 1st December 2003
  • Gains a parental responsibility agreement through Form C (PRA1) from the child’s mother
  • Gains a parental responsibility order from the Court
  1. Step-parents

Even if you play a key part in the child’s life or have recently married the child’s mother, step-parents do not automatically have parental responsibility. A step-parent can apply for parental responsibility through Form C (PRA2), even if two people already have parental responsibility for the child. If approved, this will grant you with legal responsibility for the child.

  1. Same-sex partners

For same-sex partners, parental responsibility comes down to if you are civil or non-civil partners. If you are in a civil partnership at the time of fertility treatment or donor insemination, then both individuals have parental responsibility. However, non-civil partners will need to apply for a parental responsibility agreement.

If you don’t automatically have parental responsibility, you can apply to the Court for parental responsibility to be granted. However, before any action is taken, seek legal advice.

Can Parental Responsibility be Removed?

Yes, parental responsibility can be removed by Court order in serious circumstances. The removal of parental responsibility usually occurs in situations when the individual is a danger to the child and poses a threat to them through physical, psychological or emotional abuse.  In this circumstance, you should be able to change your child’s surname following a Court order.

Can I Change the Surname of my Child if I have Parental Responsibility?

If you have sole parental responsibility, you will be able to change your child’s name without anyone else’s consent or a Court approval.  You will still need to seek legal advice from a solicitor to make a formal deed to change their name.

Having said this, it is important to note that where an unmarried father has frequent contact with his child and the child’s mother has sole parental responsibility the father may, in certain circumstances, be able to reverse the name change.

Can I Change my Child’s Surname after Divorce if the Other Parent has Parental Responsibility?

A divorce doesn’t remove parental responsibility. Therefore, you will need to obtain the permission of those with parental responsibility to change your child’s name.

If they consent to the change of forename or surname, the consent must be provided in writing so that the necessary documentation can be drafted.

However, if the other parent does not consent to the name change, you would need to apply to the Court for permission to change your child’s name. The Court would then decide whether it was in your child’s best interests for the change of name to take place.

Can I Change the Surname of my Child if the Person with Parental Responsibility is Absent?

In certain situations, parental responsibility can be removed by Court order for a child’s surname to be changed without consent from an absent parent. For example, if the child’s father has been absent from the child’s life for numerous years, parental responsibility can be removed to change the child’s surname.

In this example, the absent father’s location must be unknown. They mustn’t have contributed financially in recent years, and the child’s mother must have tried to contact the father multiple times without success.

How to Change the Surname of a Child?

The process for changing the surname of a child is by deed poll. If your child is under the age of 18, those with parental responsibility must agree to the change in surname. A Court order will be required to enrol the change in surname at the Royal Courts of Justice and to notify The Gazette. If your child is 16 or 17 years old, they have the choice to allow those with parental responsibility to change their name for them or follow the un-enrolled deed poll process themselves.

If you wish to discuss changing your child’s name after a divorce or if you believe your ex-partner has changed your child’s surname, please contact the family team at Newtons Solicitors for specialist legal advice.  We offer a first-class approach to child law, understanding that it can be a difficult and upsetting time.