In Scotland, an adult can take any name he or she chooses. By custom, for example, a married woman often takes the name of her husband.
But a recent case explored the complexities of the legal position. Here there was a dispute between a couple, who were not married and had separated, about their two small children’s surname.
The court drew a distinction between the registered name of the children — the one shown in the birth certificate — and the name by which the children were known, which was not always the same.
Registering a name
Registering a child’s name for the purposes of the certificate is of course compulsory.
But by agreement, parents could choose to call their children by a different name on a day-to-day basis: the name by which they were known. However, how do you resolve matters if parents can’t agree on which surname should be used?
Ultimately, a name can be very important.
Medical records, for example, might be missed if the wrong surname is searched for.
It would be important too when a child is at school for them to know the name they should use, and what to be called by their teachers. Using different names at different times or on different occasions can lead to confusion, upset and uncertainty for youngsters.
Responsibilities and rights
Parents have responsibilities as well as rights in respect of their children.
These legal rights and responsibilities cover a range of matters including their children’s personal development and the requirement to provide guidance for them.
On the one hand, the legislation provides that if both parents each have parental rights and responsibilities they can exercise those without the consent of the other. But on the other, it also stipulates that if there is any major decision, parents should each have regard (so far as practicable) to the views of their child, depending on age and maturity...and also to one another.
A surname conjures up issues of heritage and identity; a sense of belonging; a link to siblings or other relations. It can therefore be seen as matter of welfare.
As well as the practical issues of knowing what the child’s name is for medical reasons, educational purposes and so on, changing a name by which a child is known (even if the birth registered name remains on the certificate) would normally be a major decision which would involve consulting with the other parent, and possibly the child themselves.
So, if agreement cannot be reached between the parents, what then?
Parents can apply to the court to take the decision.
The law allows the court to deal with specific questions which could include the change in name by which a child is known, and make what’s called a specific issue order.
In deciding the issue, the court would take into account all the facts of the case: the parties’ relationship with the children; the use to date of the name; the child’s views (if appropriate) and so on. The welfare of the child is its paramount consideration.
Although it won’t work for everyone, one option for separated parents, and the one the sheriff felt was an appropriate resolution in the case mentioned above, was to have the children use both surnames at the same time — a double barrelled name — giving them a link to both parents; at least until they turn 16.
Then they can choose their name themselves.
