C (Children)

This is an appeal by the Appellant (mother) from an order made by His Honour Judge Sharpe at the Swansea Family Court on 25 June 2015.

The issue to be determined is whether there is power in this jurisdiction to prevent a parent with parental responsibility from registering a child with the forename of his or her choice. If the answer to that question is ‘Yes’, the second question (and one which rather unexpectedly requires a detailed consideration of somewhat labyrinthine technicalities) is by what procedural route the court should exercise that power.

For reasons set out below I am entirely satisfied that the court has such a power. I am equally satisfied that it is a power which should be used only in the most extreme cases and only with the sanction of a High Court Judge. Due to the delay which had occurred prior to the hearing of the appeal, the parties were informed of the decision of the court at the conclusion of oral submissions with reasons to follow.

The mother was born on 12 July 1985 and is 30 years old. The twins, the subjects of this appeal (a boy and a girl) were born on 14 May 2015 (8 months). The children were said to have been conceived as a result of rape and there is no known respondent father.

The mother has a long standing diagnosis of a psychotic disorder and of schizophrenia of an “undifferentiated type with an underlying personality disorder”. She does not accept this diagnosis and has been unable to comply with her treatment.

On 10 May 2013, the mother’s three older children A (d.o.b: 12 February 2005); T (d.o.b: 30 November 2006); and L (d.o.b: 7 September 2011) were made the subject of care orders. In those first care proceedings, the local authority concerns related to the mother’s mental health difficulties which had seriously impacted upon her ability to care for her children. Her parenting capacity was further impaired by drug and alcohol misuse, chaotic home conditions, abusive male relationships and an inability to work with professionals in an ‘open, honest and consistent manner’.

A and T now live with long term foster carers. L lives with a family member under a special guardianship order.

The mother’s mental health continued to deteriorate following the conclusion of the first care proceedings. When it became known that the mother was pregnant there were, inevitably, considerable concerns about the mother’s ability to care for the unborn twins and the local authority therefore issued care proceedings the day after their birth. An interim care order was made on 18 May 2015, and the local authority’s interim care plan, to place the children in foster care until long term plans were formulated, was approved. A capacity assessment concluded that, notwithstanding her mental health difficulties, the mother had capacity to litigate.

Meanwhile, on 15 May 2015, the midwife at the hospital where the mother had given birth to the children, contacted the local authority to tell them of her concern that the mother was proposing to name the children respectively “Preacher” (for the boy) and “Cyanide” (for the girl). The local authority were equally troubled about this proposal and brought it to the court’s attention at the interim care order hearing.

In the days following the birth of the twins, the local authority quite rightly decided that, rather than issue an application in relation to the proposed names of the children, they would attempt to work with the mother and encourage her to choose names other than the ones identified to the midwife.

On 22 May 2015 there was a case management hearing before Her Honour Judge Garland-Thomas. At that hearing the mother gave an undertaking that she would not to register the birth of the children until the naming issue was resolved. The local authority indicated that in the event that the mother’s position regarding the names remained unchanged, it was considering making an application to the court to invoke its inherent jurisdiction under section 100 Children Act 1989 (‘CA 1989’). During the course of the next few weeks, further efforts were made to discuss with the mother the appropriateness of the names she had chosen. At a LAC review (Looked After Children Review) on 8 June 2015, the mother said that she had chosen the name “Cyanide” because “this is how Hitler killed himself”. The mother remained determined that the children should be called “Preacher” and “Cyanide” and accordingly, the case was transferred to the High Court for consideration of an application made by the local authority to invoke the inherent jurisdiction of the court under s100 CA 1989.

The matter came on before His Honour Judge Sharpe sitting as a deputy high court judge on 19 June 2015 when the babies were 5 weeks old. All parties were represented by counsel and the judge had the benefit of skeleton arguments and detailed oral submissions. In preparation for the hearing the mother filed a statement setting out her position and her reasons for wishing to call the children by her chosen names:

“6.

I confirm that I believe it is my right to name the children the names that I have chosen as their mother and I believe it is my human right to exercise my right to choose their names and register my children’s names without the interference of the local authority.

7.

I confirm that I have chosen Preacher for my boy child as it is a strong spiritual name. It is a name that suggests proclamation and advocacy and being able to communicate with a wide community.

8.

I also consider that Preacher is a rather cool name which will stand my son well for the future and I do not consider that it will impact on his development, emotionally, physically or mentally.

9.

I confirm that I have chosen the name Cyanide as I believe that it is a lovely pretty name.

10.

I further confirm that the name is linked with flowers and plants, that elderberry, hydrangea, cherry laurel and roses all have compounds of Cyanide found in the leaves and the fruits.

11.

I believe that Cyanide will be a strong name that will stand my daughter well for the future and that I believe that it is a poison that has been used since the ancient Egyptians and it is derived from the Greek meaning dark blue.

12.

I also consider that Cyanide was responsible for killing Hitler and Goebbels and I consider that this was a good thing and therefore Cyanide can be considered as a positive name, reflecting positive action that destroyed very bad people in the war.

13.

I do not accept that it will have an adverse impact on my daughter during her formative years or later in her life.”

The judge, having heard submissions, adjourned the case for judgment to be given on 25 June 2015. Unsurprisingly, given the novelty of the point, HHJ Sharpe had not had time to prepare a final judgment by 25 June 2015. Instead, he announced his decision and indicated that his detailed judgment would be handed down later. The judgment was not handed down until 10 September 2015 which delayed the ability of the mother to appeal the judge’s decision.

Unfortunately as a consequence of the delay in handing down judgment, the twins had, until the conclusion of the appeal hearing, no names. Their foster carers called them “Harry” and “Annie” some of the time, but largely they have been called by terms of endearment in the absence of a final decision. In October 2015 the twins moved permanently to live with the foster family with whom their two eldest half siblings live. AC and TC have chosen names which they would like their brother and sister to be called (in the event that they are not to be called “Preacher” and “Cyanide”).

By his order the judge:

The judge, in reaching his decision that the mother should not be allowed to call the children “Preacher” and “Cyanide”, held that the local authority had wrongly sought to invoke the inherent jurisdiction under section 100 CA 1989, a jurisdictional route which he found was not open to the court. The judge preferred a statutory jurisdictional route and held that:

Having decided that the court had the power to prevent the mother from naming the children “Preacher” and “Cyanide”, the court made an injunction pursuant to section 37, Senior Courts Act 1981 (SCA 1981) preventing her from registering the children’s birth using the names “Preacher” or “Cyanide”.

The mother sought permission to appeal the decision of HHJ Sharpe immediately upon receipt of the sealed order on 6 October 2015. Permission to appeal was granted on 30 October 2015 and the appeal was heard and dismissed on 16 December 2015.

Of the original five grounds of appeal, the mother pursued four:

By a Respondent’s Notice dated 16 November 2015, the local authority sought to uphold the decision of the judge for different reasons including that the judge was wrong in concluding that the court could not properly invoke the inherent jurisdiction as a means of resolving the issue before the court.

The route through the legislative maze is best summarised before the individual components are examined and the outcome stress-tested against, what is acknowledged, would be a significant interference in the ECHR, Art 8 rights of a parent to respect for his or her private and family life in the event that a court prevented her from giving her child the name of her choice.

The legal route seems to me to necessitate the consideration of the following questions:

Before looking at the terms of BDRA 1953 it is useful to have in mind the definition of parental responsibility as set out in section 3 CA 1989:

“3 Meaning of “parental responsibility”.E+W

(1)

In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

In Re H-B (Contact) [2015] EWCA Civ 389, the President of the Family Division, Sir James Munby P, quoted with approval the judgment of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999 in which he said the following about parental responsibility:

“[72] I wish to emphasise this, parental responsibility is more, much more than a mere lawyer’s concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child.”

The local authority’s case is that it is unarguable that the naming of a child is not an act of parental responsibility. Ms Skellorn QC, on behalf of the mother, argues equally forcefully that the registration of the birth and of a child is a statutory duty imposed by the BDRA 1953 and therefore any concept of parental responsibility is of no relevance to the obligation of a parent to comply with that statutory duty. The concept of registration is, she submits ‘parenthood’ not ‘parental responsibility’. It follows she submits that the naming of a child preparatory to registering its birth is not an act of parental responsibility as it is an act which does not, of itself, require legal parental responsibility.

In order to resolve this fundamental dispute between the parties it is necessary to consider the provisions of BDRA 1953.

The purpose of the BDRA 1953 is to create a document of public record evidencing all births and deaths in England and Wales.

The BDRA 1953 sets out the following requirements in relation to the registration of the birth of a child:

Section 1(1) BDRA 1953 provides:

“Subject to the provisions of this Part of the Act, the birth of every child born in England and Wales shall be registered by the registrar of births and deaths….by entering in a register kept for that sub-district such particulars concerning the birth as may be prescribed.”

The particulars to which section 1 BDRA 1953 refers are found in the Births and Deaths Act Regulations 1987 (‘the Regulations’). Regulation 7(1) provides:

“7(1) The particulars concerning a live birth required to be registered pursuant to section 1(1) of the Act shall, subject to the provisions of these Regulations, be those required in spaces 1 – 13 in form 1”.

Of the particulars found in spaces 1 – 13 of Form 1 only the first three relate specifically to the child whose birth is to be registered:

Also material is Regulation 9(3) of the Regulations:

“r.9(3) With respect to space 2 (name and surname) –

(a)

if the name is not given, the registrar shall enter only the surname, preceded by a horizontal line;

(b)

the surname to be entered shall be the surname by which at the date of the registration of the birth it is intended that the child shall be known.”

Critically it can be seen that there is no absolute requirement under the Regulations to register a ‘name’ (i.e. a forename). Provision is however made in section 13 BDRA 1953 for the registration of a forename following a delay of up to twelve months or for the alteration of a name during the same period of time:

“13 Registration of name of child or of alteration of nameE+W

(1)Where, before the expiration of twelve months from the date of the registration of the birth of any child, the name by which it was registered is altered or, if it was registered without a name, a name is given to the child, the registrar or superintendent registrar having the custody of the register in which the birth was registered, upon delivery to him at any time of a certificate in the prescribed form signed—

(a)if the name was altered or given in baptism, either by the person who performed the rite of baptism or by the person who has the custody of the register, if any, in which the baptism is recorded, or

(b)if a name has not been given to the child in baptism, by the father, mother or guardian of the child or other person procuring the name of the child to be altered or given, shall, without any erasure of the original entry, forthwith enter in the register the name mentioned in the certificate as having been given to the child.”

In relation to forenames it should be noted that:

Section 1(2) BDRA 1953 sets out who is qualified to provide the necessary information to the Registrar; these people are known as “qualified informants”:

“(2)

The following persons shall be qualified to give information concerning a birth that is to say-

(a)

the father and mother of a child;

(b)

the occupier of the house in which the child was to the knowledge of the occupier born;

(c)

any person present at the birth;

(d)

any person having charge of the child.”

The timescales for the provision of information are found in Sections 2, 3 and 6 of the BDRA 1953. Section 2(1) provides that:

“(i)

In the case of every birth it shall be the duty – (my emphasis)

(a)

of the father and mother of the child: and

(b)

in the case of death or inability of the father or mother, of each other qualified informant,

to give the registrar, before the expiration of a period of forty-two days from the date of birth, information of the particulars required to be registered concerning the birth, and in the presence of the registrar to sign the register:

Provided that-

(i)

the giving of information and the signing of the register by any one qualified informant shall act as a discharge of any duty under this section of every other qualified informant;

Section 4 BDRA 1953 provides that where, after the expiration of forty-two days, ‘the birth of the child has, owing to the default of the persons required to give information concerning it, not been registered…’, the Registrar can require any qualified informant to attend at a place appointed by the Registrar to give the required information and to sign the register in the presence of the registrar. (Section 6 BDRA 1953 makes a similar provision for circumstances in which, for whatever reason, the birth of a child has not been registered after three months but before the expiry of twelve months post birth).

Ms. Skellorn QC submits that the effect of section 2(1) BDRA 1953, is that it is only after the prescribed 42 days has elapsed, that a qualified informant (other qualified informants), other than a mother, married father or qualified informant pursuant to section 2(1)(i)(a) BDRA 1953, is permitted to register the birth of a child. In support of her submission, she suggests by way of example, how distressing and inappropriate it would be if a domineering grandmother with whom the parents lived took it upon herself to register the birth. Ms Henke QC, on behalf of the local authority, countered the argument by referring to circumstances where, for example, a baby is required to remain in intensive care for a protracted period of time, and the parents, not wishing to leave the baby, request a different qualified informant, perhaps the very same grandmother, to register the birth.

It is not necessary to decide the point for the purposes of this appeal, and I therefore (particularly in the absence of focused argument) do not express a view as to whether there is, as Ms Skellorn puts it, a ‘roving power’ under which other qualified informants may register a birth within the 42 day period. For the purposes of this appeal the important point is, in my judgment, that the mother and father are under a duty to register the birth.

One of the first questions asked by friends and relatives following the birth of a child is ‘what is the baby’s name?’ It may be thought that any individual who has had the happy experience of debating with his or her partner possible forenames for their unborn child would be astonished at the proposition that the choice of the name of their child could be regarded as other than their right as the child’s parents, and their first act of parental responsibility. The name given to a child ordinarily evolves over the months of the pregnancy through a bundle of cultural, familial and taste influences. The forename finally chosen forms a critical part of his or her evolving identity. The sharing of a forename with a parent or grandparent or bearing a forename which readily identifies a child as belonging to his or her particular religious or cultural background, can be a source of great pride to a child and give him or her an important sense of ‘belonging’ which will be invaluable throughout his or her life.

If a baby cannot be brought up by his or her parents, often the forename given to him or her by their mother is the only lasting gift they have from her. It may be the first, and only, act of parental responsibility by his or her mother. It is likely, therefore, to be of infinite value to that child as part of his or her identity. That remains the case, even if the name used in his or her new family and thereafter throughout their lives, is different from that given to him or her by their birth mother.

The naming of a child is not however merely a right or privilege, but also a responsibility; people, and particularly children, are capable of great unkindness and often are not accepting of the unusual or bizarre. It does not need expert evidence or academic research to appreciate that a name which attracts ridicule, teasing, bullying or embarrassment will have a deleterious effect on a child’s self-esteem and self-confidence with potentially long term consequences for him or her. The burden of such a name can also cause that child to feel considerable resentment towards the parent who inflicted it upon him or her.

The judge recognised both the importance of a forename, and the fact that, ordinarily a choice of name for a child, even one which many would regard as outlandish, would not provide a reason for the interference by the state in private family life. The judge said:

“A name is a direct link with the parent who chose the name……A name is also a badge of association, sometimes reflecting cultural identity, nationality, tribal heritage or religion. Above all a name is a gift a parent gives to a child, reflective of personal wishes and traditionally unconstrained in its choosing by legal restriction.

Notwithstanding the above it is not unknown to those working in the Family Court to encounter children whose parents have chosen to give them forenames which can most kindly be described as unusual, idiosyncratic or even eccentric bordering on the bizarre and more accurately be regarded as an act of parental selfishness or thoughtlessness and wholly lacking in consideration of the impact upon the child.

The choice of such names may well be reflective of a general failure to adopt a child centred approach to their responsibilities in meeting the child’s welfare but in my experience that choice of name has never been in of itself a reason for the involvement of the state in private family life.”

The judge went on to consider how taste and perception can change and that a name which “is considered by a child to be an embarrassment at one age on account of it being different or unusual may well, as they get older and begin to assert their individuality, become a badge of pride for those very same reasons.”

The judge correctly identified the important issue in the context of the care proceedings before him as being “the extent to which the local authority can or should exercise its shared responsibility in order to determine the name that a child in their care should be given…”.

For many years the importance of a child’s surname has been recognised both in statute and in case law. Limitations have accordingly been placed on the freedom of those with parental responsibility to change a child’s surname without either the consent of every person with parental responsibility or the leave of the court (section 13 CA 1989). The mirror provision in relation to a child is in care found at section 33(7) CA 1989:

“33(7) While a care order is in force with respect to a child, no person may—

(a)

cause the child to be known by a new surname; or

(b)

…..,

without either the written consent of every person who has parental responsibility for the child or the leave of the court.”

In the leading private law case of Dawson v Wearmouth [1999] 2 WLR 960; [1999] 1FLR 1167, the House of Lords held that an order for a change of surname ought not to be made unless there was some evidence that this would lead to an improvement from the point of view of the child’s welfare having applied the paramountcy principle in section 1 CA 1989. Subsequently in Re W, Re A and Re B (Change of Name) [1999] 2 FLR 930, the Court of Appeal identified a number of factors which should be considered when deciding whether a change of surname is in the best interests of a child. Those factors included consideration of the registered surname. It was emphasised that registration, whilst relevant, is not decisive.

In contrast to surnames, ‘given’ names or ‘forenames’ have not, until relatively recently, been regarded as carrying the same level of importance to a child as his or her surname. In Re H (Child’s Name: First Name) [2002] EWCA Civ 190; [2002] 1 FLR 1989 Thorpe LJ said:

“[13] There are a number of points which should be made. The first is that none of the authorities that guide the court in determining disputes as to the surname by which a child should be known seems to be of any application to a dispute of this sort. The surname by which a child is registered and known is of particular significance insofar as it denotes the family to which the child belongs.

[14] Given names have a much less concrete character. It is commonplace for a child to receive statutory registration with one or more given names and, subsequently, to receive different given names, maybe at baptism or, maybe, by custom and adoption. During the course of family life, as a child develops personality and individuality, parents or other members of the family, may be attracted to some nickname or some alternative given name which will then adhere, possibly for the rest of the child's life, or possibly only until the child's individuality and maturity allow it to make a choice for itself as to the name by which he or she wishes to be known.

[18] If issues such as this arise, it seems to me that judges must look in a worldly, common-sense way at what is likely to be best for the child and must not place too much emphasis upon the statutory process of registration.”

In Re D, L and LA (Care: Change of Forename) [2003] 1 FLR 339, a case heard several months later, Butler-Sloss LJ (as she then was) took a somewhat different view. Butler-Sloss LJ said that the principles to be applied are the same regardless of whether a proposed name change relates to a forename or a surname; at 346 she said:

“To change a child's name is to take a significant step in a child's life. Forename or surname, it seems to me, the principles are the same, in general. A child has roots. A child has names given to him or her by parents. The child has a right to those names and retains that right, as indeed, the parents have rights to retention of the name of the child which they chose. Those rights should not be set to one side, other than for good reasons. It may be that foster parents do not appreciate the underlying importance for the child of a name, and it is significant. You would not, for instance, be likely to change the forename of a child of 7, 8 or 9, I suggest even, 5, 6 or 7, because by that time the child has made that name part of his or her identity and very young children know what their names are. You ask a very young child ‘what's your name?', and they will certainly be able to give you the name he or she is called by. To change that is to affect the child's identity. The right of the child and both parents to respect for that part of family life still exists, even though the child has gone into a foster placement. It may be that foster carers have not yet been sufficiently made aware that this is not a technical point. There is an underlying importance to the principle that the name should not be changed.”

And at 347:

“So, the first rule, in my judgment, is that no foster parent or carer, under whatever regulations, should unilaterally change the name of a child. If, for any reason, the foster parents or other such carers think the name should be changed, they should go straight away to the social worker in charge of the case or the adoption placement officer, whoever it may be, and ask for the change and explain why. That should then be a matter of careful consideration by the local authority, who does, of course, have shared parental responsibility. The parents, who remain with parental responsibility in all foster placements, though not, of course, in placements after freeing for adoption, should be consulted in foster placements, to be allowed to express their views, if they are capable of being found or able to express a view, and if it is a matter that cannot be achieved by consent, it may be necessary, and one would hope it would be rare that such a situation would arise, but it may be necessary to invoke the inherent jurisdiction of the court and ask the High Court to rule on whether the name should be changed. That has happened in a number of cases in surnames and I see no reason why it should not happen in, what I hope will be the rare case, for forenames.”

I would, with respect to Thorpe LJ, endorse the view of Butler-Sloss LJ. By 2002, when Thorpe LJ decided Re H, custom had already moved a long way from the days when the formal combination of a person’s title together with their surname was the almost universal way in which a person would be addressed, with the use of the forename being reserved for only the closest friends and family. But, even by 2002, convention had nowhere near relaxed to the stage where, as now, forenames are used almost exclusively for all purposes, social and business, often, it would seem, entirely in the absence of surnames. Further the increase in blended families means that it is by no longer the universal norm for a family living together all to share the same surname.

Whilst Butler Sloss LJ in Re D, L and LA, was focussing on the effect on a child of changing its forename once it is sentient, in my judgement given the fact that in the 21^st century a child will predominantly use his or her forenames for most purposes throughout his or her life, that forename is now every bit as important to that child, and his or her identity, as is his or her surname.

Against this backdrop, I turn then to the submission of Ms Skellorn QC on behalf of the mother, that a proper interpretation of BDRA 1953 must lead the court to the conclusion that the naming and registration of the birth of a child is a statutory duty under the Act and not therefore an act of parental responsibility. That being so, she submits that the local authority and courts have no power to prevent the mother from giving her children the names of her choice. Her argument is reinforced, she submitted, by the fact that there is no provision within BDRA 1953 for the General Registrar to decline to register a name considered to be offensive.

As set out at [23] above, by section 3(1) CA 1989 parental responsibility is defined as the “rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child”. Further, as already noted, under section 2(1) BRDA 1953 a parent is under a statutory duty to provide the required information to the Registrar within 42 days. It is hard to see how the duty to register the birth of a child under section 2(1) BDRA 1953 can be viewed as other than a “duty” which, by “law, a parent has in relation to a child” under section 3(1) CA 1989 and therefore as an act of parental responsibility. Such a conclusion would also accord with the view of the Court of Appeal in Re D,L and LA.

In my judgment:

Once it has been established that the choice of and thereafter registration of a child’s name are each acts of parental responsibility, the question arises as to what powers, if any, a local authority possesses that might allow it to intervene in circumstances where it believes the name proposed by the mother is, or is likely to be, contrary to the best interests of the child in question, both now and in the future?

Ms Skellorn QC submits that, even if she is wrong in her primary submission and the registration and/or naming of a child is in fact an act of parental responsibility, nevertheless, the combined effect of section 33(9) CA 1989 and section 100 CA 1989 preclude a court from interfering in the mother’s choice of name, no matter how bizarre, offensive or distressing to the child that name may be.

It is common ground that the effect of the making of a care order or interim care order by virtue of section 33(3) CA 1989 grants a local authority parental responsibility. Section 33(3)(b) goes further, as it not only allows a local authority to share parental responsibility with a parent, but gives it the power to:

“determine the extent to which a parent may meet his parental responsibility for the child.”

That power is however subject always to section 33(4) CA 1989 which states:

“(4)

The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.”

A local authority can, by virtue of the power conferred upon it by section 33(3) CA 1989, therefore limit the power of a parent to make major decisions regarding a child’s life. The local authority effectively holds a ‘trump’ card, which it can choose to play, in the decision making process in relation to a child in care subject to section 33(4) CA 1989. An example of the use to which this power is routinely (and appropriately) put is in deciding where a child in care is to live.

In private law cases, some issues are considered so fundamental to a child’s wellbeing that, even if a parent has a child arrangements order stating that the child is to “live with” them (an old terms residence order), that parent cannot make certain decisions without the written consent of every person who has parental responsibility or the leave of the court, including, under section 13 CA 1989, changing a child’s surname.

Similarly, where there is a care order in place, the power conferred upon a local authority by section 33(3)(b) CA 1989 excludes certain circumstances where Parliament was of the view that the issue in question is too significant to be determined without either consent or a court order. These matters are set out in subsections (6) and (7) of section 33 CA 1989 and include at section 33(7)(a) CA 1989, causing the child to be known by a new surname.

Nowhere in the Act is there a similar restriction preventing a local authority from using its powers under section 33(7) CA 1989 to overrule a parent in relation to a forename, whether in relation to the naming of a new born baby who has been taken into care shortly after his or her birth, or at all.

Ms. Skellorn QC submitted that, notwithstanding the absence of such a statutory restriction on the power of a local authority, it is nevertheless prohibited from interfering in the choice of forename by a mother upon a proper interpretation of section 33(9) CA 1989 which provides:

“(9)

The power in subsection (3) (b) is subject… to any right, duty, power, responsibility or authority which a person mentioned in that provision has in relation to the child and his property by virtue of any other enactment.”

With respect to Ms Skellorn QC I do not agree. Having determined that both the naming of a child, and the registration of a child’s birth by a mother, are acts of parental responsibility, neither of these acts would thereafter be caught by s33(9)CA 1989; both acts in my judgment fall squarely within the “rights, duties, powers, responsibilities and authority” as defined in section 3(1)CA 1989, and not, therefore, ‘by virtue of another enactment’ namely BDRA 1953.

On the face of it, it follows (that subject to any issues that may arise consequent upon a submission that such action on the part of the local authority would be a breach of the parents’ ECHR Article 8 right to respect for their private and family life) the law gives the local authority the power to exercise its parental responsibility under section 33(3) CA 1989 in order to prevent the mother from giving her twins the forenames of her choice.

In my judgment therefore, the judge erred in making a declaration that the local authority were “permitted” to restrict the extent to which the mother exercised her parental responsibility. The local authority had, on a strict reading of section 33(3) CA 1989, the power to do exactly as they proposed.

In the present case, the matter had been brought before the court by way of an application under section 100 CA 1989, with a request to invoke the inherent jurisdiction of the court; an invitation declined by the judge who took the view that on the facts of the case, he had no jurisdiction to follow that course.

The judge was however satisfied that the local authority had the necessary authority to prevent the naming of the children as “Preacher” and “Cyanide” under section 33(3)(b) CA 1989 and that for them to do so was in the best interests of the twins. The judge went on to make an injunction under section 37 SCA 1981 to support the local authority’s decision to exercise their power under section 33(3) CA 1989 to override the mother’s use of parental responsibility in registering the twins with her chosen forenames.

Section 37 SCA 1981 provides that:

“(1)

The High Court may by order (whether interlocutory or final) grant an injunction… in all cases in which it appears to the court to be just and convenient to do so.”

In Re P (Care Orders: Injunctive Relief) [2000] 2 FLR 385, an application was also brought under section 100 CA 1989. Charles J held that the High Court has the power to make injunctions ancillary to a care order for the purposes of supporting the rights conferred upon the local authority under section 33(3) CA 1989. It is not necessary, he held, for a local authority to have leave under section 100 CA 1989 before such an injunction could be made. Accordingly the judge made the orders against which the mother now appeals.

The question, therefore, arises as to whether the judge was right in determining that section 33(3)(b) CA 1989 and section 37 SCA 1981 together provide a proper jurisdictional route by which to decide whether the court should, in the interests of the twins’ welfare, prevent the mother from giving them the names of her choice.

The courts have long been alert to the danger of local authorities making decisions in relation to children in their care which represent a disproportionate invasion of their Article 8 private and family life rights. The familiar terms of ECHR Art 8 are as follows:

“Article 8

Right to respect for private and family life

1.

Everyone has the right to respect for his private and family life……

2.

There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society…….”

In Re DE (A Child) [2014] EWFC 6, Baker J considered the appropriate use of section 33(3)(b) CA by a local authority where its use substantially interfered with the parents’ Article 8 right to family life. That case related specifically to the undoubted power which the local authority has where a care order is in place, to remove a child from a home placement to foster care. At first instance, the district judge concluded that to grant injunctive relief under section 8 Human Rights Act 1998 (HRA 1998) in order to prevent the local authority from removing the child from the care of his parents without the sanction of the court would be to go behind the care order. On appeal, Baker J disagreed saying:

“[35] … under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.

[36] In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.”

Whilst not commenting upon the decision itself, what is clear is that Baker J was alive to the importance of local authorities making only a proportionate use of their considerable powers under section 33 (3) CA 1989.

The route chosen in the present case by the judge – section 33(3)CA 1989 supported by an injunction under section 37 SCA 1981 - is superficially attractive, the more so, if Baker J is right, that the mother has a safety net in that she may apply for an injunction under section 8 HRA 1998 where : (i) the proposed course of action by a local authority falls foul of section 33(4) CA 1989, in failing to promote the welfare of the child in question and (ii) where it can be shown to be a unjustifiable interference with the family’s Article 8 rights.

In my judgment, notwithstanding the possible availability of such ‘tit for tat’ injunctions, the use by a local authority of section 33 CA 1989 in relation to the registration or change of a child’s forename has at least two significant problems:

In my judgment notwithstanding that a local authority may have the statutory power under section 33(3)(b) CA 1989 to prevent the mother from calling the twins “Preacher” and “Cyanide”, the seriousness of the interference with the Article 8 rights of the mother consequent upon the local authority exercising that power, demands that the course of action it proposes be brought before and approved by the court.

The judge, no doubt because the matter had come before him cloaked as an application under section 100 CA 1989, failed to consider on what basis the application came before him or whether he had jurisdiction to make the declaration he made. Given that section 33(3) CA 1989 provides a procedural route to the court only in respect of surnames and not in respect of forenames, it is necessary to consider whether there is another statutory route by which the matter can be brought before a judge for his or her consideration.

In private law proceedings, section 8 CA 1989 provides a mechanism for resolving disputes as to the exercise of parental responsibility by allowing the court to grant either a prohibited steps order or specific issue order as a means of settling such disagreements.

This route is not available to a local authority notwithstanding that it is sharing parental responsibility with a parent under section 33(3)(b) CA 1989.

Section 9(1) CA 1989says:

“Restrictions on making section 8 orders.E+W

(1)

No court shall make any section 8 order, other than a child arrangements order to which subsection (6B) applies with respect to a child who is in the care of a local authority.

(s9 (6B) relates to a child’s living arrangements).”

By virtue of section 8(2) CA 1989 “a section 8 order” means: “a child arrangements order”, a “prohibited steps order” or “a specific issue order”. It therefore follows that a local authority cannot apply for a prohibited steps order or a specific issue order under section 8 CA 1989. That leaves section 33(3)(b)CA 1989 as the only statutory route open to a local authority to prevent the children being called “Preacher” or “Cyanide”.

The judge’s reasons for holding that the use of the inherent jurisdiction was not available to him were:

The judge’s conclusions arise from his interpretation of section 100 CA 1989 which limits the availability of the inherent jurisdiction. Section 100 CA 1989 provides:

“Restrictions on use of wardship jurisdiction.E+W

100(2) No court shall exercise the High Court’s inherent jurisdiction with respect to children—

(a)……;

(b)…….;

(c)

so as to make a child who is the subject of a care order a ward of court; or

(d)

for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3)

No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4)

The court may only grant leave if it is satisfied that—

(a)

the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)

there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

5)

This subsection applies to any order—

(a)

made otherwise than in the exercise of the court’s inherent jurisdiction; and

(b)

which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).”

The Family Proceedings Rules 2010, Practice Direction 12D 1.1 (FPR 2010) reinforces the limited circumstances in which the inherent jurisdiction of the court should be invoked, but also underlines the breadth of the powers of the court once the court has decided to exercise its inherent jurisdiction.

“It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.”

Notwithstanding the stringent terms of section 100 CA 1989, the courts have not shied away from invoking the inherent jurisdiction where it has felt that the circumstances have made it appropriate to do so. In recent cases the courts have, no doubt, had in mind (as I do) when considering an application for leave to invoke the inherent jurisdiction of the court under section 100 CA 1989, that section 3 HRA 1998 provides that :

“(1)

So far as possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

In Re K (Children with Disabilities: Wardship) [2012] 2 FLR 745 Hedley J, having reminded himself of the constraints of section 100 CA 1989, held that a court will consider warding a child having granted a local authority permission to withdraw extant care proceedings in order to “maintain control” over decisions relating to the child and to “remind the parties that they remain accountable to the court”.

Sir James Munby P has recently considered the use of the wardship jurisdiction in (so called) radicalisation cases. In Re M ( Children) [2015] EWHC 1433 (Fam) the context in which the President was considering making the children wards of court was in relation to children who are British citizens but who were currently abroad and, it was felt, in need of the protective powers of the court. The President considered the situation where “The local authority has turned to the court inviting its assistance and proposing recourse to the inherent jurisdiction, to wardship”.[27]. Having reminded himself of the need for "extreme circumspection in deciding to exercise the jurisdiction" [32]. he continued the wardship orders saying: ,

[32] Cases such as this demonstrate the continuing need for a remedy which, despite its antiquity, has shown, and is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world.”

This use of wardship did not fall foul of section 100(2)(c) prohibiting making the child the subject of a care order a ward of court, as there was no interim care order in place; further the use of wardship by the President in Re M was endorsed by the Court of Appeal in Re B (A child)(Habitual Residence)(Inherent Jurisdiction) [2015] EWCA Civ 886 para 43.

In the present case wardship itself is clearly not an option available to the court given that the local authority have an interim care order in its favour. (Section 100(2)(c)). That leaves the question of the availability of the court’s inherent jurisdiction in the absence of a wardship order.

Whilst I may not necessarily agree with the precise way that jurisdictional issues have been approached or expressed in these very difficult cases, what is clear is that there is a cohort of cases where the common theme is that a party (whether it be a local authority or, often, an NHS Trust) has sought to bring an issue before the court, believing it to be of too great a magnitude to be determined without the guidance of the court, and without all those with parental responsibility having an opportunity to express their view as a part of the decision making process.

Most commonly, examples are found in the so called ‘medical treatment’ cases where, either an NHS Trust seeks a declaration from the court that they would not be acting unlawfully in pursuing or desisting from a form of treatment notwithstanding the parent’s refusal to consent, or alternatively, a local authority seeks to invoke the inherent jurisdiction of the court and thereby to submit to the court’s jurisdiction notwithstanding that care proceedings may have been open to them

In Re B (Medical Treatment) [2008] EWHC 1996 (Fam); [2009] 1 FLR 1264, a child of 22 months old was the subject of a care order. The child had multiple physical and mental disabilities and the medical team were of the view that it was not in her best interests to carry out invasive resuscitation which would prolong her life for only a short time. The local authority, rather than exercising their own parental responsibility under section 33(3)(b) CA 1989 in order to consent to this course of action, instead invited the NHS Trust to seek a declaration from the court to that effect. Coleridge J said:

“[7] So far as the local authority is concerned, they have invited the NHS trust to make this application because although they do in fact have, as a matter of statutory law, parental authority for this child arising from the care order, they felt that the parental authority did not invest them with sufficient authority to consent to this declaration. That is a nice point. I think that they are probably right.”

In my view, whilst the local authority were wrong in concluding that they had “insufficient authority” to consent to the course of action proposed by the NHS Trust, given their powers under section 33(3)(b)CA 1989, they were undoubtedly right on the facts of that case to have sought a route by which the matter could be brought before the court.

In Re T (Wardship: Medical Treatment) [1997] 1 FLR 502, the local authority was granted leave under section 100(3) CA 1989 to commence proceedings where the issue before the court was whether a baby should undergo a liver transplant in circumstances where the medical evidence was such that, absent such an operation, the baby would be likely die within 18 months. The medical team felt that the parents were not acting in the best interests of the baby in refusing to consent to the surgery. The Court of Appeal did not specifically consider the jurisdictional route which had led to the granting of leave to invoke the inherent jurisdiction of the court, although, on the face of it, the (very unattractive) route of issuing care proceedings and thereafter the local authority giving consent against the wishes of the parents under section 33(3) CA 1989 would have been open to them.

Such an approach would no doubt have been met by an immediate application on behalf of the parents to make the child a ward of court and to seek a declaration that it would be unlawful to carry out the surgery; and/ or an application for the discharge an interim care order if made. (An application by the parents for a section 8 HRA injunction to delay the proposed surgery would not then have been available to the parents as the case predated the coming into force of the Human Rights Act 1989). The fact remains however that issuing care proceedings would have been a course of action jurisdictionally available to the local authority. [1997] 1 FLR 502

In the cases cited above, the court did not specifically consider the restriction found in section 100 CA 1989, which prevents the High Court from exercising its inherent jurisdiction:

“…for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.”

In my view it was not necessary to do so. In the medical treatment cases, where a local authority either itself applies to invoke the jurisdiction of the court in relation to a serious medical issue or, as in Re T, declines to consent to medical treatment and asks the NHS Trust to seek a declaration of the court, the court is not being asked to confer a power upon the local authority in respect of an aspect of parental responsibility. On the contrary, the local authority already has the power to consent to medical treatment under section 33(3)(b) CA 1989. Far from being asked to confer a power on themselves, the High Court was being asked to use its inherent jurisdiction to limit, circumscribe or sanction the use of power which the local authority already has by virtue of section 33(3)(b) CA 1989 .

In the medical treatment cases the decisions to be made may well be a matter of life and death. In the present case, the limitation on the exercise of parental responsibility proposed by the local authority, whilst not life threatening, is life affecting. Further such a decision potentially involves such a serious invasion of the Article 8 rights of the mother that I am satisfied that the court should invoke its inherent jurisdiction in order that it may either sanction the local authority’s proposed course of action as in the interests of the children or, alternatively, to refuse to sanction it as for example being in breach of Article 8.

In reaching that conclusion I have not overlooked section 100(4) & (5) CA 1989:

“(4)

The court may only grant leave if it is satisfied that—

(a)

the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)

there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

5)

This subsection applies to any order—

(a)

made otherwise than in the exercise of the court’s inherent jurisdiction; and

(b)

which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).”

I am satisfied that the result which the local authority wish to achieve cannot be achieved either:

That leaves the question of “whether there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm”?

The judge reached the conclusion that section 100(4)(b) CA 1989 was not satisfied; in his judgment, the giving to the babies of the names contemplated by the mother did not give the court “reasonable cause to believe that if the court’s inherent jurisdiction is not exercised” they would suffer significant harm. Further, the judge appeared to be of the view that a single issue relating to the naming of a child, is not, without more, capable of satisfying the section 31 CA 1989 threshold criteria. With respect I disagree; in my judgment, although it will only rarely be the case, the giving of a particular name to a child can give a court reasonable cause to believe that, absent its intervention, the child in question is likely to suffer significant emotional harm. In my judgment this is one such case and there is every reason to believe that if the court’s inherent jurisdiction is not invoked in order to prevent the girl child from being named ‘“Cyanide”, she is likely to suffer significant harm.

In my judgment, the local authority took the correct procedural route when they made an application under section 100 CA 1989 seeking “ the intervention of the High Court in order to exercise its powers pursuant to section 100 Children Act (CA) 1989 and/or its Inherent Jurisdiction” (sic).

I have reached the conclusion that there is a small category of cases where, notwithstanding the local authority’s powers under section 33(3)(b) CA 1989, the consequences of the exercise of a particular act of parental responsibility are so profound and have such an impact on either the child his or herself, and/or the Article 8 rights of those other parties who share parental responsibility with a local authority, that the matter must come before the court for its consideration and determination.

It follows that I am also satisfied that there may be rare cases, where a local authority believes that the forename chosen by a parent, and by which he or she intends to register a child, goes beyond the unusual, bizarre, extreme or plain foolish, and instead gives the local authority reasonable cause to believe that by calling him or her that name he or she is likely to be caused significant harm. In those highly unusual circumstances, the proper route by which the local authority seek to ensure that the course it proposes is necessary and in the child’s interests is (as was held by Butler-Sloss LJ in Re D, L, and LA supra) by putting the matter before the High Court by way of an application to invoke its inherent jurisdiction.

The judge at first instance found that, even allowing for changes in taste or “developing individual perception”, the name “Cyanide” was not “obviously indicative of a parent who is acting so as to contribute or otherwise secure the welfare of her children” and made the order sought preventing the mother from calling her Cyanide or registering her birth in that name. As already recorded, the judge reached that decision notwithstanding that he had held that the issue of the naming of the children was not, in itself, capable of satisfying a court that the child in question was likely to suffer significant harm.

As set out at paragraph 103 above, I disagree with the judge’s conclusion as to availability of the court’s inherent jurisdiction, although not with the ultimate decision he made. For myself, I cannot (at present) envisage any circumstances in which an order preventing a parent from giving its child the forename of its choice could, or should, be made absent the court being satisfied that failure to intervene is likely to cause the child in question significant harm.

In my judgment, giving this child the name “Cyanide” as her forename is capable, without more, of giving the court reasonable cause to believe that she would be likely to suffer significant emotional harm:

In my judgment this is one of those rare cases where the court, in the exercise of its inherent jurisdiction, should intervene to protect the girl twin from the emotional harm that I am satisfied she would suffer if called “Cyanide”.

In her written submissions, the Guardian submitted that the interference in the mother’s right to name her child was only necessary and proportionate in respect of calling the female baby “Cyanide”. Her argument was that the two names fell on either side of the ‘significant harm’ threshold – “Cyanide” on one side of the threshold – that of being harmful, and “Preacher” on the other – unusual, but not harmful.

The local authority’s application under section 100 CA 1989 was made in respect of both children. The Guardian’s approach whilst understandable, arguably places the twins in conflict, with the boy child growing up with the name chosen by his birth mother whilst his twin does not.

In the case of Birmingham City Council v H (No 2) [1993] 1 FLR 883, Balcombe J described the balancing exercise to be carried out where a conflict arose between the separate interests and welfare of two children in one application in the following way:

“You start with an evenly balanced pair of scales. Of course, when you start to put into the scales the matters relevant to each child – and in particular those listed in s 1(3) – the result may come down in favour of the one rather than the other, but that is a balancing exercise which the court is well used to conducting in cases concerning children.”

At 899E – G, Evans LJ put the matter like this:

“But the welfare of the two individuals cannot both be ‘paramount’ in the ordinary and natural meaning of that word. If that is the requirement of s 1(1) in the circumstances, then the Act presents the court with an impossible task. For this reason, I agree with Balcombe LJ that the requirement must be regarded as qualified, in the cases where the welfare of more than one child is involved, by the need to have regard to potential detriment for one in the light of potential benefit for the other. Only in this way, as it seems to me, can the subsection be applied and the manifest objects of the Act achieved.”

In my judgment the potential benefit to the boy twin in having a forename chosen by his mother is more than outweighed by the potential detriment to the girl child of them having forenames names given to them from two different sources – namely their mother on the one hand and their half siblings on the other.

It is not unusual for a child, with even the most commonplace name, to ask how his or her name was chosen. This is made more likely in the case of an unusual name, such as “Preacher” and in circumstances where the children concerned are not living with their natural parents. The only possible response that his carers would be able to make in response to such a question, would be to tell the boy twin that it was the name that his birth mother had chosen for him. This would lead to the inevitable question from the girl twin as to whether her name had also been chosen for her by her mother and, if not why not? She would undoubtedly ask what name her mother had given to her and why it had been changed. The outcome of such a predictable conversation would be to expose the girl twin to a significant part of the very harm the court seeks to prevent; she would know not only that her mother had chosen to call her “Cyanide”, but also to have to come to terms with the fact that she was to have been named after a notorious poison, whilst her twin brother was to be given the name of a respected member of society, “Preacher”.

I accept the Guardian’s basic submission that the name “Preacher” in itself would probably not have led a court to conclude that he would be likely to suffer significant harm if that was the forename he was given. However, upon carrying out the BCC v H balancing exercise, and having put into the scales the matters relevant to each child, I have reached the conclusion that the girl twin’s welfare can only met by neither she nor her brother having the names chosen for them by their mother. I am reinforced in this view by the fact that, whilst “Preacher” in itself might not be an objectionable name, there is considerable benefit for the boy twin to be in the same position as his sister and for them each to grow up knowing that their half siblings, with whom they live, chose both of their names for them.

I would not therefore conclude that the judge had erred in deciding that it was not in the best interests of the boy twin to be called “Preacher” although for rather different reasons.

It is for the reasons given in this judgment that the mother’s appeal was dismissed on 16 December 2015.

I agree.

I also agree.