Choosing a name for a newborn is something that many parents take great time and care over, and there is a vast library of baby-name books available for parents to consult. Midwives must be aware that, from the law's point of view, a parent with parental responsibility under the Children Act 1989, section 2 can select and register a forename of their choosing for their baby even if it is considered unusual, bizarre or foolish. Parental responsibility is defined as all the rights, duties, powers, responsibility and authority which by law a parent of a baby has in relation to the baby and their property (Children Act 1989, section 2). These are not specified in the Act but, in essence, it empowers a person to make most decisions in the baby's life, including giving the child a name and registering the baby's birth.
There is a legal duty on a person with parental responsibility to register a child's birth under the provisions of the Births and Deaths Registration Act 1953, section 2. The entry is an historical record of the facts relating to the baby at the time of their birth and includes the baby's forename(s) and surname. In England and Wales, parents who have been unable to decide on a forename or change their mind about the forename of their baby during the first 12 months after birth can have that name altered on the birth certificate in a fairly straightforward procedure under the Births and Deaths Registration Act 1953, section 13. A change in forename does not result in the original name being erased; instead, a line is put through it and it is replaced by the substituted name.
A parent's right to exercise parental responsibility is not, however, unfettered and so the naming of a baby can be challenged in law. Parents are given parental responsibility on condition that they discharge that responsibility in the best interests of the welfare of their baby (A&D v B&E [2003]). The family division of the High Court exercises supervisory authority over parental decisions and can use its inherent jurisdiction to prevent or override a decision that is not in the best interests of the welfare of a child, and this can include decisions about a baby's forename (D (Children) (Care: Change of Forename) [2003]).
Local authorities are also empowered to limit the parents' right to make major decisions regarding the baby's life when this is necessary to safeguard or promote the child's welfare (Children Act 1989, section 33(3)). In some cases, where the matter is considered very significant, a local authority must obtain a court order first (Children Act 1989, section 33(6)). It has long been established that deciding a baby's surname requires a court order or agreement of all the parties (Re J [2000]). The Court of Appeal has recently ruled that preventing a parent registering a baby's forename also requires an order from the High Court (Re C (Children) [2016]).
Courts' jurisdiction to prevent parents choosing a name for their baby
In Re C (Children) [2016] the Court of Appeal considered the case of a woman whose twins were made the subject of interim care orders and placed in foster care shortly after their birth. The mother had long-standing mental health problems and the father was unknown. When the mother indicated that she would be choosing the name for her twins and complying with her duty under the Births and Deaths Registration Act 1953, section 2 by registering the twins' birth with her son as Preacher and her daughter Cyanide, the local authority asked the court to prevent this under its inherent jurisdiction under the Children Act 1989.
The Court of Appeal held that the choosing of a name for a baby and the duty to register the baby's birth under the provisions of the Births and Deaths Registration Act 1953, section 2 were acts that formed part of a mother's parental responsibility. Generally, parents were free to choose and register any forename, and any attempt to prevent that was to be taken very seriously. In Re D (Children) (Care: Change of Forename) [2003] the High Court was asked to consider whether the foster carers of two children looked after by the local authority could change the forenames of the children because they did not like the names given and registered by their parents. The High Court held that changes of names were to be taken seriously and were not to be effected unilaterally by carers or the local authority without a Court order.
‘ Parents are given parental responsibility on condition that they discharge that responsibility in the best interests of the welfare of their baby ’
In Re C (Children) [2016] the Court of Appeal confirmed that earlier decision of the High Court and held that although the Children Act 1989, section 33(3)(b) empowered the local authority to prevent the mother from naming the twins as she wished, the seriousness of the interference with her right to a private and family life protected under the European Convention on Human Rights article 8 meant that it needed the approval of the High Court.
In those highly rare cases where the parent's chosen forename for their baby went beyond the unusual, bizarre or foolish and gave reasonable cause to believe that the child was likely to be caused significant harm, the proper course was for the local authority to ask the High Court to exercise its inherent jurisdiction to allow it to prevent the name being registered. Such orders will only be granted where the court is satisfied that not intervening would cause the child significant harm.
The Court of Appeal in Re C (Children) [2016] accepted that while the name Preacher was arguably not objectionable, the name Cyanide was and gave the court reasonable cause to believe that the girl would be likely to suffer significant harm. Balancing a conflict that arose between the separate interests and welfare of two babies in one case was considered by the High Court in Birmingham City Council v H (No 2) [1993], which held that there was a need to weigh the potential detriment for one baby in the light of potential benefit for the other baby.
In Re C (Children) [2016] the Court of Appeal held that the benefit to the boy of having his name chosen for him by his mother was outweighed by the detriment to the girl of having their names chosen from two different sources. In the view of the Court of Appeal if the twins were to ask where their names came from, the girl would learn that her mother had wanted to name her after a poison and her brother after a respected member of society. They held that would expose her to the harm that the Court of Appeal was seeking to avoid.
Conclusion
Parents are generally able to choose and register any forename for their baby as part of their parental responsibility, and can change their mind and register an alternative name within 12 months of the birth. However, midwives should caution parents that where the name goes beyond the unusual, bizarre or foolish by giving reasonable cause to believe that the child would suffer significant harm, then a local authority may obtain an order from the High Court to prevent registration of the name.