By Rebecca Little, Trainee Solicitor
On 11th August 2017, an action was raised whereby a separated father and mother each sought specific issue orders that their children be known by their respective surnames.
The significant involvement of both parents in the lives of their children was recognised by the Sheriff and a decision was made that the best solution was for the children to use both surnames.
The mother and father were in a relationship for over 12 years, which ended in September 2014. They never married and have two children together, aged five and three. Both children were given their father’s surname at birth which was reflected on their birth certificate and passport. At school, nursery and within the NHS, both children were known by their mother’s surname, and at the dentist, by their father’s surname.
The mother was the main carer of the two children. When in her care, they were known by reference to her surname, and when with their father, they were known by reference to his surname.
The father raised an action in Edinburgh Sheriff Court seeking an order, that the children be known by his surname, whilst the mother was seeking an order that they be known by her surname. Sheriff Holligan decided that there was no obvious answer to the dispute, and that the solution was for the children’s surname to be their father’s surname followed by their mother’s surname.
Sheriff Holligan gave several reasons for his decision. He was not convinced that this case really involved a change of name, so did not think it appropriate to rely on the relevant law. He believed it was more a case of settling a dispute as to which surname the children should be known by, as both names were in use at different times. He did not think that this could be in the best interests of the children.
As such, Sheriff Holligan’s paramount consideration was in relation to the welfare of the children. The welfare test requires the court to look at the matter from the perspective of the children, not the parents. In this case, it was accepted that both children were too young to express a view, or have any real understanding, of the significance of a surname.
As both parents were heavily involved with the children’s lives, Sheriff Holligan decided that in order to mitigate the impact of one party having to deal with all of the problems associated with not having their surname, the use of both surnames would recognise the involvement of both parents in the children’s lives.
What does this mean?
In Scotland, there is a lack of modern authority dealing with cases involving children’s names. This decision will hopefully provide reassurance to parties that the courts are recognising the increasing importance of a name and recognising the difficulties that parents can face if their children do not have the same surname as them. Sheriff Holligan explicitly stated that "in relation to difficulties in travelling, such problems will continue whichever name is adopted: it is a case of who has the problem".
Whilst it must be remembered that such a case is fact specific, it should provide comfort to parents in knowing that the courts are taking the specific circumstances of each case, including the care arrangements of children, into account before making any decision.
“On the facts of this case there is much to recommend such a solution. The use of both surnames recognises the involvement of both parents in the lives of the children and will give some certainty in this matter.”
This decision certainly highlights the progress being made towards addressing the perceived imbalance that exists between resident and non-resident parents when decisions require to be made in relation to their children.