Court of Appeal

Published April 11, 2007

In re E (a Child): Special guardianship order

Before Lord Justice Ward, Lord Justice Wilson and Lord Justice Toulson

Judgment March 13, 2007

The power to order a child, subject to a special guardianship order, to be known by a new surname should not be exercised by the court if it would interfere with the child’s emotional identity needs.

The Court of Appeal so held in a reserved judgment dismissing an appeal by grandparents of E, a girl aged three, from Mrs Justice Black who, on September 7, 2006, made a special guardianship order in favour of her grandparents, ordered occasional contact with E’s mother and refused permission for E’s surname to be changed to their name.

The grandparents in person; Mr John Tughan for the mother; Miss Kirstin Boyd for the father; Miss Laura Harris for E’s guardian; Miss Anna McKenna for the local authority.

LORD JUSTICE WARD said that by section 14B(2) of the Children Act 1989, as amended by section 115 of the Adoption and Children Act 2002, on making a special guardian ship order, the court could give leave for the child to be known by a new surname.

The besetting problem was E’s parents’ drug addiction, as a result of which E in 2004, aged three months, was placed with her maternal grandparents.

The grandparents, aged 56 and 58, were an intelligent, devoted professional couple who lived comfortably in a large house in southwest London. Their care of E was outstanding.

The grandparents vested huge emotional importance in the name-change issue. They contended that there was fatal inconsistency between the granting of the special order and the restrictive effect of the judge’s order on the free exercise of the overriding parental responsibility conferred on them.

They were correct in stating that the order conferred parental responsibility on them, promoting and securing stability for E to be cemented into the new family relationship. But they were not free from judicial oversight.

The crucial element was the vexing problem of E’s identity. The grandparents’ concerns overlooked the value of the lesson taught to all at mothers’ knee: honesty was the best policy.

The family had honestly to face up to its fractured constitution. E had to learn that she was being brought up by her grandparents.

In the scale of things in a child’s life her surname was of little significance: far more important was the knowledge that she was much loved by her grandparents who brought her up.

Lord Justice Wilson gave a concurring judgment and Lord Justice Toulson agreed.

Solicitors: Goodman Ray; Oliver Fisher; White & Sherwin; Ms Lisa Phelps, Wandsworth.

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