The High Court confirmed the limited grounds on which an appellate court may interfere with a refusal to remove the father’s surname from that of the child.
Facts:
The mother, M, and father, F, were married in 2016 and separated in October 2021. They have a daughter, D, who has lived with M continuously since the separation and has not had face-to-face contact with F since December 2021. The relationship between the parents is one characterised by intense dislike and mistrust.
In January 2022, M applied for protective orders under the Family Law Act (FLA) 1996, leading to two non-molestation orders being made against F by consent, without admissions of wrongdoing, lasting until the conclusion of the Children Act 1989 proceedings.
F subsequently applied for a Child Arrangements Order (CAO). However, the Judge rejected M’s allegations of coercive and controlling behaviour, gaslighting, and stalking, and specifically rejected the case that F posed a sexual risk to D.
The Judge ultimately ordered that D should continue to live with M, while contact with F should be indirect only, imposing a Section 91(14) restriction for two years. However, the Judge refused M’s application to change D's surname to M's and refused to extend the protective FLA order, making no order as to costs. M appealed these latter three points, arguing that the Judge had minimised the abuse, failed to provide adequate protection, and should have awarded costs given F’s conduct and the serious findings M proved.
Decision:
The High Court allowed the appeal in part, granting the mother a key protective order and a portion of her legal costs, but dismissed the issue of changing the child's surname. Mr. Justice Peel found that the Recorder's decision to refuse the surname change was the result of a balanced evaluation that fell within the "generous ambit" of judicial discretion, meaning that it was not "plainly wrong". The Recorder applied the welfare checklist and found that changing the name would constitute a "further rupture" in the child's relationship with the father and her paternal heritage, which was not justified.
The Court allowed the appeal on the non-molestation order, finding that the Recorder's decision not to extend it was based on an error in evaluation. The combination of the very serious proven findings of sexual abuse against the father, the ongoing criminal investigation into rape charges (which could take years to resolve), and the charge for breaching the injunction was held to increase the risk of F attempting to contact M and heighten her fears.
Given that Mr. Justice Peel overturned the previous refusal to extend the protective order, M was successful as regards this part of the litigation. It followed that F should be ordered to contribute (£5,000) toward the costs M incurred to secure that protection.
Implications:
This judgement clarifies expectations regarding protective measures in post-fact-finding hearings. The Court explicitly recognised that a history of serious proven abuse (including rape) and the father's lack of insight, coupled with a pending criminal charge, can serve to increase the mother's fear and the risk of further contact attempts, justifying an extension of the injunction. This provides a clear path for victims to secure continuing protective orders, even if the attempt to do so arises some years after the initial abuse findings.
The refusal to overturn the decision on the surname change confirms the principle that an appellate court will not interfere with a first-instance judge's welfare-based evaluation unless that decision is found to be "plainly wrong" or else exceeds the "generous ambit within which reasonable disagreement is possible". Courts are thus often unwilling to ‘erase the other party’, unless necessary.
