How do I change my child's surname?

As family lawyers, we are sometimes asked for advice from parents on changing a child's surname. Given that a child's surname is a part of their identity and often a link to their father or other parent, it can often be an important and contentious issue.

Should I change my child's surname?

A change of name can be a significant event in a child's life. It is, for that reason, a decision which requires careful consideration. A commonly cited reason for a change to a child's surname is to allow a child to have their same surname as their sibling or siblings.

Do I need my ex-partner's consent to change my child's surname?

In Scotland, both parents have equal parental responsibilities and rights in respect of a child if they were married at the time of or subsequent to the child's birth or where the child's father or other parent is named on their birth certificate. Where both parents have equal parental responsibilities and rights, a change of surname is a matter which ought to be discussed and agreed between both parents, so for the most part, the answer to the above question is yes. One parent ought not to make unilateral decisions without the consent of the other parent or order of court.

If a change of surname is a contentious issue, there are a number of ways in which parents can seek to discuss and agree what should happen without the involvement of a court. Solicitors can assist in extra-judicial negotiations through an exchange of written correspondence or by facilitating meetings between parents and their solicitors. Parents could also discuss and seek to resolve the issue through the collaborative process or through mediation. Alternatively, they could ask a family law arbitrator to make a decision on this bespoke issue. More information about the various options for dispute resolution in family law matters can be accessed here.

What is the process if a change of surname is agreed or if consent is not required?

Where a change of surname is agreed between parents or where consent is not required, a less formal means of recording a change to a child's surname is by way of statutory declaration. This would, however, not result in a change to the child's birth certificate. If this is desired, there is a process for formally recording a change to a child's surname which will result in an update to their birth certificate.

An application can be made to the General Register Office for Scotland to formally change a child's surname using Form 23. A fee of £40 is payable for a change of surname for single child. There is a charge of £15 for the first updated extract certificate of birth and £10 for each additional extract.

What happens if the other parent refuses to grant consent and I still wish to change my child's surname?

Where parents cannot agree matters and one parent still wishes to proceed with a change in surname, the parent seeking the change of surname can apply to their local Sheriff Court or the Court of Session for a specific issue order in terms of Section 11(2)(e) of the Children (Scotland) Act 1995. The paramount consideration for the court is the welfare of the child.

The court will not make any orders unless it considers it would be better to do so than not to make an order at all. This was the approach taken in M v C in 2002, where the court concluded that there was no overwhelming reason to change the child's surname without the consent of the child's father. Edinburgh Sheriff Court considered an application for a change of surname by the child's mother and a competing crave by the child's father for the children to be known by the surname given to them at birth in 2017 in the case of MRG v MD. The court acknowledged the limited authority on the matter in the Scottish courts and suggested a creative solution to the issue which involved using both the surname of both parents for the children.