Pursuant to s.25 Adoption and Children Act 2002 (ACA), when a child is placed with prospective adopters ‘parental responsibility is given to them’* . However the adoptive agency, such as the local authority can ‘determine that the parental responsibility of any parent or guardian, or of prospective adopters, is to be restricted’** . Such restrictions are ‘causing the child to be known by a new name or removing the child from the jurisdiction’*** .
In the recent case of Re R and E (2017)^ the children who were placed for adoption wished to be known by their prospective adopter’s surname to avoid ‘answering questions about their complicated family situation’^^ at school. However, an adoption order had not yet been granted. The prospective adopters sought advice from the local authority who informed that the children’s names could not be changed formally until an adoption order had been made; however, as the child expressing the desire to start school with the prospective adopter’s surname was 9 years old ‘her wishes and feelings were important and that it would not be in her best interests to ‘force’ her to be known as’^^^ her birth surname.
The prospective adopters issued the application for an adoption order in February 2016, which included the details of the names that they wished the children to be known by, once adopted. The birth mother did not oppose the application; however the father wrote to the court to express concerns of being informed by the school that the prospective adopters and local authority had already allowed the children to be known by an alternative name at school. The father who opposed the preceding care and placement proceedings as well as the adoption application from the outset further expressed to the court an intention to apply for a committal order against the local authority and to claim financial compensation against the local authority for the change in the children’s surname.
It was held by HHJ Meston QC that the local authority did breach s.28 ACA as the Act does not differentiate between a formal or informal change of name. An application should therefore have been made to the court for leave in order for the children to be known by a new surname. Alternatively the children could have been encouraged to wait until the adoption order was made before being known by a new surname. This is particularly the case as at that point the father retained his parental responsibility. The local authority were required to take ‘more positive action… to avoid a breach of section 28’*^ in the future but ‘a declaration that the local authority acted unlawfully in allowing the children’s surnames to be changed’**^ was viewed to be sufficient in these circumstances.
The father’s application for committal was refused as the placement order did not have a penal notice attached and in order for disobedience of such an order to be addressed the same needed to be included as per Practice Direction 37A rule 37.9. Further, the father’s application for damages was refused because there was no evidence that the change of name caused identifiable harm to the father or the children.
*Adoption and Children Act 2002, 25 (3)
**Adoption and Children Act 2002, 25 (4)
***Adoption and Children Act 2002, 28 (3) (a) & (b)
^Re R and E (children) (2017) WL 01552455, 24 March 2017
^^Re R and E (children) (2017) WL 01552455, 24 March 2017 
^^^Re R and E (children) (2017) WL 01552455, 24 March 2017 
*^Re R and E (children) (2017) WL 01552455, 24 March 2017 
**^Re R and E (children) (2017) WL 01552455, 24 March 2017 [151 (i)]