Andrew Duncan wins Court of Appeal case over name change for non-binary child

23rd December 2024

Andrew Duncan

3PB’s family barrister Andrew DuncanAndrew DuncanCall: 2011, pictured here, recently acted as sole counsel in a pro bono appeal in Re C (A Child) (Change of Given Name) [2024] EWCA Civ 1582, successfully overturning a Circuit Judge's decision that dismissed a non-binary child’s application to change their forename. Andrew was instructed by Chris Bell of PS Law, a niche law firm with offices in Milton Keynes and Northampton.

The Court of Appeal, in allowing the appeal and distinguishing this case from a ‘gender appeal’, confirmed that:

  1. The established law is identical when considering a surname change or forename change.
  2. It was wrong for the judge of the lower court to elect not to refer to the child by their chosen gender-neutral name in court. As far as the Equal Treatment Bench Book applied to trans people the guidance applies across the board as “many people now choose to use neutral pronouns regardless of their gender identity and the courts should equally respect their choice.”
  3. The child’s Article 8 rights were fully engaged for a name change and should have been weighed into the balance.
  4. The Article 8 of a young person of this age in respect of a name change would normally outweigh the Article 8 rights of those with parental responsibility.
  5. The welfare analysis required a more detailed reference to the checklist to avoid falling into the trap of substituting the courts’ own view that to make the order would in some way represent the court wrongly endorsing the child’s non-binary status.
  6. Whilst the gender issues dictated the child’s choice of name in 2021 when they first identified as non- binary, the judge was in error in saying that that remained the case, as there were other countervailing reasons why the name change was sought.
  7. The original judge was mistaken in saying that the child would be able to ‘undertake all legal formalities [themselves] in a short while’ (When the child turned 16). That was not correct; so long as the (lives with) child arrangement order remains in place, the child will only be able to obtain an unenrolled deed poll in relation to their given name but not their surname at 16. For a change of surname or for those matters which require an enrolled deed poll, the child will for a further two years require the consent of a parent from whom they have been estranged for over three years.

To contact or instruct Andrew, please contact his clerks Ian Charlton on [email protected] or Gemma Hyett on [email protected] or by calling either of them on 0121 289 4333.