21st March 2017

Changing their name and gender identity is almost always a momentous moment for trans people and it is becoming more and more common for trans youth to want to change their first name during school. It is often an indicator that the trans pupil is taking steps to, or proposing to move towards presenting as the gender they wish to live in and any request should be given due weight, as the consequences of not may have a serious negative social and psychological impact on a transgender young person.

Often a change of name decision is supported by the child’s parents/carers, but there are times whereby a parent may not be supportive of such a step and the question posed as the title to this blog is thereafter raised.

The law in relation to first names (speaking generically rather than child-focused at this point) is very clear: there are no legal limits on a person’s liberty to change their name, so long as it is ‘not for fraudulent purposes’ (Davies v Lownders (1835) I Bing NC 597 at 618). Case law is somewhat sparse around the issue of forenames rather than surnames, with there being only one leading case on the issue namely, Re H (A Child) (Child’s First Name) [2002] EWCA Civ 190 where Lord Justice Thorpe stated in his judgment that:

Given names have a much less concrete character…During the course of family life, as a child develops personality and individuality, parents or other members of the family, may be attracted to some nickname or some alternative given name which will then adhere, possibly for the rest of the child’s life, or possibly only until the child’s individuality and maturity allow it to make a choice for itself as to the name by which he or she wishes to be known.” (Our emphasis)

The emphasised part of the judgment leads me on to the important point which is that once a child is capable of making a choice about their first name, they then have just as much liberty to change their name as an adult does.

This ‘capability’ is known in law as being ‘Gillick competent’, named after the case that introduced it: Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 which decided that:

“…whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment [here: change of name] proposed, so the consent, if given, can be properly and fairly described as true consent.”

The Gillick logic therefore follows that if a trans pupil or student wishes to have their personal data changed and recognised on the school system, and the individual is capable of making this decision, then this should be respected and accommodated. It must also not be forgotten that human rights do not begin at adulthood, but from birth, and a child’s right to a private life (Article 8) and right to not be discriminated against (Article 14), (on the basis of them being transgender) cannot be breached as a matter of international law under the European Convention of Human Rights.

Children 16 or over are generally regarded as ‘Gillick competent’. Children under 16 may be competent to consent to a change of name; certainly, the closer to 16 the child is the more likely the child would be deemed competent.

It would be good practice to record any assessment or action taken to determine this competence. Any assessment of competence in under 16s should be appropriate to the child’s age, and the nature of the request; obviously, an assessment made in relation to a 14 or 15 year old would be somewhat different to a 6 year old. If deemed appropriate and necessary, any discussion had with the child in relation to their change of name decision should be recorded, such as discussions around the child’s reasons and views about wanting to change their name. (These discussions should be within the context that ‘given names’ i.e. here, a child’s preferred name, have not been deemed to hold a great deal of weight in case law to date and therefore a decision made in this regard should not, in most cases, create too much of an administrative burden on any school.)

Further,  any concerns the school may have should the school not adopt the child’s new name that may pose a risk to the child’s safety should also be recorded.

If a school is in a situation whereby they are not satisfied a child is Gillick competent, but the school has safeguarding concerns in not changing the child’s name, then information may need to be shared with the parents/carers, even if the child does not wish this to happen. For instance, if the child has disclosed any indication they may harm themselves should they not be referred to as their preferred name.

If a child is Gillick competent and is clear they do not want their parents to know of the change of name, it would be good practice to document this request and make reasonable adjustments to this effect, to safeguard the child. Any information to be shared with their parents or carers should always be discussed with the child, and their consent should be sought.

It remains open for any school to amend the gender and name of any pupil, within and on their own systems at any time and it is possible to change names when sending details to exam boards. It is also possible for exam certificates to be issued in the preferred name of the child, although any result will be linked with a Unique Pupil Number which are only linked with legal names. A child’s birth certificate is unable to be altered without a Gender Recognition Certificate and a change of name deed or statutory declaration cannot be executed until a child is 16, but this should not limit a school from making most changes that the child will notice.

As ever in law, every case rests on its own facts. It is for any given school to balance all details of each child’s request, ensuring that any trans child is treated with as much respect as a child, comfortable with their assigned gender at birth, would be given, were they to ask for their name to be changed.

Any child of course would be at liberty to make an application to the court (with or without the aid of a litigation friend, depending on the competency of that child) should a school refuse to change their name on the system, and a school would need good reason as to why the school had been so stubborn in a refusal.

Any school should remember that they owe a duty of care to their pupils and mis-gendering a child can subject that child to significant mental distress, which schools should be alive to.

Please note that this article is not intended to constitute legal advice and if you require specific advice, it is important to speak to a solicitor directly.

Blog by Lui Asquith, specialist Solicitor in our Trans Family Law team