The right to choosing a surname for your child

In a recent case before the appeal court of Arnhem-Leeuwarden a couple disputed the surname imposed on their child by the Dutch authorities. The case from May 2022 discusses the fundamental right to choosing a surname for your child.

The facts

The case was as follows. A couple was married in Iraq in 2006. They had a daughter in The Netherlands in 2018. At that time, the couple was not in the possession of a marriage certificate from Iraq. Therefore, only the mother was registered on the birth certificate and the child received its mother’s surname.

In 2019, the couple registered their marriage with the Dutch authorities. The husband was automatically recognised as the father. This had the unforeseen consequence that the Dutch authorities not only applied for a correction of the birth certificate, but also to have the child’s surname changed to that of the father. This application has to be made to the courts. The family court granted the request to change the child’s name, despite the parents protests. They wanted the child’s name to stay the same.

Dutch law on choosing a surname

The reasoning behind the ‘forced’ change of name is that the parents can only legally choose a surname (the mother’s or the father’s) before or at the time of birth. If the parents do not choose when registering the birth, the father’s name will be the child’s (default) surname.

In this case the parents could not choose at the time of birth. However, they were happy with the child having its mother’s name. They contested the decision by the lower court that there were insufficient reasons for deviating from Dutch law in this case.

The appeal court ruling

The parents argued that, based on article 8 of the European Convention on Human Rights (ECHR) and the Convention on the Rights of the Child (CRC), they should have the right and opportunity to choose their child’s name. The local registrar supported this request (the local registrar records births marriages and deaths).

The appeal court reasoned:

Under Article 8 of the CRC, the child’s right to identity, including name, must be respected without unlawful interference. It appears from Article 8 ECHR that no interference by any public authority is permitted in the exercise of private and family life, except insofar as provided for by law. (…) According to established case law, the European Court of Human Rights has ruled that the right to name also falls under the protection of Article 8 ECHR and that parents are, in principle, entitled to choose a surname for the children with whom they have a family life.

As Dutch law does not explicitly cover the situation in hand and only supplies limited options after birth, applying the law in this case would be an unlawful infringement of the right to choose the child’s surname. The appeal court therefore granted the parents a term of six month to declare which name they ultimately want the child to have.

Unfortunately, this case is not unique. Couples married in war-torn regions cannot always prove their marriage when they arrive in The Netherlands. It can take a long time to find and register the correct documents. This can lead to different problems, such as the above, but also custody issues for the father.

We discuss another recent case involving the fundamental right to choose a child’s name here.

If you have any queries about choosing or changing a surname for your child, please contact us.