Challenges of legal regulation of different parents and their children`s surnames in the practice of Lithuanian courts

Giving a child a surname when the child's mother is not married Further analysis of the rules of registration of Civil Status Acts, it can be observed that the regulation ofthe provision of a child's surname when the child's mother is not married to the child's father depends on whether the child's paternity is recognized or established or not. Also, it depends on what rules will apply in a particular situation. Item 43.3 of the Rules for Registration of Civil Status Acts states that: “43.3. if the child's mother is not married to the child's father and if paternity has not been recognized or established, the child shall be given the mother's surname, nationality and the name indicated by her” [23]. Accordingly, if the child's parents are not married, but a notarized joint statement of the child's father and mother on the recognition of paternity is submitted, the man recognizing himself as the child's father is entered as the child's father [22]. In this case, the child's surname is given based on Clause 43.1 of the Rules of Registration of Civil Status Acts, when the parents' surnames differ - by mutual consent of the parents. Reasons for changing a child 's surname and legal mechanism the child's surname may be changed or corrected only in certain exceptional cases. This may be when you want to give a child the surname of one of the parents, for example, after a divorce a woman who has changed her surname to a premarital woman wants the child to have her surname in the cases specified in the Rules for Changing the Name and Surname of a Person approved by an order. It should be emphasized that the child's name and surname are given from birth and indicate his or her individuality, therefore these personal data cannot be changed or corrected without justification [23]. It is also worth mentioning that a child's surname can only be changed with the consent of both parents, y. by common consent of the parents [24]. It should be noted that a child's surname cannot be changed unilaterally without the knowledge ofthe other parent (unless his or her parental authority is restricted), so the rules on changing a person's name (or) surname, together with the documents referred to in Paragraph 19 of these Rules, the written consent of the other parent must be submitted to the civil registry office ”[25], such a provision in order to protect the rights of the other parent from possible abuse. In addition, the rules stipulate that the written consent of the child, if he or she has reached the age of 10, must be submitted together with other documents [26]. The change of name and / or surname is registered by creating a record of the change or addition of the last entry in the civil status act of the person [27], i. y. without the presence of a judicial authority. However, there are cases when the parents do not agree on the change of the child's surname, often disputes arise, which are resolved by the court in accordance with the procedure established by law.

Problems of implementation of children's rights and (or) legitimate interests

These problems arising from different surnames of children in Lithuanian court practice Lithuanian case law clearly emphasizes that all issues related to children, including the issue of the child's surname, are resolved by giving priority to the child's interests, i. y. assessing whether the surname is in the best interests of the child [28]. The Constitutional Court ruling of the Republic of Lithuania of 8 November 2019 noted that the constitutional imperative of the best interests of the child presupposes the duty of the state to ensure that the child's rights are considered both when adopting laws and other legal acts and applying and resolving other child-related issues. interests and there are no presumption of prejudice [29]. It can be noted, however, that there are cases where courts do not take into account the child's rights and best interests, such as the interest of being a full member of the family, as well as the right to live and develop healthily, the right to preserve identity., the right to know their origin. It is important to note that the Committee on the Rights of the Child has stated that "there is no hierarchy of rights in the Convention and all rights in it take into account the" best interests of the child ", so a negative interpretation of the best interests of the child cannot infringe any rights" [30]. It is worth distinguishing the child's right to his or her identity and its preservation, enshrined in Article 8 of the Convention on the Rights of the Child and Article 9 of the Law on the Protection of the Rights of the Child, which is a major consideration in the assessment process. In its ruling of 2 December 2020, the Supreme Court of Lithuania notes that: "Where the change of surname of a minor child under the age of 16 is initiated by one of the parents without the consent of the other parent, there must be a presumption that the child's surname as an element of his identity is stable and in the best interests of the child. The aforesaid presumption that the best interests of the child are best preserved by the preservation of the surname given to him could be rebutted only in exceptional cases. The court may decide to change the surname of a minor child under the age of 16 if it finds that there are grounds for changing the child's surname provided for in the Rules and concludes that such change of surname is in the best interests of the child in the circumstances of the case” [31].

Although, as stated in the judgment, the best interests of the child are maintained by the surname already in place, the courts are more inclined to uphold one of the parents' claim in the case and to change the child's surname, especially if the father ceases to communicate with the child. For example, in a case heard by the Tauragи District Court, it was stated that the biological father's non-participation in the child's upbringing since 2017 determines the need to change the girl's surname in the interests of a five-year-old child [32]. The Court stated that: For the biological father of the child from 2017. In June, without raising the child at all, without communicating with the child, a situation arose that the child still does not know his biological father, names his mother and little sister as his only and close people, calls his current mother M. L. The relationship between the child and biological father the defendant did not perform and does not perform any of her duties as a father to the minor daughter, did not bring her up, nurture her, did not participate in her daily life. The mere provision of court-ordered maintenance does not constitute participation in a child's life. The court rejected as unsubstantiated the defendant's argument that he was not allowed to communicate with the child. The defendant, having a statutory duty of care for the child, did not himself take any active steps to change the communication procedure [33]. The case reached the Supreme Court of Lithuania, so in assessing the same issue, the Supreme Court of Lithuania stated somewhat differently: In the present case, the applicant's argument that the father's contact with his daughter was completely broken through the defendant's fault, with the girl having no contact with her biological father, is irrelevant for the purposes of changing the surname of a minor under 16 years of age. on the limitation of the power of the defendant's father. The grounds for changing a child's surname are not related to certain behavior of the child's parents, they are established only in the presence of certain objective facts. In the light of the foregoing, the panel concludes that there has been a breach of the father's duty to communicate and participate in the child's upbringing, which has led to a lack of emotional, social, and spiritual connection between the father and the daughter, regardless of the parent's fault, is not a circumstance that would justify changing the child 's surname in the best interests of the child [34].

With regard to the child's right to identity and preservation, it is important to note that the legal framework in accordance with the principle of equality ofparental authority and the provision obliging respect for the child's right to identity are interdependent [35]. Parental rights and responsibilities for children are the same (equal), so the surnames of the parents are equal [36], and the identity of the child consists of both the surnames of the mother and the father, he belongs to both the mother and the father's family. At the same time, this may in a sense mean that it would be fair for both children and parents if the parents' surnames are different, to give the child a double surname consisting of the father's and mother's surnames, except in exceptional cases. The Ombudsman for the Protection of the Rights of the Child has pointed out that, according to the case-law of the Court, a system which allows the transfer of both parents' surnames not only does not run the risk of erroneously establishing a family relationship but may facilitate recognition of that relationship with both parents [37]. One of the natural rights of the child enshrined in Article 6 (2) of the Convention on the Rights of the Child and Article 6 of the Law on the Framework for the Protection of the Rights of the Child is the right to live and develop healthily. A relevant comment from the Committee on the Rights of the Child is that Member States are expected to interpret the term 'development' in a broad sense as a holistic concept that includes the child's physical, mental, spiritual, moral, psychological, and social development [38]. One of the potential problems arising from the different names of parents and their children encountered in case law is that this may lead to future bullying by the child, which has some impact on the child's healthy development. For example, the child's father, whose name is given to the child, is convicted of an intentional crime that may cause the child to experience bullying or other spiritual experiences. Also, it is quite common in cases that the change of a child's surname is intended to make the child feel a full member of the family, which is also important for the child's healthy development. Such situations could be treated as exceptional cases. For example, in the case of the Kaunas Regional Court, the issue of changing the surname of a minor child was resolved, when the father not only completely withdrew from the child's upbringing, communication, due to which the child does not know his biological father, but also from child support. In the present case, the court, having established all the facts, said that: "In this case, first of all, it is important for A.'s interests to have a surname like all her families, to be inseparable from those around her and caring for her.... Accordingly, to psychologically prevent a girl, it is necessary to give her the surname of her parents. It is the parents who take care of her that raise her, not the biological father she doesn't know at all. the mere fact that the appellant's power over the girl is not limited is irrelevant to the situation in question. The change of the girl's surname aims to protect the interests of the child as a representative of a weak and sensitive social group. Only by changing the girl's surname to the identical name of her mother and husband (whom the girl calls her father) will the best interests of the child be fully protected from possible negative consequences (bullying, insults, lack of fullness, etc.)” [39].

The case of the Supreme Court of Lithuania also raised the issue of the child's need to feel a full member of the family, where it was said that: In deciding whether it would be in the best interests of the daughter of the parties to the dispute to change her surname to have the same surname as her mother and her husband, whom the girl loves and calls her father, the child's surname is not a key factor in determining the child's well-being. Family unity is strengthened when the relationship between the spouses is based on the principles of solidarity and equality, and the child's well-being within and outside the family is ensured by devotion, support and commitment [40]. Also, violations of the child's right to live and develop healthily can be considered cases when the child experiences great stress when questioned by officials at airports. In the activity report of the Ombudsman for Children of the Republic of Lithuania, the ombudsman reacted to violations of children's rights related to the control of public transport passengers, when minors are not transported to the police station without identification negative emotions and stress [41]. A similar situation is observed in the activities of airport officials, where the child is asked certain questions in order to establish the relationship between the child and the parents.

Conclusions

1. The right of the child to a name is a fundamental human right protected by both national and international law. It is very important to emphasize that the name of children as the weakest citizens should not restrict their rights and legitimate interests, but, on the contrary, must comply with them. It should be noted that in the peculiarities of the formation of surnames and their previous regulation, the dominance of the father's surname is noticeable, which gradually changed, and the mother's surname became equally important and equal to the father's surname. 2. It is important to mention that the importance of a surname both in society and for the person himself can be described by the fact that the surname is one of the basic data for establishing a person's identity, and it is also an integral part of a person. 3. The obligation to register the birth of a child must be fulfilled by the parents responsibly, as well as by responsibly collecting his / her surname so that it is not changed in the future without good reason and irresponsible giving of the surname does not harm the child and his / her interests. If the parents, consider that the child's surname still needs to be changed - they must provide an important reason for this and such a change of name must be in the child's best interests. 4. In the case law of Lithuanian courts regarding the change of the surname of a minor child, it is possible to see certain cases of failure to ensure the rights and legitimate interests of the child. The courts violate the child's right to preserve his or her identity by not ensuring the permanence of the child's surname, with no exceptions. The child's family consists of both mother and father, and childhood is the basis of all further life, so it is imperative that every effort is made to ensure the child's rights and interests in a surname that does not damage his indicates both the mother's and father's relationship identity and allow for healthy development. The to the child. fairest solution is to give the child a surname that