Family Related Disputes in UK Law

On the face of it, as the learned editors of The Family Court Practice 2015 point out (p 1299), this is a very wide power which could cut across some other provisions, for example those prohibiting variation of lump sum and property adjustment orders. However, it does give the family court power to entertain an application to set aside a final order in financial remedy proceedings on the well-established principles with which we are concerned in this case.

Finally, I must say that over and above all the interests of the child, there is one overriding interest which must be considered. Should it come to the crunch, then the interests of justice must take first place. There is at hand in these days expert scientific evidence - by means of a blood test – which can in most cases resolve the issue conclusively. In the absence of strong reason to the contrary, a blood test should be made available.

In this case the child the subject of the proceedings (R) had a Guardian appointed pursuant to the provisions of Rule 9.5 of the Family Proceedings Rules 1991 as amended. However, that Guardian, for entirely understandable forensic reasons, regarded it as wholly inappropriate that the burden of cross-examining R's half-sister B, with whom she lives, should fall to the child's advocate. For reasons particular to the facts of that case which I need not describe further, I agreed.

Mr Mylonas protests that the emphasis on the ‘interests of justice’ by the judge does not justify an unprincipled extension to the jurisdiction. In my judgment, that submission fails properly to take into account the focus of the judge's finding in relation to the interests of justice. The judge's emphasis was on the prospect of a court trying to make a finding on a matter as important as parentage (and therefore the identity of the Respondent) on incomplete oral and written evidence.

The inherent jurisdiction is plainly a valuable asset, mending holes in the legal fabric that would otherwise leave individuals bereft of a necessary remedy. The present case (DNA testing) might be said to fall between the above examples of the court's inherent powers (protection of the vulnerable, striking out).

First, the still inveterate use of orders in the form of declaratory relief might be thought to be in significant part both anachronistic and inappropriate. It originated at a time when, following the decision of the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, it was believed that the inherent jurisdiction of the Family Division in relation to incapacitated adults was confined to a jurisdiction to declare something either lawful or unlawful.

I do not consider that that factual distinction begins to displace the points of principle to be drawn from the cases, first that the interests of justice are best served by the ascertainment of the truth and second that the court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences.