Family Related Disputes in UK Law

Rule 4.1(6) of the Family Procedure Rules provides that "A power of the court under these rules to make an order includes a power to vary or revoke the order". 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.

All we need say is that the children's guardian is on any view pivotal to the whole scheme. As any judge who has ever sat in care cases will be all too aware, the court is at every stage of the process critically dependent upon the guardian.

The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings. The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious.

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. First there have been huge scientific advances with the arrival of DNA testing.

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. Even before the Mental Capacity Act 2005 was brought into force, that view of the inherent jurisdiction had been shown to be unduly narrow: see St Helens Borough Council v PE [2006] EWHC 3460 (Fam), [2007] 1 FLR 1115.