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.

In my opinion, when a Court is asked todecide whether a child is legitimate or not, it should have before it the best evidence which is available. It should decide on all the evidence, and not on half of it. 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.

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.

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.

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.

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).