H v O

JurisdictionEngland & Wales
Judgment Date27 June 1991
Date27 June 1991
CourtFamily Division

Family Division

Before Mr Justice Ward


Family - paternity - DNA testing - retrospective operation

Previous paternity cases can be reopened

Paternity cases involving previously inconclusive blood tests could be reopened to take advantage of new DNA genetic fingerprinting methods as section 11B of the Guardianship of Minors Act 1971, as inserted by section 12 of the Family Law Reform Act 1987, operated retrospectively.

Mr Justice Ward so held in the Family Division on dismissing an application by the alleged father of a child born in 1983 to strike out the mother's claim for maintenance on the ground, inter alia, that the section did not have retrospective effect.

Mr James Turner for the putative father; Mr Nicholas Riddell for the mother.

MR JUSTICE WARD said that the mother had complained to justices that under the Affiliation Proceedings Act 1957 the applicant was the father of the boy born in December 1983.

In those proceedings the blood tests were inconclusive as they appeared to establish that the applicant was not excluded from a wide category of possible fathers and on January 7, 1986 the case was dismissed on the ground that there was no case to answer.

The Family Law Reform Act 1987 came into force on April 1, 1989. Section 11B, thereby inserted into the 1971 Act, enabled the court to make financial provision orders for a child of one parent against the other parent. The 1957 Act thereupon ceased to have effect.

On July 5, 1990 the mother issued her originating application under section 11B seeking financial provision for the child.

In their ordinary and natural meaning the words of the section were wide enough to cover orders made against a parent whether the child had been born before or after the date the 1987 Act came into force.

In Powys v PowysELR ([1971] P 340) Mr Justice Brandon had held that sections 2 and 4 of the Matrimonial Proceedings and Property Act 1970 was retrospective. The Court of Appeal had approved Powys in Chaterjee v ChaterjeeELR ([1976] Fam 199). His Lordship would adopt the same approach.

In his Lordship's judgment the natural and ordinary meaning of the section led to the conclusion that that there...

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