AB v CD (no 1); AB v CD (no 2)
| Jurisdiction | England & Wales |
| Judge | COHEN J |
| Judgment Date | 16 August 2019 |
| Neutral Citation | [2019] EWHC 1695 (Fam), [2019] EWHC 2244 (Fam) |
| Court | Family Division |
Practice and procedure – Strike-out application – Deceit proceedings concerning failure to reveal paternity of child issued in QBD and transferred to Family Division – Revisiting original case management decision to hear application with financial remedy proceedings – Change of circumstances – Impact on family of evidence gathering for purposes of decit proceedings.
The couple were married in 2003. The child was conceived some years later, at a time when the mother was having an affair with a man identified only as X. The mother claimed that, nonetheless, she had concluded that the husband was the child’s father. The child was raised as the couple’s child. In early 2017, for unrelated reasons, the mother and the husband separated. In 2018, at the husband’s request DNA testing was carried out, which confirmed that the husband was not the biological father of the child.
The husband, extremely upset, issued a raft of proceedings against the mother, including proceedings in the Chancery Division for breach of confidence, deceit proceedings in the Queen’s Bench Division (QBD), claiming back from the mother all the money he had spent on the child to date, together with damages for his distress and for the difference between whatever sum that the mother eventually received at the determination of her claims for financial remedy orders and what she would have received if her claims had been determined on admission of adultery at the time the child was conceived; proceedings under Children Act 1989 for residence; and financial remedy proceedings. He also issued proceedings seeking an order requiring the mother to disclose X’s identity so that the child could be told. The mother did not wish the child to be told that the husband was not his father and resisted the proposition that she be required to disclose X’s identity.
The mother took out an application to strike out the deceit proceedings, which had been transferred to the Family Division. In May 2019 the court took the view that, rather than the parties spending resources on a separate strike-out application, it should be heard at the same time as the financial remedy proceedings.
Eventually, after a prolonged period of uncertainty, the husband decided that he wanted to remain a central figure in the child’s life. The husband now lived in the UAE and returned to England for about one week every month to see the child, also spending about half the school holidays with the child. The mother’s evidence was that X knew nothing of the proceedings and had no knowledge that he was the child’s father; as far as she was aware, he had never met the child. The guardian’s position was that the child should be told that the husband was not the father as soon as possible and should be told X’s identity at the same time, unless he did not want to know X’s identity, in which case he should not be told this piece of information until he did want to know. By the end of the hearing, the husband and the guardian were both suggesting that the two issues of disclosure of the husband’s non-paternity and the identification of X should not be split, which might mean a delay before the child was told anything, for X’s stance to be ascertained, although the delay should not be excessive. The mother remained of the view that the two issues could and should be split. It had been agreed that the husband’s position was to be strengthened by the grant of parental responsibility to him and a ‘spend time’ order. The mother was, in addition, seeking permission to take the child to India for a visit, as usually happened in the holidays.
After the first hearing, the mother and husband agreed to appoint a specific person as an independent social worker to help and advise them through the process of breaking the truth to the child about his paternity. Also, X responded to a letter sent to him, stating that he did not recognise the jurisdiction of the English court to deal with this matter and also denying the allegations. In the light of this denial of paternity, the mother asked the court to revisit its decision. The day before the second hearing, the husband issued an application for permission to take the child overseas to France for a week’s holiday at the end of August 2019.
Held – No 1: (1) the possibility that disclosure of X’s identity would be ordered in the deceit proceedings was not an appropriate matter to be taken into account in the children proceedings, which were governed by what was in the child’s best interests. In any event, it was not a given that X’s identity would be ordered to be disclosed in the deceit proceedings, or that the court would regard it as appropriate that any claim against X within such proceedings should be determined at the same time as the claim against the mother (see [20], [21], below).
(2) The starting point was that the child must be told sooner rather than later that the husband was not his biological father. The court agreed with the guardian that the child was now at an age when it would be easier for him to accept than it would be when he was older. Also, the risk of him hearing rumours from others was a real risk which needed to be avoided if possible (see [39], below).
(3) It would be wrong to disclose X’s identity to the child until after it was known whether X would want to play any role in his life or even meet him; X’s reaction to the news would impact on what was told to the child. The court had therefore drafted a letter to X which would be sent to X, seeking answers. X must also be told of the existence of the deceit proceedings, which might involve him. It was unfortunate for the child that X’s attitude to the child might be influenced by this threat. The mother was forthwith to disclose to her solicitors the name and contact details of X. The body of the letter must make clear that it was a letter sent on behalf of all three parties (including the guardian), which had been approved by the judge. Any and every reply must be copied to the other parties, subject only to the redaction of name and address. The mother’s solicitors should by 5 July send the letter in agreed terms to X, requiring a reply by 2 August 2019. X must have the chance to assimilate what he was being told, which might come as a total shock to him. He was entitled to give a considered view and to take advice. The matter would be listed for about five or six weeks’ time by which time the court expected X to have responded. A further delay might be needed, depending on X’s reply. The delay and potential further delay were the inevitable consequence of dealing with matters holistically, rather than decoupling the two issues (see [40], [42], [43], [45], [46], [54], [67], below).
(4) How the news was broken to the child must be very sensitively handled. The guardian’s proposal was that the mother should tell the child the news by reference to an agreed script and that later the same day the husband should reinforce it. That was probably right, but further guidance should be taken from the expert who would be assisting them through this process and who would be able to gauge reactions. The only certainty was that the news would be unwelcome. If the court were eventually to direct that X’s identity should be disclosed, it would have to consider carefully how the information was to be used and to whom it would be given. The court was anxious that the information was used for the child’s benefit and not for any gratification of a desire for revenge. Steps need to be taken to mitigate the lack of communication which existed between the wider family. The parents had agreed to use an app and to accept mediation (see [48], [49], [51], [53], below).
(5) The risk of the mother retaining the child during a summer visit to India was very small. She and the child had lived in England throughout their lives. They were completely settled in England. Their social status in India was undermined by the fact that her adultery was, within their circle, a known fact. Further, the financial consequences of the mother not returning with the child to England would be very large. She had a claim for financial remedy orders to be determined and if she was in breach of an order to return the child that claim would be extremely adversely affected. The incentive for her to return was higher now than it had ever been, including the three occasions on which she had gone to India with the child last year, the last occasion being after the first DNA test results. The court would require the mother to undertake that in no circumstances would the child come into contact with X. It was true that if X was in India and if he accepted that he was the biological father, he could, as the child’s father, apply for orders in respect of the child in the courts of India, but at no stage during the child’s life had he ever expressed any interest in the child and there was no reason to think that this might now be the case. There was no bar to the husband visiting India and exercising all his rights to spend time with the child; he had parental responsibility for the child. The court required the mother to pledge as security for the child’s prompt return the London flat of which she was the legal owner. The trip was to be restricted to 14 days because of the demands of the proceedings (see [60]–[65], below).
Held – No 2: (1) the court declined to revisit its decisions in the light of X’s denial of paternity. It was only a matter of time, probably a fairly short time, before someone told the child anyway; too many people knew about it to be kept hushed up. There was no prospect of this issue being smoothed over and it remained far better that it was managed so as to minimise the potential damage to the child. Sadly, if the child was to be told the whole truth he must be told that whilst the mother had named X as his father, X had denied it. This brought with it the scope for the child to feel abandoned and rejected (see [7]...
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