B. (B.R) v B. (J.)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DIPLOCK,LORD JUSTICE SACHS |
| Judgment Date | 27 May 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0527-2 |
| Date | 27 May 1968 |
| Court | Court of Appeal (Civil Division) |
[1968] EWCA Civ J0527-2
The Master of The Rolls (Lord Denning)
Lord Justice Diplock and
Lord Justice Sachs
In The Supreme Court of Judicature
Court of Appeal.
Appeal by the Intervener from Order of Judge Sir Owen Temple Morris, Commissioner, dated the 22nd March, 1968.
Mr. J.P. CONYN, Q.C., and Mr. DAVID WILLIAMS (instructed by The Official Solicitor) appeared on behalf of the infant Intervener, Appellant.
Mr. JOSEPH JACKSON, Q.C., and Mr. MICHAEL NICHOLSON (Instructed by Messrs. Myer Cohen & Co.) appeared on behalf of the Petitioner.
Mr. TASKER WATKINS, Q.C., and Mr. MICHAEL EVANS (instructed by Messrs. D.C. Passmore Walters & Co., Cardiff) appeared on behalf of the Respondent.
In the case of Re ( L. 1967 3 W.L.R. 1645) this Court held that, in proceedings relating to the custody of a child, any Judge of the High Court can order a test to be taken of the child's blood. The question now arises whether a Judge can order a blood test on a paternity issue, or indeed on any other issue. We are told that many cases are waiting the determination of this one.
The facts are these: Mr. Barnes brought a Petition for divorce against his wife alleging that she had been guilty of adultery with a Mr. Woodfield. In his Petition he said there were no children of the family, that is, of himself and his wife; but he said his wife had committed adultery with Mr. Woodfield in about October 1963, as a result of which she gave birth to a son on the 22nd August, 1964. It was an undefended case. When Mr. Barnes gave evidence before the Commissioner, Judge Geoffrey Howard, he was asked when he last lived with his wife. He said; "I saw her for one night approximately on the 17th November, 1963 and that he had sexual intercourse with her on that night. If that statement was corrects it would mean that he was possibly the father of the child. He himself did not think he was the father. Nor did the wife. When the child was born, the wife and Mr. Woodfield registered, Mr. Woodfield as the father. Nevertheless, when it appeared that the husband had had intercourse with the wife about the time that the child was conceived, the Commissioner thought that he ought to get to the bottom of it. It was the Commissioner's duty under section 33 of the Matrimonial Causes Act, 1965, to be satisfied "as respects every relevant child" that proper arrangements had been made for his care and upbringing. The Commissioner could not determine whether this child was "a relevant child", that is, a child of both parties to the marriage, unless the paternity was settled. So the Commissioner directed that an issue should be tried as to whether the boy was a child of the family. He ordered that the child was to be made a party to the issue through a guardian ad litem. The Official Solicitor was appointed guardian ad
The paternity issue came before the Commissioner, Judge Sir Owen Temple Morris, on the 22nd March, 1968. The question arose whether the child should have a blood test. All three of the adults, Mr. and Mrs. Barnes and Mr. Woodfield, have had a blood test. It has been taken by an expert, Dr. Alan Grant of Guy's Hospital. As a result, Dr. Grant says that, if a blood test is taken of the child, he can say with certainty which of the two men is the father of the child. He will be able to say whether it was the husband, Mr. Barnes, or Mr. Woodfield, the other man. The Commissioner in the circumstances thought that it was in the best interests of the child to have a blood test. The Official Solicitor objected. He said the Commissioner had no power to order it on a paternity issue. The Commissioner overruled the objection. He ordered a blood test to be taken. The Official Solicitor appeals to this Court. He is anxious for the Court to lay down a rule so that he should know where he stands.
There is a difference of opinion among the Judges of the Divorce Division on this point. Mr. Justice Wrangham, in the case of L. v. L., reported in "The Times" of the 15th March, 1968 declined to order a blood test. He said he had no power to order & blood test on a paternity issue. Mrs. Justice Lanes in an unreported case of Hardcastle v. Hardcastle on the 12th February, 1968, ordered a blood test, even in an adultery issue. She thought it was in the best interests of the child so to do. In view of this differenceof opinion, it is clearly desirable for this Court to lay down a definite rule.
It is unnecessary to review the matter at length. That was done in Re ( L. 1967 3 W.L.R. 1645). Suffice it to say that, after full discussion, we see no reason for confining the jurisdiction, as Lord Justice Willmer did, to the Court's custodial jurisdiction. The jurisdiction is unlimited in a Judge of the High Court. He can order a blood test to be taken whenever it is in the best interests of the child. I repeat what I said in that cases:(So also in a paternity issue or anyproceedings where it is in the best interests of the child to have its paternity settled one way or the other, the Court can order a blood test. Even in a Petition for divorce on the ground of adultery the Judge can, in my view, order a blood test on the child, for the welfare of the child is vitally affected by the outcome." That being so, I hold that Judge Sir Owen Temple Morris was entitled to make the Order he did. It is clearly in the child's interest to have a blood test since it will settle definitely one way or the other which of the men is the father. As it happens, we are told that the child has already had its blood test. It only awaits the Order of this Court for it to be made known to the parties. So now all is straightforward.
A question was asked as to the extent to which the child should be consulted. If the child is of tender years - say under seven years - and thus unable to give consents one way or the other - then the High Court Judge can order a blood test without consulting the child. If the child is older, say 14 or15 years of age, then the views of the child should be taken into consideration. But the child's views are never decisive. Even if the child is difficult, the Court can order a blood test if it is clearly in the interests of the child, just as it can order an operation in the case of a ward of Court.
I would stress, however, that the jurisdiction to order a blood test is vested only in the High Court, and not in the County Court. There is a new Act, the Matrimonial Causes Act, 1967, which gives jurisdiction to the County Courts to try undefended divorce cases. So far as I can see at present, the only jurisdiction which is vested in the County Court Judges under that Act is the statutory jurisdiction in divorce. There is not vested in them the parental jurisdiction of a Judge of the High Court. That is derived from the Crown as parens patriae and not from any statute. No doubt in some of the undefended cases which come before the County Court underthat Act, it may be desirable in the Interests of the child to havea blood test. If so, the procedure is simple. The County Court Judge will refer it to a High Court Judge as a matter suitable for ancillary reliefs and the High Court Judge can order the blood test.
Likewise, of course, a Magistrates' Court has no power to order a blood test against the will of the parties. The Magistrate can only do it by consent of those concerned, namely, the grown-ups and the mother on behalf of the child. But, nevertheless, if any of them does not consent, the Magistrate can take that refusal into account. I adhere to the view which I expressed in Re L. that: "if an adult unreasonably refuses to have a blood test or allow a child to have one, I think it is open to the Court in any civil proceedings (no matter whether it be a paternity issue, or an affiliation summons or a custody proceeding) to take his refusal as evidence against him and to draw an inference therefrom adverse to him. This is simply common sense."
The concousion of the whole matter is that a Judge of the High Court has power to order a blood test whenever it is in the best interests of the child. The Judges can be trusted to exercise this discretion wisely. I would set no limit, condition or bounds to the way in which Judges exercise their discretion. The object of the Court always is to find out the truth. When scientific advances give us fresh means of ascertaining it, we should not hesitate to use those means whenever the occasion requires.
I would, therefore, dismiss the appeal.
I too would dismiss this appeal. Probably because of my unfamiliarity with the procedure in the Probate Divorce and Admiralty Division I think it is a simple question; but so I do. We are concerned here with the jurisdiction of the High Court — I emphasise that — of the High Court — not of any particular Division of the High Court. In W. v. W. decided in 1964, it was decided that the High Court has no jurisdiction to order an adult to submit to a blood test,because that would be an assault upon the unconsenting adult. But adults can, of course, consent to submit to a blood test. A parent or guardian who has control of a child, can arrange for the child to have a blood test: and the evidence of a blood test so obtained, which today is highly cogent evidence as to paternity - or may be so - is admissible on any issue in which the parentage of a child is relevant. In L. v. L. the question arose for the first time as to whether the Courts could order a child to be submitted to a blood test where the child was a party to the proceedings and represented by the guardian ad litem. The Court of Appeal there held that the High Court had such a power, but such power was...
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