B. v B. and E
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE CROSS |
| Judgment Date | 11 July 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0711-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 July 1969 |
[1969] EWCA Civ J0711-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by Petitioner husband from Order of Mr. Justice Baker on 13th June, 1969.
The Master of The Rolls (Lord Denning)
Lord Justice Harman and
Lord Justice Cross.
Mr. COMYN, Q.C., and Mr. JOHN SAMUELS (instructed by Messrs. Basset & Boucher, Rochester) appeared on behalf of the Appellant.
Mr. MURRAY BAND (instructed by Messrs. Church, Bruce, Hawkes, Brasington & Phillips) appeared on behalf of the Respondent and Co-respondent.
Mr. D.J. HYAMSON (instructed by the Official Solicitor) appeared on behalf of the infant intervenor.
The question is whether there should be a blood test on a little boy, Andrew Raymond Bonnick.
The husband and wife were married on the 22nd October, 1960. The husband was 37 years of age, and the wife 22. So there was a good deal of difference in age between them. In September 1964 the wife became pregnant. At that time she was having sexual intercourse with her husband, with or without contraceptives. A little later, in November 1964, she went back to her own parents. Three weeks later she returned to her husband, determined, apparently, to make the marriage a success - or, at any rate, so the husband believed. They carried on as husband and wife. The child was born on the 25th June, 1965. The husband was registered as the father, with the consent of all concerned. The husband's Christian names were Derrick Raymond; the boy was christened Andrew Raymond. Thenceforward, the little boy was brought up as the child of the husband and wife. The wife never suggested that the child was not her husband's child. But then in May 1968 she left and went to live with the co-respondent, who was a nurseryman 100 yards away. She did not take the child with her. She wanted to take the child. Her husband refused. She acquiesced in his refusal. He kept the child, and his widowed sister came to run the household and look after the child. The wife's solicitors wrote a letter on the 6th May, 1968, in which they said: "Our client intended to take the child, Andrew Raymond, with her when she left but your client has expressly forbidden this." Then at the end: ".…. we are instructed to place on record that our client believes that Andrew's father is Mr. Dudley T.G. Elliott" - that is, the co-respondent - "and your client is already aware of this". Thereupon the husband petitioned for divorce. He asked for the custody of the child. He claimed damages also against the co-respondent for taking his wife from him. A decree was pronounced. Damages were awarded against the co-respondent. On the 22nd May, 1969, there was adecree absolute. On the 2nd July, 1969, the wife married the co-respondent. She has, we are told, now another child, of which the co-respondent is the father.
Now the custody of the little boy Andrew is in issue. He is aged 4. The husband wants custody. So does the mother. The question is whether a blood test should be had to determine who is the father. The wife and co-respondent are ready to have a blood test. At first the husband said that he would agree, but now (after the Official Solicitor has been appointed to represent the child) the husband has changed his mind. He refuses to have his blood tested. The Official Solicitor, on behalf of the child, says that, if all the three adults agree to have a blood test, ho would see no objection; but so long as the husband refuses, he does not think it is in the interests of the child to have a blood test. So we come to the question: ought the child to be blood-tested?
When all three adults consent, there is a very good chance of proving which of the men is the father. In such a case, the Court will nearly always order a blood test of the child because, whenever doubt is cast on the paternity of a child, it is very important for the truth to be ascertained. It is nearly always in the best interests of the child as well as in the interests of justice, see In re ( L. 1968 P. 119); and In re ( B. 1968 P. 467). But, if one of the three adults does not consent, it may be different; because there is less chance of ascertaining the truth. Take this very case. Suppose that the child has its blood tested, and the mother and co-respondent have theirs, but the husband refuses to have his. That will not show that the co-respondent is the father. All It can show is that, if he is not the father, there is a 70% chance of proving it. So the blood test will not help the wife and co-respondent to prove what they hope to prove - that the co-respondent is the father. It is not much use, therefore, having a...
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