F (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lady Justice Hallet,Lady Justice Black |
| Judgment Date | 14 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1765 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2011/2182 |
| Date | 14 December 2011 |
[2011] EWCA Civ 1765
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH DISTRICT REGISTRY
HIS HONOUR JUDGE MESTON QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lady Justice Hallett
and
Lady Justice Black
Case No: B4/2011/2182
Mr Paul Storey QC and Mr John Ward-Prowse (instructed by Dickinson Manser Solicitors) appeared on behalf of the Appellant.
Ms Pamela Scriven QC, Ms Rebecca Butler and Mr Leslie Samuels QC (instructed by Dutton Gregory Solicitors and Aldridge Brownlee Solicitors) appeared on behalf of the Respondents.
This appeal arises out of very long, very complicated and no doubt very expensive proceedings in the Bournemouth County Court, relating to the paternity of twins and whether the reality of their paternity should be revealed to them in the face of the strongest opposition from their mother and their psychological father.
The proceedings have throughout been consistently and expertly handled by HHJ Meston QC. The orders that are under scrutiny today are orders that he made in March 2010 and July 2011. The simple point is whether, in deferring the date on which the parents had to inform the children of the reality, he was properly directing himself in deferring to the same future date the registration of their true paternity with the Registrar General. That is a short point of law which is the subject of grounds 1 and 2 of the appellant's notice, for which McFarlane LJ granted permission. He said that an application to pursue grounds 3 to 5 would have to be renewed at this oral hearing. Grounds 3 to 5 challenge the judge's discretionary decision to protect the children from discovery or from information as to the reality for a period of about four years.
So I start with the judgments and orders below. The first judgment is to be found at page 54 in bundle 2, where the judge said in December 2009:
"In this case if, as I have held, the mother's objections are not sufficient to prevent a specific issue order for disclosure in the interests of the children, those objections should not be sufficient to prevent a declaration of parentage. It is not in the interests of the children to continue to have false information on their birth certificates as a result of the reregistration in 2005. The declaration should take effect at the same time as the specific issue order."
I travel to his words three months later on 12 March, when he said:
"As discussed at the hearing today, the declaration of parentage is not to take effect until the children are informed of their parentage, but for avoidance of doubt the stay will apply also to the declaration of parentage because the timetable is tighter in that on the making of such a declaration under Section 55A(7) of the 1986 Act there has to be notification of Registrar General which, by FPR Rule 3.13, is done by an officer of the court and has to occur within 21 days of the declaration."
Those words gave rise to an order, which states:
"There will be declarations pursuant to Section 55A of the Family Law Act 1986 that B is biological father of G and M. The declarations will not be made in the prescribed form or sent to the Registrar General until the children have been informed of their parentage in accordance with this order."
That is how matters rested until the judge was obliged to exercise his discretion afresh in the light of developments which justified an application for the variation of the prime provision of the March 2010 order, namely that the children should be informed within a period of four months. The application for further relief was the subject of the judge's judgment of July 2011 when he said:
"With regard to the declarations of parentage reference should be made to paragraphs 125, 126 in my judgment of December 2009 and to paragraphs 27 and 29 of the further judgment of 12 March 2010. The order made on 12 March provided that the declaration of parentage 'would not be made in the prescribed form or sent to the Registrar General until the children had been informed of their parentage in accordance with this order'. It is now submitted on behalf of the father that the declaration should now be perfected so that the court officer is required to send to the Registrar General within 21 days in accordance with Rule 8.22 of the Family Procedure Rules, which is in the same terms as the previous rule. The result of that would be the registration of the births removing the incorrect registration of Mr C as the father."
On that submission the judge's ruling was to this effect:
"However, since I have done no more than to defer implementation of the order for disclosure I can see no reason to alter the provisions of the order that was made in March 2010 so as to ensure that the declarations would take effect and that the Registrar General would be notified only when the children themselves know the truth."
That found reflection in the order of 11 July paragraph 5:
"There will be declarations pursuant to Section 55 A of the Family Law Act 1986. The declarations will not be made in the prescribed form or sent to the Registrar General until the children have been informed of their parentage."
Mr Paul Storey QC for the father in this court says that all this is simply unlawful. The statute is plain, this is a question of status; these are public records, and the judge in effect conflated the question of public record registration with the infinitely more difficult welfare issues regarding the protection of the children from risk of accidental discovery and the professional communication of the reality to the children. His...
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