Megan Lewis (Appellant) Desmord John Lewis (Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORR |
| Judgment Date | 26 July 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J0726-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 July 1974 |
[1974] EWCA Civ J0726-4
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Justice Browne - Swansea)
Lord Justice Daves
Lord Justice Orr and
Lord Justice Ormrod
The APPELLANT (Mrs. M. Lewis, Wife) appeared in person.
Mr. JOHN DIEHL (instructed by Messrs. Allan Jay & Co., Agents for Messrs. Douglas-Jones & Mercer, Swansea) appeared on behalf of the Respondent (Husband).
Mr. BRUCE LAUGHLAND appeared on behalf of the Queen's Proctor.
LORD JUSTICE DAVIES: Lord Justice Ormrod will give the first judgment.
LORD JUSTICE ORMROD; This is an appeal from an order made by Mr. Justice Browne, sitting at Swansea, on the 18th October, 1972, by which he declared that a child born to Mrs. Lewis, the appellant before us, was not a child of the family, because he came to the conclusion that it was not shown to be a child of the husband; and there was no question of acceptance in this case. The child in question was born on the 9th April, 1972. When this case first came before this Court on the 29th October, 1973, Mrs. Lewis was appearing in person. My Lord, Lord Justice Davies, was sitting with Lord Justice Buckley and Lord Justice Lawton. On that occasion it became apparent that Mrs. Lewis was quite unable to present her appeal in person. She has not been able, I gather, to get any of the documents together or in fact to put her case before the Court. Mrs. Lewis will not mind my saying that she is a lady who unfortunately cannot read and can only write her name with great difficulty. So that her predicament when her case was before this Court last October was a very difficult one. In those circumstances the Court decided to invite the Queen's Proctor to come in as amicus curiae to assist the Court, and we have now had very great assistance from the Queen's Proctor and from Mr. Laughland, who has been representing him. I would like for my part to say at once that Mr. Laughland has been of the greatest possible assistance to the Court, and without his assistance it must be very doubtful whether justice could possibly have been done, in the circumstances of this case. Mrs. Lewis in fact at one time had a Legal Aid certificate to enable her to bring this appeal, and counsel settled a notice of appeal on her behalf, but, for reasons which we do not know about and into which we need not enquire, that Legal Aid certificate was either discharged or revoked at some period after the notice of appeal wasfiled. However, as I say, we have now had the great advantage of having Mr. Laughland's assistance here, and I think we can now deal with the case with some confidence. It is a difficult story, and one which involves consideration of the positive value of blood group evidence, which may be of some general importance.
The brief facts of the case are these. The parties were married on the 28th March, 1964, and they had two children, one born on the 16th October, 1964, and one born on the 14th August, 1966. These two young people (as they were) lived in Swansea and, judging by the transcript of the evidence, neither of them are people who find it easy to express themselves, certainly in a court setting. A parting took place in 1969. On the 5th August of that year the magistrates made an order in favour of the wife on the ground of the husband's desertion. He had formed an attachment to another woman at that time.
On the 17th February, 1971, the husband filed a petition for divorce on the ground of the wife's unreasonable behaviour. Mrs. Lewis obtained Legal Aid, and on the 22nd November, 1971, she filed an answer denying the conduct alleged, cross-charging adultery with the woman named, and alleging in her turn unreasonable behaviour and so forth. Among her complaints was one that the husband had brought the party cited back to the matrimonial home in November, 1969, and stayed there with her (and the wife and the two children) for about a month. In his reply the husband admitted the adultery but denied both the desertion and the unreasonable behaviour.
The case came on at first before Mr. Justice Forbes on the 21st April, 1972. On that occasion the sensible course was taken, agreed upon between counsel for both parties, that, the parties having been apart for two years, it would be sensible to file a new petition under what was then section 2 (1) (d), relying on two years, separation plus consent. The wife in fact filed that petition; and it is of some importance to note what she said in itabout this child. It transpired in fact that she had given birth to this boy David two weeks only before the case came before, Mr. Justice Forbes. In the relevant paragraph of her petition, paragraph 7, she said: "The Petitioner alleges that the said child David Stephen Lewis is a child of the family because the Respondent is the father of the said child. The Petitioner alleges that the Respondent had sexual intercourse with her in or about August, 1971, on three separate occasions at 18 Byron Crescent Swansea" - which was where the wife lived. "The Respondent further had sexual intercourse with the Petitioner on or about the 14th October, 1971, in his motor vehicle in the City of Swansea, and again had sexual intercourse with her about two weeks before Master, 1972. Save as aforesaid the Petitioner has not had sexual intercourse with any other man". That is rather badly worded, but she was saying in effect that she had never had sexual intercourse with any man other than her husband.
The learned judge Mr. Justice Forbes granted a decree nisi on that occasion on the basis of two years' separation, with consent. He heard no evidence about the paternity of this child, which was disputed by the husband; but he dismissed the first petition and the answer and granted a decree nisi on the second petition and ordered the trial of an issue as to the paternity of this child. He directed that blood tests be taken of the petitioner and the respondent and of the child. But he did not make an order that the child be separately represented. I am well aware that nowadays this course is frequently taken, but in this particular case, as it turned out (the learned judge was not to know this) it had the unfortunate effect that the child has not been represented in a highly contentious situation, and it might have been much easier for all concerned if the Official Solicitor had been representing the child. As it is, we have had the advantage of Mr. Laughland acting for the Queen's Proctor to some extent in the role that the OfficialSolicitor might have taken had he been involved.
Eventually that issue as to paternity came on for hearing before a Mr. Justice Browne on the 18th October, 1972, blood groups having been already ascertained. It should be said right away that this must have been an extremely difficult issue for any judge to try. One has only to look at the transcript of the shorthand note to see the enormous difficulties that both the husband and the wife in this case had in answering questions and in making audible answers; so much so that many times the learned judge had to ask for answers to be repeated, and at one stage the shorthand writer had to read out the answers as and when given. Also, tempers were running very high at that hearing and it became necessary to adjourn the hearing for a time in order to allow the tempers to cool down to a point at which it was possible to carry on the hearing.
Bearing in mind those difficulties, the learned judge, correctly in my judgment, directed himself as to the present state of the law on this matter, which has been very-significantly changed by section 26 of the Family Law Reform Act, 1969. That section provides: "Any presumption of law as to the legitimacy or illegitimacy of any person may in...
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