NOTES OF CASES
| Published date | 01 March 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01266.x |
| Date | 01 March 1970 |
NOTES
O’F
CASES
BLOOD TEST EVIDENCE
PART
111
of the Family
Law
Reform Act
1969
enacts the proposals
of the Law Commission
on
this subject. The date
upon
which
it
will
wme into force has not yet been
announced,
and in the mean-
time the courts must struggle with the old law. This was considered
by the Court
of
Appeal
in
the
two
recent decisions
of
B.
v.
B.
and
E.2
and
W.
v.
W.s
The former was a custody dispute
in
relation
to
a child
born
during a first marriage. The wife had remarried, and
alleged that her second husband was the child’s father. Initially
d
three adults agreed
to
have their blood tested. But after the Official
Solicitor had been appointed to represent the child, the first husband
withdrew
his
consent, and the Official Solicitor was not prepared
to
consent
on
behalf of the child. Baker
J.
at first instance ordered the
child’s blood
to
be tested.
In
W.
v.
W.s
a husband sought
to
have
the blood of a child
born
to
his
wife
during the marriage tested
in
order
to
establish her adultery. Here husband
and
wife were
willing
to
be tested and for the child
to
be tested, but the alleged adulterer
could
no
longer be traced. The Official Solicitor refused
to
consent
on
behalf of the child, and his refusal was upheld by
Simon
P.
The
Court
of
Appeal unanimously allowed the first husband’s appeal
in
the former case; and, Lord Denning
M.R.
dissenting, disallowed the
husband’s appeal in the latter. Thus in neither case
was
the
court
prepared
to
allow the test.
It
must first be noted that in neither case was the refusal based
upon lack
of
jurisdiction to order a test,‘ but instead was rested
upon the court’s discretion to refuse
to
direct
a test when
it
would
not be in the best interests
of
the child for it to be tested.s
This
discretion was specifically endorsed by the Law though
in
a somewhat misleading way since the argument murs in a para-
graph dealing with the special situation in divorce and nullity suits
where there
is
a
danger that mandatory tests would enmurage
speculative petitions. The conclusion that there should be a discre
tion
to refuse to order ‘a test is, however,,
in
general terms. The Act
implicitly accepts this by conferring a
power
upon the court to order
a
test. There is
no
direct reference
to
a discretion
to
refuse to order
a test, and
no
hint of the grounds upon which
it
might be exercised.
Law Com.
No.
16:
Blood
Tests and the Proof of Paternity
in
Civil
Pro-
ceedings.
[1969]
3
All
E.R.
1106.
J
(1969) 119
New
L.J.
1044.
4
B.
R.
B.
v.
J.
B.
[1968]
P.
466
is
now clear auhhority
to
mpport
thin view.
6
The
question
of
discretion
is
mod
fully
considered in the judgment
of
Sachs
L.J.inB.R.B.v.J.B.
0
para.
67.
202
MAE.
1970
NOTES
OF
CASES
208
Since the Law Commission and the legislation has concentrated upon
reforming the jurisdictional position, the existence as a condition
precedent
to
exercising the jurisdiction
of
an undefined discretion
is
a
potentially frustrating factor.
Lord Denning
M.R.
said in
B.
R.
B.
v.
J.
B.
that
a
test would be
ordered
‘‘
whenever
it
is in the best interests
of
the child.” The
two recent cases carry this a little further. In
B.
V.
B.
and
E.
some stress was laid upon the presumption
of
legitimacy.
It
was
quite
clear that the presumption operated, and in the absence
of
blood test evidence could not be rebutted.
It
was accordingly
argued that
a
blood test must necessarily add uncertainty, since
it
could not be said in advance
of
its being taken that
it
would
yield
a
conclusive result. This argument has the effect of limit-
ing the admissibility of blood test evidence
to
cases where there is
independently
of
the blood test a chance of the presumption’s
being rebutted. Thus the
ironic
situation has arisen that a pre-
sumption which was very sensibly used
to
resolve disputes in the
absence
of
any satisfactory evidence is now being used
to
justify
the exclusion
of
the only evidence which might be satisfactory.
It
was this very possibility which led
Ormrod
J.
to remark in
Holmes
v.
HolmesY8
“
When, as
I
think in these days,
it
is possible
to
enable the
Courts
to
do
justice
on
a
footing
of
fact and not
to
do
justice
on
a
basis
of
presumption,
I
should myself greatly hope that
no
difficulties will ever
be
put in the way
of
a child’s blood
being supplied for blood grouping.”
This difficulty may be slightly reduced as a result of the reduction
in
the quantum of proof necessary to rebut the presumption
of
legitimacy
to
proof
on
the balance
of
probabilities by section
26
of
the Family Law Reform Act
1969
which has already come into
force. Even
so,
in a case like
B.
v.
B.
and
E.,
where husband and
wife were cohabiting at the relevant time,
it
is not easy to see
where the degree
of
doubt
to
justify the blood test is to come from
if
it
must contribute towards not truth but certainty.
Some members of the court seem
to
have felt that uncertainty
was increased in
B.
v.
B.
and
E.
because the
fht
husband could
not be forced to take
a
test.9 This
is
unconvincing in view of the
Court’s apparent assumption that a blood test could establish only
a
negative,
or
exclusion, result, namely that a given person could
not be the child’s father.
In
fact
on
the basis of this hypothesis,
even testing the second husband and the child alone can only
increase certainty. This is easily demonstrated. Without any test-
ing, but simply applying the presumption, a clear result is obtained,
but
it
is
left completely uncertain who really is the child’s father.
On
the court’s hypothesis, testing the second husband and the child
7
[1968l
P.
466,
473.
8
[1966]
1
W.L.R.
187,
188.
9
W.
v.
W.
(No.
4)
“641
P.
67.
To continue reading
Request your trial