R v Bow Road Justices, ex parte Adedigba
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 29 February 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0229-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 February 1968 |
[1968] EWCA Civ J0229-1
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From the Divisional Court Queen's Bench Division.
The Master of the Rolls
(Lord Denning)
Lord Justice Salmon and
Lord Justice Edmund Davies
MR. Z. VARDY (instructed by Messrs Ronald Fletcher Baker & Co.) appeared as Counsel for the Appellant (Applicant Mother).
MR. A. CLASS (instructed by Messrs Clifford Watts, Compton & Co.) appeared as Counsel for the Respondent (Respondent Father).
This is an affiliation summons. The woman and the man are both Nigerians. They were born in Nigeria and lived there. In 1950 the woman went to live with the man in his native village in Nigeria. They were regarded as a married couple. But they were not in fact is lawfully married. They bad two children, both boys: one born on the 15th March, 1959, and the other on the 9th October, 1960. Soon after the second child was born, the father came to England by himself, leaving the mother to come later. On the 18th September 1961 she joined him here in England with the two children. They lived together until January 1966, when the mother left the father. She took the two children with her and lived on National Assistance. The father had regular work as a postman at Mount Pleasant, but he has not paid a penny to her or to anyone for the upkeep of the two boys. She applied to the Domestic Proceedings Court at Row Road for maintenance for the children. The Court held that it had no jurisdiction to hear the summons. The reason was because the children were born abroad and the mother was domiciled abroad at the time when they were born. An application was made to the Divisional Court for a mandamus directed to the justices to command them to hear the summons. The Divisional Court held that they were bound by previous authorities to hold that there was no jurisdiction. Now there is an appeal to this Court.
The old law as to bastardy was founded on a statute of 1576 (18 Elizabeth C. 3) under which jurisdiction was given to the justices of the peace for the parish in which the child was born. The parish (who were bound to maintain the child) could proceed against the father. Several statutes were passed afterwards on the same lines. But the modern law dates from the year 1844. By a statute of 7 & 8 Victoria, C. 101, S. 2, the old statutes were repealed and the mother was given a direct right against the father for maintenance of the child. The Act said that "any single woman who may be with child. or may bedelivered of a bastard child. may either before the birth, or at any time within twelve months from the birth of such child" apply for an order for maintenance upon the father.
Five years after that Act came the case of Reg. v. Blane (1849) 13 Queen's Bench, p. 769. A French girl came to this country and lived here in London for 13 years working as a milliner. She then became pregnant. When she was near her confinement, she went back to France to have the baby. A month later she returned to London with the baby. She applied for an order against the father for maintenance for the child. The magistrates made the order. But the Court of Queen's Bench reversed it. They held that the magistrates had no jurisdiction to order maintenance. Lord Denman, Chief Justice, said: "Children born out of this country are not the subject of our bastardy laws". Mr. Justice Erle said the same. Mr. Justice Coleridge said that the previous statutes dealt only with bastards born in this country, and this statute should be construed likewise. He said: the word 'bastard' is to comprehend any bastard born in any part of the world, an immense field of inquiry must be traversed respecting the status of children according to the different is laws of different countries".
I am not impressed by the reasons given for that decision. But the case has stood as authority ever since. Statutes have been passed in virtually the same words as the 1844 Act but nothing has been done to overrule Reg. v. Blane
In 1872 there was passed the Bastardy law Amendment Act in precisely the same words as the 1644 Act. In 1914 came the case of Reg v. Humphreys 1914, 3 King's Bench, p. 1237. An English girl was engaged to a man here and became pregnant by him. Soon afterwards she went to Australia and had the baby there. A year later she returned to England and applied for an order against the father for maintenance for the child. The majority of the Divisional Court held that she could getmaintenance. They distinguished Reg. v. Blane on the ground that in that case the mother was a French girl, whereas here it was an English girl. Mr. Justice Avery dissented. He thought that it was not a valid distinction. But even the majority accepted Reg v. Blane as binding in the case of a child born abroad of a mother who was not English.
Then in 1950 came O'Dea v. Tetau 1951, 1 King's Bench, p. 184. A German girl living in Germany had a child there in Hamburg. The father was English. When the baby was three months old the Mother brought it to England and lived here. She applied for maintenance. The Divisional Court held that there was no jurisdiction to make an order. The case was covered by Reg. v. Blane. Lord Goddard, Chief Justice said: "The matter which impresses me is that the legislature, which must be presumed to have had knowledge of the decision in Reg. v. Blane. passed the Bastardy laws Amendment Act 1872 but did not in any way purport to overrule the decision in Reg. v. Blane or to make any provision that would have the effect of enabling the Court to distinguish that case". So Reg. v. Blane still held the field. It was applied in Reg. v. Wilson and others, Ex parte Pereira, 1953, 1 Queen's Bench, p. 59, when a Gibraltar woman had a baby in Gibraltar of an English father. She came to live in England and it was held that there was no jurisdiction to award her maintenance for the child.
There followed the present statute, the Affiliation Proceedings Act, 1957. Parliament again used virtually the same words. "A single woman who is with child, or who has been delivered of an illegitimate child may apply by complaint to a justice of the peace for a summons to be served on the man alleged by her to be the father of the child". Again Parliament did nothing to say that Reg. v. Blame was wrong. In 1963 there came the case of Buckeridge v. Hall 1963, 1 Queen's Bench P. 615. A Jamaican woman came to England and she had a childborn in England of an English father. The mother could not afford to keep it in England and sent it back to Jamaica. She applied for a maintenance order against the father. The Divisional Court held that Reg. v. Blane only applied to children born abroad and not to children born in this country. But Mr. Justice Salmon said: "It may one day be necessary for the Courts to consider whether Reg. v. Blane was rightly decided".
Home of those cases is binding on this Court: and I think the time has come when we should say that Reg. v. Blane in 1849 was wrongly decided and also the two cases which followed it O'Dea v. Tetau in 1951 and Reg. v. Wilson in 1953.
It seems plain to me that if the mother and father are both here and the child is here, the words of the statute are satisfied. I can see no possible reason for denying the Court's jurisdiction to order maintenance; and every reason for giving them jurisdiction. The father ought to be made to pay for the child. The difficulty felt by Mr. Justice Coleridge is not well founded. Every day these Courts consider the status of persons born abroad and the foreign law en the subject. I hold therefore that the affiliation statutes cover children born abroad as well as those born in England: and to cover mothers domiciled abroad at the time of the birth as well as mothers domiciled in England.
I know that since Reg. v. Blane the statutory provisions have been re-enacted in virtually the same words. But that does not trouble me. I venture to quote some words I used in Royal Court Derby Porcelain Co. v. Russell, 1949, 2 King's Bench at p. 429. "I do not believe that whenever Parliament re-enacts a provision of a statute it thereby gives statutory authority to every erroneous interpretation which has been put upon it. The true view is that the Court will be allow to overrule a previous decision on the interpretation of a statute when it has long been acted on, and it will be more than usually slow to do so when Parliament has, sincethe decision, re-enacted the statute in the same terms. But if a decision is, in fact, shown to be erroneous, there is no rule of law which prevents it being overruled".
Nor am I troubled by the fact that Reg. v. Blane has stood for 120 years. It is not a property or commercial case. It has not formed the basis of titles or commercial dealings. It is the sort of precedent which we can and should overrule when it is seen to be wrong. Only yesterday in Canway v. Rimmer Lord Morris of Borth-y-Gest used words appropriate to the situation: "Though precedent is an indespensable foundation upon which to decide what is the law. there may be times when a departure from precedent is in the interests of justice and the proper development of the law".
If we were to affirm today Reg. v. Blane as being the law of this land, the only consequence would be a reference to the law Reform Commission; than a report by them; and eventually a Bill before Parliament. It would be quite a long time before the law could be set right. Even than the law would only be set right for future cases. Nothing could be done to set right this present case. The mother here would not get maintenance for the child which she needs now. So I would overrule Reg. v. Blane now. In the days of 1849 the question may not have been of any particular social...
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