Re F (Children) (Declaration of paternity)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Lloyd |
| Judgment Date | 25 July 2007 |
| Neutral Citation | [2007] EWCA Civ 873 |
| Docket Number | Case No: B4/2007/1411 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2007 |
[2007] EWCA Civ 873
IN THE SUPREME COURT OF JUDICATURE
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
Lord Justice Lloyd and
Lord Justice Toulson
Case No: B4/2007/1411
Miss R Butler (instructed by Messrs Dutton Gregory) appeared on behalf of the Appellant.
Mr J Ward-Prowse (instructed by Messrs Dickinson Manser) appeared on behalf of the Respondent.
Miss Butler pursues an application for permission with appeal to follow on behalf of the mother of twins, who were born on 3 March 1999 and are therefore 8 1/4 years of age. The other party to the proceedings is Mr Bretherton (anonymise?^^), who issued an application on 28 February 2006 seeking a declaration of parentage in relation to the twins and, if paternity proved, a contact order.
During the subsequent progress of the proceedings, DNA testing established that he was indeed the father of the twins. A complication in the case is that the applicant has a third child B, born on 25 July 1996 of whom Mr C is the father. Mr C co-habited with the mother for a substantial period and is recognised by the twins as their natural father. The united position of the applicant and Mr C is that this apparent reality should not be disturbed by disclosing to the twins the truth.
The proceedings came before HHJ Meston QC for the first time on 18 January 2007. He had clearly prepared most conscientiously for that hearing and at the outset drew counsel's attention to two reported cases. The first is the case of J v C decided in this court in May 2006 and reported at the first page of the 2007 Family Reports. The second case is also, by chance, reported under the initials J v C. It is the decision of Sumner J at first instance and is reported at [2007] 1 FLR 1064. The relevance of these two cases is that in the first at paragraph 41 of Wall LJ's leading judgment, doubt is cast on the justiciability of orders under section 8 of the Children Act to require a parent to disclose to a child the truth of his or her parentage. That perhaps influenced Sumner J to say in paragraph 12 of his judgment, given in November 2006, that he was presuming that he had the jurisdiction to make such an order but concluded on the merits that he should not exercise it.
So on the 18 th the expectation of counsel that there was first to be a preliminary trial as to whether or not the twins conception was the result of consensual intercourse, followed by a discretionary determination of the difficult question of how and when the children should be told the truth, was put back behind. It might be described as pre-preliminary issue: namely, the question of the courts jurisdiction to order the mother to inform the children or to order her to permit them to be informed. The judge took that pre-preliminary issue in June and delivered his judgment on 8 June, explaining why he came to the clear conclusion that, despite the reservations expressed by Wall LJ, the court held jurisdiction to make the order.
I would wish at once to pay tribute to the very full and careful judgment of HHJ Meston, in which he sets the scene; considers the relevant statutory provisions; considers the authorities directly or indirectly touching the question; and then finally reasons his conclusion. He had defined the issue on the first page of his judgment thus:
“The issue presently before the court is whether there is jurisdiction enabling the court to compel the mother by specific issue order to tell the children the truth about their paternity.”
In the course of his judgment he defined the relevant factual and legal context in paragraph 33 of his judgment:
“(a) It is now clear that Mr Bretherton is the biological father of the twins.
(b) The twins do not know or suspect the truth. They believe Keir Cullen to be their father, Benjamin to be their full brother and Mr Cullen's parents to be their grandparents. Mr Cullen could at present properly be described as their only father figure i.e. as their psychological and social father.
(c) Mr Bretherton has seen the twins twice when they were less than a year old, the last occasion being in December 1999. He has had no indirect contact and they know nothing of him. It is not agreed between the parties whether his very limited contact with them was sufficient to establish family life within the meaning of Article 8 of the European Convention on Human Rights. The mother and Mr Bretherton never lived together, and their relationship was brief, lasting three a few months in 1998. Because Mr Bretherton and the children have never been part of the same family unit and there is no past or present relationship between them, he could only base any claim to respect for family life on the existence of the blood tie and on a potential relationship in the future.
(d) Their births were initially registered without a father being named; Mr Cullen was registered as their father in 2005, and thereby he acquired parental responsibility. However his parental responsibility would be revoked once the registration is corrected.
(e) The mother gave the Child Support Agency the name of Mr Bretherton as the father when the CSA contacted her.
(f) The mother is their primary carer and the only person with valid parental responsibility.
(g) Mr Bretherton now seeks a specific issue order or an order under the inherent jurisdiction of the High Court that the mother shall forthwith disclose to the children the identity of their biological father, either by herself or through or with some suitable intermediary.
(h) The mother and Mr Cullen both resist the making of any such order. They fear the consequences of informing the children of their paternity, and they doubt the value of doing so and of establishing contact between the twins and Mr Bretherton. They are prepared to consider informing the children of the true position when they are about 18 years old, but not before; and they are not prepared to commit themselves to doing so at any age. The mother finds it difficult, if not impossible, to accept the view that that the children should be informed of the truth and that they should be informed sooner rather than later.
(i) If the court decides that there should not be any form of...
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