Re F: ‘The Gooseberry Bush Approach’
| Date | 01 March 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01941.x |
| Published date | 01 March 1994 |
| Author | Jane Fortin |
The
Modem Law Review
[Vol.
57
Conclusion
It is suggested, with great respect, that the decision in
Khorasandjian
sits uneasily
within the law of tort for two reasons. First, it gives a plaintiff without an interest
in land the right to sue in nuisance. Support is drawn for the decision from
Motherwell, which has not previously been followed in this jurisdiction and is not
itself consistent with authority; yet the
ratio
decidendi
goes even further than that
in
Motherwell.
Second, it granted an order which restrains actions which have
nothing to do with the enjoyment of land.
It is clearly necessary to protect persons in Miss Khorasandjian’s position, but it
cannot be desirable to stretch the definition and boundaries of a tort
so
far that they
become meaningless. It would be preferable to see the needs of this type of
plaintiff met either by the use of the
Burnett
v
George
line of authority, or by the
reform of the law relating to domestic violence and molestation. The writer’s
preference is for the latter. It would be good t? see the Law Commission’s
recommendations in Report No
207
implemented as soon as possible. However,
the decision in
Khorasandjian
indicates that some further thought is needed
beforehand.
Re
F:
‘The Gooseberry Bush Approach’
Jane
Fortin”
‘Don’t worry dear, you were found under a gooseberry bush.’ If
E
ever reads the
decision of the Court of Appeal in
Re
F,’
she may consider this to be the court’s
message to her.
E
was a little girl of thirteen months, caught up in a paternity
dispute and, at one level, the court’s refusal to direct blood tests seemed eminently
sensible; after all, she had a happy home with her mother and the man she would
grow up to know as her father. Was there any real need for her to know exactly
who fathered her?
The facts in
Re
F
were relatively straightforward. At the time of
E’s
conception,
her mother, Mrs F, had been having sexual relations with both the appellant,
B,
and her husband, Mr
F,
but she had broken off her relationship with
B
before
E
was born. From the time of her birth,
E
was brought up by Mr and Mrs F as a
child of their marriage and she had never had any contact of any kind with
B.
B,
convinced that he was
E’s
real father, applied to the magistrates’ court for a
parental responsibility order and a contact order. His application was opposed by
Mrs
F,
who with her husband, wished to bring up
E
undisturbed by
B.
The
magistrates transferred
B’s
application to the Principal Registry of the Family
Division. The District Judge referred to the High Court the question whether there
should be a direction for blood tests to determine, through DNA profiling, whether
B
was indeed
E’s
father. Judge Callman declined to make such a direction.
Undeterred,
B
appealed to the Court of Appeal who confirmed Judge Callman’s
decision.
*Senior Lecturer
in
Law,
King’s
College
London.
1
[1993] 1
FLR
598.
296
0
The
Modem Law Review Limited
1994
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