Re H and A (Children) (Paternity: Blood Tests)
| Jurisdiction | England & Wales |
| Judge | PRESIDENT |
| Judgment Date | 21 March 2002 |
| Neutral Citation | [2002] EWCA Civ 383 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 2002 |
| Docket Number | B1/2001/2350 CCFMI |
[2002] EWCA Civ 383
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAERNARFON COUNTY COURT
(HIS HONOUR JUDGE ELYSTAN MORGAN)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lady Justice Butler-Sloss DBE
President of the Family Division
Lord Justice Thorpe and
Lord Justice Kay
B1/2001/2350 CCFMI
Margaret de Haas QC and Philip O'Neill
(instructed by Messrs Tudor Owen Roberts Glynne & Co of Caernarfon LL55 1AG) appeared for the appellant
Nicholas Cooke QC and Shan Morris
(instructed by Messrs Elwyn Jones & Co of Bangor LL57 1NT) appeared for the respondent
THORPE LJ:
Mr B appeals, with the permission of this court, Judge Elystan Morgan's refusal of his application for an order that blood samples be taken from the respondent's twins to whose paternity he lays claim. The application took advantage of the amendment of section 21 of the Family Law Act 1969 achieved with effect from 1 April 2001 by the Child Support (Pensions and Social Security) Act 2000. The effect of the amendment was to introduce into section 21(3) an additional clause (b) so that the sub-section provides:
(3) A blood sample may be taken from a person under the age of sixteen years, not being such a person as is referred to in sub-section (4) of this section –
(a) if the person who has the care and control of him consents; or
(b) where that person does not consent, if the court considers that it would be in his best interests for the sample to be taken.
This small but significant amendment effectively reversed the effect of the decision of Wall J in Re O and J (Paternity: Blood Test) [2000] 1 FLR 418. Judge Elystan Morgan's decision concluded a five day trial that had commenced on 13 September, continued on 20, 21 and 28 September and completed on 8 October. At the final directions hearing on 11 June the time estimate of four hours had been entered. This serious overrun seems to be the result of both incremental growth as each side strove for advantage by the introduction of late evidence and also a tendency to blur the boundaries between Mr B's application for a blood test order and his wider applications for a declaration of parentage under section 55A of the Family Law Act 1986, for parental responsibility, and for contact.
On any view this was a difficult case for any trial judge and it has proved no less difficult an appeal. Undoubtedly the case is exceptional on its facts and it is accordingly necessary to record those facts at some length and with some care. Mr and Mrs R are in their mid-forties. They married on 10 May 1975. Mrs R's first born, a son, appeared on 30 July 1975. It was almost 22 years until she gave birth again, this time to twin girls, the subject of the principal application before the judge. They were born by caesarean section one month premature on 30 May 1997. It was common ground that Mrs R met Mr B, who is in his mid sixties, in 1993 and that at some stage in or after 1995 they had sexual intercourse. There was much dispute as to the nature and extent of their relationship until its termination with a bitter quarrel on 4 February 1999. There was also much dispute as to the extent of Mr B's relationship with the twin girls between their birth in May 1997 and the quarrel in February 1999. In resolving these disputes Judge Elystan Morgan rejected the evidence of both, in particular holding that Mrs R's evidence was unacceptable unless independently corroborated. He held that the sexual relationship between them had endured for up to four years from early 1995 to early 1999. He also held that throughout that period there had been a continuing sexual relationship between Mr and Mrs R. Despite their denials he held that there had been both a physical and emotional separation between Mr and Mrs R and held that it pre-dated the commencement of Mrs R's sexual relationship with Mr B. As to the relationship between Mr B and the twins, the judge took a middle path. He accepted that Mrs R had reassured Mr B that he was their father, he accepted that she had sent Christmas cards to Mr B from the twins in 1997 and 1998 and additionally that she had sent him one birthday card and one card for father's day before the quarrel. He also accepted that she had brought the twins into contact with Mr B both at his home and elsewhere. On the other hand the judge found that Mr R, in ignorance of his wife's adultery had accepted the twins from the day of their birth and had after 1998 become their primary carer whilst Mrs R went out to work. Mr R was, of course, kept in continuing ignorance of the relationship that Mr B maintained with his wife and developed with the twins between May 1997 and February 1999.
Mr B's reaction to the quarrel was to issue an application in the county court for contact and parental responsibility. At the first appointment on 31 March 1999 Mrs R challenged his claim to paternity. The result was a consent order for DNA testing, the report to be filed by 30 June 1999 and further directions adjourned to 22 July 1999. Mrs R did not comply with that order, although it is unclear when her change of heart became apparent. The hearing on 22 July was adjourned to 18 August 1999 when the court simply ordered by consent a welfare officer's report on the issues of parental responsibility and contact, no statements without leave and direct contact to Mr B for one hour on alternate Saturdays. Mrs R complied with this last order on 4 September but then refused further compliance. However the court welfare officer observed one period of contact in October and reported in December 1999. Her full and careful report is conspicuous for the absence of any mention of Mr R. Throughout Mrs R is treated as a single mother who had given birth to twins as a result of a three-year relationship with Mr B. A few quotations give the flavour. The opening paragraph reads:
"The welfare report was ordered to address the issue of contact between the twins and their father."
Paragraph 3 gives the background as follows:
"Mr B and Ms R give differing accounts of their relationship and of Mr B's involvement with the twins. It seems that they had a relationship lasting about three years. The parties did not live together as a couple and since separating early this year, there has been no contact between the children and Mr B."
As to Mr B's involvement as a parent, the welfare officer summarised Mrs R's contentions as follows:
"Ms R does not accept that Mr B was an involved parent. She says that she has always been their primary carer and that he saw the girls when she herself was also present. Ms R says that he only cared for the children for brief periods and that he has never had to attend to their physical needs."
Later in December 1999 there was a further consent order, effectively giving effect to the welfare officer's recommendation that there should be a period of indirect contact as a means of helping the twins to establish an awareness of their father. The order was for monthly communication by cards, letters and gifts with a review after six months.
One of the extraordinary features of the case is that throughout this year of litigation Mrs R had concealed its existence from her husband. Her deceit was uncovered when her husband accidentally came across court papers in her bag in early 2000. It is unnecessary to record the interlocutory orders made in the ensuing twelve months. The case came under the control of Judge Elystan Morgan. He intended the trial limited to the issue of paternity to be held in March 2001. However the fixture had to be adjourned, thus allowing Mr B to take advantage of the amendment of the Family Law Act 1969 that came into force in the following month. Equally it is unnecessary to record the interlocutory stages between the loss of the March fixture and the ultimate trial that commenced on 13 September. However it is necessary to record that on 18 January at a directions hearing Judge Elystan Morgan had ordered Mr R to file and serve a statement providing information and details relevant to the issue of paternity. The statement was dated the 3 March 2001. The following extract demonstrates the continuing inability of Mrs R to be candid with her husband. In paragraph 11 he said:
"I do not doubt that I am the biological father of the twins. I do not know why this application has been made by the applicant. I am aware that, on one occasion only, the applicant had sexual intercourse with my wife. However this was many months before the date of conception of the twins."
However Mr R filed a subsequent statement on 13 September, the first day of the trial. In his second statement he forcefully asserts his inability to continue as primary carer for the twins should the court order a test that established Mr B's paternity. In that event he states his intention to forsake Mrs R and the twins. The second statement does not reveal any extension of his understanding of the background. That is not surprising since Mrs R's primary position at the trial was that she had only had sexual intercourse with Mr B once in 1995 and on two occasions in 1996 shortly before the probable period of conception. It may be the pressures of litigation also account for the surprising fact that even by the date of trial their son was ignorant of the litigation and the issues that it raised.
I concentrate on the evidence of Mr R since he made a very favourable impression on the judge. The judge not only commended his personality but also accepted his evidence save for his denial of a prior separation from his wife. His oral evidence as to his ability to cope with a scientific investigation was...
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