Re H and A (Children)
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Date | 2002 |
| Year | 2002 |
| Court | Court of Appeal (Civil Division) |
Paternity – Blood tests – Application – Presumption of legitimacy – Applicant seeking order for testing of children’s blood to determine paternity – Mother opposing application – Judge purporting to perform balancing exercise and subsequently finding blood tests not in children’s best interest – Whether judge in error – Family Law Act 1969, s 21(3)(b).
The respondent mother of twin girls, born in May 1997, had been married to R since 1975. It was common ground that in 1993 the mother had met the applicant and that they had had a relationship involving sexual intercourse. The applicant contended that the mother had reassured him that he, and not R, was the twins’ father. R had been in continuing ignorance of the relationship between his wife and the applicant and had accepted the twins as his own. The relationship between the mother and the applicant ended in 1999 and the applicant issued an application for contact and parental responsibility. The mother challenged his claim to paternity of the twins and the applicant subsequently made an application for, inter alia, an order that blood samples be taken from them, pursuant to s 21(3)(b) of the Family Law Act 1969 (as amended by the Child Support (Pensions and Social Security) Act 2000). The judge heard evidence from all the parties, including R, who stated that he was 99% sure that he was the father of the twins and that he would not be able to live with the knowledge that the applicant was their father. The judge found that the balancing exercise he had to conduct was to weigh the advantage of scientific truth against uncertainty, to consider the interest that the community had in establishing such certitude on the one hand and on the other hand the possible disastrous disintegrative effects upon the mother’s family unit of a finding that the applicant was in fact the father. The judge concluded that the application for blood tests should be dismissed. The applicant appealed against that decision on the grounds, inter alia, that (i) the judge had erred in underplaying the likelihood of the applicant being the father of the twins; (ii) the judge had underplayed the extent to which paternity of the twins was already in the public domain; and (iii) the judge had significantly overplayed the risk that DNA testing would lead to the breakdown of R’s marriage.
Held – The paternity of any child was to be established by science and not by legal presumption or inference. In the nineteenth century, when science had nothing to offer and legitimacy was a social stigma as well as a depriver of rights, the presumption of the legitimacy of children born during the currency of marriage was a necessary tool, the use of which required no justification.
However, as science progressed and more children were born out of marriage, paternity was to be established by science. In the instant case, there had been substantial flaws in the judge’s assessment of the individual factors which had to be brought into the essential balancing exercise. The court could not accept the validity of the judge’s assessment that the issue of paternity was and would remain a family secret. It was necessary to introduce into the balance the advantages of establishing scientific fact, which allowed for planned management, against the risks of perpetuating a state of uncertainty that bred rumour and gossip, with its risk that at some unpredictable future date the twins might be exposed to either a malicious taunt or an unintended disclosure with shocking consequence. Further, the judge had fallen into error in his seeming acceptance of the estimation of R and the mother that the real chance of the applicant having fathered the twins was minimal or 1%. The mother had been having sexual intercourse with both men not only during the probable period of conception but for many months either side of it. That finding compelled the conclusion that the applicant had a 50% chance of paternity, absent other evidence. That factor tainted the judge’s conclusion that the test offered no advantage to R and the mother since it could only confirm what was already a reasonably assumed fact. Furthermore, the judge had erred in finding that to order the test would drive R from the family. The complex processes which would have to continue post judgment might equally well be assisted by certainty, which might bring relief or alternatively at least excise doubt and suspicion. Unpalatable truth could be easier to live with than uncertainty. It followed that the court doubted whether the judge had given sufficient weight to the importance of certainty. In those circumstances, the judge had been in error in refusing the application. Accordingly, the appeal would be allowed and the application remitted for re-trial.
Cases referred to in judgmentsH (a minor) (blood tests: parental rights), Re[1996] 3 FCR 201, [1997] Fam 89, [1996] 4 All ER 28, [1996] 3 WLR 506, [1996] 2 FLR 65, CA.
O, Re J (children) (blood tests: constraint), Re[2000] 1 FCR 330, [2000] Fam 139, [2000] 2 All ER 29, [2000] 2 WLR 1284, [2000] 1 FLR 418.
S v McC, W v W [1972] AC 24, [1970] 3 All ER 107, [1970] 3 WLR 366, CA.
Serio v Serio (1983) 4 FLR 756.
T (a child) (DNA tests: paternity), Re[2001] 3 FCR 577, [2001] 2 FLR 1190.
AppealThe applicant appealed, with the permission of the Court of Appeal, against the judgment of Judge Elystan Morgan, whereby he refused the applicant’s application for an order that blood samples be taken from the respondent mother’s twins to whose paternity he laid claim. The facts are set out in the judgment of Thorpe LJ.
Margaret de Haas QC and Philip O’Neill (instructed by Tudor Owen Roberts Glynne & Co) for the applicant.
Nicholas Cooke QC and Shan Morris (instructed by Elwyn Jones & Co) for the mother.
THORPE LJ.[1] 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 s 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 s 21(3) an additional cl (b) so that the subsection 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 subsection (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.’
[2] This small but significant amendment effectively reversed the effect of the decision of Wall J in Re O, Re J (children) (blood tests: constraint) [2000] 1 FCR 330, [2000] Fam 139. 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...
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