Re J S (A Minor) (Declaration of Paternity)

JurisdictionEngland & Wales
Judgment Date22 January 1980
Judgment citation (vLex)[1980] EWCA Civ J0122-2
Date22 January 1980
CourtCourt of Appeal (Civil Division)

[1980] EWCA Civ J0122-2

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the High Court of Justice

Family Division


Lord Justice Orr

Lord Justice Ormrod

Re "J. S." A Minor

MR. SWINTON B. THOMAS, Q. C., and MR. A. C. B. HUNTER (instructed by Messrs. John H. Rosen & Co.) appeared on "behalf of the Appellant Plaintiff.

MR. A. B. HOLLIS, Q. C. and MISS C. C. WILLBOURNE (instructed by Messrs. Fisher Meredith) appeared on "behalf of the Respondent First Defendant.


MR. M. A. THORPE (instructed by The Official Solicitor) appeared on "behalf of the Minor.


I have asked Lord Justice Ormrod to deliver the judgment of the court.


This is an appeal from an order of Mrs. Justice Heilbron in wardship proceedings relating to a little boy, born on 28th September 1975. The plaintiff is a man whom I will refer to as Mr. J., who claims to be the father of this, admittedly, illegitimate child.


The learned judge's order was as follows:-


"It is ordered that:-


"1. The issue of Paternity having been tried and the Court not being satisfied that the Plaintiff is the father of the minor, James S., the said Plaintiff's summons dated 15th May 1979 be and is hereby dismissed.


"2. The said minor do cease to be a Ward of this Court forthwith and the originating summons herein be and the same is hereby dismissed."


It is plain from that order that this is a most unusual case. It also raises a number of points of considerable difficulty and importance.


The facts are not in dispute. The mother is a qualified teacher. From 1972 to the present time she has lived in what the judge called a "continuous relationship" with the second defendant, Mr. R., mostly in the London area, except for periods when she was working as a teacher elsewhere. She usually returned "home" to Mr. R. at weekends. They have not married because they do not think it is necessary or desirable to do so.


During one of these periods at the end of 1974 she was working away from London and met Mr. J. The learned judge found that sexual intercourse took place between the mother and Mr. J. on two occasions only, namely, after a party in November 1974 and during the weekend of 2nd/3rd January 1975. She also had intercourse with Mr. R. several times at weekends between September and February 1975. In February 1975 she returned tolive with Mr. R. She said that she had also had sexual relations with a third man, David, in December 1974.


In June 1975 the mother, to her surprise, found that she was five months pregnant. Her periods had apparently always been irregular and, on advice, she had ceased taking the pill in August 1974 and had taken no other precautions, believing herself to be infertile. At the same time she wrote a letter to Mr. J., saying, "I don't know whose baby it is, it could be yours or it could be Chris's", (i. e. Mr. R.). She added that she would have the child adopted.


After the baby was born she changed her mind and decided to keep the child. Mr. R. was aware of the circumstances and accepted the position so that, since birth, the child has lived with his mother and Mr. R. in what, to all intents and purposes, is a normal family except that the adults have not married.


Mr. J.'s response was unexpected. He became obsessed with the thought of the child and insisted on coming to see him. The mother allowed him to visit her from time to time to see the baby, but his visits became increasingly embarrassing and his attitude to the child was more and more obsessive. These visits effectively ceased in 1977. Mr. J. then became hostile to the mother and Mr. R., making threats and even informing the Supplementary Benefits Commission that he thought the mother was defrauding them. He is now obsessed with the desire to obtain a declaration that he is the father of this boy and would, if he could, oust Mr. R. from the child's life.


The proceedings in this case have been protracted and confused and must have caused great distress and anxiety to the mother and Mr. R., whose only wish is to be left in peace to bring the child up as normally as they can. Irregularities in procedure have led to a situation which might have been avoidedhad the mother and Mr. R. been legally represented throughout the early stages.


The originating summons was issued as long ago as 28th September 1975. Although intituled in the Guardianship of Minors Act 1971 and 1973, as well as in the Law Reform (Miscellaneous Provisions) Act 1949, the case has been dealt with throughout under the wardship jurisdiction.


The matter first came before the court on 6th November 1975, when the Senior Registrar continued the wardship and ordered that Mr. R. be made a defendant. Neither the mother, nor Mr. R. were present or represented, but counsel for the plaintiff applied for an order for blood tests under section 20 of the Family Law Reform Act 1969. The Senior Registrar indicated that he would make an order for blood tests on Mr. J., the mother, Mr. R. and the child, but directed that the order should not be drawn up without the consent of the mother's solicitors. The child, of course, was not represented at that stage. The order was never drawn up because no consent was given. However, in November 1976 blood samples were taken from Mr. J., the mother and the child. Unfortunately, the mother had discharged her solicitors in August 1976 and was eventually persuaded by Mr. J. to agree to provide samples from herself and the child. Mr. R. declined to provide a blood sample.


On 19th November 1976 Professor Barbara Dodd reported on the blood tests on Mr. J., the mother and the child. The result was a disappointment to the mother because they did not exclude Mr. J. as the father. According to the report Mr. J. was among one per cent of men of Western European origin who could be the father of this child.


On 30th March 1977 an application was made by the plaintiff for a direction that a blood sample be taken from Mr. R. Thematter came before His Honour Judge Barr, sitting as a deputy High Court judge. The mother and Mr. R. appeared in person, Mr. J. by counsel and the child was still not represented. A direction in terms of the summons was made, but Mr. E. declined to comply with it. There the matter rested until June 1978 when Mr. J. issued a summons for access to the child and for the restoration of the originating summons. On 19th June 1978 this summons came on before Mrs. Justice Heilbron, who gave directions for statements to be filed by the mother and Mr. R. and ordered that the Official Solicitor be appointed guardian ad litem to the child. The mother and Mr. R. were still not legally represented.


It should be noted that the only issue before the court at this stage was that of access to the child by Mr. J: no order for the trial of an issue as to paternity had been made or applied for, so that no consideration had been given by the court as to whether the trial of such an issue would be in the interests of the child or not.


The Official Solicitor submitted his report to the court on 5th October 1978. This report contained a summary of the facts of the case and a clear intimation that the Official Solicitor did not consider that access would be in the best interests of the child. This recommendation can have surprised nobody since it was clear on the affidavit evidence that Mr. J. had had no contact with the child since soon after birth and had admittedly behaved to the mother in such a way as to make any relationship between them virtually impossible. However, the Official Solicitor did recommend, notwithstanding that no I issue as to paternity had been ordered and that the mother was contending that it was not in the child's interest to pursue the question of paternity, that the court should determine it.


The matter came on for hearing before Mrs....

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