Re L. (an Infant)

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE WILLMER,LORD JUSTICE DAVIES,THE MASTER of THE ROLLS
Judgment Date15 November 1967
Judgment citation (vLex)[1967] EWCA Civ J1115-1
Date15 November 1967
CourtCourt of Appeal (Civil Division)
Lilley, M. G.
and
Lilley, R. J. W. (Handley cited)
Lilley, R. J. W.
and
Lilley, M. G. (Handley cited)
and
Lilley (by her Guardian)

[1967] EWCA Civ J1115-1

Before

The Master of the Rolls

(Lord Denning)

Lord Justice Willmer and

Lord Justice Davies

In The Supreme Court of Judicature

Court of Appeal

Civil Division

From Mr Justice Ormerod

MR JAMES COMYN, Q. C. and MR BRUCE HOLROYD PEARCE (instructed by the Official Solicitor) appeared as Counsel for the Appellant Infant.

MR JOSEPH JACKSON, Q. C. and Miss M. BOOTH (instructed by Messrs Breeze Benton & Co.) appeared as Counsel for the Respondent Husband.

MR R. J. A. TEMPLE, Q. C. and MR G, KIDNER (instructed by Messrs Lipson Rumney & Co.) Appeared as Counsel for the Respondent Wife.

THE MASTER OF THE ROLLS
1

The husband and wife were married on the 22nd November, 1947: and a son was born to them in 1948. The husband was a van driver with one firm. The wife went out to work for another firm. In 1956 at her work she met another man. He was a married man. Prom 1956 onwards she had intercourse regularly with this other man: and she also bad intercourse regularly with her husband. She conceived and bore a child, a girl, on the 8th February, 1958. She herself did not know which of the men the father of the child was. It might have been either of them, for aught she knew. But she let her husband believe it was his child. He knew nothing about her affair with the other man. He regarded the baby girl as his child and she was brought up as one of the family. In 1963, when the little girl was aged 5, the husband himself formed a relationship with another woman and told his wife that he wanted a divorce. On hearing this, the wife herself on the 5th December, 1963, presented a petition for divorce on the ground of her husband's adultery. On the 1st May, 1964, the husband filed an answer denying that he had committed adultery and alleging that the wife had committed adultery with the other man from 1956. In October 1964 the wife left the home end took the little girl with her. She went to live with the other man. At that stage she and the other man made confessions admitting adultery but saying that it only started in January 1964. But later on (in a Magistrate's Court) the other man admitted that he had committed adultery with the wife since 1956 and he asserted that he was the father of the little girl. Afterwards the wife abandoned her petition against her husband, and the husband obtained a decree nisi against her. This was granted on the 9th July, 1965.

2

As soon as the wife and the other man admitted adultery from 1956, it became obvious that there was a serious question as to who was the father of the little girl. Was it the husband? Or the other man. It might be either. There were two importantfactors to consider. One was the presumption of legitimacy. The other was the taking of blood tests. I will deal with them in turn.

3

1. presumption of legitimacy:

4

The presumption of legitimacy goes back for centuries, long before blood tests. In order to decide the paternity of a child, the Courts in those days had to rely upon circumstantial evidence. Illegitimacy was a grave stigma: and carried severe penalties on the child. So the Courts raised a presumption of legitimacy, when a married woman bore a child, her husband was presumed to be the father unless the contrary was proved. The presumption was so strong that it could not be rebutted except by proof beyond reasonable doubt that the husband was not the father. That -was often unjust to a husband whose wife had committed adultery. The burden on him is not so heavy nowadays. In divorce cases the presumption can be rebutted by showing, on the preponderance of probabilities, that the husband could not be the father, see Blyth v. Blyth, 1966 Appeal Cases, page 667. And logically the position should be the same in legitimacy proceedings or in any proceedings where paternity is in issue. It would be absurd to have a different result in a divorce case form other cases, so that a child would be found legitimate in one and illegitimate in another. Moreover, there is not nearly the same stigma on illegitimacy as there used to be. It can be, and often, is, cured by subsequent marriage of the parents. Even when the parents do not marry, the penalties on the child have been largely removed. The sins of the fathers are no longer visited on the children. In this new situation, I think we are at liberty to reconsider the presumption of legitimacy, I am prepared to hold that it can be rebutted on the balance of probabilities. Even so, however, it still has to be rebutted: and the question is, how far it can be done by blood tests.

5

2. Blood Tests:

6

Blood tests are a modern development. Medical science is able toput the blood of individuals into definite groups: and by examining the blood of a given man and a child, the medical men can tell whether the man could or could not be the father of the child. They cannot say positively of any man that be is the father. But they can say positively that a given man cannot be the father: because the blood groups of him and the child are so different. The science has achieved such a degree of accuracy that, when a man is in truth not the father of a child, and desires to prove it, there is at least a 70 per cent, chance, if blood tests are taken, the doctors can prove positively he is not the father. In some cases the chance in even higher. As, for instance, when, as in the present case, we know that one or other of two given men is the father, there is a 90 per cent chance that the doctors can say positively that one of them is not the father, with the irresistible inference that the other man is the father.

7

3. The Course of Investigation:

8

In the present case, on making the decree nisi, the Judge ordered an issue to be tried as to the paternity of the child. On the 1st December, 1965, the Official Solicitor was appointed guardian ad litem of the child. That issue was heard by Mr Justice Ormerod on the 28th June, 1966. A blood test would obviously have been most helpful, but none had been taken. The Official Solicitor would not consent to the child's blood being tested. In the circumstances the presumption of legitimacy seemed to be applicable. It looked as if the Judge was bound to decide, according to that presumption, that the husband was the father. But the Judge was reluctant so to hold. He thought that a blood test might show the true paternity; and he was not inclined to rest on a legal presumption when the truth could be satisfactorily ascertained. He thought that, in custody proceedings, if not on a paternity issue, he might have power to order a blood test. So he adjourned the paternity issue pendingcustody proceedings. Meanwhile be made the decree of divorce absolute under the provisions of Section 33(2) of the Matrimonial Causes Act 1965.

9

So proceedings were taken to decide who should have the custody of the child and also questions of access. On these issues it is very desirable to know which of the men is the father. If the husband is the father, he will have an irresistible claim to access and may be to custody; whereas if he is not the father, he will drop out altogether. All three of the adults - the woman and the two men - are anxious to have it decided which of the men is the father. Each of them has already bad his blood tested. The medical men say that, if the child's blood is tested, they may be able to say with complete certainty which of the men is the father. There is a 90 per cent, chance that they will be able to establish it beyond a doubt. But in the absence of a blood test of the child, they cannot say which of the men is the father. Either of them may be the father. The chances are equal.

10

Nevertheless, although all three of the adults agree, the Official Solicitor, as the guardian ad litem of the child, does not agree that she should have a blood test. He says that the Court should decide the case according to the presumption of legitimacy and should hold that the husband is the father: and give him access on that footing.

11

I would pause a moment to point out the strange consequences which. would follow from this contention. If the Judge held, applying the presumption of legitimacy, that the husband was the father: then as soon as the litigation is ended, the Official Solicitor will no longer be guardian ad litem of the child. The mother will be able to take the child quite freely to a doctor and ask him to test the child's blood. The doctor may then say, with complete certainty, that the other man is the father and that the husband is not. As soon as that is done, this Court would. giveleave to appeal out of time and reverse the Judge's finding.

12

Similarly, if the mother had taken the child for a blood test before the Official Solicitor had been appointed. There was nothing to stop her doing so. That blood test might have shown with complete certainty which of the men was the father: and the evidence would have been accepted by the Court. It would be odd if the Official Solicitor could interpose his own authority to prevent it being available now.

13

Nevertheless, despite these strange consequences, we have to decide the question: Can the Court order a test to be taken of the child's blood in the absence of consent by the Official Solicitor, and, indeed, in the face of his opposition.

14

The Court of Chancery:

15

Mr Jackson for the husband put his argument on the broad ground that the old Court of Chancery would have had the power to order a blood test on an infants that the High Court had inherited that powers and that it could now be exercised by a Judge of the Divorce Division.

16

Mr Comyn admitted that if this little girl had been a ward of court, a Judge of the Chancery Division would have power to order a blood test, if it was in the best interests of the child. He...

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