S v S; W v Official Solicitor

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid,Lord MacDermott,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Guest
Judgment Date23 Jul 1970
Judgment citation (vLex)[1970] UKHL J0723-2

[1970] UKHL J0723-2

House of Lords

Lord Reid

Lord MacDermott

Lord Morris of Borth-y-Gest

Lord Hodson

Lord Guest

Schofield (an Infant, by her Guardian ad Litem the Official Solicitor to the Supreme Court)
Schofield (A.p.)
Whetstone (A.P.)
Official Solicitor (Acting as Guardian ad Litem for a Male Infant Named Paul Henry Whetstone)

After hearing Counsel, as well on Monday the 8th, as on Tuesday the 9th, Wednesday the 10th, Monday the 15th and Tuesday the 16th, days of June last, upon the Petition and Appeal of Devina Schofield (an infant by her Guardian ad litem the Official Solicitor to the Supreme Court), praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 3d of February 1970, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Leslie Schofield (Assisted Person), lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 3d day of February 1970, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Costs incurred by the said Respondent in the Courts below, and also the Costs incurred by him in respect of the said Appeal to this House, be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960.

Lord Reid

My Lords,


These two appeals are concerned with the same question—whether in proceedings regarding the paternity or legitimacy of a child a blood test of the child should be ordered. In rather similar circumstances the Court of Appeal in Schofield's case decided by a majority (Lord Denning M.R. and Karminski L.J.; Sachs L.J. dissenting) that a test should be ordered, but in Whetstone's case decided by a majority (Winn and Cross L.JJ., Lord Denning M.R. dissenting) that a test should not be ordered. I do not think that it is possible to hold that both decisions are right.


In Schofield's case the spouses were married in 1946. There were three children born in 1947, 1952 and 1954. There is no doubt that they were legitimate. Then on 15th December, 1965, the wife bore another child. The husband denied paternity. On 4th March, 1966, he petitioned for divorce on the ground of the wife's adultery with a man, Malik, in and after August 1965. The suit was undefended and he obtained decree nisi on 17th May, 1968. Then the Commissioner had to be satisfied that proper provision had been made for the children of the marriage and the question arose whether the last child, Devina, was a "relevant child", i.e., a child of the marriage. So the Commissioner ordered the trial of an issue as to the legitimacy of this child and ordered a blood test of the husband, wife, Malik and the child. But Malik refused to consent. The husband and wife consented to have the test, and in October, 1969, a new order was made for a blood test of the husband, wife and child.


The Official Solicitor had been appointed guardian ad litem of the child and he objected to this order and appealed on the ground that it had not been shewn that to have a blood test would be for the benefit of the child.


In Whetstone's case the spouses were married in 1957 and they had two children born in 1959 and 1961. Then in 1963 the wife stayed with her mother from time to time when West Indian lodgers were staying in the mother's house. The spouses continued to have sexual relations and apparently the husband did not suspect his wife of misconduct. Then in July, 1963, the wife left her husband taking the two children with her and stayed with a man in Bristol acting as housekeeper. While there she gave birth to a child Paul, on 6th December, 1963. On 8th February, 1964, she petitioned for divorce on the ground of cruelty. Then in October. 1966, the wife sent to the husband at his request a photograph of their three children. This photograph shews a great difference in appearance between the elder children and the youngest child and the husband at once asserted that the youngest child was not his child. He obtained a confession from his wife that she had committed adultery with a West Indian who has now disappeared, and on 17th December, 1968, he obtained a decree nisi on the ground of this adultery.


As in Schofield's case the Official Solicitor was appointed guardian ad litem of the child and an issue was ordered to be tried as to whether Paul is a child of the husband. The husband wished to have a blood test but this was refused by Sir Jocelyn Simon P. and an appeal by the husband was dismissed.


I shall not deal farther with the facts in these two cases. They will have to be fully investigated in the trials of the issues as to legitimacy. I will only say that on the material now available I am unable to forecast what the decisions would be if no blood tests are made. The law as to the onus of proof is now set out in section 26 of the Family Law Reform Act, 1969, as follows:

"26. Any presumption of law as to the legitimacy or illegitimacy of any person may in any civil proceedings be rebutted by evidence which shows that it is more probable than not that that person is illegitimate or legitimate, as the case may be, and it shall not be necessary to prove that fact beyond reasonable doubt in order to rebut the presumption."


That means that the presumption of legitimacy now merely determines the onus of proof. Once evidence has been led it must be weighed without using the presumption as a make-weight in the scale for legitimacy. So even weak evidence against legitimacy must prevail if there is not other evidence to counterbalance it. The presumption will only come in at that stage in the very rare case of the evidence being so evenly balanced that the Court is unable to reach a decision on it. I cannot recollect ever having seen or heard of a case of any kind where the Court could not reach a decision on the evidence before it.


Before considering the arguments for or against ordering a blood test I think it is necessary to have in mind its evidential value. Blood tests have now been used extensively for many years in many countries and it is now generally recognised that, if a test is properly carried out by a competent serologist, its results are fully reliable. I think it is now common knowledge that blood is a very complex substance, that different persons' blood may have a variety of different constituents or characteristics, and that those constituents or characteristics must have been derived from one or other parent. I I suppose that there can be mutations of the kinds that are found throughout the animal and vegetable kingdoms. But mutations are so rare that their possibility can be neglected, because we are not looking for absolute certainty but only a sufficient degree of probability. So if it is found that a child's blood has some constituent or characteristic that is absent from the blood of both husband and wife the husband cannot be the father: the child must have derived that constituent or characteristic from some other man who was its father.


But that is not all. We have in Schofield's case an affidavit of a well-known serologist in which he says:

"If blood from the mother, her child and the husband is examined there is, on average, a seventy per cent, chance of showing that he is not the father if he is in fact not the father."


Averages are deceptive. No doubt in some cases the chance will be less and in others greater than 70 per cent. But if we have to consider the matter before any blood tests are taken this does at least tell us that there is a very good chance that if the husband is not the father a blood test will prove that he is not.


But what if the husband is the father: can a blood test then afford any evidence of that? In the affidavit to which I have referred it is farther said:

"Such tests will indicate how wide the field is from which to choose the putative father. The width of the field depends on what happen to be the groups of the mother and child. That is, the tests will show what blood group genes the child must have inherited from its father and the proportion of men having the necessary combination of blood group genes to give can be calculated."


I take that to be based on the fact that some blood groups or sub-groups or characteristics are much commoner than others. So if it were to appear from a blood test that the characteristics common to father and child could have been supplied by, say, any one of half the men in this country then the test would be of no value at all in helping to prove that the husband was the father. But, on the other hand, if these characteristics were so uncommon that if they were not derived from the husband they could only have been derived from one man in a thousand, then the result of the test would go a long way towards proving (in the sense of making it more probable than not) that the husband was in fact the father because it would be very unlikely that the wife had happened to commit adultery with the one man in a thousand who could have supplied this uncommon characteristic. And if it appeared that only one man in a hundred or one man in ten could have been the father, if the husband was not, that might go some way towards making it probable that the husband was the father. Such...

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