W v W ; S (an Infant) v S ; W v Official Solicitor (acting as Guardian ad Litem for a Male Infant named PHW)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE WINN,LORD JUSTICE CROSS,LORD JUSTICE SACHS
Judgment Date03 Feb 1970
Neutral Citation[1969] EWCA Civ J1104-1
Judgment citation (vLex)[1970] EWCA Civ J0203-2

[1969] EWCA Civ J1104-1

In The Supreme Court of Judicature

Court of Appeal

Appeal by respondent husband from order, of the President of the Probate, Divorce and Admiralty Division dated 9th May, 1969.

Before:

The Master of The Rolls (Lord Denning),

Lord Justice Winn and

Lord Justice Cross

Josephine Ann Whetstone
Petitioner
and
John Eric Whetstone
Respondent

Mrs. BETTY KNIGHTLY (instructed by Messrs. Godfrey Davis & Baldwin) appeared on behalf of the husband appellant.

Mr. LIONEL SWIFT (instructed by the Official Solicitor, appeared on behalf of the infant Paul Henry.

THE MASTER OF THE ROLLS
1

We heard this case in July, but we adjourned it because the Family (Law Reform) Act of 1969 was about to come into operation; but, having looked at it, I do not think it affects our decision.

2

The question is whether a blood test should be ordered in a paternity issue. The husband and wife were married on the 12th October, 1957. He was 24: she was 19. He was a butcher. They had two children - a daughter born on the 8th October, 1959; and a son born on the 8th March, 1961. On the 5th July, 1963, the wife left the home, taking with her those two children. She was then pregnant with a third child. She went to live at Bristol with a man who was a coach-driver. She looked after his house for him. The husband, who stayed in London, paid maintenace for those two children.

3

On the 6th December, 1963, the wife in Bristol gave birth to a full-term child, who was named Paul. The wife wrote and told the husband that she had the child. He never saw it, but he paid maintenance for that third child also.

4

On the 8th November, 1964, the wife filed a petition for divorce, charging the husband with cruelty and desertion. The husband filed an answer denying the charge. He alleged in his Answer that the wife was committing adultery with the coach-driver in Bristol. The coach-driver put in an Answer denying the adultery. The husband never saw any of the children, but he went on paying maintenance for all three until October 1966. Then he asked the wife for a photograph of the children. She wrote a letter saying: "I have been to studio to get the children's photo taken (a group) it has cost me £2. 2s.0d. You did say that you'd pay for it. The size of it is 9½ × 7½. When you send the money for it and I receive it, then I will send photo by return of post."

5

She sent him the photograph of the children. I have it here in my hand now. It shows the two elder children asobviously children of white parents. But the third child is very different in features, in colour and hair - so different that any ordinary person might think that the father of it was a coloured man. The husband dearly formed that view. He thought that it was not his child, but must be the child of a coloured man. He instructed an inquiry agent who saw the wife. She made a statement in which she said that the three children were children of the marriage, but she admitted that she had had intercourse with a coloured man from Guiana. She said: "In January 1963 I became friendly with a man called Victor Barsatti who lived at my mother's home, and late in January 1963 Mr. Barsatti and I committed adultery at my mother's home. It only happened once and I did not tell my husband." (It was the fact that the wife's mother had coloured men as lodgers, and the wife used to visit her mother at weekends.) Thereupon the husband amended his Answer so as to charge adultery by the wife with Mr. Barsatti at the mother's address.

6

So the husband charged adultery by the wife with Hr. Barsatti. But Mr. Barsatti had disappeared. He could not be found. Service on him was dispensed with. The divorce petition came on for hearing. A decree nisi was pronounced on the ground of the wife's adultery with a man upon whom service had been dispensed with, that is to say, Barsatti. The coach-driver was dismissed from the suit. The Court was concerned about the third child and made an Order that the child should be represented by the official Solicitor.

7

The Official Solicitor's representative saw the wife, and reported: "I informed the 'wife' that I had seen a photograph of the two admitted children of the family and whilst one can immediately see that the two admitted children are brother and sister, Paul is quite unlike them and has what I would describe as negroid features. The 'wife' admitted that this was so, although she stated that his features are not so negroid as appears in the photograph. She explained that Paul was a rhesusnegative baby, born with jaundice, but his blood was not changed because of the divorce proceedings. She stated that when Paul is 'off colour' he always becomes yellow due to the jaundice and it is for this reason that his skin is slightly coloured. She further stated that there is Spanish and North-American-Indian blood in her family, and that this is the reason why he tends to have a negroid appearance. In fact, the 'wife' showed me a letter from her mother in which she confirmed that the family has Spanish, French and North-American-Indian blood."

8

The Court directed an issue to be tried as to whether the child Paul was the child of the husband or not. In other words, a paternity issue. The question is whether or not the child should have a blood test. The husband is quite willing for his blood to be tested. The mother is quite willing for her blood to be tested. She is quite willing too that the child Paul should have a blood test. All those are willing. Barsatti has disappeared. No one knows where he is. So his blood cannot be tested. Nevertheless, a blood test could be useful. If the husband, wife and child were blood-tested, there is a 70 per cent chance that the husband could be shown not to be the father. The Official Solicitor, on behalf of the child, says that it is not in the best interests of the child to have a blood test, and, therefore, it should not be ordered.

9

In the case of In re L. in 1968 Probate at pages 157 and 158, I said: "In a paternity issue, or any proceedings where it is in the best interests of the child to have its paternity settled one way or the other, the Court can order a blood test." In ( B. v. B 1968 P. 466) Lord Justice Diplock, at page 486, said an Order "could be made where it is in the child's best interests that it should be made." Similar words were used in the latest case of ( M. v. M. 1969 P. 843). To those words I would make this additions:

10

In my opinion when a Court is asked to decide a paternity issue, it is in the beet interests of everyone that it should do it on the best evidence available. The issue is of such importance and affects so many persons that it should be decided on all the evidence and not half of it. In the old days the Court had no options it had to rely on presumption of legitimacy. Now when it has blood tests ready to hand, it should make use of them. I say it is "in the best interests of everyone", because I think that everyone is concerned in the paternity issue: and of course I include the child. The child's best interests are hound up with the interests of all those about it. Take the little brother and sister. Take the mother. Take the husband. They can all see that there is a question-mark about the paternity of this child: and their attitude to it will beaffected by the outcome. Take the child himself. Whenever there is a question-mark as to the parenthood of a child, the one thing the child will want to know when he grows up is: who is my father? He will be torn apart unless he knows. It is better for him, as for everyone else, that the truth should out.

11

If the blood test is taken and the Court decides on all available evidence, it will be much more satisfactory for all concerned. When I say "all the available evidence", I mean the evidence of the wife herself; the evidence of the wife's mother as to her lodgers and as to the weekends the wife spend there; and evidence of the blood test. If then the Court finds on all the evidence that the husband is the father, it will be much better for the child. The husband will have to pay maintenance for the child, and it may be that he will take an interest in the child. And the child itself, as it grows up, will have the satisfaction of knowing that a Court of England has found that it was legitimate.

12

But if the Court refuses to allow the child's blood to be tested, its pronouncement will itself be suspect. What will the husband think of a Court which refuses a blood test when heand his wife both want it? No one can be satisfied with a finding by a Court of paternity when the Court of its own accord chooses to rely on a presumption of legitimacy and throws aside scientific evidence of a blood test which is ready to hand.

13

One word more. If this blood test is refused and the Court decides the paternity issue without its then after the decision the parties can themselves have their blood tested and have the child's blood tested too. The Official Solicitor cannot stop them. Nor can anyone else. These tests may prove that the Court's finding is completely wrong. The Court should not expose itself to such a condemnation. Better to have the child's blood tested now and decide in the light of it.

14

In my view it would be in the best interests of this child and of those about him that the Court should be assisted in this case by the taking of a blood test. I would, therefore, allow the appeal and order a blood test.

15

As to the new Act, the relevant part is not yet in operation. When it does come into force, I expect the Court will approach the question much as it does now. Section 21 does not appear to affect the position. It was passed, I believe, to give protection to the medical men.

LORD JUSTICE WINN
16

This appeal in my opinion raises no question of principle, but a very narrow issue of fact. I do not think that the references made to the Family (Law Reform) Act of...

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