J (a child), Re

J U D G M E N T

Thursday, 16 December 2004

1. LORD JUSTICE THORPE: This is a permission application brought in by an order of 8 December for oral hearing with appeal to follow if permission granted. The situation is unusual, but we have reached the clear decision that permission will be granted. However, the consequential appeal will not be dealt with today but will be adjourned generally.

2. During the course of argument it has emerged that, prior to the initiation of the proceedings in this court by a notice of application dated 19 November 2004, the applicant had initiated an application in the Swindon County Court for a declaration of non-parentage under section 55A of the Family Law Act 1986. We have this morning learned that although he filed an affidavit in support on 10 March, he then allowed the proceedings to lie fallow and did not serve until 4 November. The acknowledgment of service was dated 18 November, and in it the respondent said that she was seeking a hearing as to whether or not a paternity test should be ordered for reasons that she would like to set out on a statement which ultimately would be filed with the court. That statement has not been filed and the date for directions, 22 December 2004, has been adjourned by consent to a date in March 2005.

3. The appeal to this court rests on a fundamental foundation, namely, the assertion that the younger child of the family is not the child of the applicant. If that assertion is made good, it seems to me inevitable that the appeal will succeed. If that assertion is not made good, then it seems to me equally inevitable that the appeal will fail.

4. Who then is to carry out the necessary investigation to determine the validity of the assertion? It could be this court. But there are obvious difficulties in an appellate court investigating and determining an issue of fact which might depend crucially on an assessment of the credibility of the parties. The court has power under CPR 52.10(2)(b) to refer an issue of this sort for determination by a judge of the Division.

5. Accordingly, the course that we take is to elevate the section 55A proceedings from the Swindon County Court to the High Court. That proceeding will either be managed on circuit in the Swindon District Registry or in London in the Principal Registry. We depend on collaboration between counsel to investigate which venue will offer the swifter listing.

6. We direct that there will be a consolidated hearing of the section 55A application and the issue which we are remitting to the judge of the Division. The two investigations are closely linked but still separate. Under the section 55A application the court is likely to meet an application from the respondent that it should refuse to hear the application on the grounds that it would not be in the best interests of the child (see 55A(5)). Equally under section 21(3)(b) of the Family Law Reform Act 1969 the court is likely to be invited to determine whether it would be in the best interests of the child for the sample to be taken. That is one issue that the judge will determine.

7. The issue that we remit is a different one. The judge will determine whether or not the respondent was guilty of presenting a false case in the Swindon County Court all those years ago. That determination involves different considerations and the exercise of a different discretion as to admissibility of evidence, and a determination as between the adults, even if there has not been any further scientific test beyond that conducted by a Mr Douglas Oliveri in May 2003. Once the judge has determined the issue which we remit, then the parties must apply to me for further directions as to the conduct of the appeal.

8. Given the sensitivity of the issues and the fact that we are merely adjourning this appeal, we will unusually impose reporting restrictions and say that any identification of the child and family is restricted to initials, and any report must be careful to avoid any identification of the child or the family during the currency of the proceedings.

9. LORD JUSTICE WALL: I entirely agree. I just add a few words. I am deeply concerned about A's position. He is a young man approaching 15. I urge the parties to think very deeply about his position in the proceedings, and indeed it may be something on which they will in due course need to seek advice.

10. I say absolutely nothing about the merits or the outcome of the judge's investigation. However, for my part, I would invite the judge hearing the section 55A application to give serious consideration as to whether or not this is a proper case for A to be separately represented in those proceedings.

11. LORD JUSTICE HOOPER: I agree.

(Application granted; appeal adjourned; costs reserved).