Dunkley v Dunkley & Anor

On 3 March 2017, the applicant filed an application in the High Court which was headed “Application for declaration of legitimacy or legitimation under section 56(1)(b) and (2) of the Family Law Act 1986”. The applicant used the wrong form. He was not seeking such a declaration. Rather, he was seeking a declaration that the first respondent was his parent. That application may be made in either the High Court or the family court under section 55A of the 1986 Act. On 14 September 2017 HHJ Boye deemed the applicant to have made an application for a declaration of parentage (but did not refer to section 55A).

Before dealing with the substance of this application I propose to say a few words about some procedural aspects of this case. As I have mentioned above, section 55A explicitly allows the application to be issued in either the High Court or the Family Court. The applicant issued it at the Royal Courts of Justice and it was impressed with the seal of the High Court. As the applicant was acting in person I do not suppose he gave any thought as to whether the case should be more appropriately issued in the family court. At all events, on 15 March 2017 District Judge Gibson, sitting as a district judge of the High Court, Family Division, transferred the case to the Central Family Court. This she was entitled to do under section 38 of the Matrimonial and Family Proceedings Act 1984. On 14 September 2017 Judge Boye, sitting in the Central Family Court purported to transfer the case back to the High Court. Although section 39 of the 1984 Act confers jurisdiction on the family court to transfer cases to the High Court, the exercise of this power is subject to the limitations imposed by FPR 29.17(3) and (4) and PD 29C, the effect of which is that the only circumstances in which a District Judge or a Circuit Judge can transfer a case from the family court to the High Court are where disclosure is required from HM Revenue and Customs, and then only temporarily for that purpose. That was not the case here. Judge Boye therefore had no power to make the order that she did. I am therefore treating her order as having allocated the case within the family court to High Court Judge level. Although the order of Mrs Justice Theis dated 9 November 2017 is headed “In the High Court of Justice, Family Division” it is clear that the invalidity of the purported transfer to the High Court was not drawn to her attention. Again, I am treating her order as having been made in the family court.

An application of a declaration under section 55A is subject to specific rules in FPR 8.18 – 8.22. Rules 8.20(3) and (6) presuppose that the Part 19 procedure will be used, although section 55A is not mentioned in rule 19.2 as a case where the Part 19 procedure must be used. The Family Court Practice 2017 asserts at page 1421 that rule 19.3(a) mandates use of the Part 19 procedure in a section 55A application; but that rule says nothing to that effect. At all events, the consensus is that the Part 19 procedure should be used. Nothing in rules 8.18 – 8.22 or in Part 19 dis-applies the general rule in FPR 27.10 that the hearing should be in private. Therefore, I have heard the application in private, notwithstanding that it involves a question of status. However, this judgment will not be anonymised before it is placed on Bailii. This is because no anonymity direction was made in the immigration proceedings to which I refer below. It would be incongruous if the same issue of parentage were the subject of anonymisation in one set of proceedings but not the other.

In his application on 3 March 2017 the applicant stated as follows:

“The applicant is facing imminent deportation from the United Kingdom by the immigration authorities and has a pending application for judicial review before the Upper Tribunal (Immigration and Asylum Chamber), challenging the decision to deport him.

However, the applicant believes that he is a British citizen by descent, in that, his father, the first respondent, was a British citizen otherwise than by descent, at the time of the applicant’s birth, so that notwithstanding that the applicant was born in Jamaica, after that country became independent from the United Kingdom, his father’s citizenship would have passed to him.

In previous proceedings before the Immigration and Asylum Chamber, the first respondent to this application has accepted that the applicant is his son, but has refused to provide evidence of this by taking a DNA test and has more recently, denied paternity.

The applicant finds this very disturbing and emotionally challenging, and is also suffering the indignity and humiliation of immigration detention, pending deportation from the United Kingdom on 8 March 2017 for a minimum of 10 years.

The second respondent, the applicant’s mother, believes that the first respondent is the father of the applicant, and has always maintained so, and there is a clear likeness between the applicant and the first respondent.

If the applicant is able to prove paternity, he would then be able to prove that he is a British system and it would be unlawful for the Secretary of State for the Home Department to deport him.

The first respondent has refused to provide the applicant with the certainty and peace of mind that he requires, by voluntarily undergoing a DNA test, which would be conclusive as to paternity, and therefore the applicant respectfully requests that the court assists him in determining his paternity (and eligibility to British citizenship).”

It is perhaps noteworthy that while the applicant refers to the proceedings before the Immigration and Asylum Chamber, and of the stance of the first respondent within those proceedings, he does not refer to the result of those proceedings or of the findings made within them.

The proceedings in question were an appeal by the applicant to the First-tier Tribunal against a decision of the Secretary of State made on 21 August 2012 to deport him, he having been convicted of a serious criminal offence. The appeal was heard by two judges of the Tribunal on 19 February 2013, and their decision was promulgated on 14 March 2013.

In paragraph 2 of the decision the judges set out the applicant’s immigration position and some of his criminal record as follows:

“[The appellant] arrived in the UK on 15 August 2002 aged 16, as a visitor, and was granted leave to enter until 13 September 2002. On 11 September 2002 he requested leave to remain as a student, which was rejected on 25 October 2002, as an application had not been submitted and the appellant was only studying English 14 hours a week. On 7 November 2002 the appellant made a second application for leave to remain as a student, which was rejected on 3 February 2003. The appellant made another application on 19 March 2003 to obtain leave to remain as a student. However, on 22 May 2003 he was granted leave to remain as a dependant of his mother, who had applied for leave as the spouse of a settled person, granted until 24 December 2003. On 26 November 2003 the appellant applied and was granted indefinite leave to remain as the dependant of his mother. On 2 April 2008 at Croydon Magistrates Court he was convicted of theft – shoplifting – and was sentenced to a conditional discharge of 12 months and £100 costs. On 13 January 2009 at Camberwell Green magistrates he was convicted of possessing cannabis, a Class C controlled drug and a breach of his conditional discharge and was sentenced to a fine of £50 on 3 June 2011 at Basildon Crown Court the appellant was convicted of five counts of supplying a controlled drug, and on 8 September 2011 he was sentenced to 18 months imprisonment. In the light of this the appellant was served with a notice of liability to deportation on 21 October 2011. A deportation order was signed on 21 August 2012.”

That account does not tell the full story of the applicant’s criminal convictions. In addition to the matters mentioned this court has been made aware from a letter written by a Home Office official on 19 October 2017 of the following further convictions:

In the appeal proceedings before the First-tier Tribunal the applicant ran exactly the same case as he now does before me, namely that the first respondent was his father; that he was therefore entitled to British citizenship by descent; and that the Secretary of State could not therefore lawfully deport him because he was not a “foreign criminal”. In the appeal proceedings, the applicant and the first respondent gave oral evidence, although the first respondent declined to submit to DNA testing. The second respondent, the applicant’s mother, did not attend as she was on holiday in Jamaica. I was told that the reason for her non-attendance was that she believed that by the time of the hearing the first respondent would have eventually agreed to submit to DNA testing and the matter would have been put beyond doubt. However, it must have been apparent in the days leading up to the hearing that DNA evidence would not be made available by the first respondent. Yet, no attempt was made to obtain even a written witness statement from the second respondent.

In their decision, the judges dealt with the paternity issue between paragraphs 14 and 18 as follows:

“14.

Having regard to the totality of the evidence before me (sic), we do not accept as established that [the first respondent] is the father of the appellant. We find that there is no objective and/or reliable official documentation before us showing [the first respondent] to be the father of the appellant. The appellant’s Jamaican birth certificate made no mention of [the first respondent] as the father of the child. While we note the explanation put forward for the omission of the father’s details from the appellant’s birth certificate we find no credible reason before us why at the age of 27 years, and particularly given the potential implications of his paternity, there has not been any attempt made to officially amend the appellant’s birth certificate to include the details of his father as alleged. We find it lacking in credibility that there has been no official application for the amendment of the appellant’s birth certificate to include his father’s details as alleged, particularly once it came to light that those details had not been included on the certificate when the child’s birth was registered, and given the significance of the issue of the appellant’s alleged paternity to his deportation appeal.

15.

We are also struck by the refusal of [the first respondent] to cooperate in the DNA testing in a bid to establish the appellant’s claimed paternity. [The first respondent] insisted throughout his testimony that he had no doubt that the appellant was his child and as such she saw no reason to undertake a DNA test to establish this. However, we note that the only evidence he had of his said relationship to the appellant was the word of the appellant’s mother. The evidence before us was that she had a brief relationship of some five months with [the first respondent (circa January 1985 – May 1985), fell pregnant during this period and told him that the child was his. However, we note that the appellant’s mother was said to have entered into a relationship with [the first respondent’s] brother after their relationship broke down. [The first respondent’s] evidence was she told him her relationship with his brother started after the appellant’s birth. The appellant’s mother herself failed to attend the hearing. She did not provide any explanation for her absence and made no effort to provide any evidence to explain why she failed to attend the hearing. The appellant simply said in answer to questioning as to where his mother was, that she was at home and was not feeling well. Given the potential implications of the hearing for her son and the significance of the issue of his paternity the whole question of his deportation and its lawfulness, given the lack of any reliable official documentation confirming the appellant’s claim paternity and given the history of her brief relationship with the appellant’s [alleged] father and personal history, we find it seriously lacking in credibility that the appellant’s mother failed without any credible explanation if at all to attend the hearing.

16.

We consider it reasonable to expect against the background circumstances as we have outlined that the appellant’s mother would have made every effort to attend the hearing and give evidence in support of his case. That she failed to take the opportunity to appear before the tribunal and give evidence in support of a son gives us very grave misgivings as to her overall credibility and the weight to be attached to her account. We find it likely that she failed to attend the hearing because she did not wish to have her evidence tested and this was likely because she has not been truthful about her background circumstances and personal history. Given the fact that there is no credible official record before us to show that [the first respondent] is the father of the appellant and that the only evidence of his paternity is effectively the word of his mother, given the brevity of her relationship with [the first respondent] and the fact that she proceeded thereafter to a relationship with his brother and failed to attend the hearing to give evidence to shed light on these matters and have her evidence tested, we do not accept that there is credible evidence to establish that [the first respondent] is the father of the appellant. Whilst we have no reason to doubt [the first respondent’s] testimony that he has always considered the appellant to be his son and has been involved in his life accordingly, and the appellant’s testimony that he has always understood and believed [the first respondent] to be his father, this is of course a question of fact and credible evidence and not of belief. For the reasons we have already outlined above, we set no store by the account of the appellant’s mother attributing the appellant’s paternity to [the first respondent].

17.

We consider that there is a distinction properly to be drawn between what [the first respondent] and the appellant believe regarding the appellants paternity and what as a matter of evidence and fact is the case. We have already found that the appellant’s mother’s word as to his paternity cannot be relied upon. A DNA test would have conclusively established the position one way or the other. We find it illogical and implausible, particularly given his professed certainty as to his relationship to the appellant and his affection for and concerns for him if he were to be deported to Jamaica, that [the first respondent] should nevertheless resist the opportunity to conclusively establish his claimed paternity of the appellant, thereby also removing the threat of his deportation from the UK. We find it likely that it was/is precisely because [the first respondent] has very real doubts about the appellants paternity and does not wish to face this situation that he has failed to cooperate in the DNA testing process with the appellant.

18.

We do not accept as established from the evidence before us that [the first respondent] is the father of the appellant. …”

I have to say that this strikes me as an impeccable piece of forensic analysis especially so far as it concerns the inevitable inference to be drawn by the refusal of the first respondent to submit to a DNA test. Usually, the person refusing does not want to be found to be the father so as to avoid child support liability. The almost inevitable inference to be drawn is that the refusal signifies that the person knows, or strongly believes, that he is the father. Here the facts were the other way round. Before the Tribunal the first respondent proclaimed himself to be the applicant’s father. Yet, he refused to undertake a DNA test which would have put the matter beyond doubt. The inevitable inference is that he in fact knew, or strongly believed, that he was not in fact the applicant’s father. As will be seen, in these proceedings before me the first respondent has again refused to submit to DNA testing. Indeed, he has gone further than the last time round in that he has not engaged with the current proceedings in any way.

The letter from the Home Office dated 19 October 2017, to which I have referred, explains that the applicant sought permission to appeal the decision of the First-tier Tribunal which was refused, presumably by the Upper Tribunal, on 10 April 2013 and that the applicant’s appeal rights were exhausted on 22 April 2013. The letter goes on to explain that the applicant then went on the run and was entered on the Police National Computer as an immigration absconder on 30 July 2013. He was not encountered until 5 November 2015 when he was arrested by the police. Since then the applicant has submitted numerous further submissions to prevent his removal from the UK and has lodged three judicial reviews. He has applied twice for injunctions which were refused respectively by the Upper Tribunal and the Administrative Court.

The applicant’s application of 3 March 2017 shows that he was facing removal five days later. It would appear that he has managed to thwart his deportation by the issue and pendency of these proceedings.

As set out above, the application of 3 March 2017 states that by then the first respondent was denying paternity of the applicant. In a witness statement made by the principal of the solicitors instructed by the applicant in the immigration proceedings it was explained that on 13 March 2017 the first respondent stated in a telephone call to that solicitor that he would not be attending the hearing scheduled for 15 March 2017 and that he denied that he was the father of the applicant. It can therefore be seen that so far as this case is concerned the applicant’s evidence is appreciably weaker inasmuch as the first respondent is now denying the allegation of paternity whereas before, in the immigration proceedings, he was espousing it.

The first respondent has not engaged with these proceedings at all despite being served with all orders and evidence.

As mentioned above, District Judge Gibson made an order on 15 March 2017. That order required the first respondent to provide a sample for DNA testing, and also required the first respondent to file a witness statement. He has not complied with that order. He even failed to comply with a witness summons for his attendance at the hearing on 14 September 2017.

I have mentioned above the order made by HHJ Boye on 14 September 2017. This recorded that the purpose of the application was to establish that the applicant was the son of a British citizen and therefore not subject to deportation. I mention this because it was suggested on the applicant’s behalf that the reason for this application is to secure the applicant’s inheritance in Jamaica from the first respondent; but I cannot accept that. If that were the true reason then the applicant would be well able pursue a paternity declaration in the courts of Jamaica once he has returned there. To be sure, the only reason for this application is to thwart the applicant’s deportation. The order went on require service by the applicant’s solicitors of the relevant documents on the Home Secretary and the Attorney General. I do not know if this was done at that time.

At the hearing on 9 November 2017 Mrs Justice Theis considered that an issue of “res judicata or issue estoppel” might arise from the decision of the first-tier tribunal of 14 March 2013. Her order stated that the court would serve the relevant documents on the Attorney General, the Home Secretary and the caseworker who authored the letter of 19 October 2017. They were given leave to intervene and had to signify their intention to do so, if they took up that leave, by 8 December 2017. In the event that they did so the court would give directions in the week commencing 11 December 2017. The paperwork was served by the court on 20 November 2017. Strangely, nothing has been heard from anyone. Neither the Home Secretary nor the Attorney-General has chosen to intervene.

The case advanced on this occasion is identical to that run by the applicant before the First-tier Tribunal. Now, I do have a witness statement from the applicant’s mother, and she has addressed me. However, her evidence is really no different to that given on her behalf by her son in the Tribunal proceedings. And, in any event, I cannot accept that with due diligence the applicant could not have adduced the written evidence of his mother before the Tribunal.

I agree with the applicant’s argument that no question of res judicata arises. Res Judicata (that is: the matter has been decided) is a concept of substantive law. There are two categories or sets of rules. First, “cause of action estoppel” where the parties and the subject matter are the same in both sets of proceedings; and second, “issue estoppel” where the parties are the same and, although the subject matter differs, a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, and then in the subsequent proceedings involving a different cause of action to which the same issue is relevant, one of the parties seeks to re-open that issue. In the first category, the bar is absolute; in the second a re-litigation will only be allowed in special circumstances.

I agree that this case fits into neither category. Cause of action estoppel is impossible as the causes of action as well as the parties are not the same. Issue estoppel cannot arise as the parties are not the same.

However, the issue is the same. Notwithstanding that the parties are different the doctrine of an abusive collateral attack on an earlier judgment plainly falls for consideration. This doctrine is a rule of procedural law and there have been many reported cases on it (see, for example Secretary of State for Trade and Industry v Bairstow [2004] Ch 1 at [38] per Morritt V-C; Aldi Stores Ltd v WSP Group Plc & Ors [2007] EWCA Civ 1260, [2008] 1 WLR 748 per Thomas LJ at [5] to [11]; Shalabayev v JSC BTA Bank [2016] EWCA Civ 987 sub nom JSC BTA Bank v Ablyazov (No 15) [2016] EWCA Civ 987; [2017] 1 WLR 603 per Gloster LJ at [55]; Wilson v Sinclair [2017] EWCA Civ 3; Norman v Norman [2017] EWCA Civ 120 per King LJ at [67 to 83]; Clutterbuck & Ors v Cleghorn [2017] EWCA Civ 137 per Kitchen LJ; and Kamoka and Ors v Security Service and Ors [2017] EWCA Civ 1665). For my purposes, I think that the principles are most lucidly set out in the iconic judgment of Lord Bingham in Johnson v Gore Wood & Co (a firm) [2000] UKHL 65, [2002] 2 AC 1 at [30]:

“The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”

Applying a broad merits-based approach taking account of all the facts of the case, I have no hesitation in concluding that the conduct of the applicant in making and pursuing this application is manifestly abusive. It is a blatant collateral attack on the judgment of the First-tier Tribunal, where all appeal rights from it have been exhausted. In my judgment to permit re-litigation of the issue of the applicant’s paternity would bring the administration of justice into disrepute (see Secretary of State for Trade and Industry v Bairstow [2004] Ch 1 at [38(d)(ii)].

I might have taken a different view if there was now available DNA evidence which conclusively showed that the first respondent was the father of the applicant. That would amount to important new evidence, although if it existed there would have to be a careful consideration of whether it could have reasonably been obtained first time round. In Henderson v Henderson (1843) 3 Hare 100, which underpins the entire jurisprudence concerning duplicative claims, Wigram V-C was clear that if the evidence could reasonably have been obtained first time round then that was likely to be fatal. He stated:

“..the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case”

But there is no such DNA evidence, so the problem does not arise.

For these reasons, the application is dismissed.