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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> MS v RS and BT (Paternity) [2020] EWFC 30 (22 April 2020) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2020/30.html Cite as: [2020] WLR(D) 246, [2020] 3 WLR 1233, [2020] EWFC 30, [2020] 2 FLR 689, [2021] Fam 1 |
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SITTING AT MANCHESTER
B e f o r e :
____________________
MS |
Applicant |
|
- and – |
||
RS | First Respondent | |
- and – |
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BT | Second Respondent | |
- and – |
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AS and BS | Third and Fourth Respondents |
____________________
The First Respondent appeared in person
Ms Margaret Parr (instructed by Brown Turner Ross) for the Second Respondent
Ms Joanna Moody (instructed by Gaynam King & Mellor) for the Third and Fourth Respondents
Hearing dates: 11 and 12 February 2020
____________________
Crown Copyright ©
Mr Justice MacDonald:
INTRODUCTION
BACKGROUND
"[3] Between mid-2003 and late 2005, the stress of fertility treatment took a toll on my mental health. I would describe that period as a time when I went 'off the rails' a bit. I was socialising and drinking and quite unashamedly flirting with other women as a reaction to a lack of manliness.
[4] I do not have anywhere near a total or full recall of exactly what I was getting up to at that time. I had drunken fumbles with other people. I find this whole thing embarrassing and embarrassing to admit.
[5] I had a flirtatious conversations (sic) with other women (other than my wife) via social media. This included with [the mother]. [The mother] would not be at the social events I am describing as these took place in [location given] where I was then working, having left company X in May 2003.
[6] Company X was based in [location given] where most drive to work whereas in [location given] pretty much everyone commutes by public transport and there is more of a social drinking culture.
[7] Between 2003 and 2005 I cannot say with absolute certainty that these drunken fumbles didn't include [the mother]. I cannot remember any specific instance of being with [the mother] but due to us flirting at times it is a slim possibility. I was not in a relationship or an affair with [the mother].
[8] If I had relations with [the mother] during this hazy period, then at most it could or would have been a very few number of times. I cannot remember when these times might have been and cannot say for certain whether they are in line with the conception of A and B. The time of the conception of B was when my ex-wife and I were fully engaged in fertility treatment."
"There are three easy steps:
1. Using one of the swabs provided in the testing kit, firmly rub on the inside of the left cheek for at least 20 seconds; then place the swab in the envelope provided. The second swab is used in exactly the same way on the inside of the right cheek. It is advisable not to eat or dinking immediately prior to collecting your samples.
2. Complete the details on the front of the swab envelope and seal it.
3. Place all the swab envelopes and the complete form in the self-addressed return envelope and sent it back to our testing laboratory."
"Statement
A comparison of the DNA profile of MS and [name of child] does not support the hypothesis that MS is the biological father of [name of child] as 3 or more mismatches were observed between the alleged father and child.
As this is a Peace of Mind test all testing has been performed based on information provided by the client. The identity of the sample donor and the chain of custody of the samples cannot be guaranteed; therefore these results are not court admissible.
DNA Profile Data
A technical data table, showing the comparison of the DNA markers between the tested individuals can be ordered for an additional £30.
Conclusion
The result excludes MS as the biological father of [name of child]."
i) A Peace of Mind DNA test is a paternity test that is solely reliant on the information provided by the customer. It is not a witnessed test, the identification of the named donors or the chain of custody cannot be verified.
ii) The collection form requires the that consent for testing each child under 16 must be provided by an adult with parental responsibility.
iii) A legal test is a witnessed test with a full chain of custody and the entire process is overseen by sample collectors from Alpha Biolabs, who take the DNA samples and verify the individuals by checking photographic identification. There is a full chain of custody and such tests can be used for legal purposes.
iv) Peace of Mind tests are for information only. There is a difference between the reliability of a Peace of Mind test and a legal test as Alpha Biolabs cannot guarantee that the individuals named on the test form and the DNA samples provided are correct.
CHILDREN'S WISHES AND FEELINGS
THE LAW
Application for Declaration Concerning Parentage
"Issues of status, such as parentage, can be expected to be approached with some formality. They concern not only the individual but also the public generally which has an interest in the status of an individual being spelled out accurately and in clear terms and recorded in properly maintained records."
And at [37]:
"[37] I think there was also a failure on the part of the Recorder to give full weight to the public interest aspect of a status issue such as this. This is seen in the conflation in the judgment of the considerations under section 55A(5) and section 58 and also in his concentration upon the desirability of J making an informed choice as to whether his father was named on his birth certificate ... I am not suggesting that the desirability of a child being involved in the decision is necessarily a completely irrelevant consideration but it must be borne in mind that it is not given to most to choose who is named on their birth certificate and the system of public records would be seriously undermined if it were."
"[31] Returning to the sphere of declarations of parentage, it may be helpful, in order to examine how section 55A and section 58 interrelate, to take the example of a teenage child who is aware of the application for a declaration of parentage by a man who claims to be his or her father and who threatens that he or she will commit suicide if the man's application is permitted to proceed. A psychiatrist gives evidence that he considers the threat to be genuine and that, should the proceedings continue, the child is at serious risk of emotional harm at the very least. Section 55A(5) would enable the court to refuse to entertain the father's claim for a declaration on the basis that the determination of the application would not be in the best interests of the child.
[32] I have deliberately chosen an example in which the application of section 55A(5) is obvious but there may well be cases in which the facts were less radical but the court would still exercise its power under section 55A(5). I would have thought that the examples in Professor Cretney's book of the child conceived in a rape or the child who is settled with adopters would potentially give rise to a power under section 55A(5) to refuse to hear the application. I question whether it is likely that a case would avoid being derailed at the section 55A(5) stage, proceed to a determination of the fact of parentage, and then throw up welfare considerations which would make it manifestly contrary to public policy to grant a declaration."
Presumption of Legitimacy
Standard of Proof for Rebuttal of Presumption
"26 Rebuttal of presumption as to legitimacy and illegitimacy
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."
"Another indirect pointer may be found in section 26 of the Family Law Reform Act 1969. At common law the presumption of legitimacy could only be rebutted by proof beyond reasonable doubt. This was one of the considerations which led the House to its conclusion in Preston-Jones v Preston-Jones [1951] A.C. 391. By section 26 of the Act of 1969 the presumption can now be rebutted on a simple balance of probabilities. Although in Serio v. Serio (1983) 4 F.L.R. 756, 763 the Court of Appeal held that the standard of proof should be "commensurate with the seriousness of the issue involved" (in other words, that it might require more than a mere balance of probabilities), this seems to read words into the statute which are not there. If the legislature has ordained that the presumption of legitimacy can be rebutted on a simple balance of probabilities, I have no great difficulty in concluding that section 31(2) requires a simple balance of probabilities, and no more, even when there is a serious allegation of sexual abuse."
"If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened."
"I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not."
And at [15] that:
"There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities."
And Baroness Hale at [69] and [70]:
"[69] There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof. Divorce proceedings in the olden days of the matrimonial "offence" may have been another example: see Bater v Bater [1951] P 35 . But care proceedings are not of that nature. They are not there to punish or to deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm. The consequences for the child of getting it wrong are equally serious either way.
[70] My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."
Evidence to Rebut the Presumption
"The starting-point must be that the old uncertainties which formerly surrounded issues of disputed paternity when a mother had been sexually involved with two or more men at the time of conception are now banished altogether. Genetic testing, already advanced to a high degree of probability through the negative techniques of exclusion, has now moved on to the point where it has become possible to achieved positive certainty. That has had a profound effect on cases like the present, where a mother has been having relations with different men at the time of conception. Any man who is unsure of his own paternity and harbours the least doubt as to whether the child he is alleged to have fathered may be that of another man now has it within his power to set all doubt at test by submitting to a test. It has ceased, therefore, to be possible for any man in such circumstances to be forced against his will to accept paternity of a child whom he does not believe to be his. Against that background of law and scientific advance, it seems to me to follow, both in justice and in common sense, that if a mother makes a claim against one of the possible fathers, and he chooses to exercise his right not to submit to be tested, the inference that he is the father of the child should be virtually inescapable. He would certainly have to advance very clear and cogent reasons for this refusal to be tested – reasons which it would be just and fair and reasonable for him to be allowed to maintain."
In Re G (Parentage: Blood Sample) [1997] 1 FLR 360 Thorpe LJ put the matter as follows at 367D:
"The court must be astute to discern what are the real motivations behind the refusal. It should look critically at any proffered explanation or justification. It should only uphold an explanation that is objectively valid, demonstrating rationality, logicality, and consistency. Anything else will usually lead to an adverse inference."
"As I have said, although, in my opinion, there is no authority which binds me one way or the other, it is quite plain that in a number of reported cases (some of which I have mentioned) at first instance such evidence has been admitted and notably it was admitted by so wise and eminent a judge as Hill J. I think that the right view for me to take is that I should not depart from that body of jurisprudence, and rule that the evidence is inadmissible, though, as I have no doubt I shall be reminded again later in the case, of course I must keep in the forefront of my mind, in deciding when I have seen and heard such evidence what weight to attach to it, the perils which have been pointed out in more than one case".
DISCUSSION
i) Whilst the mother originally contended that her relationship with the putative father at company X was merely that of colleagues and there was thereafter no or minimal contact between them from 2003 to the end of 2005, the photographic evidence of meetings with the putative father "as a friend" immediately after A's birth and shortly thereafter is inconsistent with that assertion, particularly in circumstances where the mother fails to mention them in her statement.
ii) Whilst the putative father also originally contended that his relationship with the mother at company X was merely that of colleagues and there was thereafter no or minimal contact between them from 2003 to the end of 2005, his late admission that he had flirtatious exchanges with the mother via social media and had been "flirting at times" with her during this period is also inconsistent with that assertion, again particularly as he failed to mention this in his original account.
iii) Within this context, the mother moved from a firm assertion that her relationship with the putative father at company X was merely that of colleagues, that there was thereafter no or minimal contact between them from 2003 to the end of 2005, that she had always believed the biological father of both children to be the father and that she had no recall of being intimate with any other person, to a concession that she had attended social events both during the period of A's conception and B's conception at which she had been extremely drunk and with respect to which she could not "recall" whether the putative father had been present or whether she had sex with him.
iv) Likewise, within this context the putative father moved from an assertion that his relationship with the mother at company X was merely that of colleagues, that there was thereafter no or minimal contact between them from 2003 to the end of 2005 and that he was certainly not the father of the children to a concession that he could have had sex with the mother, although a "very few number of times", that he could not say for certain whether these occasions were in line with A and B's dates of conception and that there is a possibility he could be the father of both children.
v) Within the foregoing context, both the mother and the putative father now accept that there is a possibility, albeit they contend it is remote or theoretical, that the putative father is the biological father of the children.
i) The relevant sample must only be taken by a sampler who is a registered medical practitioner or other person defined in Regulation 2 of the 1971 Regulations as amended.
ii) The sampler is required to determine whether there is any factor that might affect the outcome of the testing pursuant to Regulation 5 of the 1971 Regulations as amended.
iii) The sampler is required to check and confirm the identity of the subject to be tested. In respect of a child under the age of sixteen, they must be accompanied by a person of full age who must identify the child to the sampler pursuant to Regulation 4 of the 1971 Regulations as amended. In respect of any subject who has attained the age of 12 months by the date of the direction for testing, the sampler must ensure that a photograph of that subject is affixed to the direction form relating to that subject before the sample is taken.
iv) The sampler is required to handle the sample in the manner specified by the regulations. Pursuant to Regulation 6 of the 1971 Regulations as amended, once the sampler has taken a sample he must place it in a suitable container and must affix to the container a label giving the full name, age and sex of the subject from whom it was taken. The label must be signed by the sampler and the sampler must confirm he has taken sample and date on which it was taken.
v) The sampler is required to despatch the samples forthwith to the tester by post by special delivery service or deliver them or cause them to be delivered to the tester by some person other than a subject or a person who has accompanied a subject to the sampler.
vi) Testing is likewise strictly controlled by regulation, it being a requirement that samples taken (so far as practicable) all be tested by the same tester.
"...truth, at the end of the day, is easier to handle than fiction and also it is designed to avoid information coming to a young person's attention in a haphazard, unorganised and indeed sometimes malicious context."
Further, the children themselves may change their minds. In these circumstances, whilst not currently in the children's best interests for the father's application to be determined, the question of their paternity cannot remain undecided indefinitely.
CONCLUSION