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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AB v CD (No 1) [2019] EWHC 1695 (Fam) (02 July 2019) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2019/1695.html Cite as: [2019] EWHC 1695 (Fam) |
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version
of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published
version
of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. 1695 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
AB | Applicant |
|
| - and - |
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CD-and- C |
Respondents |
____________________
Verdan
QC and Mr M Edwards (instructed by
Vardags)
for the Applicant
Miss S King QC and Miss J Renton (instructed by Payne Hicks Beach) for the 1st Respondent
Miss S Jaffar (instructed by CAFCASS) for the 2nd Respondent
Hearing dates: 26-28 June, 2 July 2019
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
See also:
AB
v
CD
(No 2) [2019] EWHC 2244 (Fam) (16 August 2019)
The Honourable Mr Justice Cohen :
CD.
The identity of his biological father is unknown to the court and I shall call him X. At all times he has believed the mother's husband
AB
to be his father.
AB
that I should order the mother to disclose X's identity so that C can be told. The mother resists both the proposal that C should be told that
AB
is not his father at this stage and that she should be required to disclose X's identity.
AB
and
CD
were married in 2003. Some years later C was conceived. The mother says that at the time she was having an affair with X. The circumstances which led to the affair are irrelevant to my determination. She says that she was at the time still in a sexual relationship with
AB,
her husband, and she convinced herself that she was carrying his child.
AB
says that in 2018 he heard rumours that the mother had been having an affair around the time of C's conception and he asked the mother to agree to a DNA test. That was carried out in December 2018 and both that test and another test carried out the next month confirmed that
AB
was not the biological father of C.
very
likely that he will be further upset to hear that his paternity is not as he has always believed.
AB
was devastated by the news that he was not the biological father of C. It was a huge blow to him personally as well as to his pride and status. Following the revelation, relations between
AB
and
CD
have been at rock bottom.
AB
has issued a raft of proceedings against
CD
including:
i) Proceedings in the Chancery Division for breach of confidence;
ii) Proceedings in the Queen's Bench Division, claiming back from
CD
all the money that he has spent on C in the mistaken belief that C was his child and seeking also damages for his distress and for the difference between the sum that
CD
will receive at the determination of her claims for financial remedy orders and what she would have received if her claims were determined in 2011 as he says they would have been if she had admitted her adultery;
iii) Proceedings under Children Act 1989 for residence and these proceedings;
iv) Financial Remedy proceedings.
The scale of the litigation is immense, with huge teams of lawyers. The Queen's Bench and financial remedy applications are listed before me for 20 days early next year.
AB
might intend to use the information of X's identity and that was confirmed by his evidence that he might use it to take proceedings against X.
AB
has finally, that is within
about
the last week, decided that he wants to remain a central figure in C's life. C knows no other father. It is common ground that
AB
and C are
very
close (as are
CD
and C) and their relationship is of huge importance to C. I treat
AB's
threat of withdrawal from C's life as now parked firmly in history.
AB
lives
abroad
and comes to England for
about
a week a month to see C and spends approaching half the school holidays with C.
CD
is greatly relieved that
AB
has taken the decision to remain in the centre of C's life. She agrees that this course is
very
much in C's best interests.
CD
says that he knows nothing of these proceedings and she has no reason to think that he has any knowledge of his paternity of C. She has never discussed it with him and as far as she is aware X has never met C on any occasion.
AB
says that C needs to know who his father is as soon as possible. That means telling him not only that he,
AB,
is not the father, but that he also needs to know the identity of X. He says that only when he,
AB,
knows the identity of X can he sit down with X and ascertain exactly what role X is to play in C's life.
AB's
feelings, it seems to me highly unlikely that he would be
able
to sit down with X and have the sort of calm and rational discussion that he envisages. But, whether or not a discussion takes place, it is understandable that he wants to know what role, if any, X would wish to play in C's life.
AB
adopts the guardian's proposal that he and the mother should with professional assistance agree a script and present to C the reality of his paternity. He is not willing to accept the mother's word as to the identity of X, even if X admits it, and he would want X to undergo a DNA test.
AB
is not his biological father and that information should not be kept from him or delayed.
AB
makes the further point that the lack of knowledge of the identity of X sours his social life in the sense that he thinks it is likely, and I tend to agree, that X is someone who is known to
AB
and
AB
does not want to spend his time wondering which of his social circle is to blame and possibly pointing the finger at those who are blameless.
Verdan
QC on behalf of
AB
has sought to argue that since I will be bound (as he puts it) to order disclosure of X's identity in the Queen's Bench proceedings, I should not close my eyes to that fact in considering disclosure within the Children Act proceedings. I do not consider that this is an appropriate matter for me to take into account in the children proceedings which are governed by what is in C's best interests.
CD
or that I shall regard it as appropriate that any claim against X within such proceedings should be determined at the same time as the claim against the mother. I remind myself that there is an outstanding strike out application made by the mother in respect of this claim against her which I may need to consider and determine sooner than envisaged by the existing case management directions.
about
two years by when he will understand the genetic process. In the meantime, C can get on and enjoy a full relationship with
AB.
AB
is his psychological but not his biological father it is unlikely that C will, at least in the short term, question who X might be. If he did, she would seek to deflect the issue by saying that it is someone whom C has never met and who plays no part in his life. Only if C became insistent would she tell him. In an ideal world she would hope that the secret of X's identity might remain in the background until C approaches adulthood.
AB
has with C.
AB
accept in this respect, is that the news that
AB
is not C's biological father is widely known to family members, the staff in their
various
residences, and to those in their immediate social circle.
AB
and
CD
together that
AB
was not C's biological father. They would do so from a prepared script with which they would have had professional assistance. By then
AB
and
CD
would know what X's
views
were and whether he wanted to play any part in C's life, so that if C asks questions
about
him they would be in a position to answer them. As to when C should be told, she said this in her report:
26. It is myview
that C should be informed of his paternity and that he has a right to this information, which constitutes a crucial tenet of his biological heritage and his identity. Drawing upon the research within adoption literature, there is increasing recognition of the unhealthy and damaging impact of keeping secrets within a family
about
such fundamental issues and the detrimental impact of children finding out inadvertently, or at a later stage, that such significant information was kept from them.
27. That the informationabout
C's paternity is so widely known, amongst his extended family, the family and extended family's staff members and reportedly, within wider society renders it impossible that C would not at some stage, come to learn the truth. It also increases the risk of him inadvertently finding out, or hearing the information from a third party, which would be hugely damaging to him. Further, there is also the potential that C could be told in a moment of anger or hurt, rather than in a way that is managed to be as safe and least harmful way as possible.
28. It is partly for this reason that I consider that ideally, it would be better for C to be toldabout
his paternity now, rather than waiting until he is older and thus increasing the risks of him finding out
via
alternate means.
29. However, it is C's current age and stage of development that leads me to consider that he is best told now, rather than as he enters the pre-teen phase and puberty. At this age, C is still a young child, and whilst he is developing an increased understanding of the world and is moreable
to understand more complex information, his thinking remains relatively uncomplicated. Children are better at dealing with life events at this age, because they have a lesser sense of permanency as they tend to live in the moment. From a cognitive standpoint, the information shared is likely to have less of a devastating impact that if C were older. He is more likely to overcome initial feelings of shock and distress than if he were entering the pre-teen or teenage stage of development, where the advance of puberty can bring
about
real emotional turbulence, that would compound any initial emotional response. Further, an older child is increasingly likely to experience a sense of loss of trust in a parent at not having been told sooner.
AB
is not his genetic father but leaving it until later to tell him who X is, runs two particular risks:
i) The risk of C feeling that information is being kept from him;
ii) Doubling the pain by having to tackle two related issues at times that are chronologically apart.
Much better, she says, to tell him it all in one go and combine it with the reassurance that nothing will change in his life and thatAB
is still his psychological and social father.
Perhaps surprisingly, there appears to be no reported case where these particular issues have arisen before. There are, however, a number of cases which have clearly established that it is in a child's interest to know the truth of his paternity. As Hedley J said in Re D (paternity) [2007] 2FLR 26 at paragraph 22
The general approach is that it is best for everyone for the truthabout
a disputed paternity to be known. The classic statement that is to be found in the judgment in the Court of Appeal in Re H and A (children) [2002] 1FLR 1145. I acknowledge once that that should be the guiding principle in all cases with which the court deals. It has obvious merit, not least the general proposition that 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 and a court should not depart from that approach unless the best interests of the child compel it so to do.
I need say littleabout
![]()
AB
and
CD.
They are both plainly highly intelligent. Each accepts that the other is a devoted and committed parent to C. The mother says that she is devastated and full of remorse for the situation that she has brought
about
and I accept that her remorse is genuine.
AB
has been put in a dreadful position. He is beginning to reconcile himself to his position but in my judgement he remains full of controlled anger.
This is an acutely difficult matter and I approach it with humility, aware that different tribunals might reach different decisions on this matter of such importance to the parties.
AB
is not his biological father. I agree with the guardian that he is at an age when it will be easier for him to accept than it will be when he is older. I agree also that the risk of him hearing rumours from others is a real risk which needs to be avoided if possible.
i) He might deny paternity;
ii) He might decline a DNA test. The court has no power to compel him to have one;
iii) He may want nothing whatsoever to do with these proceedings. Indeed, he may not even reply to any communication that is sent to him;
iv) He might on the other hand wish to play a role in C's life;
v)
He may have
very
strong feelings himself as to whether his identity should be disclosed.
His reaction will impact on what is told to C.
AB
and the guardian both argued that the two issues of disclosure of
AB's
non-paternity and the identification of X should not be split. If that meant a delay before C was told anything so that X's stance could be ascertained, then so be it, although the delay should not be excessive. Only with a knowledge of X's stance could a full picture be given to C. The mother remained of the
view
that the two issues could and should be split.
above
are known. I have therefore drafted a letter to X which will be sent to X seeking answers. The contents of the letter have been provided to counsel for their comments and will be the subject of amendment.
CD
and the guardian both say that X must be told of the existence of the Queen's Bench proceedings. It would be wrong to hide from him that he may be catapulted into such proceedings. I regard it as unfortunate for C that X's attitude to C might be influenced by this threat and I hope that
AB
will give further thought to the
value
of those proceedings in the context of their effect on C.
able
to experience for himself that nothing had changed in his relationship with
AB
with whom he would be spending three periods of
about
one week each during the holidays. It would give an opportunity for C to realise that
AB
will not suddenly disappear from his life or his role be diminished. In term-time
AB
will be less available.
AB
suggests that I should require X to reply to the letter sent to him by the end of this week. That is completely unrealistic, especially as the terms of the letter have not even been finalised. X must have the chance to assimilate what he is being told which may come as a total shock to him. He is entitled to give a considered
view
and to take advice.
about
5-6 weeks' time by when I expect X to have responded.
AB
accepts that a further delay may be needed, depending on X's reply. The delay is the inevitable consequence of dealing with matters holistically, rather than decoupling the two issues.
very
sensitively handled. The parents think that they might be
able
to do it together. The guardian is less optimistic. Her proposal is that
CD
should tell C the news by reference to the agreed script and that later the same day
AB
should reinforce it. I think that is probably right but further guidance should be taken from the expert who will be assisting them through this process and who will be
able
to gauge their reaction to it.
AB's
position is to be strengthened by the grant of parental responsibility to him and a "spend time" order. I am pleased that this is agreed.
very
bad for C that arrangements for him to see his paternal cousins who live just a few doors away are made through staff rather than directly between family members. Likewise, steps should be taken to try to obtain some form of working relationship between the parents as to the arrangements for C. They have agreed to use an app and to accept mediation.
AB
has reached the public arena that has happened through disclosure from
AB
or those he has told. Both his sense of anger and the mother's sense of shame make it far more likely that he or his side is the source.
a)CD
shall forthwith disclose to her solicitors the name and contact details of X.
b) The solicitors shall by 5 July write to X a letter in agreed terms which shall require a reply by 2 August 2019.
c) The matter shall be listed for a 2 hour hearing before me no later than 16 August 2019.
d) In the event that the parties agree that the hearing cannot be effective it shall bevacated
and relisted.
e) At the next hearing or on paper in the event that the hearing in August isvacated
consideration will be given to giving directions for the hearing of the mother's strike-out claim in the Queen's Bench proceedings.
I turn now to some of the other issues between the parties, the most troublesome issue being that of overseas travel during the course of this summer school holiday.
AB
seeking to take C to the UAE where he is based and the mother seeking to take the child to India where she has family.
AB's
position has now changed, and he says that neither parent should be permitted to remove C from England and Wales during the course of the summer holidays. His argument has two limbs, namely the desirability of the parents being
able
to look after C week and week
about
during the period that he is being told the facts of his paternity and secondly his particular objection to India.
i) The magnitude of the risk of breach of the order if permission is given;
ii) The magnitude of the consequence of the breach if it occurs;
iii) The level of security that may be achieved by building into the arrangements all of the available safeguards.
view
that the risk of the mother retaining C in India is
very
small. She and C have lived in England throughout their lives. They are completely settled in England. Their social status in India is undermined by the fact that her adultery is, within their circle, a known fact.
very
large. She has a claim for financial remedy orders to be determined by me early next year and if she was in breach of an order to return C that claim would be extremely adversely affected. The incentive for her to return is higher now than it has ever been, including the three occasions on which she went to India with C last year, namely August, October and December 2018, the last occasion being after the first DNA test results.
AB's
anxiety that the mother might introduce C to X. In her evidence she did little to remove the suspicion that X may be living in India. She says
very
clearly that she will ensure that C and X never meet. I shall require her to undertake that in no circumstances will C come into contact with X.
AB
points to two particular matters. First, if X is indeed in India and if he accepts that he is the biological father, both of which are unknown, he could as C's father apply for orders in respect of C in the courts of India. I recognise that that is a risk but at no stage during C's life has he ever expressed any interest in C and I have no reason to think that this might now be the case. True it is that Indian proceedings may take what might seem an extraordinarily long time to resolve, as the single joint expert points out. But there is, so far as I know, no bar to
AB
visiting
India and exercising all his rights to spend time with C. He is now a holder of parental responsibility for C.
AB
might have in the event of a retention of C in India. With these precautions in place I am as confident as I can be that the mother will return with C on time.
The terms of the letter as dictated by me have largely been accepted by the parties, subject tovarious
helpful suggestions they have made. The question, however, has arisen, as to who the sender should be. I rule that the letter should be sent by the mother's solicitors, but in a form agreed between the parties, including the guardian. The body of the letter must make clear that it is a letter that is sent on behalf of all three parties and which has been approved by the judge. Any and every reply must be copied to the other parties subject only to the redaction of name and address.
During the course of his evidence I pointed out to the father the apparent inconsistency between his case on the one hand that he loved and wanted to play avery
full part in C's life going forward and on the other hand saying that he should be reimbursed for all the money that he had spent upon C. He saw the inconsistency and said that he would
abandon his claim against the mother for reimbursement.