Paternity complexity

This is a pair of judgments in the High Court, relating to a child, a boy named C.  The judgment doesn’t specify his age, but he was born somewhere between 2006 and 2016  (reading between the lines, and I think he’s probably on the younger end of that spectrum )

AB v CD (No 1) 2019

https://www.bailii.org/ew/cases/EWHC/Fam/2019/1695.html

and predictably

AB v CD (no 2) 2019

https://www.bailii.org/ew/cases/EWHC/Fam/2019/2244.html

C’s mother, CD was married in 2003 to AB.  They separated in 2017.  AB then heard rumours that CD had been having an affair (although he did not know with whom) at the time of C’s conception. He sought DNA paternity testing and was devastated to learn, after many years of believing C to be his son, that he was not C’s father.  The mother accepted that she had been having an affair with a man named X, who she did not wish to name

7. 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:
7. 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

Within case number 1, the central issue was Should C be told that AB was not his father, and leading on from that that X was his father, and leading on from that, AB wanted to be told who X was.

13. The arguments of the parties
    1. 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. Bearing in mind the strength of 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.  
    2.   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.
    3. He says that C is bound to ask who his real father is when told that AB is not his biological father and that information should not be kept from him or delayed.
14. He says further that C has a right to know the identity of his birth father. It is fundamental to his sense of identity and belonging and Articles 7 and 8 of the United Nations Convention on the Rights of the Child underline this point.
18. 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.
19. He says that it is important for C to know the identity of X in case there are any hereditary medical problems. I give little weight to that. C is in good health. No problems have yet emerged and on any basis sooner or later C is likely to have to be told the identity of X.
20. Mr 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.
21. But, in any event, it is not a given that X’s identity will be ordered to be disclosed in the Queen’s Bench proceedings against 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.
22. The mother’s case is that C’s state of biological knowledge is that he simply will not understand what is meant by the concept of him having two fathers in his life. Far better, she says to wait for 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.
23. She says that when C is told that 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.
24. In particular, she stresses that now is not the right time to tell C anything. The parties are in the midst of an enormous amount of litigation and tensions are high. She would at least want to get past February by when it is hoped I will have determined the body of litigation that is listed before me then.
25. If C is told who X is, it may lead to C being divided 3 ways. How, she asks, is C expected to cope with that. She has no desire to have X involved in C’s life or run the risk of his undermining the relationship that AB has with C.
26. The parties live in a culturally conservative society. If the identity of X was revealed that would have a damaging impact on both her and X within their society but also would inevitably have a knock-on effect on C.
27. She says that at the moment the only person who knows X’s identity other than her is her brother, who has kept the information to himself although in a pleading in the Queen’s Bench action she said that she has also told her parents.
28. The guardian has provided a helpful report. Her evidence, which the mother and 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.
29. In an ideal world, she says, C would be told by 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:
30. 1. 26. It is my view 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 information about 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 told about 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 more able 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.

30. She says that the idea of telling C soon, as she recommends, that AB is not his genetic father but leaving it until later to tell him who X is, runs two particular risks:
32. 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 that AB is still his psychological and social father.

31. She says that the parties have done well in limiting C’s awareness of the animosity between them and the extent of the legal proceedings. She says that mitigates the danger of him being damaged by the continuation of proceedings if C’s paternity and X’s identity are revealed sooner rather than later.
32. The guardian accepts that it may be that C will not want to know the identity of X. In that case she says, he should not be told until he wants to know

Those are some very tricky competing issues.

1. The law
2. 1. 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 truth about 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.

34. I apply the provisions of s.1 Children Act 1989 and C’s welfare is my paramount consideration.
35. The parties
36. 1. I need say little about 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.
36. 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.
37. The guardian gave thoughtful and helpful evidence. It is no criticism of her to say that I think she had not foreseen the range of difficulties that this case presents and that to some extent her evidence was given on the hoof as she was made to confront problems in the witness box which she had not previously thought through. The same can be said of the other parties whose positions evolved throughout the case.
38. My approach
39. 1. 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.
39. The starting point is that C must be told sooner rather than later that 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.
40. The much harder issue is that relating to the disclosure of X’s identity. The guardian says that in an ideal world the two issues would be dealt with in one go and I entirely see the logic of that. The difficulty is that X is completely unaware of these proceedings and what is going on in them. It is not possible to know how X will react and thus no one can tell C whether X will want to play any role in his life or even meet him. There are all sorts of possibilities; to name a few obvious ones:
42. 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.

41. By the end of the case 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.
42. It seems to me that it must be wrong to disclose X’s identity until answers to the questions that I have mentioned 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.
43. 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.
44. The consequence of the delay in imparting information to C is that the parties may lose the advantage of the imminent approach of the summer school holidays which would permit C to be told but then be 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.
45. 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.
46. I therefore propose to list the matter before me in 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.
47. I have at times been attracted to the mother’s proposal that the two issues should be separated but I am persuaded that it is more in C’s interest for the parties to be better equipped to answer such questions as he might ask.
48. How the news is broken to C must be 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.
49. Each party has made suggestions as to what C’s wishes might be. The only certainty is that the news will be unwelcome. It is not possible to surmise beyond that.
50. It is essential that the orders that I make are buttressed in a number of ways. First, 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.
51. Steps need to be taken to mitigate the lack of communication which exists between the wider family. It is 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.
52. I have little doubt that in so far as the fact that C is not the genetic child of 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.
53. If the time comes that I direct that X’s identity should be disclosed I will have to consider carefully how the information is to be used and to whom it will be given. I will wish to restrict its circulation as far as possible. I am anxious that the information is used for C’s benefit and not for any gratification of a desire for revenge.
54. I therefore order as follows
55. 1. 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 be vacated and relisted.

e) At the next hearing or on paper in the event that the hearing in August is vacated consideration will be given to giving directions for the hearing of the mother’s strike-out claim in the Queen’s Bench proceedings.

And so to part 2,  X’s identity having been given by mother to her solicitors, and X having been written to about what was happening.

ii) X has responded to the letter sent to him at my direction. To put it shortly, his response has been that he does not recognise the jurisdiction of the courts of England and Wales to deal with this matter and says that the allegations “have no iota of truth whatsoever”. He says he is shocked that there are proceedings that involve his identity and reputation and reserves his rights in this regard.

5. This response was one of the possible answers that I predicted at paragraph 40 of my earlier judgment.
6. In determining the issues in relation to the disclosure of paternity I at all times have as my paramount consideration C’s best interests.
7. In the light of X’s denial of paternity the mother asks me to revisit my decision as to the disclosure that H is not C’s father. I decline to do so. All the reasons that I set out in my first judgment still pertain. It is only a matter of time, probably fairly short time, before somebody says to C that H is not his father. Too many people know for the matter to be kept hushed up. There is no prospect of this issue being smoothed over and it remains far better that it is managed so as to minimise the potential damage to C.
8. X’s answer has not eased my task. It means that if C was to be told the whole truth he must be told that whilst his mother has named X as his father, X denies it. This brings with it the scope for C to feel abandoned and rejected. Those feelings may or may not be mitigated by the fact that H has, since June, reached the decision that he still wishes to remain in all senses C’s psychological father.

With that in mind, the Court made this decision  (Ms Ware was an independent social worker instructed to assist in the case)

16. I have decided that the best answer is to say that the mother must reveal the identity of X as and when Ms Ware says to the mother that C should now be told the identity of X. At that time, and not before, H must also be told of X’s identification. I make it clear to the parties and Ms Ware, who will receive a copy of this judgment, that the time at which C should be told of X’s name is one that cannot be predicted. It may be a very short time or it may be years. It will all depend on C’s reactions and needs.
17. I share the guardian’s view that C must not feel that information is being kept from him and that to do so would be harmful to him. But, what is known now and was not known before, is that X denies paternity and wants nothing to do with C. Matters must be approached at C’s pace.

AB at this hearing, having decided that he wanted to play a continuing part in C’s life as his father, had withdrawn his financial claim for recompense from CD for the sums paid to maintain C when the couple were together, although deceit would still be a part of the ancillary relief claims.