Case No: B4/2009/1479
Neutral Citation Number: [2009] EWCA Civ 1239
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
(MR JUSTICE COLERIDGE)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 20 August 2009
Before:

LORD JUSTICE WARD
LORD JUSTICE WALLER
and
LORD JUSTICE STANLEY BURNTON

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IN THE MATTER OF L (A CHILD)

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(DAR Transcript of 
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Miss K Branigan QC and Miss M Barlow (instructed by Henriques Griffiths) appeared on behalf of the first appellant, D, by her Children’s Guardian.

Ms C Elford (instructed by Sheldon Price) appeared on behalf of the second appellant, G, by his Children’s Guardian.

Mr S Fuller (instructed by B City Council) appeared on behalf of the Respondent Local Authority
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Judgment
Lord Justice Ward:

1.	On 15 June 2009, sitting in Plymouth, Coleridge J began his judgment, saying “In many respects this is a truly mysterious case.”  I agree.  

2.	The case concerns two children from the Ivory Coast.  D is a girl aged 13 and G is a boy said to have been nine in July of this year.  The children were brought from the Ivory Coast to this country to join their parents, both themselves from the Ivory Coast, some time in July of 2007.  By that time the father, who apparently also has German nationality, had been able to enter the United Kingdom and apparently is in employment here and consequently has a right of entry to this country.  The children duly joined them.  The cause for their coming here appears to be -- all of this is part of the mystery -- that they were very unhappily placed at that time with the father’s brother.  The case began in January of 2008 with references to the children’s hospital when the girl, D, had a hand injury, but the culminating event occurred apparently in February 2008 when G was treated at the hospital for serious lacerations to the skull.  How they were caused is as yet unknown.  It may be that the wounds were self-inflicted.  It may well be that they were caused by one or other of the parents and, astonishingly, it may be that they were caused by D.  

3.	The fact-finding enquiry to determine what has happened was due to be heard by Coleridge J later this year and, allowing for the difficulties of interpreting, nine days had been set aside to enquire into the injuries I have described and into other injuries suffered whilst the children and perhaps whilst the family were still in the Ivory Coast.

4.	What is most unusual about the case is that an issue has arisen as to the true paternity of G.  According to the father’s account he, on a visit to the Ivory Coast or a time when he was in the Ivory Coast at least, had sexual intercourse with G’s mother.  She told him that the child she bore was his and he has accepted that fact.  For one reason or another, however, doubts have arisen as to G’s true paternity and, as a result of those doubts, HHJ Rutherford, who at that time was managing this case, ordered that it would be in G’s best interest for paternity to be determined and, to that end, for bodily samples to be taken both from G and from the father, those samples, as I understand it, to be mouth swabs and the collection of saliva accordingly.  An order was made to that effect but its implementation is frustrated, though lawfully frustrated, by father’s refusal to undergo that testing.  He refuses to give the sample required of him and he is entitled to refuse to do so.

5.	During the course of the management of the case, since taken over by Coleridge J, attention has focused upon alternative means of establishing paternity, and the issue arose as to the propriety of D submitting a swab for DNA testing so that at least any sibling link could be used to determine the true father of G.  That was ventilated, as we have been told, on a number of occasions at various case management conferences and eventually a date was fixed for 15 June for that matter to be considered.  G’s guardian was not available on that date.  D’s guardian was, but no oral evidence was laid before the judge who, as we understand it, made it abundantly plain in preceding hearings that he would deal with the matter on the basis of submissions.  Consequently all that was placed before him to indicate D’s position was set out in the position statement filed on behalf of that girl’s guardian.  Having set out that the only up-to-date evidence which the court has in respect of D would be found in the foster carer’s notes, both children being in separate foster care, and to a more limited extent from her interview -- quite exceptionally -- with counsel, the position statement settled by counsel said this:
“In relation to the impact on D of samples being taken and the potential fallout from the results, Mr Harper [the guardian] would welcome the opportunity to give live evidence to the court.”

6.	In the event Coleridge J, having made it I suppose sufficiently plain, that he would not brook any calling of evidence, especially since the boy’s guardian could not give evidence, counsel did not make any application to call evidence, and the matter duly proceeded on the basis of the written submissions only.  In the result Coleridge J duly ordered on 15 June that (page 26 of the bundle):

“17 Pursuant to s20(1) of the Family Law Reform Act 1969 
a) Scientific testing (including DNA tests) should be used to ascertain whether such tests show that [father] is or is not the Father of [G] (believed to have been born on 2nd July 1999). 
b) For that purpose samples should be taken on or before 5th July from [D] and from [G] (the Court having found that this is in the best interests of both children), Mr I (the father) having refused to provide a sample in accordance with the direction made on 1st December 2008).
c) Arrangements for the taking of samples and for the scientific testing should be made by [B] City Council and the local authority.  
d) A report setting out the test results shall be filed and served by [B] City Council by 26th July 2009. 

e) The cost of the sampling, testing and reporting shall be met in equal shares by [B] City Council and the solicitor for [G], it being certified as a necessary and proper disbursement on [G’s] public funding certificate.”

7.	Permission to appeal that order was refused, but granted by Hughes LJ, and it is that appeal which has been argued before us today.  The judge gave a characteristically short and perhaps robust judgment.  He set out the history in more detail than I have recited and then observed that the application before him was strongly supported by the local authority and by G’s guardian because they said, predictably, that it was in G’s interest that the issue already resolved by HHJ Rutherford should be taken forward by testing his putative sister.  Then in paragraph 10 of the judgment his Lordship said:

“However, the application is opposed by the mother and father and indeed the Guardian for [D].  They rightly point out that I cannot make the order in [G]’s best interests if it is not in [D]’s best interest.  It is the fact that under the appropriate statutory sub‑section, which I think is s.21, I can only order the taking of a sample in these circumstances where it is in the interests of the child from whom the sample is to be taken.  So it is argued that this attempt to use this testing route and circumvent the father’s refusal to comply is a misuse of the statute.”

8.	Going to the end of his judgment and paragraph 16, his Lordship says:

“So, I have no hesitation in saying that from [G’s] point of view it is in his best interest.  However, I of course remind myself that it is not the primary question.  The primary question is, is it in [D’s] best interest to be required to take this test?  I am satisfied that by the same reasoning it is in [D’s] best interest to know precisely what the position is.  More importantly, it is necessary from the court’s point of view in making a decision about what is best for [D], indeed, what is best for the children collectively, to know the truth.”

9.	Although the appeal did not seek to challenge the judge’s approach and although, on the reading of paragraph 10, the judge was doing no more than following the submissions that were put to him, I venture, with respect, to question whether that is indeed the correct way to approach the unusual circumstances of this case.  The power of the court to require the use of scientific tests is given by section 20 of the Family Law Reform Act 1969, which is in these terms:  

“(1) In any civil proceedings in which the paternity of any person falls to be determined by the court hearing the proceedings, the court may, on an application by any party to the proceedings, give a direction for the use of blood tests to ascertain whether such tests show that a party to the proceedings is or is not thereby excluded from being the father of that person and for the taking, within a period to be specified in the direction, of blood samples from that person, the mother of that person and any party alleged to be the father of that person or from any, or any two, of those persons.”

10.	But section 1A provides for the test to be carried out by an accredited body and I need not trouble further with the procedural requirements that are to be followed.  I turn to section 21, which deals with the consents required for the taking of bodily samples.  That reads:

“ Subject to the provisions of subsections (3) and (4) of this section, a bodily sample which is required to be taken from any person for the purpose of giving effect to a direction under section 20 of this Act shall not be taken from that person except with his consent.
(2) The consent of a minor who has attained the age of sixteen years to the taking from himself of a bodily sample shall be as effective as it would be if he were of full age…
And I omit the rest of sub‑section (2).

“(3) A bodily sample may be taken from a person under the age of sixteen years, not being such a person as is referred to in subsection (4) of this section,.
(a)if the person who has the care and control of him consents; or
(b)where that person does not consent, if the court considers that it would be in his best interests for the sample to be taken…”

The rest of the section does not seem to be material.

11.	As I read paragraph 10, the judge may, and I have every sympathy with him about this, may have fallen into an error or have been led into error because he does not sufficiently distinguish between section 20 and 21.  The power under section 20 gives the court power to determine the matter when the court considers in its discretion appropriate to do so.  The question then is, what test is to be applied in the exercise of that discretion?  That may be quite different from the references in section 21, which deal with what is to happen after the section 20 order has been made.  The test for section 20 purposes has been developed over time, the leading authority being that of the House of Lords in S (An Infant, by her Guardian ad Litem the Official Solicitor to the Supreme Court) v S [1972] AC 24.  At this stage the Family Law Reform Act had been passed but was not yet in force.  Lord Reid said this of the proper approach in that case which involved putative parents and the child.  Lord Reid’s approach at page 43 was to point out that a person of full age cannot be compelled to undergo the testing because it would be an interference with personal liberty.  In the case of a child the parent could consent if the child was young and incapable.  His test at page 45 was:

“I would, therefore, hold that the court ought to permit a blood test of a young child to be taken unless satisfied that it would be against the child’s interest.”

12.	In his speech Lord MacDermott posed this as the third question he had to answer: “Must the court, before exercising its jurisdiction to order a blood test to be taken on an infant, be satisfied that it is in the interests of the infant that it should do so?” His answer at page 51 was:

“For these reasons I would answer question (3) by saying that while the court should be alert to exercise its protective jurisdiction on behalf of an infant, it does not need to be satisfied before ordering a blood test that the outcome thereof will be for the benefit of the infant.”

13.	I applied those tests in Re: H (Paternity: Blood Test) [1996] 2 FLR 65.  Thorpe LJ summarised the principles to be derived from the authorities in Re: H & A (Paternity: Blood Tests) [2002] 1 FLR 1145, in paragraph 29 of his judgment, to be this: that the points of principle to be drawn from the cases were:

“first, that the interests of justice are best served by the ascertainment of the truth and secondly, that the court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences.”

14.	So I fear Coleridge J asked himself the wrong question.  It is not whether this test would be in D’s best interest, but rather whether it would be adverse to her best interest, the question in Lord MacDermott’s terms (to repeat them) being that the court should be alert to exercise its protective jurisdiction on behalf of an infant.  It does not need to be satisfied before ordering a blood test that the outcome thereof will be for the benefit of the child.  So although the judge probably applied the wrong test, his error was to state it too high.  The difficult question on the appeal is whether this court can interfere with the conclusion that he arrived at that it was in D’s best interests to know precisely what the position was.  

15.	I have hesitated long about this matter.  It was after all in the nature of a case management decision and the exercise of discretion is ordinarily wide and one should not interfere unless the judge is plainly wrong.  The trouble I have after hearing the argument is that there was in fact no evidence before the judge to enable him to deal with what was in the circumstances of this case a peculiarly tricky question.  He did, in paragraph 11, advert to the problems.  He said this:
“They [that is to say the parents and the guardian for D] go on to draw attention to matters which they say show that it is not in [D’s] interest for this further testing to be carried out.  It is said that the results are likely to be inconclusive, and therefore a waste of time, and the child should not be put through this process if the results are unlikely to be conclusive.  It is also said that for cultural reasons this might impact psychologically on D in the sense that if she feels that she has been the instrument by which G is found not to be a relative of herself and the parents then she may in some way carry the burden, and she should not be put in that position because it may have consequences for her.”

16.	So there the judge did recite the essence of the argument against him.  Ordinarily it would be difficult for this court to say, having set it out, that he did not take it into account.  It would be a matter for his weight and one should not interfere.  I am driven to interfere because this little girl is in a peculiarly vulnerable position.  She may or may not know from her contact with her parents that this test has been ordered.  It is accepted by the local authority that they cannot give a consent under section 21 of the Act which will override the girl’s refusal to participate in the testing.  They have not fully addressed how that test is to be undertaken.  We are told that in the course of the hearing the judge expressed views that the girl should be told nothing at all, that she should simply be asked to allow whoever it may be to put the swab in her mouth and take the sample.  I confess that I find that unsatisfactory.  I do not wish to express any concluded view about what she should be told, but it seems to me, on the face of it, inconsistent with the underlying thinking of this order that honesty is the best policy, that truth must out, not to tell this little girl the truth of what is happening to her and why it is happening to her and the implications of it.  That may or may not be the correct view.  I do not know.  The judge did not know, because there is no psychological evidence to deal with the matter one way or another.  

17.	Appreciative as I am of the burdens of a busy list and of the need for active case management, in my judgment this unusual, mysterious, exceptional case cried out for help from an expert as to whether or not the girl should be told that the swab was being taken; why it was being taken; if necessary why her father had refused to consent in the process and why she was being drawn into it.  All of those required expert advice and that advice was lacking.  For that reason I have concluded that the judge should not have made the order as and when he did.  I am fortified in that conclusion by the fact that the purpose for the taking of it, as the judge recites it, was set out in paragraph 16.  It is necessary from the court’s point of view in making a decision about what is best for D and indeed what is best for the children collectively to know the truth and he goes on in paragraph 17 to raise the question of possible adoption of G, who is estranged from his family, in sharp contrast with D, who cannot wait to get back to the bosom of the parents.

18.	The appropriate time for this enquiry to be conducted, if it is appropriate at all, is on the second stage of the enquiry.  It cannot have, despite the valiant attempts from Mr Fuller from the local authority to persuade me otherwise, any relevance to fact-finding at all.  It will have a bearing upon the outcome of the case when welfare becomes the paramount consideration and so in my view this testing is premature.  If it stands over until the facts have been ascertained and the various reports made consequent upon those facts being made, this girl will know where she stands to a better position than she knows it at the moment.  She will be maturer and more able to decide for herself whether or not she is willing to undertake a part in the exercise or whether she will refuse.  She will be able to understand the impact of any explanation that it is thought appropriate to give her.  All in all it seems to me wrong to inflict this on this child at this stage and I would therefore allow the appeal and discharge that order; direct instead that the application be adjourned to await the outcome of the fact finding enquiry for directions then to be given as to the filing of the necessary expert evidence or such other evidence as will then be appropriate to decide whether her interests preclude the taking of this test.  I will allow the appeal accordingly.

Lord Justice Waller:  

19.	I agree.

Lord Justice Stanley Burnton: 

20.	I agree.

Order: Appeal allowed