21st December 1993 I delivered an interim judgment in this case in which I set
out the factual background and also the provisions of Sections 38,39 & 42
of the Status of Children Act 1987. The two judgments should be read in
conjunction as I do not propose to reiterate the facts already outlined. I had
indicated when the case was originally before the Court that consideration
might be given to the making of an exhumation order for the purpose of
obtaining a tissue sample from the putative father. Since his mother M.K. and
brother K.K. are alive, such a course was not necessary. I have since noted
with interest that such exhumation orders have been made for the purpose of
obtaining samples in a case in Northern Ireland.
for the Plaintiff applied under Section 38 of the 1987 Act for a direction that
blood samples be taken from G.N., the Plaintiff and the Defendant K.K. I have
previously set out the reasons for acceding to this application for a direction
that blood samples are to be taken and that samples from K.K. should be taken
by the G.P. of the family of M.K. and K.K. I have a note to the effect that I
was told on 17/11/93 that the G.P. was Dr. Casey. I gave liberty to the
parties and to the G.P. to apply as I was concerned to deal with any problem
arising with regard to the implementation of the direction.
I became concerned at the lapse of time and drew this to the attention of
Counsel. I had been specifically informed by Counsel for the Defendant that
there was no objection to the form of the Order. Both parties had copies of
judgment. Eventually, I ordered the case to be relisted for hearing on 20th January, 1998. I was informed that the Defendant had not complied with the direction made on 21st December, 1993 in respect of the giving of a blood sample. While the spoken order referred to Dr. Casey, I note that the Order as drawn refers to Dr. Gillian Rysiecki. However, I have no doubt whatsoever that the Defendant was well aware of the suggestion that the blood sample should be given voluntarily by him and by M.K. and the subsequent direction that it be taken by his G.P. From his evidence and course of conduct it is clear that he was unwilling to give a blood sample at all, even though the procedure was to be at the expense of the Plaintiff. He refused a further invitation from Counsel for the Plaintiff to cooperate by allowing a sample to be taken.
the mother of G.N., gave evidence of being brought up in the West of Ireland
and of having known P.K. who lived a few miles away. In late 1972 and 1973
they went out together. After about 8 months they became intimate and she
became pregnant in about April, 1974. She was not having a relationship with
anyone else. P.K. was the father of G.N. She was a hotel worker. He was a
hardworking building carpenter. He went to England in September, 1974 to work
in a beet factory. She did not tell him of her pregnancy until she too went to
England in early November, 1974. She stayed with one of her sisters in
Birmingham. She wrote to P.K. at the factory and he replied in November 1974.
She no longer had the letters. She gave birth to G.N. on 12th December, 1974
in Birmingham and stayed there until the end of February, 1975. She then
returned home to the West. In the meantime he had told her that he was going
back to Dublin to live and to buy a house and he did contact her when he came
to Dublin. He said he would help her out.
March, 1975 P.K. visited her at her home. They discussed matters and he agreed
to help with maintenance. However, she did not hear from him. In May, 1975
she instructed Solicitors in Galway to write to P.K. at his address in
Rathmines indicating her affection for him and desire to marry him and also
seeking maintenance for their son. The letter is explicit that she was
alleging that he was the father of her 4 month old son G.N. P.K. called to her
home and gave her a cheque for £600 and brought the Plaintiff and G.N. to
Dublin where E.N. and G.N. stayed with her sister. He visited them every
couple of days for about 8 weeks; they went out socially and remained friends.
E.N. explained that her brother in law P.W. went with her to a Bank in Ranelagh
to help her to cash the cheque. She spent some of the money on a push chair,
playpen and a washing machine.
said her brother B.N. had worked with P.K. B.N. had been married to E.O. in
whose house she and P.K. had intercourse. She also said she had been in P.K.'s
house twice and in his brother K.K.'s house one evening before she became
said she had been married to E.N.'s brother B.N. by whom she had had 3 sons
prior to marital breakdown 16 years ago. She made clear by words and demeanour
that she had no love for the N. family. She said that before 1974 she knew
P.K. well. E.N. and P.K. were frequently together for roughly a year before
Spring 1974 and were often in her house where they stayed overnight in the one
bed in her guestroom. On many occasions she brought them a cup of tea in the
bed of a morning. E.N. rang her and told her she was pregnant. E.O. said that
when G.N. was about 8 months old, P.K. acknowledged to her that G.N. was his
son. On inquiry about marriage to E.N., P.K. said he was not the marrying kind.
brother in law of E.N., said that in summer 1975 while she was staying with
them in Dublin, he helped E.N. to cash a cheque for £600 drawn by P.K. on
a Bank of Ireland branch in the West and made out to E.N. P.W. had an account
in the Bank in Ranelagh and introduced E.N. to the Bank Official. P.K.
visited his home every second night and took an interest in the child G.N.
elder sister of E.N., confirmed that E.N. stayed at her home in Dublin for
about 7 weeks in 1975 and P.K. frequently visited her house and showed interest
in G.N.and affection for E.N. P.K. was the only man with whom E.N. was going
out in 1974. When M.W. was at home in the West for several weeks in 1974 P.K.
had called to the N. house nearly every night.
for the Plaintiff indicated their wish at all times and even at that late stage
that the Defendant should give a sample for DNA profiling to help to ascertain
or to negative the paternity of P.K. The further invitation was refused after
and despite lengthy explanations to the effect that such a test could help to
rule out P.K.'s paternity if G.N. was proved by DNA tests to be unrelated to K.K.
the brother of the late P.K. and Personal Representative of the estate of P.K.,
said that P.K. never had £600 to hand out and that he had never seen P.K.
use a cheque book. The Inland Revenue Affidavit sworn by K.K. after P.K.'s
death on 21st November 1987 in Dublin indicated that at that time P.K. had two
bank deposit accounts only - one in the same Bank of Ireland branch in the West
and one at A.I.B. in Capel Street. K.K. said that he and his wife socialised
with P.K. in 1974 and that he was not aware of his relationship with E.N.
P.K. always came home at night except when he stayed at an Aunt's house. He
denied that E.N. was ever in his house. He often saw her at dances but never
saw her leaving with P.K. and P.K. never spoke of E.N. It was not until 3
weeks after P.K.'s death that E.N.'s Solicitor made contact with his family.
agreed that his first child was born in September, 1973; also that P.K. went
to the beet factory in Peterborough in September 1974; and that P.K. sold a
house in the West for several hundred pounds before G.N.'s birth. In late
1975 P.K. had bought a house in Tallaght and some years later P.K. bought
another house in Tallaght. P.K. died owning two houses in Dublin and one in
was a married man with a young child during 1974. The late P.K. was a
personable and sociable bachelor. It would not be the first time that a
married brother was unaware of an intimate relationship being enjoyed by his
own brother in the locality.
conceded that G.N. was entitled to know whom his father was but he, K.K., was
not prepared to give a sample. He was well aware that he could give a blood
sample and of the simplicity of the giving of a sample and the efficacy of the
accept the evidence of E.N. in its entirety. E. O. was an impressive witness;
there was manifestly no love lost between her and the N. family. Her evidence
was clear and unequivocal and was corroborative of the intimate relationship
between P.K. and E.N. about April 1974. I accept the evidence of C.C., M.W.
and P.W. and especially in relation to the cashing of a cheque by E.N. given to
her by P.K. in the sum of £600. P.K. was a hardworking man and either
from his sale of the house in the West or from his work could easily have had
the £600 which he gave to E.N. in 1975. Indeed he subsequently acquired
no less than three houses.
is a wealth of corroborative evidence. For instance there is the evidence of
E.O. as to P.K. and E.N. sleeping together in her house; the affection and
going out together of P.K. and E.N. both before and particularly after G.N.'s
birth; their continued friendship despite the Solicitor's letter; the
Solicitor's letter and its contents: the payment of £600 and P.K.'s
interest in E.N. and G.N. while they were staying at her sister's home in
Dublin in 1975.
have no shadow of a doubt that P.K. was the father of G.N. The efficacy of DNA
profiling and the simplicity of the procedure of taking a blood sample was
explained repeatedly to K.K. He remained obdurate in his refusal to give a
blood sample despite being told that the result of a DNA test was capable of
refuting a false allegation of his brother's paternity if P.K. were not the
father of G.N.
he contended that Section 35 of the Status of Children Act 1987 did not apply
as it did not have retrospective effect since the Act did not come in to effect
until 14th June, 1988 and the putative father died on 21st November, 1987. He
v. Hamilton and Dunne
1982 IR 466 in respect of his proposition. In that case the Supreme Court was
dealing with the effect of the Family Home Protection Act, 1976 and dealt with
the subject of retrospectivity. However, Section 35 of the Status of Children
Act does not take away any vested right acquired under existing laws nor does
it create a new obligation or impose a new duty or attach a new disability in
respect of transactions or considerations already past. It is purely
declaratory as to parentage and is in Part VI of the Act dealing with
declarations of parentage and is not a piece of retrospective legislation.
Taking past events into account is not to apply legislation retrospectively.