England and Wales Court of Appeal (Civil Division) Decisions

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MR D CARTER (instructed by Messrs Flanagan & Jones, Newtown, Powys) appeared on behalf of the Applicant.

MR M SHAW (instructed by the Solicitor to the Department of Social Security, London WC2) appeared on behalf of the Respondent.

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(As Approved by the Court)

Crown Copyright

LORD JUSTICE NOURSE: Lord Justice Henry will give the first Judgment.

LORD JUSTICE HENRY: This is an application for leave to apply for judicial review made on behalf of Miss Shirley West, after refusal by the single judge, Mr Justice Connell.

The applicant wishes the Secretary of State for Social Security or the Child Support Agency to make a maintenance assessment in respect of a former cohabitee. She says that he, Mr Philip Spiers, should be assessed under section 26 because he comes under Case F, which applies where: "(a)the alleged parent has been found, or adjudged, to be the father of the child in question -

(i) in proceedings before any court in England and Wales which are relevant proceedings for the purposes of section 12 of the Civil Evidence Act 1968; ...

... and that finding or adjudication still subsists ..."

The line taken by the respondent is that there has been no such finding or adjudication, as required by that section; alternatively, that it does not subsist; or alternatively, that there is another remedy which the applicant should avail herself of, namely, a reference to the court for a declaration of parentage under section 27.

The facts are these. The applicant and Mr Spiers cohabited for 15 years between 1974 and 1989. During that time two children were born to the applicant, in 1985 and 1987 respectively. After the separation of the parties, no payments for maintenance were made by Mr Spiers, despite the fact that there seems to have been at one point an order. In 1993 the Child Support Agency took over responsibility for the maintenance assessment and applied to Mr Spiers for maintenance. Mr Spiers then applied for contact orders and, when filling in the application form for that purpose, he stated that he was the father of the children. In April 1994 the Child Support Agency made an interim maintenance assessment and arrears finding against Mr Spiers.

In June 1994 Mr Spiers applied for a parental responsibility order in respect of the two girls. The basis of the application was that he was the children's father. That was not contested by the mother. As a result, District Judge Jolly made a consent order on 8th July ordering that further proceedings be transferred to the Llandrindod Wells County Court; that there be interim contact between the applicant and the children by way of telephone calls and letters; that the applications for contact be adjourned generally; and that the applicant was to have parental responsibility for the two children, with liberty for either party to apply. When the Child Support Agency started chasing Mr Spiers for arrears, he then, in July 1995, denied paternity, and in February 1997 the parental responsibility order was discharged. It was not discharged on the basis that Mr Spiers was not the father, but that it was inappropriate in all the circumstances.

Three points are made on behalf of the applicant. The first is that there has been a finding or adjudication that Mr Spiers was the father of the children in question before District Judge Jolly. When parties have cohabited for a long time, normally there will not be any dispute about paternity. There was a clear admission on the form applying for interim contact that Mr Spiers was the father. That was not contested, and so there was no discussion of that issue before the judge. The application was made and the judge's adjudication were both predicated on the basis that the applicant was the father.

It is submitted on behalf of the Secretary of State that that was not clear-cut enough because, as the matter was not in issue, there was no conclusion upon an inquiry of fact. I, for myself, would regard the contrary view (namely, that there was an adjudication on this question of fact) as well and realistically arguable. It also seems to me that, when the parental responsibility order was discharged in February 1997, it did not alter the fact that Mr Spiers had been adjudged to be the father of the child in question, and did not cast any doubt on that adjudication.

In relation to the third point, that of the alternative remedy available under section 27, that remedy involves a reference to the court and the applicant's co-operation in that reference, and it may, as I understand it, involve physical material being taken from the applicant for DNA testing. The applicant's case is that, if she is right on the main point, there is no need to go back to the court. Again it seems to me to be well arguable that that is a course that she is entitled to pursue, and that she is not being in any way unreasonable in choosing to follow that course.

I would, therefore, for my part, grant leave.

LORD JUSTICE ROBERT WALKER: I agree.

LORD JUSTICE NOURSE: I also agree.

Order: application for leave to appeal granted; belief expressed by the court that this is a case which ought to be expedited in the Crown Office List.