England and Wales High Court (Family Division) Decisions

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Cite as: [2006] EWHC 2837 (Fam)

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This judgment is being handed down in private on 10 November 2006. It consists of 3 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

		Neutral Citation Number: [2006] EWHC 2837 (Fam)
		Case No: FD03P00395

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

10th November 2006

B e f o r e :

THE HON. MR JUSTICE SUMNER
____________________

Between:

	J	Applicant
	- and -
	C	Respondent

____________________

The Applicant father did not attend and was not represented
Miss Tayyiba Ahmad (instructed by Mackesys Solicitors) for the Respondent
____________________

HTML VERSION OF JUDGMENT
____________________

The Hon. Mr Justice Sumner :

This application was issued in March 2003. It first came before me on a directions hearing in September 2004. It related to a claim by J, the father, for contact to his son Jaral born on 8 August 1996. The application was opposed by Jaral's mother, C. She did so because of the circumstances surrounding Jaral's conception and the fact that the father had not seen Jaral following his birth. DNA testing in 2003 confirmed J as Jaral's father.

A fact finding hearing came before me on 28 and 29 October 2004. It was to determine the circumstances in which Jaral was conceived. Was it consensual as the father claimed? Or was it by force as the mother said? It was adjourned part-heard. Through a series of grave misfortunes the matter was not listed again before me until 27 October 2005. Neither the father nor the mother attended. The case was adjourned until 23 December by which time the whereabouts of the father was unknown. His solicitors applied successfully to come off the record. By then it had become apparent that Jaral believed that the mother's long-term partner, L, was his father.

The matter finally came before me after a further directions hearing on 3 October 2006 when I reserved judgment. The question was whether the court of its own motion should endeavour to persuade the mother or direct that Jaral at the age of 10 should be informed about his true father. The mother accepts that this should be done. Given all the present factors she and L consider it better for him to be told when he reaches the age of 16. The issue is therefore whether this is an instance where the court should intervene if it was clearly in Jaral's best interests to be told sooner rather than later about his paternity.

Miss Ahmed for the mother has concentrated on the likely effects on the family, and therefore Jaral, were I to go against the mother and L's wishes. I subsequently informed counsel that I did not propose to do so. These shortly are my reasons. I had 2 reports on the mother to assist with this.

The first was from a psychiatrist, Dr McClintock, of 31 May 2006. The mother told him of her abusive childhood. She now has 2 other children of 4 and 2 by L. She did not suffer from any mental illness but he questioned her ability to handle the emotional impact on the family of telling Jaral. She was a vulnerable person. It would make her more anxious and unhappy if she did so. It might precipitate a mental illness. It would be detrimental to her mental state for her to deal with such an issue at this time.

In Ms Robert's CAFCASS report of 30 August 2006, she emphasised the stress and pressure that the mother and L felt under because of the ongoing proceedings. L said they were driving a wedge between them which could split up the family. The mother, apart from her vulnerable personality, has health problems in particular a heart condition. She and L felt to tell Jaral would make Jaral feel less loved or wanted.

Ms Roberts supported honesty and openness to children. She regarded the mother as more fragile than L. She had been involved with family for 3 years. Given her experience, the mother's vulnerability, and the difficulty in telling Jaral positively, she concluded that it would not be in Jaral's best interests for the mother to be directed to tell him.

Miss Ahmed's submissions related to the effect on the mother of any direction that the court might make. I remind myself that these are no longer 2 parents presenting conflicting arguments to the court. Had the father remained engaged in his original claim, the question of Jaral learning about his true paternity would inevitably have arisen. It was an essential part of his claim for contact.

He is no longer involved. His solicitors have come off the record. I have made an order under s.91(14) of the Children Act 1989 requiring him to seek permission of the court before restoring his original application. This was based on his failure to pursue the claim and the likely impact on the mother and her family were he now to do so.

In the ordinary way, with the claim no longer being pursued, the mother could ask for it to be dismissed. The question however of Jaral's lack of knowledge remains. It is unresolved because the father has disappeared. Does the court nevertheless have either the right or the duty to pursue it?

As I have said I have not heard argument on this profound question. Nevertheless I can envisage situations where the seriousness of an issue raised in relation to a child and its impact on the child's welfare would require the court to act of its own motion, appointing a Guardian for the child, and hearing further argument. I have had to consider such a situation in this case.

This is not the case of a mother refusing to inform her child that his belief in the identity of his father is wrong. She is saying that she will do so but not until he is 16 years of age. Her case is that the potential impact on her and the family of doing so now would be too great. She is supported by a psychiatrist and CAFCASS, and on informal soundings, by CAFCASS Legal. Presuming that I have the necessary jurisdiction, I have concluded that I should not exercise it in this case. The undoubted advantage to Jaral of learning the truth is outweighed by the impact it would be likely to have on his mother and family upon whom he is so dependent.

Having reached that decision I should mention 2 remaining concerns. The first is that the longer Jaral remains in ignorance, the greater the chance that he will learn the truth from some other source. That could be potentially very damaging for him.

Secondly by 16 he will have been through puberty. Given the turmoil that this can cause, the impact of then learning that his mother has kept from him the truth about his paternity could well cause him even greater upset than had he learned earlier. There may well be reasons for not telling him now. Provided the mother and L progress in the strength of their relationship, and the mother can cope with it, for Jaral to know sooner rather than later may well be to his advantage.

I would respectfully recommend them to obtain advice on this topic. As it is I shall direct that the Applicant father's application for contact be dismissed with no order for costs save detailed assessment of the Respondent's costs.