High Court of Ireland Decisions

1. On 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.

2. Counsel 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.

3. Subsequently, 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 the interim
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.

4. In the absence of the cold scientific evidence of DNA profiling and comparisons, I heard the testimony of witnesses.

5. E.N., 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.

6. In 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.

7. E.N. 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 pregnant.

8. E.O. 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.

9. E.O. had known P.K. was the father anyway as he was the only person with whom E.N. was going out. The four of them, E.O. and B.N. and E.N. and P.K., socialised together.

10. E.O. had antipathy for the N. family and had litigated against them. She liked G.N. and thought he was entitled to know whom his father was, namely P.K.. G.N. was a friend of her sons.

11. P.W., 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.

12. C.C., a friend of the N. family, said E.N. was P.K.'s girlfriend and was always very fond of P.K., both before and after her pregnancy. E.N. told her in 1975 that P.K. was the father of G.N.

13. M.W., 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.

14. Counsel 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.

15. 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.

16. K.K. 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 the West.

17. K.K. 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.

18. K.K. 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 profiling procedure.

19. I 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.

20. The letter from E.N.'s Solicitor alleging P.K.'s paternity in May 1975 and inviting marriage is consistent with her story and also bears out her fondness for P.K..

21. There 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.

22. I 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.

23. Counsel for the Defendant made three submissions.

24. First 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 relied on Hamilton 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.