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Brighton & Hove City Council v PM and others [2011] EWCA Civ 795

Appeal against a paragraph recorded in the preamble to an order made within care proceedings to the effect that based upon certain established facts a finding of fact hearing was not necessary.

The case concerned three children, S (aged 15), A (aged 12) and T (aged 3).  An issue existed in the case as to the maternity of S. S had joined the family from Zimbabwe in June 2009 and at that point had told the local authority social worker, and subsequently also the Guardian, that the mother of A and T, PM, was in fact her aunt. A direction had earlier been made for PM and S to give bodily samples for a DNA test, however, S subsequently withdrew her consent to such a test. There had also been immigration proceedings in which it had been determined that PM was S's mother, although it was common ground on appeal that the decision of the Immigration Judge was not binding on the Family Judge.

At first instance, PM had argued that the court should decline to order a fact-finding into S's maternity on the basis that the court was unlikely to reach a different conclusion from the Immigration Judge and that such an enquiry was not in S's interests. The family judge directed that a finding of fact was not necessary, but in doing so recorded S's comments as to her maternity and her refusal to participate in DNA testing.

The Court of Appeal considered the law, particularly s21(3) of the FLRA 1969 which gives the court the power to order the taking of samples from minors without their consent, or allows the court to draw inferences on the basis of refusal to provide samples. Although the Court was not willing to draw an inference, which was a matter for the trial judge, the appeal was allowed on the basis that the existing preamble left the matter unresolved and was made on the mistaken basis that a finding would not be possible without a the DNA test. Accordingly, the issue was remitted to the trial court for determination, although a fact-finding hearing per se would not be necessary or proportionate.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers

_______________________

Neutral Citation Number: [2011] EWCA Civ 795
Case No: B4/2011/0890
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Brighton County Court
His Honour Judge Hollis
UQ10C00206
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/07/2011
Before :

SIR NICHOLAS WALL THE PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE PATTEN
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Between:

Brighton and Hove City Council
Appellant

- and -

Respondents:
 
1. PM
2. MC
3. SM
4. and 5. AM and AC (by their children's guardian)  
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- - - - - - - - - - - - - - - - - - - - -

Anita Mehta (instructed by The City Council Legal Department) for the Appellant
Richard Little (instructed by Harney & Wells Solicitors) for 1st Respondents
Anthony Jerman (instructed by Williams McDougall Campbell) for the 3rd Respondent
Maria Hancock (instructed by Bosley & Co) for the Childrens' Guardian

Hearing dates: 29 June 2011
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Judgment
 
Sir Nicholas Wall P :
1. On 10 June 2011, on paper, Munby LJ directed that an application by the Brighton & Hove City Council (the local authority) for permission to appeal against an order made by His Honour Judge Hollis sitting in the Brighton County Court on 14 March 2011, should be listed in this court on 30 June 2011. Munby LJ went on to direct that in the event of permission being granted, the appeal was to follow immediately.

2. During our discussion with counsel on 30 June 2011, it became apparent that the main thrust of the appeal was not against the order itself, but against a paragraph in the pre-amble to the order which reads as follows: -

"And upon it being recorded that the court notes the statements that S (first name given) has made to third parties about her maternity that S refuses to participate in a DNA test and does not wish to give evidence. The court directs that there should not be a fact-finding hearing on this issue."

3. At the conclusion of the argument, we announced our decision, which was to give permission to appeal; to allow the appeal; to strike out the paragraph of the pre-amble I have identified and to remit the case to the county court to be heard by the allocated judge. We reserved our reasons, which we now give.

The context of the appeal
4. The context of the appeal is  care proceedings under Part IV of the Children Act 1989 instituted by the local authority  in relation to three girls  whom I will identify only by initials. They are S, who is 15,  A, who is 12 and T, who is  3. The question at issue is whether the mother (whom I will call PM) of the two youngest children, A and T  is also the mother of S. It is common ground that T's father, RC is not the father of A or S.  PM and RC are married and living together.

5. The Local authority seeks care orders in relation to all the three children  The threshold criteria document alleges  various injuries to A, domestic violence between PM and RC and an assault by RC on S on 10 November 2010, which, it is said, resulted in S leaving the household and being accommodated by the local authority.

6. S joined the family from Zimbabwe on 3 June 2009. At this point it appears that she told the local authority's social worker that PM was  her aunt. She subsequently told the guardian the same thing.

7. The family originates from Zimbabwe. As to their immigration status, it seems that PM and A have been granted indefinite leave to remain in the United Kingdom. There is no evidence about T's status. It also appears, however, that on 1 September 2009, S was given entry clearance and indefinite leave to remain in the United Kingdom on that basis that PM was her mother, and that she was joining her mother. Furthermore, on  4 March 2010, S's appeal (heard on paper without oral evidence) against a refusal  by the Secretary of State to grant S indefinite leave to remain in the United Kingdom was allowed by an Immigration Judge (IJ) sitting in the First Tier Tribunal (Immigration and Asylum chamber) on the basis that PM was S's mother.

8. It is common ground that the decision of the IJ is not binding on the judge hearing the proceedings under Part IV of the Children Act 1989. The IJ  appears to have reached his conclusion largely on the basis of a Zimbabwean birth certificate for S. We have a copy of this document in our papers. It shows PM as S's mother. However, it is   dated 21 September 2009 and  shows the registration having taken place on 9 March 2009.

9.  PM's case, as at 8 March 2011 was that the court should decline to order a "fact finding" in relation to the issue of S's maternity of the basis that the court was unlikely to reach a different conclusion from the IJ and that such an enquiry was not in S's interests. In  the skeleton argument prepared for this appeal, PM argued that the judge acted within his discretion when making a case management decision and was not plainly wrong in doing so. S, it seems, was separately represented before the judge, having parted company with the CAFCASS guardian, who supported the local authority

10. It is necessary to record that on 5 January  2011, the allocated judge, Her Honour Judge Waddicor, made an order under section 20(1) of the Family Law Reform Act 1969, (FLRA 1969 (as amended)).  She held that the person having the care and control of S was the local authority, pursuant to an interim care order made by the justices on 21 December 2010. She went on to make orders for both PM and  S to give bodily samples for DNA purposes.. This document was not, for some reason, in our papers. At that point, S was willing to give a sample. She has now changed her mind.

The Law
11. The law seems to me very clear. Section 21(3) of the FLRA 1969 (as amended)  reads (where material) as follows: -

"A bodily sample may be taken from a person under the age of sixteen years …

(a)  if the person having the care and control of him consents;
or
(b) where that person does not consent, the court considers that it would be in his best interests for the sample to be taken."

12. Parliament has thus specifically addressed its mind to the question of children under the age of 16 giving bodily samples.  It also needs, perhaps to be remembered that section 21(3) of FLRA 1969 (as amended) was enacted in its current form by the Child Support, Pensions and Social Security Act 2000. section 82(1) (3) and (5) in part at least because the decision in Re O (A Minor) (Blood Tests: Constraint) In re J (a Minor) [2000] Fam 139 had decided that, as initially drafted, the section permitted the person who had "the care and control" of a child to refuse to allow a sample to be taken from the child. The child could thus be deprived of  knowing who his or her parent was.

13. Although the statute gives the power to obtain a bodily sample in the circumstances ordered by Judge Waddicor, it is not envisaged that a sample will be taken from S without her consent.  But that, of course, does not leave the court powerless, or reliant on findings of fact based on the balance of probabilities. The Statute is very clear that it is open to the court to draw an inference based on S's refusal to provide a sample; - see FLRA 1969 (as amended)  section 23(1), which  I need not set out, and   Re A (A minor) (Paternity: Refusal of Blood Test)  [1994] 2 FLR 461.  As the judge himself said, a DNA test would "settle matters" and provide the best, effectively incontrovertible evidence.

14. Although the inference may be obvious, it does not seem to me  that it is for this court to draw it. The drawing of inferences seems to me a matter for the trial judge on the facts of the particular case. However, it does not require a finding a fact hearing, and the judge was right, in my judgment, not to order such a hearing.

15. What, however, is manifestly unacceptable, in my judgment is that the offending paragraph in the pre-amble to the order; (a) leaves the matter unresolved and up in the air; and (b)  is based on fallacious reasoning, namely that "a finding on the issue would just not be possible in the absence of a DNA test". In fairness to the judge, counsel for the local authority did not mention the drawing of an inference in opening the application to him (nor does it feature in the grounds of appeal), although there is a reference to the court being invited to draw an inference in the local authority's position statement for the hearing on 14 March 2011 and in the appellant's skeleton argument in this court.   

16. In my judgment, S's maternity is an important issue. and it is in S's interests both  for the issue to be resolved and for S – and the court – to know the truth. The issue should, therefore,  be decided by the court. As I have already said,  however, it is quite unnecessary in my judgment for there to be a specific direction for a fact-finding hearing on the point..

17. The court should also, in my judgment, be cautious about basing any judgment on the immigration status of S, which is a matter for the Secretary of State: - see, for example, Re A (Care Proceedings: Asylum Seekers) [2003] 2 FLR 921.

Fact Finding Hearing Generally
18. May I respectfully draw attention to the Guidance which I gave in relation to unnecessary fact finding hearings, and which is published at [2010] Fam Law 752.  The profession needs always to remember that fact finding hearings were designed for a specific purpose, and unless strictly necessary and controlled they are likely to increase costs and cause delay. The point in this appeal had been addressed by the allocated judge as long ago as 5 January 2011 and reaches this court some six months later. This, to my mind, demonstrates both the need for vigorous case management generally, and the unfortunate fact that the application was not heard, as it should have been, by the designated judge.

Lord Justice Patten
19. I agree.