To tell or not to tell, that is the question

01/05/2008

It is a well known and a universally acknowledged principle that one should never encourage a lie to be perpetuated. However, when can it be in the child's interest not to know his or her true parentage.

Sections 20-25 of the Family Law Reform Act 1969 have long since assisted a putative father in establishing his paternity.

A direction that blood tests or other scientific tests should be undertaken in order to resolve doubts about the parentage of a child are routinely dealt with these days. As most practitioners know it can even be directed when a mother is opposed to the procedure and not consenting. In Re H and A ( Paternity: Blood Tests) [2002] 1FLR 1145, CA at [29] Thorpe LJ explaining that it was a discretionary remedy and considering whether to exercise the discretion to make such a direction said "first that the interests of justice are best served by the ascertainment of the truth and secondly, that the court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences."

Of course by the introduction of the scientific tests one has done away with the previously important concept of legitimacy which had been achieved by the Family Law Reform Act 1987. After all it was not so long ago that illegitimacy was a social stigma as well as a depriver of rights.

I was recently instructed in a very interesting case which made me pause and question this principle. The question arose within a contested contact case within the Muslim Pakistani community. It appeared to me that the stigma of illegitimacy and being a depriver of rights still rang loudly in this community.

The facts briefly were as follows: the mother was married and had 2 sons, one aged16 and the other aged 10. Her marriage was unhappy and she commenced an affair with a relative, a second cousin. The affair continued for a long time, in fact some 10 years. Yes, readers you have guessed it! Her marriage broke down and she went through a divorce. Her husband sought a residence order but the parties eventually agreed that he would have regular contact with the boys. Life continued and the mother continued her affair. Then an interesting thing happened. Her boyfriend got married to someone else. Notwithstanding that their affair continued. Some 2 years after that the mother decided to call an end to the affair, though by now her boyfriend had offered to make her his second wife. She declined the kind offer. The boyfriend did not take the rejection kindly and applied for contact to the younger child, claiming that he was the father. The mother opposed the application on the basis that he was not the father. The boyfriend applied for DNA tests to take place. The mother opposed it. The District Judge ordered the tests. Mother appealed. The Circuit Judge upheld the District Judge applying the well known principle, that it would be in the child's interest to know his true parentage. The judge did state that even though the tests may prove the boyfriend to be the father, contact would not necessarily follow. The results proved that the boyfriend was indeed the father.

The question then arose as to whether the child should be told and if so how best to manage it. At this stage the judge appointed a guardian for the child and ordered him to report on the issue. He also ordered the husband to be joined as a party. He granted an injunction forbidding the parties from revealing or discussing the result with anyone. By now the mother was getting frantic and was urging the court to take on board her special circumstances in particular, the fact that she was a Muslim and lived in a community which did not look kindly on illegitimacy, the child had a 'father' with whom he had good contact, he had an older brother who he believed to be his full brother. In addition she relied on the stigma of illegitimacy as bringing shame and dishonour not only to her but by extension to the child and her family. The child was active in his local mosque and was aspiring to memorise the Holy Quran –an honour which if the true circumstances of his parentage became known would be jeopardised. In short her case was no good would come of the disclosure.

I was instructed at this stage. I advised that an expert in this area should be instructed to test out the mother's concerns at the same time the Guardian reported that it would be in the child's interest to be told the truth. However, the guardian did accept that he had no knowledge of the repercussions, if any in the Asian community, his experience being limited to the Anglo Saxon community.

At the next hearing a Circuit Judge who sat as a s.9 judge agreed that an expert could be instructed and invited the Guardian to take the lead in those instructions. An expert was duly appointed and we were lucky to get an expert in anthropology who had made a study of this particular community to give evidence and be cross examined.
He concluded that it would not be in the child's interest to be told. The Guardian disagreed with the expert. He wanted the child to be told, notwithstanding the consequences that had been highlighted by the expert. The guardian was of the view that it would then be for the child in the light of his age ( he was now 11years) to have a say in whether he wished to see his biological father.

After a contested hearing the judge came down in favour of not telling the child at least for the next 3-4 years. He continued the injunction and ordered that at some later date assuming the child had sufficient maturity the matter could be restored for further adjudication.
So, the mother has been given a reprieve for now.

I was curious whilst conducting my research into this area to come across the decision of Mr Justice Sumner in Re J [2007] 1 FLR 1064 which struck me as having some similarities to the above case. There a father whose paternity had been established sought contact. However, prior to any conclusion abandoned the proceedings. The child was aged 10 and believed that the mother's long term partner was his father. The mother and her partner had 2 younger children together. The court raised of its own motion the issue of the child's best interests in relation to the revelation of true paternity. The mother accepted that the child should be informed about his true father, but wished to wait till the child was 16 years to do so. A child psychiatrist questioned the mother's ability to handle the emotional impact on the family of telling the child immediately. Mr Justice Sumner held inter alia ' the undoubted advantage to the child of learning the truth was outweighed in this case by the impact that process would be likely to have on the mother and the family upon whom the child was so dependent.'

One needs to remember that under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, all parties had the right to respect for private
and family life. The child had a right to know his true identity and to have the possibility of contact with each of his natural parents, also a competing right to have the current stability of his family life protected. Re T [2001]2FLR 1190. Balancing these competing interests are not easy.

Different values, traditions, customs and culture can and should merit greater consideration in our courts. Judges need to give cognisance to these differences as it does appear that more often than not lip service seems to be given to s 1(3) Children Act 1989 and in particular (d) "his age, sex, background and characteristics of his which the court considers relevant.

I was particularly heartened to see in the case of Khan .v. Khan (2007) EWCA 399 (although a case on partnership must be equally applicable in a lot of family cases). Arden LJ at para 46 holding "Where the parties are members of a particular community, then in my judgment the court must bear in mind that they may observe different traditions and practices from those of the majority of the population. That must be expected and respected in the jurisdiction that has received the European Convention on Human Rights. One of the fundamental values of the Convention is that of pluralism: see Kokkinakis v Greece [1994] 17 EHRR 397. Pluralism is inherent in the values in the Convention. Pluralism involves the recognition that different groups in society may have different traditions, practices and attitudes and from that value tolerance must inevitably flow. Tolerance involves respect for the different traditions, practices and attitudes of different groups. In turn, the court must pay appropriate regard to these differences."

I can only end by endorsing those words and look forward to seeing more decisions where recognition and toleration of the pluralism that Lady Justice Arden was referring to become more widespread.

 

 

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