Michael Segal reports a case of paternal identity, contact and child protection

Re: J v C [2007] 1 FCR 365, Sumner J

The facts

The father of a 10-year-old child, J, applied for contact with him, but his mother opposed the application because of the circumstances surrounding his conception, which she alleged had taken place by force, whereas the father said that it was consensual. Before dealing with the question of whether contact would be in J’s interests, the judge held a fact-finding hearing to determine the circumstances in which J had been conceived. The father failed to attend, and the hearing was adjourned. The father then disappeared, and the circumstances in which J had been conceived ceased to be relevent. What did become apparent at the fact-finding hearing was that  J believed that his father was his mother’s partner. The question arose whether J should be told who his father was and, if so, when and by whom. A psychiatric report questioned the mother’s ability to handle the emotional impact on the family of telling J. It suggested that she was a vulnerable person, and that it would be detrimental to her mental state for her to deal with such a matter at that time. She had had an abused childhood and, although she did not suffer from any mental illness, to handle the emotional impact would make her anxious and unhappy, and might even precipitate a mental illness. A CAFCASS report said that apart from her vulnerable personality, she had health problems, in particular a heart condition, and emphasised the pressure that she and her partner felt under because of the proceedings. This was driving a wedge between them, which could split up the family. The mother and her partner believed that the information would make J feel less loved, and concluded that it would be better for him to be told who his father was when he reached the age of 16. The question for the court was whether the court should intervene if it was clearly in J’s bests interests to be told sooner rather than later; whether the court of its own motion should endeavour to persuade the mother to tell him, or even order that she tell him.

Held

The judge said: ‘The question of J’s lack of knowledge remains. Does the court have either the right or the duty to pursue it? 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 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. Assuming that I have the necessary jurisdiction (there was no formal application before him for an order that the mother inform J), I have concluded that I should not exercise it in this case. The undoubted advantage to J of learning the truth now 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 two remaining concerns. The first is that the longer J remains in ignorance, the greater the chance that he will learn the truth from some other source. That could potentially be 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 her partner progress in the strength of their relationship, and the mother can cope with it, for J to know sooner rather than later may well be to his advantage. I would respectfully recommend them to obtain advice on this topic.’

Comment

The judge did not hear argument because, strictly speaking, the only application before him was the father’s application for contact, which he dismissed. Had he appointed a guardian, and directed the guardian to apply for a specific issue order on behalf of J, ordering the mother to tell J who his father was, the guardian might have taken a different view from the mother, but the judge had formed a clear view, and took steps to protect J from premature disclosure. The clear and unchallenged evidence that the mother was a vulnerable person, that it would be detrimental to her mental state for her to deal with such a matter at that time, that the proceedings were driving a wedge between her and her partner, which could split up the family, and that she and her partner believed that the information would make J feel less loved, enabled him to take this course. Should a similar situation arise in another case then evidence, including expert evidence, might satisfy a court that it was in the child’s bests interest to be told sooner rather than later. In a jurisdiction where the court has a very wide discretion to do what is necessary to protect the child (who, by section 1 of the Children Act 1989, is the court’s paramount consideration), the decision will depend entirely on the particular facts. Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented here aim to help the reader understand better the nature of and the types of decision-making within the court system.

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