Family Law Newsletter #1007.03.18
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Barton (Appellant) v Wright Hassell LLP (Respondent) UKSC 12
UK Supreme Court: Lady Hale (President), Lord Wilson, Lord Sumption, Lord Carnwath, Lord Briggs
In this case the Supreme Court dismisses Mr Barton’s by a majority of three to two: “Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step he is about to take.”
Re J (Adoption: Appeal)  EWFC 8
The Family Court sitting at Leeds: The Honourable Mr. Justice Cobb
Amanda Ginsburg represented a father, who was now a former parent, who had discovered that his 11-year old son had been subject to a step parent adoption in 2013.
The father and mother had a brief relationship in their teens which resulted in the birth of J. The father had some contact with J until he was around 3 or 4 years old. The father suffered from depression and lost touch with J and his mother. The mother subsequently married and had another child. The mother’s husband, J’s step father, wished to adopt J and began the process in 2012 when J was 5 years old. During that process a social worker undertook a comprehensive adoption assessment which included discussions with J’s mother, his step father and their respective parents, part of which included trying to ascertain details of J’s birth father. J’s mother, step father and their respective parents all denied knowledge of the identity of J’s father, and maintained that his identity was unknown beyond being a young man that J’s mother had a brief sexual encounter with at a party, who she had unsuccessfully tried to trace subsequently. The adoption was granted in May 2013 severing all legal ties with J’s father.
Having recovered from depression in 2016 J’s father instructed a solicitor to make contact with J’s mother to pursue contact. Mediation appointments were arranged which J’s mother failed to attend and J’s maternal grandmother then contacted the father’s solicitor to explain that J had been adopted. J’s mother agreed to enter mediation and the outcome of this was that contact resumed between J and his father.
J’s mother and step father then separated and J’s father did not wish for him to be further unsettled by proceedings to appeal against the adoption order. In 2017 J’s father sought leave to appeal against the adoption order.
At a hearing before Mr Justice Cobb on 31 January 2018 in which J’s father was represented by Amanda Ginsburg, leave was granted and the adoption was set aside, and J’s father was granted parental responsibility. The application was not opposed by J’s mother or adoptive father (formerly step-father). Mr Justice Cobb was highly critical of the mother and step-father and by extension their parents who had all deceived both the local authority social worker and the court by lying about the knowledge of J’s father:
“I view the conduct of M (mother) and SF (step father) as disgraceful. They deliberately set out to undermine the solemnity and gravity of the adoption process, with its extraordinary life-long implications for all concerned, and they manipulated the outcome by their multiple deceptions. More significantly they knowingly concealed from the court F’s (father’s)actual or at least potential Article 8 rights to family life with his son, and indeed proper involvement or participation in a legal process by which his son would become, in law, the son of another. They should be, as I believe they are, utterly ashamed of their behaviour.”
The court was clear that J’s father’s wish that neither J’s mother or step-father should be punished for their actions had given considerable weight to the Judge’s decision not to punish them. Mr Justice Cobb was clear that misleading the court was a serious action which would ordinarily have serious consequences:
“However, should any person contemplate such deception of the authorities or the court in these circumstances, they should understand that generally such dishonesty would be punished.”
Anderson v Spencer  EWCA Civ 100
Court of Appeal: Mcfarlane, King & Simon LJJs
This was an appeal against an order made by Mr Justice Peter Jackson (as he then was) under the inherent jurisdiction directing that the DNA sample of a deceased person be tested posthumously to determine paternity. The parties to the application at first instance were the applicant, who had sought a declaration of paternity under s.55A Family Law Act 1986 to determine whether or not the deceased was his father, and a direction within those proceedings for testing of the DNA sample held by a hospital. The respondent was the deceased’s mother who was also his personal representative (and therefore the applicant’s putative grandmother). The deceased had a family history in the paternal line of Lynch Syndrome, which had led in his case to a diagnosis of bowel cancer. It carried a 50% risk of inherited predisposition and the applicant therefore sought DNA testing on medical grounds. The judge’s decision to grant the application was reported as Spencer v Anderson (Paternity testing: Jurisdiction)  EWHC 851 (Fam) and appealed by the putative grandmother. In the event she abandoned her appeal before the hearing took place. Given the matter dealt with a ‘novel’ use of the inherent jurisdiction the Court of Appeal nonetheless considered the appellant’s skeleton as previously filed, heard the oral arguments of the respondent, gave the appellant time to respond in writing to a transcript of the hearing, and gave a full judgment. The lead judgment of King LJ considered, and dismissed, each of the three heads of appeal advanced as follows: Inherent jurisdiction The first question was whether the judge had fallen into error in finding that he had the power to make such an order under the inherent jurisdiction. It was common ground that there was no statutory provision for such a direction. There is a statutory power for the court to order scientific testing to determine parentage under section 20 Family Law Reform Act 1969 (‘FLRA 1969’) (as amended by the Family Law Act 1987) during the course of a person’s life, but not after death. The Human Tissue Act 2004 (‘HTA 2004’) determines the provisions around consent, storage and use of human tissue, but not of DNA. Could the inherent jurisdiction be used to ‘fill the void’? The appellant had argued that section 19(2) Senior Courts Act 1981 (‘SCA 1981’) required the respondent to show that there had been a jurisdiction to make an order of this kind prior to the coming into force of SCA 1981, in order to ground such a use of the inherent jurisdiction. FLRA 1969, it was argued, had ousted any such jurisdiction by providing a statutory scheme without making specific provision for posthumous DNA testing. The Court of Appeal disagreed: King LJ held that section 19(2) SCA 1981 did not have the effect of ‘freezing’ the powers of the High Court at the at of that legislation [see para 43] and it was wrong to say that unless the FLRA 1969 dealt with this specific form of testing the court’s jurisdiction was ousted. The appellant further argued that the present direction was not a ‘principled extension’ of the inherent jurisdiction and did not fit within categories of extensions that could be identified from the authorities (citing Redbridge LBC v A  Fam 335, Re F (Sterilisation: Mental Patient)  2 AC 1, (Re SA  EWHC 2942 (Fam)) and Re DL v A Local Authority  EWCA 253). King LJ held that on a reading of the judge’s judgment, he had been very cautious and entirely proper in considering whether such an extension was justified, citing with approval his para 60:
“The court is bound to be cautious, weighing up whether the existence of a remedy is imperative or merely desirable, and seeking to discern the wider consequences of any development of the law”.
Nor was it necessary to fit any extension into a ‘previously recognised category’ [para 46]. The judge had been right to hold that such a direction could be made under the inherent jurisdiction. Discretion to exercise power The second question was whether, if such a power existed, whether the judge been right to exercise it. King LJ did not find any basis to interfere with the decision. She noted that the judge had identified the key tensions as being around (i) consent, (see section 21(1) FLRA 1969) and (ii) the interests of justice in being able to truthfully establish one’s paternity. As to consent, King LJ noted that the HTA 2004 requires consent for the taking of a bodily sample, but not for testing against such a sample. By analogy, “[i]t follows that, in appropriate circumstances, where, as here, the DNA sample is already available and the consent of a party is not required in order to obtain a sample, the court can make an effective direction for DNA testing to be carried out on that sample notwithstanding the refusal of the party whose DNA it is to consent to its use.” [see para 66.i]. Human Rights The third question was whether the judge’s decision amounted to a disproportionate interference with the appellant’s human rights. The appellant argued that the testing ordered was an infringement of the Art 8 ECHR right to respect for private and family life, although it was not clear whether she was saying this applied to her own rights or to those of the deceased. It could not be the latter: King LJ cited Jaggi v Switzerland (2008) 47 E.H.R.R.30 “ […] The private life of a deceased person from whom a DNA sample was taken could not be adversely affected by a request to that effect made after his death.” King LJ also found that the appellant’s own rights were too far removed from the facts of the case to base an interference: “it would be to take Article 8 too far to base a relevant ‘interference’ on a right not to know whether or not the Appellant has an additional grandchild” [para 57]. Balancing these as against the respondent’s rights to establish his identity King LJ concluded, “[i]n my judgment the balance falls firmly on the side of the Article 8 rights of the Respondent” [para 60]. The appeal was therefore dismissed.