(Court of Appeal, Aikens, Black, King LJJ,
29 January 2015)
Practice and procedure – DNA testing –
Child’s application during proceedings under s 55A, Family Law Act 1986 –
Summarily dismissed – Appeal
The full judgment is available below
The child’s appeal from a decision refusing
her application for DNA testing was allowed and the case was remitted for
The 13-year-old child applied through the
children’s guardian for a direction for DNA testing in support of her
application for a declaration of parentage pursuant to s 55A of the Family Law
Act 1986. The judge refused the application stating that he was ‘appalled’ that
consideration would be given to public funds being expended on ‘such nonsense’.
The child appealed.
The Court of Appeal reiterated the importance of
the child’s right to know the identity of their biological parents and allowed
the appeal. The hearing amounted to a serious procedural irregularity which was
unanswerable. The judge was criticized for his use of unrestrained and
immoderate language. The case was remitted for rehearing before the designated
Case No: B4/2014/2506
Neutral Citation Number:  EWCA Civ 133
IN THE COURT OF APPEAL CIVIL DIVISION
ON APPEAL FROM
LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE DODDS)
Royal Courts of Justice
London, WC2A 2LL
Thursday, 29 January 2015
LORD JUSTICE AIKENS
LADY JUSTICE BLACK
LADY JUSTICE KING
IN THE MATTER OF A (Children)
(DAR Transcript of
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Mr Mark Senior (Carter Levin & Berg) appeared on behalf of the Appellant.
Mr Damian Sanders (Wirral Borough Council) did not attend and was not represented
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LADY JUSTICE KING:
This appeal arises out of the peremptory dismissal on 13 June 2014 by His Honour Judge Dodds of an application for a direction for DNA testing made on behalf of a 13-year-old girl, “SA” in support of her application for a declaration of parentage under section 55A of the Family Law Act, 1986.
The Family Court in Liverpool has been concerned for a number of years with the A family; the chaotic and neglectful way in which the five children of the family were cared for by their parents, “KA” and “BA” led, on 26 October 2011, to care orders being made by consent in relation to all of the children of the family. Matters did not run smoothly for the children thereafter; the parents, it seemed, undermined the children’s placements and encouraged them to abscond in order to have unauthorised contact with them.
Matters came to a head in 2014. The parents each applied for the discharge of the care orders, or, in the alternative, for increased contact with the children. The Local Authority for their part cross-applied for permission to refuse contact. The applications were listed for final hearing before the judge on 30 June 2014. Julie Greenhall was appointed as the children’s Guardian, instructing Ms Hazel Roberts of Carter Levin & Berg Solicitors. SA now instructs Ms Roberts direct.
On 16 June 2014, the Guardian and Ms Roberts each separately spent time with SA. SA told each of them that for a long time she had not believed BA to be her biological father. She thought she knew who her father was and she wished to find out the truth. In the light of this, the Guardian, appropriately and properly, made a late application on 27 June 2014 for a declaration of parentage under section 55A of the Family Law Act, 1986 with a view to obtaining an order for DNA testing at the hearing listed a few days later. It was anticipated that the necessary orders would be made by consent. On the face of it then, there was nothing uncontroversial about this application.
The importance of and the right of children to know the identity of their biological father has long been recognised and has only recently been restated by the President in Re Z (Children)  EWHC 1999 Fam. Para 5. An application under section 55A is the proper procedural route in order to determine the parentage of a child. It must therefore have caused Ms Roberts and Mr Saunders (who acted on behalf of the Local Authority), considerable consternation when the judge, having dismissed out of hand the father’s application to discharge the care order as, “Factious” and the mother’s as, “An affront”, turned to Mr Saunders and told him that in relation to the section 55A application, “You may want to put your crash helmet on”.
Mr Saunders and Ms Roberts valiantly tried to explain to the judge what they sought and why they sought it, only to be met with evermore intemperate responses from the judge. In relation, for example, to the cost of the DNA testing, Ms Roberts told the judge that Legal Aid would paid for it. The response was, “You can pay for it if you want, I will let you. In fact, I am half minded to make an order that you do so”. Judge Dodds continued, “If she (meaning SA) told you that the moon is made of green cheese will you say, ‘Yes, S, no, S, three bags full S?” He continued: “The lunatics have truly taken over the asylum” and “For heaven sake, in this day and age especially, just because the lunatic says, ‘I want, I want’, you do not have to respond by spoon feeding their every wish”. The judge went on to comment, “Can I tell you how bitterly resentful I am at how much of my Saturday I spent reading this codswallop”.
Finally, the judge in dealing with the actual application said, “There is not a syllable of evidence before me to warrant making the order you seek and so it is refused”. He went concluded:
“At lest there be a nanosecond’s doubt as to the application for an order under section 55A of the Family Law Act 1986, I am nothing short of appalled that it was thought that public funds could be expended upon such nonsense. And I tell you I am within a hair’s breadth of ordering that any costs incurred in respect of that application should be paid by you.”
An appellant’s notice was filed on 21 July 2014 on SA’s behalf. Permission to appeal was given by McFarlane LJ on 8 October 2014. A helpful combined grounds of appeal and skeleton argument has been filed by Mr Senior on behalf of SA. The grounds focus on both the merits of the application and what he has termed, “Serious procedural irregularity”, on the part of the judge in relation to his conduct of the hearing by the judge.
In my judgment, it is not necessary to consider the merits of the application itself. The submission that the hearing amounted to a serious procedural irregularity is unanswerable. Each of the points made in the skeleton argument are made good when the transcript is considered. The judge did not allow proper submissions to be made; the premature threat of costs inevitably, and rightly, gave the impression that the judge had a closed mind in relation to the application and no proper reasons were given for the decision to dismiss the application. The manner in which the hearing was conducted went far beyond anything that could be characterised as robust case management.
In the event, neither parent attended the hearing, fortunately, although not surprisingly, SA was not there either. Even so, the unrestrained and immoderate language used by the judge must, I am afraid, be deplored and is wholly unacceptable. Such bombast can only leave advocates seeking to present, on instructions, their cases to the court feeling browbeaten and impotent and, rightly, as though their lay clients have been denied a fair hearing.
I would accordingly allow the appeal and remit the matter for rehearing in front of the designated family judge for Liverpool, Her Honour Judge De Haas, Queen’s Counsel.
LADY JUSTICE BLACK
LORD JUSTICE AIKENS
I agree. The transcript of the hearing makes embarrassing reading and I hope that Judge Dodds will read it for himself and be ashamed of his behaviour on that particular occasion. Appointment as a judge, at whatever level, is not a license for intemperate language or for being gratuitously rude to advocates and others appearing before you. Judge Dodds’ behaviour on that occasion was beyond what is permissible. It meant that there was a serious procedural irregularity. That particular hearing was not fair. I do emphasise that my remarks concern only that one particular hearing. However, this appeal must be allowed.
Order: Application granted.