In the matter of F (Children) V [2011] EWCA Civ 1765

EWCA-Civ
In the matter of F (Children) V
[2011] EWCA Civ 1765 · 2011-12-14
[1]This appeal arises out of very long, very complicated and no doubt very expensive proceedings in the Bournemouth County Court, relating to the paternity of twins and whether the reality of their paternity should be revealed to them in the face of the strongest opposition from their mother and their psychological father.[2]The proceedings have throughout been consistently and expertly handled by HHJ Meston QC. The orders that are under scrutiny today are orders that he made in March 2010 and July 2011. The simple point is whether, in deferring the date on which the parents had to inform the children of the reality, he was properly directing himself in deferring to the same future date the registration of their true paternity with the Registrar General. That is a short point of law which is the subject of grounds 1 and 2 of the appellant's notice, for which McFarlane LJ granted permission. He said that an application to pursue grounds 3 to 5 would have to be renewed at this oral hearing. Grounds 3 to 5 challenge the judge's discretionary decision to protect the children from discovery or from information as to the reality for a period of about four years.[3]So I start with the judgments and orders below. The first judgment is to be found at page 54 in bundle 2, where

the judge said in December 2009:

"In this case if, as I have held, the mother's objections are not sufficient to prevent a specific issue order for disclosure in the interests of the children, those objections should not be sufficient to prevent a declaration of parentage. It is not in the interests of the children to continue to have false information on their birth certificates as a result of the reregistration in 2005. The declaration should take effect at the same time as the specific issue order."
[4]I travel to his words three months later on 12 March, when he said:
"As discussed at the hearing today, the declaration of parentage is not to take effect until the children are informed of their parentage, but for avoidance of doubt the stay will apply also to the declaration of parentage because the timetable is tighter in that on the making of such a declaration under Section 55A(7) of the 1986 Act there has to be notification of Registrar General which, by FPR Rule 3.13, is done by an officer of the court and has to occur within 21 days of the declaration."
[5]Those words gave rise to an order, which states:
"There will be declarations pursuant to Section 55A of the Family Law Act 1986 that B is biological father of G and M. The declarations will not be made in the prescribed form or sent to the Registrar General until the children have been informed of their parentage in accordance with this order."
[6]That is how matters rested until the judge was obliged to exercise his discretion afresh in the light of developments which justified an application for the variation of the prime provision of the March 2010 order, namely that the children should be informed within a period of four months. The application for further relief was the subject of the judge's judgment of July 2011 when he said:
"With regard to the declarations of parentage reference should be made to paragraphs 125, 126 in my judgment of December 2009 and to paragraphs 27 and 29 of the further judgment of 12 March 2010. The order made on 12 March provided that the declaration of parentage 'would not be made in the prescribed form or sent to the Registrar General until the children had been informed of their parentage in accordance with this order'. It is now submitted on behalf of the father that the declaration should now be perfected so that the court officer is required to send to the Registrar General within 21 days in accordance with Rule 8.22 of the Family Procedure Rules, which is in the same terms as the previous rule. The result of that would be the registration of the births removing the incorrect registration of Mr C as the father."
[7]On that submission the judge's ruling was to this effect:
"However, since I have done no more than to defer implementation of the order for disclosure I can see no reason to alter the provisions of the order that was made in March 2010 so as to ensure that the declarations would take effect and that the Registrar General would be notified only when the children themselves know the truth."
[8]That found reflection in the order of 11 July paragraph 5:
"There will be declarations pursuant to Section 55 A of the Family Law Act 1986. The declarations will not be made in the prescribed form or sent to the Registrar General until the children have been informed of their parentage."
[9]Mr Paul Storey QC for the father in this court says that all this is simply unlawful. The statute is plain, this is a question of status; these are public records, and the judge in effect conflated the question of public record registration with the infinitely more difficult welfare issues regarding the protection of the children from risk of accidental discovery and the professional communication of the reality to the children. His submission is fully supported by Mr Samuels QC for the guardian. It is Ms Scriven QC who resolutely faces the task of answering these two submissions, and in a very well crafted and elegant submission she draws attention to the whole statutory scheme, an amalgam of the Family Law Act and the Rules, and on that analysis submits that the judge was fully within a proper exercise of his discretion.[10]There is a slight complication in that the relevant rule for the judge's consideration in 2010 was Rule 3.13 of the Family Proceedings Rules 1991, whereas when he sat in July 2011 the decision was governed by the Family Procedure Rules 2010. But there is really no problem created by this transition since the relevant rule in both codes required registration within 21 days of the declaration.[11]So I move to briefly survey the statutory material, which originates in Section 55A(7) of the Family Law Act 1956. That rule provides:
"Where a declaration is made by a court on an application under subsection (1) above, the prescribed officer of the court shall notify the Registrar General, in such a manner and within such period as may be prescribed, of the making of that declaration."
[12]So the prescription is to be found now in Rule 8.22 of the Family Procedure Rules 2010 which reads as follows:
"8.22(2) A court officer must send a copy of a declaration of parentage and the application to the Registrar General within 21 days beginning with the date on which the declaration was made."
[13]So, on the face of it, the approach of HHJ Meston disregarded the provision in primary legislation (Section 55A(7)) and the provision in secondary legislation (Rule 8.22(2)).[14]Ms Scriven says that all this prescription is overridden by the introductory provisions of the Rules, in particular Rule 1.1 which provides the overriding objective, which is that cases must be dealt with justly, and dealing with a case justly includes a number of specific matters to which great attention must be paid. Then she says that this requires the court to give effect to the overriding objective when it a) exercises any power, or b) interprets any rule. So, says Ms Scriven, in interpreting Rule 8.22(2) the judge had this very wide discretion.[15]Then she cites Rule 4.1(2) which applies the list of powers in the Rule to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.[16]Then 4.1(3):
"(2) Except where these Rules provide otherwise, the court may – (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired); (g) stay the whole or part of any proceedings or judgment either generally or until a specified date or event; (o) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective."
[17]So, says Ms Scriven, the judge was effectively liberated from the apparent restrictions of the statute and the obligation to notify within 21 days, when all that he did was in the interests of the children and within his generous ambit.[18]I, whilst paying tribute to the ingenuity of Ms Scriven's submissions, find them unconvincing.[19]In my judgment, whatever the orders may say, HHJ Meston effectively made a declaration of paternity under Rule 55A in December 2009 and that found expression in the order of March 2010. It required registration within 21 days under the Rule, but, given that he was deferring revelation to the children for only four months, I would accept that it was within his discretion to say:- "substitute for 21 days the wider period to ensure that in this short interim there is no risk that the registration could upset the careful scheme that I am introducing."[20]It follows that the form of order of July 2011 is quite inappropriate in purporting to make at some future date a declaration of paternity. The declaration, once made in December 2009 and March 2010, is there for all time. Nor does it seem to me that it was open to the judge to reason, as he did in July 2011, that since he was doing no more than to defer implementation he could see no reason to alter the provision that was made in March 2010 that the declaration and revelation would take place simultaneously.[21]The reason why I cannot support that approach is largely temporal. Four months in 2010 was perhaps towards the margin of the exercise of the discretion, but four years a year later is in my view plainly wrong. In fairness to HHJ Meston I do not believe that the point that has been powerfully advanced by Mr Storey in this court was ever put to him, and I can well understand how, absent the specific focus on the point of law, he simply said "that was the approach in 2010, let's simply endorse it in 2011".[22]So that, in my judgment, leads to this result. The appeal must be allowed and any extension of time for the registration of the declaration of the parentage should be deleted from the effective order.[23]It is important that a clear distinction be drawn between the difficult judgment of when children are to be informed, by whom they are to be informed, how they should be prepared for the information, how they should be helped to deal with the information -- all that is very difficult territory for a judge, and it not infrequently arises in the court. A completely separate question is the status question which is a matter of public interest, and it is of general public interest that official records are maintained effectively and that they swiftly reflect decisions of the court. That is why the 21 days for registration is written into the Rules and it is important that it should be treated as the norm and that any divergence should be, if not exceptional, at least justified by exceptional circumstances.

Lady Justice Hallet:

[24]I agree.

Lady Justice Black:

[25]I agree that the appeal should be allowed and the order will have to be substituted as my Lord has said. This was a very difficult case and one has great sympathy with the judge in the serious dilemmas that faced him. We are concerned with only one aspect of his expert consideration of the matter. I am unsure whether the judge made a declaration at all; if he did it was in March 2010 that he did so. However, I am conscious that he expressed himself then and in 2011 in terms which might be thought to contemplate a declaration being made at a future date. The judge had found the truth of the proposition to be declared proved to the satisfaction of the court and it followed that he was obliged by Section 58.1 of the Family Law Act 1986 to make the declaration, unless to do so would manifestly be contrary to public policy.[26]There were no reasons of public policy to prevent the making of the declaration and therefore, insofar as the judge did not make a declaration in March 2010, he was in error. If he did make a declaration then if he had a discretion at all about when the declaration should be notified to the Registrar General, which Ms Scriven suggests would arise under various provisions of the now Family Procedure Rules 2010, I have no doubt that the judge was not entitled to exercise the discretion in such a way as to defer the notification under Section 55A(7) for the very long period for which he did defer it in 2011. Issues of status are dealt with with considerable formality and it is important that public records are an accurate representation of the fact. One need only look at Section 58(2) to see the importance and the solemnity of declarations such as the one in this case. The mandatory terms in which the provisions in the statute are cast also underline the formality of the matter. Section 58(1) obliges the court to make the declaration in the way that I have said if it finds the underlying proposition to be true; and under Section 55A(7) the court shall notify the Registrar General of the making of the declaration, the notice period prescribed being the short fixed period of 21 days.[27]Any discretion that may arise from the Rules must be exercised with an eye to the statutory context in which recourse is being had to the powers conferred under the Rules. Here that statutory context is Part 3 of the Family Law Act 1986. I do not see how it could be said to be consistent with that statutory context to defer notification to the Registrar General for a period such as the judge permitted here. I would prefer in those circumstances not to express a view as to the extent, if at all, to which the general powers of the Family Procedure Rules can be used to extend the time prescribed by Rule 8.22(2) of the Family Procedure Rules for the purposes of Section 55A(5).

Order

Appeal allowed

Cited in 7 later judgments