West, R (on the application of) v Secretary Of State For Social Security

At the permission stage, leave should be granted where it is well and realistically arguable that an unchallenged admission of paternity, incorporated into proceedings resulting in a consent order, amounts to a finding or adjudication of paternity for the purposes of Child Support Act 1991, section 26, Case F. The later discharge of the order does not necessarily undo or undermine that earlier adjudication where discharge was based on the circumstances rather than a finding that the person was not the father. An alternative procedure under section 27 does not automatically make judicial review inappropriate where pursuing it would require the applicant’s cooperation and potentially physical material for DNA testing.

The applicant sought leave to apply for judicial review concerning the Secretary of State’s refusal to require a child-support maintenance assessment against a former cohabitee. She relied on an alleged paternity adjudication within Case F under section 26 of the Child Support Act 1991. The alleged father had admitted paternity in contact proceedings, had obtained parental responsibility by consent order, and later denied paternity. The order was subsequently discharged because it was inappropriate in the circumstances, rather than because he was not the father.

A single judge, Mr Justice Connell, refused leave. The Court of Appeal considered whether the alleged adjudication, its continuing effect, and the alternative declaration procedure under section 27 raised arguable grounds.

The Court of Appeal unanimously granted leave. Lord Justice Henry gave the first judgment, with Lord Justice Robert Walker and Lord Justice Nourse agreeing.

1. Arguable paternity adjudication. It was well and realistically arguable that the alleged father’s clear admission on the contact application, which was not contested, together with the consent parental-responsibility proceedings before District Judge Jolly, amounted to a finding or adjudication that he was the father for Case F under section 26 of the Child Support Act 1991. The absence of an express factual inquiry did not make the issue incapable of argument at the leave stage.
2. Effect of discharge. It was also arguable that the later discharge of the parental-responsibility order did not alter the fact that the alleged father had previously been adjudged to be the father, or cast doubt on that adjudication. The order had been discharged because it was inappropriate in all the circumstances, not because paternity had been disproved.
3. Alternative remedy. The reference procedure under section 27 was not necessarily an adequate reason to refuse leave. It required a court reference and the applicant’s cooperation, and might involve taking physical material from her for DNA testing. If the applicant’s principal argument was correct, she could arguably pursue the existing route without first returning to court.

The court ordered that the application for leave to appeal be granted and expressed the view that the matter should be expedited in the Crown Office List.

• High Court of Justice (Crown Office List): Mr Justice Connell refused the applicant leave to apply for judicial review.
• Court of Appeal (Civil Division): The court granted leave unanimously, holding that the proposed grounds were well and realistically arguable. The matter was to be expedited in the Crown Office List.