J (a child), Re

Where an appeal turns on disputed facts and the necessary inquiry may depend on credibility, the Court of Appeal may refer the issue to a High Court judge rather than determine it itself. Closely linked statutory applications may be transferred and heard together, while remaining separate investigations governed by distinct questions and discretions. A non-parentage application engages whether it should be heard in the child’s best interests. An application for biological sampling separately engages whether taking the sample would be in the child’s best interests. An inquiry into whether an adult presented a false case is distinct and may involve different evidential considerations. Permission may be granted while the substantive appeal is adjourned pending those determinations.

The appeal from Swindon County Court concerned an assertion that the younger child of the family was not the appellant’s child. The appellant had also begun proceedings under section 55A of the Family Law Act 1986 for a declaration of non-parentage, but those proceedings had not progressed to a hearing.

The Court of Appeal had to decide how the disputed parentage issue should be investigated, including the proposed paternity testing and an allegation that the respondent had previously presented a false case. The central procedural issue was whether these matters should be determined by the appellate court or remitted for determination at first instance.

1. Disposition. Permission to appeal was granted. The consequential appeal was adjourned generally, with costs reserved.
2. Referral of the factual issue. The appeal depended on whether the assertion of non-parentage could be established. If established, the appeal would inevitably succeed; if not, it would inevitably fail. The Court of Appeal recognised the obvious difficulty of determining disputed facts on appeal where the outcome might depend crucially on the parties’ credibility. It therefore relied on its power under CPR 52.10(2)(b) to refer the issue to a judge of the Division.
3. Linked but separate investigations. The proceedings under section 55A of the Family Law Act 1986 were elevated from the county court to the High Court. The section 55A application and the remitted issue were to be heard together because they were closely linked, but they remained separate investigations. The judge would consider whether the non-parentage application should be refused because hearing it would not be in the child’s best interests under section 55A(5), and whether it would be in the child’s best interests for a sample to be taken under section 21(3)(b) of the Family Law Reform Act 1969.
4. Distinct adult issue. The remitted issue was whether the respondent had presented a false case in the earlier county court proceedings. That question involved different evidential admissibility considerations and a different discretion, and could be determined between the adults even without further scientific testing beyond that already conducted by Mr Douglas Oliveri in May 2003.
5. Additional observation. Lord Justice Wall expressed concern for the child’s position and invited the judge to consider seriously whether the child should be separately represented. The court expressed no view on the merits or outcome of the investigations. Reporting restrictions were imposed to prevent identification of the child and family during the proceedings.

• Court of Appeal (Civil Division) — In [2004] EWCA Civ 1849, permission to appeal was granted, the consequential appeal was adjourned generally, and the relevant factual issue was remitted to a High Court judge.
• Swindon County Court — The appeal arose from proceedings before His Honour Judge McNaught. The judgment does not state the lower court’s formal decision or citation.