F (Children)

A court has jurisdiction under the Children Act 1989, section 8, to make a specific issue order about whether, when or how a child should be told the truth of their parentage. That question arises in connection with parental responsibility.

Jurisdiction is distinct from the merits. The child’s welfare, the timing and method of disclosure, and the practical means of carrying it out remain for later discretionary determination. Difficulty enforcing an order does not remove jurisdiction; professional support or alternative mechanisms may be used where necessary.

The biological father of twins sought a declaration of parentage and, if paternity were established, contact. DNA testing confirmed that he was the father. The mother and the man who had raised the twins opposed disclosure, wishing to preserve the children’s existing understanding of their family.

HHJ Meston QC tried as a preliminary issue whether the court could require disclosure of the biological father’s identity, either by a specific issue order or under the inherent jurisdiction. On 8 June 2007 he held that it could. The mother appealed on jurisdiction, arguing that the issue was for her to decide and that any order would be unenforceable. The central question was whether disclosure of parentage was a question arising in connection with parental responsibility.

1. Disposition. Permission to appeal was granted for clarification, but the appeal was dismissed. The appeal concerned jurisdiction only; the merits of any disclosure order remained for later determination.
2. Jurisdiction under section 8. Thorpe LJ held that the question whether a child should be told the truth about parentage was plainly a specific question arising, or capable of arising, in connection with an aspect of parental responsibility under the Children Act 1989. The court therefore had jurisdiction to give appropriate directions by specific issue order. Lloyd LJ agreed, observing that the court also had equivalent authority historically under wardship jurisdiction. Mr Justice Bennett agreed with both judgments.
3. Jurisdiction distinct from merits. The mother’s submissions about the children’s best interests and her responsibility to decide when and how they should be told addressed the merits, not jurisdiction. The court could ultimately decide that no order should be made, or determine its form, timing and method, after investigating the relevant facts and welfare considerations. The first-instance decision in [2007] 1 FLR 1064 had proceeded on the assumption that jurisdiction existed and had declined to exercise it on the merits.
4. Earlier authority. The apparent doubt expressed by Wall LJ in the earlier Court of Appeal decision in J v C concerned proceedings framed around leave, the status of the applicant and an undertaking to obtain expert advice. Those observations did not obstruct the conclusion that jurisdiction existed in the present case. The court also relied on [2006] EWCA Civ 1765, where disclosure of paternity and contact were treated as separate issues.
5. Enforceability. A concern that a disclosure order might be difficult to enforce did not negate jurisdiction. In a sensitive case, professional assistance might be required. If the parent was unwilling or unsuitable to convey the information, the court could arrange an alternative mechanism. This was practical guidance on a hypothetical issue and did not determine the merits.

1. Court of Appeal (Civil Division) — On 25 July 2007, permission to appeal was granted for clarification and the appeal was dismissed: [2007] EWCA Civ 873.
2. Bournemouth District Registry — HHJ Meston QC held on 8 June 2007 that the court had jurisdiction to make a specific issue order concerning disclosure of the twins’ biological paternity.