Brighton and Hove City Council v PM & Ors

In care proceedings, a court may determine disputed maternity or paternity without ordering a separate fact-finding hearing. Where a child refuses a bodily sample, the court may draw an inference under Family Law Reform Act 1969, section 23(1). The refusal does not make the issue incapable of determination, although the inference remains a matter for the trial judge on the facts. An important parentage issue should be resolved, rather than left expressly unresolved on the mistaken basis that DNA evidence is indispensable. Case management must remain vigorous because unnecessary fact-finding hearings increase delay and cost.

The local authority brought care proceedings under Part IV of the Children Act 1989 concerning three girls. The issue was whether PM, the mother of the two younger children, was also the mother of the eldest, S. An Immigration Judge had previously accepted that PM was S’s mother, but that decision was not binding in the care proceedings.

The allocated judge had ordered bodily samples under section 20(1) of the Family Law Reform Act 1969. S later refused to participate. The county court directed that there should be no fact-finding hearing on maternity, recording that the issue could not be determined without DNA evidence. The local authority appealed.

1. Appeal allowed. Permission was granted, the appeal was allowed, the offending paragraph in the order’s preamble was struck out, and the matter was remitted to the county court to be heard by the allocated judge.
2. Section 21(3) of the Family Law Reform Act 1969 permits a bodily sample to be taken from a person under 16 where the person having care and control consents, or, without consent, where the court considers sampling to be in the child’s best interests. The statutory scheme therefore gives the court power to order sampling in the circumstances identified by the allocated judge, although the judgment did not envisage taking S’s sample without her consent.
3. Section 23(1) of the Act permits the court to draw an inference from refusal to provide a sample. The court is not confined to findings based only on the balance of probabilities, and DNA evidence is not the sole means of resolving parentage. The inference itself was for the trial judge, on the facts of the particular case, rather than for the Court of Appeal.
4. The county court was right not to direct a separate fact-finding hearing. It was wrong to leave the issue unresolved and to rely on the fallacious reasoning that a finding was impossible without DNA testing. S’s maternity was important and should be decided so that S and the court could know the truth.
5. The court cautioned against basing the decision on S’s immigration status, which was a matter for the Secretary of State. It also reiterated that fact-finding hearings should be ordered only where strictly necessary and should be controlled to avoid unnecessary cost and delay.

• Court of Appeal (Civil Division) — [2011] EWCA Civ 795: permission granted; appeal allowed; the paragraph in the preamble was struck out and the case remitted to the county court.
• Brighton County Court — order of His Honour Judge Hollis dated 14 March 2011: directed that there should be no fact-finding hearing on the maternity issue and recorded that the issue could not be determined without DNA testing.