A (Children), Re

An application under the Family Law Act 1986, section 55A is the proper procedural route for determining a child’s parentage. A judge commits a serious procedural irregularity where proper submissions are prevented, costs are threatened prematurely so as to suggest a closed mind, proper reasons are not given, or the hearing is conducted in intemperate and browbeating language. Such conduct exceeds robust case management and requires the decision to be set aside and the matter reheard.

The appeal concerned the peremptory dismissal by Liverpool County Court on 13 June 2014 of an application made on behalf of a 13-year-old girl, SA, for DNA testing in support of a declaration of parentage under section 55A of the Family Law Act 1986.

The application arose after SA questioned whether the man treated as her father was her biological father. The appeal challenged both the merits of the refusal and the judge’s conduct of the hearing. The central issue was whether the hearing involved a serious procedural irregularity denying SA a fair hearing.

Appeal allowed. Lady Justice King gave the leading judgment, with Lady Justice Black and Lord Justice Aikens agreeing. The court did not determine whether DNA testing should ultimately be ordered.

1. The application under section 55A of the Family Law Act 1986 was the proper procedural route for determining parentage. The importance of a child knowing the identity of the biological father was recognised, but the merits of the application did not need to be considered because the hearing itself was fundamentally defective.
2. The hearing involved a serious procedural irregularity. The judge had not allowed proper submissions, had made a premature threat concerning costs which inevitably conveyed the impression of a closed mind, and had given no proper reasons for dismissing the application. The conduct went far beyond robust case management.
3. The unrestrained and immoderate language used by the judge was wholly unacceptable. It could leave advocates browbeaten and impotent and create the justified impression that their clients had been denied a fair hearing. Lord Justice Aikens emphasised that judicial office was not a licence for intemperate or gratuitously rude conduct.
4. The appeal was therefore allowed and the matter remitted for rehearing before the designated family judge for Liverpool, Her Honour Judge De Haas QC. The formal order was that the application be granted.

• Court of Appeal (Civil Division) — Permission to appeal was granted by McFarlane LJ on 8 October 2014. The appeal was allowed and the matter remitted for rehearing.
• Liverpool County Court — His Honour Judge Dodds peremptorily dismissed the application for a direction for DNA testing on 13 June 2014.