AB v CD (No 2)

In determining questions about disclosure of disputed paternity, the child’s best interests remain paramount. Disclosure should be managed at the child’s pace, having regard to the child’s reactions and needs. The timing of disclosure may properly be entrusted to an independent professional where a fixed date would be arbitrary or premature.

Applications to remove a child temporarily to a non-Convention country require assessment of the risk of breach, the consequences of breach, and the safeguards available. A late and unsupported application may be refused where the court cannot be sufficiently confident that the child will be returned.

A case-management decision may be revisited where circumstances evolve, provided the court acts rationally, proportionately and consistently with the overriding objective.

This was a further first-instance hearing in proceedings concerning C, whose psychological father was H and whose alleged biological father was X. The court had previously decided that C should be told that H was not his biological father, but had left open the timing of any disclosure of X’s identity.

X subsequently denied paternity and declined to recognise the jurisdiction of the courts of England and Wales. The court had to decide whether to revisit the earlier disclosure decision, when C should be told X’s identity, whether H should take C to France for a holiday, and whether a deceit claim should proceed to a strike-out hearing.

1. Paternity disclosure. The child’s best interests were the paramount consideration. X’s denial of paternity did not justify revisiting the decision that C should be told that H was not his biological father. Keeping that fact secret was unrealistic and risked greater harm.
2. The court declined to require immediate disclosure of X’s identity. C might initially be content to know that H remained his psychological father and might not immediately wish to know X’s identity. A fixed date would be arbitrary and could be wrong. The mother was therefore directed to disclose X’s identity when the independent social worker, Ms Ware, considered that C should be told. H was to be told at the same time and not before. The approach was intended to proceed at C’s pace and to prevent the parents’ emotions from determining the timing.
3. H was barred, without permission, from using or publicising X’s identity except in the Children Act and financial remedy proceedings.
4. Removal to France. Following Re A (prohibited steps order) [2014] 1FLR 643, the court considered the magnitude of the risk of breach, the magnitude of the consequences if breach occurred, and the available safeguards. The application was made at very short notice, without supporting evidence, when emotions were high. The potential consequences of removal to the UAE were grave, and the proposed safeguards offered minimal protection. Permission for the holiday was refused.
5. Case management. The court rejected the submission that it lacked power to revisit its earlier case-management decision. The Civil Procedure Rules 1998 required cases to be dealt with justly and at proportionate cost, and the court had general and inherent case-management powers. The deceit claim had materially evolved, intrusive questionnaires had been exchanged, and further evidence might be unnecessary or damaging. The strike-out application was listed for an early hearing, with directions for position statements and submissions.

This was a first-instance judgment and the sequel to the judge’s judgment of 2 July 2019 in the same proceedings. No separate appellate decision is stated.