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A manifestly abusive parentage application

Family Law | 7 Feb 2018 0

Well, here’s an odd one.

I’m sure I’ve said it here before, but you never know what you’re going to find in the family law reports. Sometimes, what you find actually has as much, if not more, to do with some other area of law.

Take the case Dunkley v Dunkley & Another, heard by Mr Justice Mostyn on 17 January. On the face of it, this was a not-that-unusual family case, in which the applicant was seeking a declaration of parentage – specifically, that the first respondent in the case was his father. However, it didn’t require much digging to realise that the case actually had more to do with immigration law than family law.

The circumstances of the case were as follows. The applicant was born in Jamaica in 1985/86. He came to this country in 2002 as a visitor. Over the following years he was convicted in this country of various criminal offences, including possession of an offensive weapon and supplying controlled drugs. In the light of his convictions, he was served with a deportation order in 2012.

In 2013 the applicant appealed against the deportation order, to the First-tier Tribunal. His case was that the first respondent, a British citizen, was his father and he was therefore a British citizen by descent. Accordingly, he could not be deported. His case was supported by his mother, who had always maintained that the first respondent was his father (although she did not attend the appeal hearing); and by the first respondent, who accepted that the applicant was his son, but refused to submit to DNA testing which would, of course, have put the matter beyond doubt.

The First-tier Tribunal did not accept that the first respondent was the applicant’s father. It found that there was no credible reason for the mother not attending, and therefore drew the inference that she did not wish to have her evidence tested because she had not been truthful. As to the first respondent, the tribunal found that the reason why he had refused to submit to DNA testing was that he knew, or strongly believed, that he was not the applicant’s father. The appeal was therefore dismissed.

Following this the applicant went on the run, and was entered on the Police National Computer as an immigration absconder. He was eventually arrested in November 2015, since when he has made various failed legal attempts to prevent his removal from the UK.

And then in March 2017 the applicant issued his declaration of parentage application. As Mr Justice Mostyn commented, the applicant has managed to further thwart his deportation by issuing the application.

The applicant ran the same case before Mr Justice Mostyn as he had run before the First-tier Tribunal, with the major exception that now the first respondent was denying paternity. Indeed, he was refusing to engage with the proceedings at all, including submitting to DNA testing.

By this point you can probably guess where this is going. I will therefore cut to Mr Justice Mostyn’s inevitable conclusion:

“Applying a broad merits-based approach taking account of all the facts of the case, I have no hesitation in concluding that the conduct of the applicant in making and pursuing this application is manifestly abusive. It is a blatant collateral attack on the judgment of the First-tier Tribunal, where all appeal rights from it have been exhausted. In my judgment to permit re-litigation of the issue of the applicant’s paternity would bring the administration of justice into disrepute”.

He continued:

“I might have taken a different view if there was now available DNA evidence which conclusively showed that the first respondent was the father of the applicant. That would amount to important new evidence, although if it existed there would have to be a careful consideration of whether it could have reasonably been obtained first time round.”

He then quoted from an 1843(!) case, in which the judge explained that:

“…the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case”

Here, of course, there was no DNA evidence, and so the question of whether it should be admitted in evidence did not arise.

Accordingly, the application was dismissed.

You can find the full report of the case here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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