J.P.D. v M.G.

• Jurisdiction: Ireland
• Judgment Date: 01 January 1991
• Date: 01 January 1991
• Docket Number: [1990 No. 169]
• Court: Supreme Court

Supreme Court

[1990 No. 169]

J.P.D. v. M.G.

J.P.D.

Plaintiff

and

M.G. Defendant

Cases mentioned in this report:—

K.C. and A.C. v. An Bord Uchtála [1985] I.L.R.M. 302.

M. v. M. (Unreported, Supreme Court, 8th October, 1979).

MacD. v. MacD. (1979) 114 I.L.T.R. 66.

O'S. v. O'S. (Unreported, High Court, Murphy J., 18th November, 1983).

S. v. McC.; W. v. W. [1972] A.C. 24.

S. v. S. [1983] I.R. 68.

The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567.

Family law - Infants - Custody - Paternity of children born during subsistence of marriage - Wife claiming that husband not the father of her children - Whether blood tests should be ordered - Whether the welfare of the children best served by these tests - Whether the truth should prevail over the presumption of paternity - Guardianship of Infants Act, 1964 (No. 7) ss. 3, 6, 10, 11 - Status of Children Act, 1987 (No. 26), ss. 35, 37, 38, 39, 42, 46.

Appeal from the High Court.

By special summons issued on the 6th December, 1989, the plaintiff husband commenced proceedings claiming custody of the two children of his marriage to the defendant. The defendant by notice of motion dated the 2nd April, 1990, sought an order pursuant to s. 38 of the Status of Children Act, 1987. The issue under s. 38 was tried as a preliminary issue by the High Court (Lavan J.) on the 7th, 8th, 9th, 27th and 28th March, 1990. Judgment was given on the 5th April, 1990, granting the order sought and adjourning the hearing of the special summons motion until such tests were carried out.

By notice of motion dated the 8th May, 1990, the plaintiff appealed to the Supreme Court against the judgment and order of the High Court. The defendant cross appealed that part of the judgment awarding the costs of the application to the plaintiff.

The facts are summarised in the headnote and set out in full in the judgments,infra.

The relevant provisions of the Status of Children Act, 1987, and the Guardianship of Infants Act, 1964, are set out in full in the judgment of McCarthy J., infra.

The appeal was heard by the Supreme Court (Griffin, Hederman and McCarthy JJ.) on the 20th and 21st November, 1990.

Section 38 of the Status of Children Act, 1987 ("the Act of 1987") provides inter alia that the court may in civil proceedings give a direction for the use of blood tests to assist in determining the parentage of a person where the same is in question.

The plaintiff and defendant were married in 1970. During the subsistence of the marriage two children were born, a daughter in 1978 and a son in 1980. The defendant wife claimed that when her daughter was conceived she was also having sexual relations with another man C.G. and that he was the father of her daughter. She also claimed that she had sexual relations with F.G. at the time her son was conceived and that he was the father of her son. The plaintiff and defendant were divorced according to English law in 1988. The defendant was later married according to English law to F.G.

The plaintiff sought sole custody of the children of the marriage and an injunction restraining the defendant from interfering with or removing them from the jurisdiction. The defendant sought an order pursuant to s. 38 of the Act of 1987 that all the parties concerned submit to blood tests known as genetic fingerprinting i.e. D.N.A. tests which are carried out to ascertain inheritable characteristics. Both matters came before the High Court (Lavan J.) who decided to try as a preliminary issue whether he should make an order pursuant to s. 38 of the Act of 1987. In granting the order to the defendant he found that the welfare of the children was the paramount consideration and best served in this way and that the truth should prevail over the presumption of legitimacy. The plaintiff's motion was adjourned for the hearing of the substantive issue.

On appeal by the plaintiff to the Supreme Court it was argued that in making the order the learned trial judge had not had sufficient regard to the welfare of the children, that s. 38 of the Act of 1987 must be governed by s. 3 of the Guardianship of Infants Act, 1964, which provides that the welfare of the infant is the first and paramount consideration and that the depth of the relationship between the plaintiff and the children should have been taken into consideration and the tests, if any, should be deferred to a later date. The defendant argued that to defer the tests would be to conceal the possible true paternity of the children and would deny them the right to the society of their real fathers.

Held by the Supreme Court (Griffin, Hederman and McCarthy JJ.) in dismissing the appeal, 1, that where an application is brought under s. 38 of the Act of 1987, it was governed by the general provisions of s. 3 of the Guardianship of Infants Act, 1964, that the welfare of the children was the paramount consideration.

2. That s. 38 of the Act of 1987 required the exercise of judicial discretion in considering all matters relevant to the welfare of the children.

3. That, on...