S. v S
| Jurisdiction | Ireland |
| Judge | O'Hanlon J. |
| Judgment Date | 20 December 1982 |
| Neutral Citation | 1983 WJSC-HC 1063 |
| Date | 20 December 1982 |
| Court | High Court |
| Docket Number | No. 8350P/1981 |
1983 WJSC-HC 1063
THE HIGH COURT
Subject Headings:
EVIDENCE: admissibility
INFANT: custody
Judgment delivered by O'Hanlon J.the 20th day of December, 1982.
The first-named Plaintiff, A S , commenced proceedings by Plenary Summons dated the 30th July, 1981, followed by a Statement of Claim in which she averred that she was the wife of the Defendant, W S ; that she had been associating with one, R B , since in or about the month of January, 1980, and living with him since the month of May 1980;that on the 19th February, 1981, she gave birth to a male child, and that the said R B was the father of the said child.
She sought an Order of the High Court declaring that the said R B is the father of the said child and directing the Registrar-General of Births and Deaths to register the birth of the said child under the name R P B. The proceedings were later amended to include a claim that the Registrar-General should be directed to register the name of R B as father of the said infant.
The Defendant, W S , elected not to deliver a Defence in the proceedings and he did not oppose any of the applications made. The Registrar-General of Births and Deaths delivered a Defence requiring formal proof of the matters averred in the Statement of Claim and referring to the presumption of law that the child was the child of the marriage of the Plaintiff and of the Defendant, W S . Subject to the matters thus pleaded, the Registrar submitted to whatever Order the Court saw fit to make on the application of the Plaintiff.
In the course of the proceedings an Order was made strikingout the name of R B as a Defendant in the proceedings, and joining him as a co-Plaintiff with A S , and the Plenary Summons and Statement of Claim were amended to include a claim under the provisions of the Guardianship of Infants Act, 1964, seeking the appointment of the Plaintiffs as joint guardians of the infant, R P , referred to in the proceedings. There was no formal objection to this application made by either of the two remaining Defendants in the action.
Having regard to the nature of the proceedings in their final form, the first issue which arose for determination concerned the question of the paternity of the child, R P . Linked closely to that was the legal issue as to the evidence which was admissible to prove paternity. The three parties primarily concerned - A S , R B , and W S , husband of A - were all agreed that the child should be regarded as the child of A S and R B, and sought to establish this fact by oral evidence to be given by A S to confirm that sexual intercourse had not taken place between herself and her lawful husband, W S , for some considerable timebefore she finally left him in or about the month of January, 1980 or at any time thereafter, and that the only person with whom she had sexual intercourse after leaving her husband was R B , with whom she had been living as man and wife from an early stage in 1980. Counsel for the Registrar formally drew the attention of the Court to the fact that such evidence could not be allowed if what has come to be known as "the rule in Russell -v- Russell" were applied. The evidence was tendered and admitted de bene esse pending the making of a ruling on its admissibility, as was the evidence of W S , who confirmed in every material respect what had been stated by his wife.
It is right to add that medical evidence was also adduced, based on blood tests taken from all four parties - the husband, the wife, the child, and the person alleged to be the true father of the child - which established to my satisfaction that the husband, W S , could not be the father of the child, and that there was a high degree of probability that R P was the father of the child. On this basis, strict proof by other evidence of non-access by the husband tothe wife at the relevant times did not appear to be vital for the claim to succeed, but in deference to the care and research devoted by Counsel to the preparation of the legal argument in relation to this part of the case I feel that I should express my views in relation to the important topic which was raised for consideration by the Court.
The submission made by Counsel for the wife and by Counsel for her co-Plaintiff, R B , was that the rule of evidence and procedure which would exclude evidence of non-access given by the husband or the wife, tending to prove that the child was illegitimate, never formed part of the law in this country, or if it did at any time that it was part of it no longer by reason of incompatibility with the provisions of the Constitution and the requirements of public policy.
The so-called "rule in Russell -v- Russell",derived from the majority decision of the House of Lords, as reported in (1924) A.U.687, was, in reality, an extension of a much older rule which the Lords found to have been recognised in a judgment of Lord Mansfield C.J. in the case of Goodright -v- Moss, (1777) 2 Cowp. 591. In that case Lord Mansfield, founding himself upon an earlier statement of the law emanating from theDelegates, (formerly the Supreme Ecclesiastical Court of Appeal), declared the common law to be as follows:-
"The law of England is clear, that the declarations of a father or mother cannot be admitted to bastardize the issue born aftermarriage."
- and in a second passage from the same report:-
"As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule founded on decency, morality and policy that they shall not be admitted to say that after marriage, that they had had no connection and therefore that the offspring is spurious; more especially the mother, who is the offending party. That point was solemnly determined at the Delegates."
What the House of Lords decided in Russell -v- Russell was, that the rule of procedure which, as formulated by Lord Mansfield, they found to have been acted upon in many decided cases in the intervening period, applied not merely to legitimacy proceedings in the strict sense of the term, but also to proceedings instituted in consequence of adultery seeking a dissolution of marriage.
In the present proceedings, the issue is one of legitimacy of illegitimacy and if the rule of law as formulated by Lord Mansfield now forms part of our law it would be necessary to reject out-of-hand the evidence of the husband and wife that such access did not take place between them as by the law of naturewould be necessary for the husband to be the father of the child.
Some doubt has been cast by later text-book writers on the correctness of Lord Mansfield's statement of the law, and the "solemn determination of the Delegates" to which he referred has never been discovered, but the general rule to which he referred was reiterated on so many occasions subsequently that it would be futile to contend that it did not form part of the common law of England at the time when it came to be considered again by the House of Lords in Russell -v- Russell.
In a later Scottish case, Burman -v- Burman, (1930) S.C. 262, the Lord Ordinary, Lord Murray, held that the rule in Russell -v-Russell did not form part of the law of Scotland, and that the evidence of spouses was admissible to bastardize a child born during wedlock. In that case a husband instituted proceedings after obtaining a divorce, seeking a declaration that a child born during the marriage was not his child and for a decree ordaining the defenders, (the mother and child), to desist from asserting that the child was the pursuer'schild.
Lord Murray, having allowed evidence of non-access to be admitted "under reservation of its competency", held that theevidence was admissible in accordance with Scottish law, but that the pursuer had failed to establish his case. He based his decision on the legal issue on a lengthy review of previous cases which had come before the courts in Scotland where evidence of this nature had been admitted, and concluded:
"I am of opinion that the "rule in Russell"has not, and never did have, any place in the law and practice ofScotland... It is not open to doubt that so far as the experience of the present generation goes, the practice of our Court has been consistently conducted in view that no such rule obtains in ourlaw.... It is certain that the point was not overlooked."
I have been invited, in the present case, to come to a similar conclusion in relation to Irish law, and to hold that the "rule in Russell", or more accurately, the rule as stated by Lord Mansfield in Goodrich -v- Moss, in 1777, never became part of our law and should not now be applied in our courts. I am unable to conclude, however, that the rule did not form part of the common law of Ireland, just as it formed part of the common law of England. There is, and always has been, a considerable diversity as between the law of Scotland and the law of England, as Scotland after the Act of Union, 1707, retained its own system of law and legal terminology. The diversity has been particularly marked in matters of procedure, and I have foundno line of authority here, corresponding to that relied upon by Lord Murray in Burman -v- Burman, which would support a conclusion that our common law on this important topic diverged from that applicable in England.
The application of the rule as part of Irish law was considered by the Supreme Court in Mulhern -v- Clery, (1930) I.R. 649, where an issue arose for determination as to whether PH and MS were married or were their children illegitimate and therefore unable to claim on intestacy. It was held that the will and codicils of PH were admissible in evidence as the rule...
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