YEUNG WAN YUET KUEN v. YEUNG CHUNG PING

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JUDGMENT

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Roberts, C.J.

1. This is an appeal against an order made by Mayo, J. in Chambers on 11th March, this year, whereby he refused an application for an order that blood tests should be carried out on the petitioner and respondent in this suit and on the infant child of the marriage.

2. The parties were married on 25th September, 1980, and lived together for some time, both in Hong Kong and in Canada. There was one child, the subject of these proceedings, born on 16th May, 1983.

3. The wife filed a petition for divorce, dated 26th September, 1985, in which she sought the dissolution of the marriage on the basis that, by reason of the respondent husband's conduct, it was intolerable for her to continue to live with him.

4. Among the allegations which were set out in the petition were that the respondent was of a highly suspicious nature and had frequently accused the petitioner of improper relations with other men and that she had been the victim of a number of assaults by the respondent during the course of the marriage.

5. According to the petition, the child of the marriage was born in Hong Kong in May 1983, after the petitioner had returned alone to Hong Kong from Canada as a result of assaults which, she says, were committed upon her by the respondent. After her return to Hong Kong she stayed with her sister until she gave birth to the child.

6. Shortly afterwards, the petitioner approached the respondent about an application for a birth certificate for the child, at which point the respondent said that he wanted a blood test to determine her paternity. In June 1983, the petitioner did go with the respondent and the child to Anderson and Partners where the respondent and the child undertook blood tests, though the petitioner did not. And it is apparent, from correspondence which has been exhibited, that the issue of the paternity of the child has since that date remained one of the crucial issues in the dispute between the husband and wife.

7. In March of this year, when the matter came before Mayo, J., no answer to the petition had yet been filed. It was already badly out of time and an application to file an answer out of time had been made but had not been heard. The draft answer, however, was annexed to the papers put before the judge. Strictly speaking, however, since leave had not been granted for its filing, out of time, it could not be said yet to be of the necessary status to give rise to the issues which were contained in it. However, affidavits in support of the application for the ordering of blood tests mace it clear that the paternity of the child was in issue between the parties.

8. The respondent's affidavit, which was dated 5th February, asserted in paragraph 2 -

 

"In or about January or February, 1983, when the petitioner had been pregnant for about three or four months, ..... she told me one evening at our then family home ..... that her pregnancy had not been conceived by me.”

9. The wife, in her affidavit in reply, denied that she had ever made such an admission.

10. The judge gave very short reasons for refusing to grant an order for blood tests to be taken. His main reason appears to have been his view that the application was premature. He says -

 

"I agree with Miss J. Leong that application is premature - no issue on adultery. On that ground, application will be dismissed.

 

If matter is taken further, there should be separate representation for the child. However, if the defendant 's/respondent's answer is entirely filed in its present form I consider it in highly improbable that an order would be made for the infant to be subjected to a blood test.

 

Costs to the petitoner."

11. Even if the draft answer were discounted, it seems to us that the judge ought to have reached a conclusion that the issue of the paternity of the child had already been raise in the affidavits of both of the parties and that it was therefore open to him to consider whether or not a blood test should have been ordered, on the basis of the general principles which are applicable no such matters. As to this, the guiding principles are to be found in the House of Lords case of S. v. McC.; W. v. W ¹. At page 45, Lord Raid sets out the correct approach in the following words -

 

"I would, therefore, hold that the court ought to permit a blood test of a young child to be taken unless satisfied that that would be against the child's interests. I say a young child because as soon as a child is able to understand these matters it would generally be unwise to subject it to this operation against its will. The court must protect the child, but it is not really protecting the child to ban a blood test on some vague and shadowy conjecture that it may turn out to be to its disadvantage: it may equally well turn out to be for its advantage or at least do it no harm."

12. Lord McDermott, in a passage at page 48 of the report, refers to what he calls the "protective jurisdiction" which a court should exercise in relation to infants, and he says -

" .. if the court were satisfied that - as might possibly be the case on rare occsions - a blood test would prejudicially affect the health of the infant it would, no doubt, exercise its discretion against ordering the test. And, again, if the court had reason to believe that the application for a blood test was of a fishing nature, designed for some ulterior motive to call in question the legitimacy, otherwise unimpeached, of a child who had enjoyed a legitimate status, it may well be that the court, acting under its protective rather than its ancillary jurisdiction, would be justified in refusing the application."

13. In this case the child is only just two years' old and it is apparent from the material before us that the question of her paternity is of long standing. Indeed, immediately after the child was born, the father only agreed to co-operate in the registration of the child's birth after he had asked for the blood tests and after considerable pressure from his wife.

14. There seem, therefore, to be no reasons within the scope of the protective jurisdiction of the court over infants which would Justify any departure from the general practice of ordering blood tests in circumstances where the paternity of a child is in issue.

15. This being so, the next question which falls to be considered is whether or not the court should appoint the Crown Solicitor as a guardian ad liter of the minor.

16. A practice direction, which is to be found at p.81 of Vol. 1 of 1975 W.L.R. was issued by the President of the Family Division in England with the concurrence of the Lord Chancellor, and it says –

 

"it is now usual, whenever a question of paternity needs to be resolved to direct the use of blood tests under R.S.C., Ord. 112.”

17. It then goes on to say –

 

"While the court should, when such a question of paternity arises, always consider the position of the child, it is not necessary, ......... for the court in the first instance to make an order appointing the Official Solicitor as guardian ad litem of the minor unless either; (a) the minor is 10 years old or more; or (b) there are special circumstances making such appointment immediately desirable."

18. Having reached the conclusion, that a blood test is desirable, the question arises as to whether the Crown Solicitor should be asked whether he would consider acting as guardian ad litem, before the blood test is carried out. Having considered the authorities, however, it seems to us that there are no grounds on which the Crown Solicitor could reasonably argue that the blood test should not be carried out. Therefore, to appoint him to represent the child in relation to the taking of a blood test would be an unnecessary expense and a waste of time.

19. However, when the blood tests have been taken, they may or may not, according to the way in which they emerges, have a substantial effect on the interests of the child in the future. It therefore seems proper that the Crown Solicitor should be asked, under rule 108 of the Matrimonial Causes Rules, if he is prepared to consent to act for the infant of this marriage in all such proceedings as may continue after the blood test has been taken.

20. It will be necessary, to give effect to this, for us to order that the infant be joined as a respondent, and that blood tests of the petitioner, the respondent and the child should be taken by Dr. Hawkins at the Queen Mary Hospital.

21. So far as costs are concerned, the appellant has said, through his counsel, that he is content to leave alone the order for payment of costs against him made by Wayo, J., and therefore we will not interfere with that.

22. We consider, however, that the costs of the appeal ought to follow the event, because it was only by virtue of the appeal to this court that the appellant was able to secure the order which he had sought before the judge. The costs of this appeal shall be the respondent's costs to be taxed in accordance with the Legal Aid Regulations.

23. The appeal is therefore allowed with the consequences which ore have outlined.

1    [1972] A.C. 24