466 PROBATE DIVISION [1968]

1967 either determine the matter himself, or, if he thinks preferable,

The Queen refer it to the judge. In either case, that is to say whether, where
of the
South there is an objection, the matter is determined by the registrar,
BRANDON J.
or referred by him to the judge, all interested parties should be
given an opportunity of being heard by service of notice on them
in accordance with the rule.
B
Judgment for the plaintiffs at
£290 3s. 0d., with costs against
the ship.
Appraisement and sale of ship
ordered.
Admiralty marshal to pay rates
due to interveners.
Priorities reserved.

Solicitors: Keene, Marsland & Co.; Solicitor, Port of London

Authority.
D. R. E. D

[COURT OF APPBAL]
C. A.
B. (B. R.) v. B. (J.) AND ANOTHER
1968
May 24, 27
LORD County Court—Jurisdiction—Paternity issue—Divorce county court—
DBNNINO Whether jurisdiction to order blood test of child in paternity issue
M.R.,
DtPLOCE —Transfer of High Court jurisdiction to county court—Matri-
and monial Causes Act, 1967 (c, 56), s. 2.
SACHS L.JJ. Evidence—Blood test—Paternity—Whether serological examination
of child should be ordered.
Legitimacy—Paternity-—Paternity issue—Jurisdiction—No application
for custody—Evidence of paternity—Power of court to order
blood test of infant—Paternal jurisdiction of High Court judges
—Jurisdiction of county court—Supreme Court of Judicature
{Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), s. 18—
Matrimonial Causes Act, 1965 (c. 72), s. 33. l
Legitimacy—Evidence of paternity—Medical evidence—Paternity
issue—Blood test—Unlimited jurisdiction in High Court judges
to order blood test of infant.

1
Matrimonial Causes Act, 1965, every relevant child who is under
s. 33 (1): " . . . the court shall not 16 that—(a) arrangements for his
make absolute a decree of divorce care and upbringing have been
. . . unless it is satisfied as respects made and are satisfactory.
 PROBATE DIVISION 467

A husband petitioned for a divorce on the ground of his C. A.

wife's adultery with the co-respondent. The wife and the co- 1968
respondent did not defend and, like the husband they considered
that the co-respondent was the father of a child born to the B. (B. R.)
wife in August, 1964. The commissioner granted the husband B. (J.)
a decree nisi of divorce but, as the latter had stated in evidence
that he had had sexual intercourse with his wife in November,
1963, and thus the child could have been a child of the marriage
and a " relevant child" under section 33 of the Matrimonial
Causes Act, 1965,1 the commissioner ordered the hearing of
a paternity issue. The child was made a party to the proceedings
and the Official Solicitor was appointed his guardian ad litem.
The husband did not seek the custody of the child, but since he,
his wife and the co-respondent were willing to have a blood
test, the commissioner ordered that the child should have a blood
test.
On appeal by the Official Solicitor: —
Held, dismissing the appeal, (1) that the inherent jurisdiction
of a judge of the High Court to order a blood test was not
confined to the court's custodial jurisdiction and a test could
be ordered in any proceedings where it was in the best interests
of the child that his paternity should be known.
Dicta of Lord Denning M.R. in In re L. {An Infant) ante,
p. 119; [1967] 3 W.L.R. 1645; [1968] 1 All E.R. 20, C.A.,
followed.
(2) That the inherent jurisdiction to order a blood test on
a child derived from the ancient paternal jurisdiction of the
court exercised by the old Court of Chancery and conferred by
section 18 of the Supreme Court of Judicature (Consolidation)
Act, 1925, on all judges of the High Court, that such jurisdiction,
not having been conferred on the judges of the Probate, Divorce
and Admiralty Division by Parts II and III of the Matrimonial
Causes Act, 1965, had not been transferred by section 2 of the
Matrimonial Causes Act, 1967, to divorce county court judges.
Accordingly, the power vested only in judges of the High Court
to order a blood test on a child.
Per Lord Denning M.R. A court should consider the views
of a child old enough to understand the proceedings but the
child's views are never decisive (post, pp. 473F—474A).

APPEAL from Judge Sir Owen Temple Morris sitting as a

commissioner.
By his petition a husband stated that there were no children
of the family and he sought a decree dissolving his marriage on
the ground that from October, 1963, his wife had committed
adultery with the co-respondent and, as a result of that adultery,
she had given birth to a son on August 22, 1964. At the hearing
1
See footnote on page 466.
468 PROBATE DIVISION [1968]
CA
- of the undefended petition, on February 23, 1966, the husband
1968 said that he had last had sexual intercourse with his wife on about
B. (B. R.) November 17, 1963. The commissioner, Judge Geoffrey Howard,
V
B (J) granted the husband a decree nisi of divorce but as the child
could have been a child of the marriage and thus a " relevant
child " under section 33 of the Matrimonial Causes Act, 1965, he
ordered the hearing of a paternity issue. The child was made a B
party to the proceedings and the Official Solicitor was appointed
his guardian ad litem.
On March 22, 1968, the paternity issue came before the com-
missioner, Judge Sir Owen Temple Morris, and as the husband,
the wife and the co-respondent were willing to have a blood test,
he ordered that there should be a test of the blood grouping of C
the child and adjourned the hearing for that to be done. The
Official Solicitor appealed against the order that the child should
have a blood test on the ground that the court had no power to
order a blood test on a child in proceedings in which there was a
paternity issue and in which there was no issue as to the custody
of the child. D
The facts are more fully set out in the judgment of Lord
Denning M.R.

James Comyn Q.C. and David Williams for the child. Since
In re L. (An Infant),2 it is clear law that the court has jurisdiction
in custodial proceedings to order that a child shall have a blood E
test to determine his paternity. It is undetermined what is the
limit of custodial proceedings and in one sense any proceedings
concerning an infant child are custodial proceedings. Here there
is no issue as to whom the custody of the child should be granted:
the sole question is, who is the father of the child? That question
arose because the judge who heard the divorce proceedings did F
not know whether he had to certify, under section 33 of the
Matrimonial Causes Act, 1965, that he was satisfied with the
arrangements for this child; and the paternity issue arises solely
to determine whether this boy is a relevant child within the
meaning of that section and as defined by section 46 of the Act.
It has not been suggested that the mother should be deprived G
of the custody of the child and, at present, there is no application
as to custody, access or maintenance.
If a blood test is ordered in this case, does it follow that a
blood test can be ordered, under section 39 of the Act of 1965,
2
Ante, p. 119; [1967] 3 W.L.R. 1645; [1968] 1 All E.R. 20, CA.
 P. PROBATE DIVISION 469
CA
-A before the court makes a declaration of legitimacy or in matri- -
monial proceedings where there is an issue of adultery? Will it i%8
* follow that a blood test can be ordered on a child in such proceed- B. (B. R.)
v
ings? The Official Solicitor, in his capacity as guardian ad litem of B ;j.
a child, needs a direction from this court as to when a blood test —
may be ordered as he is now faced with a number of conflicting
B decisions at first instance, see F. v. F3; L. v. L.4; Hardcastle v.
Hardcastle? The court's jurisdiction has been limited by W. v. W.
{1963)6 and, if an adult refuses to have a blood test then it is an
assault to force him to undergo one; if one adult refuses to undergo
a test then the whole edifice crumbles. There is only one exception
for Parliament has deemed it necessary to legislate in Road Traffic
C cases that an adult should have a blood test in certain circum-
stances. Blood tests cannot be ordered in affiliation proceedings.
If an adult refused to have a blood test could an inference be
drawn against the adult? That would mean drawing an inference
against him because he stood on his legal rights. A blood test
might become a device to defeat the long established presumption
D of legitimacy. There is no easel in the Chancery Division where a
blood test has been ordered. Custodial proceedings should be
narrowly defined and it is for Parliament to legislate if blood tests
are to be ordered in other proceedings.
A child who is old enough to understand the nature of the
proceedings may have very definite views whether he should have
E a blood test. It has been the policy of the Official Solicitor to
attach great weight to the views of a child who desires a blood
test and he refuses a blood test if the child states that he does not
want one. In view of In re L. {An Infant),7 the Official Solicitor
would like rules and directions from the court in all proceedings
where a blood test might be ordered.
F The question for this court is whether it can order a blood test
in a paternity issue and, if so, from where does the court derive
its power to do so. Whichever way the court decides, there wili
be illogicalities and anomalies but they will be less if the court
holds that there is no power to order a blood test in this case.
If it is possible to order a blood test in other proceedings than
G custodial proceedings then it is a matter which is open to abuse
and it is a decision which is fundamental to family law with far-
reaching results to both adults and children and it comes within the

. " 3 [1968] 2 W.L.R. 190; [1968] 1 « [1964] P. 67; [1963] 3 W.L.R.'

All E.R. 242. 540; [1963] 2 All E.R. 841, CA.
*5 The Times, March 15, 1968. ' A n t e , p. 119.
Unreported, February 12, 1968.
P. 1968. 22
470 PROBATE DIVISION [1968]

C A. realms of the social outlook to illegitimacy, the old and the new.
1968 If everyone has had a blood test before the proceedings began
tnen
B. (B. R.) » according to In re L. {An Infant),7 the result of the test
v
B ; . can be evidence in the proceedings. That is the wrong approach
and it is a matter for the discretion of the court. If the court has
power to order a blood test in these proceedings it must be a power
derived from the court as parens patriae and the court of its
own motion orders a blood test whenever it is in the best interests
of the child. Part III of the Matrimonial Causes Act, 1965, is
headed " Protection of Children " but, if a blood test is ordered,
the protection of legitimacy is withdrawn. A child has a right to
a name and to property even though the presumption of legitimacy
may not mean so much nowadays: That presumption still remains
important. The nub of the matter comes back to the fact that an
adult cannot be ordered to have a blood test.
Joseph Jackson Q.C. and Michael Nicholson for the husband.
The blood groups of the husband and the co-respondent are sub-
stantially different and, mutations apart, there is a 100% certainty
that the result of the blood test will disclose who is the father of this
child. If a blood test could only be ordered in custodial proceedings
there would be an absurd situation by which a party could ask
for custody, whether or not custody was desired by that party,
so that there could be an order for a blood test. Once the case
is over the Official Solicitor ceases to be the child's guardian ad
litem and the parties can arrange to have blood tests and a blood
test of the child. There is no real distinction between custodial
and paternity proceedings as both depend on the paternity of the
child and the basis of the divorce jurisdiction over children is
paternal; it is not a question of legitimacy but of parenthood:
see M. v. M.8; Galloway v. Galloway.9 The presumption of
legitimacy means no more than a child is legitimate until the
contrary is proved. Nowadays medical evidence ensures that
legitimacy may be proved with a greater degree of certainty; the
courts have always considered evidence as to the period of gestation
and there is no real distinction between that medical evidence and
the medical evidence of a blood test. It would be absurd to have
a presumed legitimacy with available medical evidence to the
contrary: see Russell v. Russell.10
[DIPLOCK L.J. In certain cases it may not be in the material
7 9
. 8
Ante, p. 119. [1956] A.C/ 299;' [1955] 3
[1946] P. 31; sub horn Millard W.L.R. 723; [1955] 3 All E.R. 429,
v. Millard & Addis [1945] 2 All H.L.(E.).
10
E.R. 525. [1924] A.C. 687, H.L.(E.).
 P. PROBATE DIVISION 471

c A
A interests of a child to prove that he is illegitimate. Whether the - -
suppresion of the truth is really in his interests is another matter.] 1968
The interest of the child is a matter for consideration when B. (B. R.)
the court exercises its discretion and there may be cases where, B.V(J.)
if the child is legitimate, his father is a millionaire or the child is
the heir to a dukedom. This is not such a case and the court
B can always decide where the interests of the child lie. In cases
where it is doubtful whether a blood test will reveal the child's
paternity the court could possibly say that the adults should have
a blood test first to discover if there is a reasonable possibility of
a blood test on a child revealing his paternity.
Tasker Watkins V.C., Q.C. and Michael Evans for the wife.
C The mother is anxious that there should be a blood test in this
case for it is her firm view that the husband is not the father of
the child. The husband has never asserted that he was the father
of the child and his allegation of adultery was based on the child's
birth. It is in the interests of the.child to have a blood test. The
court's power, under sections 33 and 34 of, the Matrimonial
D Causes Act, 1965, is only operative if it is a relevant child of the
family but the reserved power of the court is operative whenever
a child comes before the court in proceedings which affect parental
control over the child and the court must be satisfied that some
responsible person is caring for the child and looking after his
interests. The position of the Official Solicitor is no different
E from any other solicitor who is acting as the child's guardian ad
litem. It is the court which assumes parental control and having
assumed that power it is clothed with all the powers of a
parent including the power to permit a child to have a blood test.
This has not such a far reaching effect as is submitted on behalf
of the child, because it is only the High Court which has the wide
F inherent jurisdiction. Neither the county court nor the magistrates'
court have had this power conferred upon them by statute. It
remains solely in the discretion of the High Court and, the views
of the child, as to whether he should have a blood test, are only
relevant considerations in the exercise of that discretion.
Comyn Q.C. replied.
G
LORD DENNING M.R. In the case of In re L. (An Infant)1 this
court held that, in proceedings relating to the custody of a child,
any judge of the High Court can order a test to be taken of the
child's blood. The question now arises whether a judge can order
1
Ante, p. 119; [1967] 3 W.L.R. 1645; [1968] 1 All E.R. 20, C.A.
472 PROBATE DIVISION [1968]

C A. a blood test on a paternity issue, or indeed on any other issue.

1968 We are told that many cases are waiting the determination of
B. (B. R.) this one.
B.V(j.) The facts are these. The husband brought a petition for
£ ^ divorce against his wife alleging that she had been guilty of
ENNINO adultery with the co-respondent. In his petition he said there
—— were no children of the family, that is, of himself and his wife; B
but he said that his wife had committed adultery with the co-
respondent in about October, 1963, as a result of which she gave
birth to a son on August 22, 1964. It was an undefended case.
When the husband gave evidence before the commissioner, Judge
Geoffrey Howard, he was asked when he last lived with his wife.
He said: " I saw her for one night approximately on November C
17, 1963 "; and that he had had sexual intercourse with her on
that night. If that statement was correct, it would mean that he
was possibly the father of the child. He himself did not think
he was the father. Nor did the wife. When the child was born,
the wife and the co-respondent registered the co-respondent as
the father. Nevertheless, when it appeared that the husband had D
had intercourse with the wife about the time that the child was
conceived, the commissioner thought that he ought to get to the
bottom of it. It was the commissioner's duty, under section 33 of
the Matrimonial Causes Act, 1965, to be satisfied " a s respects
every relevant child" that proper arrangements had been made
for his care and upbringing. The commissioner could not deter- "
mine whether this child was " a relevant child," that is, a child
of both parties to the marriage, unless the paternity was settled.
So the commissioner directed that an issue should be tried as to
whether the boy was a child of the family. He ordered that the
child was to be made a party to the issue through a guardian
ad litem. The Official Solicitor was appointed guardian ad litem. ™
The paternity issue came before the commissioner, Judge Sir
Owen Temple Morris, on March 22, 1968. The question arose
whether the child should have a blood test. All three of the
adults, the petitioner, respondent and co-respondent, have had a
blood test. It has been taken by an expert, Dr. Alan Grant of _
Guy's Hospital. As a result, Dr. Grant says that, if a blood test
is taken of the child, he can say with certainty which of the two
men is the father of the child. He will be able to say whether it
was the husband or the co-respondent. The commissioner in the
circumstances thought that it was in the best interests of the child
to have a blood test. The Official Solicitor objected. He said the
 P. PROBATE DIVISION 473

A commissioner had no power to order it on a paternity issue. The c. A.

commissioner overruled the objection. He ordered a blood test to 1968
be taken. The Official Solicitor appeals to this court. He is ~BT(B7R3~
V
anxious for the court to lay down a rule so that he should know B (J ,
where he stands. ¥—
LORD
D
There is a difference of opinion among the judges of the w™SN0
B Divorce Division on this point. Wrangham J. in L. v. L.,2 declined —1-'
to order a blood test. He said he had no power to order a blood
test on a paternity issue. Lane J. in an unreported case of Hard-
castle V. Hardcastle,3 ordered a blood test, even in an adultery
issue. She thought it was in the best interests of the child so
to do. In view of this difference of opinion, it is clearly desirable
C for this court to lay down a definite rule.
It is unnecessary to review the matter at length. That was done
in In re L. {An Infant).* Suffice it to say that, after full discussion,
we see no reason for confining the jurisdiction, as Willmer L J . did,
to the court's custodial jurisdiction. The jurisdiction is unlimited
in a judge of the High Court. He can order a blood test to be
taken whenever it is in the best interests of the child. I repeat
what I said in that case 6 :
" So also in a paternity issue, or any proceedings where it
is in the best interests of the child to have its paternity settled
one way or the other, the court can order a blood test. Even
in a petition for divorce on the ground of adultery, the judge
E can in my view order a blood test on the child, for there too
the child is vitally affected by the outcome."
That being so, I hold that Judge Sir Owen Temple Morris
was entitled to make the order he did. It is clearly in the child's
interest to have a blood test since it will settle definitely one way
or the other which of the men is the father. As it happens, we
* are told that the child has already had its blood test. It only
awaits the order of this court for it to be made known to the
parties. So now all is straightforward.
A question was asked as to the extent to which the child
should be consulted. If the child is of tender years—say under
seven years—and thus unable to give consent, one way or the
other—then the High Court judge can order a blood test without
consulting the child. If the child is older, say 14 or 15 years
of age, then the views of the child should be taken into con-
sideration. But the child's views are never decisive. Even if the
2 4
The Times, March 15, 1968. Ante, p. 119.
3 5
Unreported, February 12, 1968. Ante, p. 157.
474 PROBATE DIVISION [1968]

CA
- child is difficult, the court can order a blood test if it is clearly
1968 in t h e interests of the child, just as it can order an operation in the
B. (B. R.) case of a ward of court.
B.V(J.) I would stress, however, that the jurisdiction to order a blood
test is vested only in the High Court, a n d not in the county
DENNING court. There is a new Act, the Matrimonial Causes Act, 1967,
—— which gives jurisdiction to the county courts to try undefended B
divorce cases. So far as I can see at present, the only jurisdiction
which is vested in the county court judges under that A c t is the
statutory jurisdiction in divorce. There is not vested in them the
parental jurisdiction of a judge of the High Court. T h a t is derived
from the Crown as parens patriae a n d not from any statute. N o
doubt in some of the undefended cases which come before the C
county court under that Act, it m a y b e desirable in the interests
of the child to have a blood test. If so, the procedure is simple.
T h e county court judge will refer it to a High Court judge as a
matter suitable for ancillary relief: a n d the High Court judge
can order the blood test.
Likewise, of course, a magistrates' court has n o power to order D
a blood test against the will of the parties. T h e magistrate can
only d o it by consent of those concerned, namely, the grown-ups
and the mother on behalf of the child. But, nevertheless, if any
of them does not consent, the magistrate can take that refusal
into account. I adhere to the view which I expressed in In re L.
that6: E

" If an adult unreasonably refuses to have a blood test,

or t o allow a child to have one, I think it is open to the
court in any civil proceedings (no matter whether it b e a
paternity issue or an affiliation summons, o r a custody p r o -
ceeding) to treat his refusal as evidence against him, a n d m a y
draw an inference therefrom adverse to him. This is simply p
common sense."
T h e conclusion of the whole matter is that a judge of the High
Court has ppwer to order a blood test whenever it is in the best
interests of the child. T h e judges can be trusted to exercise this
discretion wisely. I would set n o limit, condition or bounds to
the way in which judges exercise their discretion. T h e object of G
the court always is to find out the truth. When scientific advances
give us fresh means of ascertaining it, we should not hesitate to
use those means whenever the occasion requires.
I would, therefore, dismiss the appeal.
6
Ante, p. 159.
P. PROBATE DIVISION 475

c A
DIPLOCK L.J. I too would dismiss this appeal. Probably - -
because of my unfamiliarity with the procedure in the Probate, 1968
Divorce and Admiralty Division I think it is a simple question; B. (B. R.)
but so I do. We are concerned here with the jurisdiction of the B V (J)
High Court—I emphasise that—of the High Court—not of any
particular division of the High Court. In W. v. W. (1963),7 it was
decided that the High Court has no jurisdiction to order an adult
to submit to a blood test, because that would be an assault upon
the unconsenting adult. But adults can, of course, consent to
submit to a blood test. A parent or guardian who has control of
a child, can arrange for the child to have a blood test; and the
evidence of a blood test so obtained, which today is highly cogent
evidence as to paternity—or may be so—is admissible on any issue
in which the parentage of a child is relevant. In In re L. (An
Infant)8 the question arose for the first time whether the courts
could order a child to be submitted to a blood test where the child
was a party to the proceedings and represented by the guardian ad
litem. The Court of Appeal there held that the High Court had such
a power, but such power was not derived from the Matrimonial
Causes Act, 1965, but from the jurisdiction conferred upon the
High Court by section 18 of the Supreme Court of Judicature
(Consolidation) Act, 1925, subsection (2) of which provides:
"There shall be vested in the High Court:—(a) subject
as otherwise provided in this Act, the jurisdiction which was
formerly vested in, or capable of being exercised by, all or
any of the courts following: — (i) The High Court of Chancery,
both as a common law court and as a court of equity. . . ."
By subsection (3):
" The jurisdiction vested in the High Court shall, subject
as otherwise provided in this Act, include the jurisdiction
which was formerly vested in, or capable of being exercised
by, all or any one or more of the judges of the courts
aforesaid respectively sitting in court or chambers or else-
where, when acting as judges or a judge, in pursuance of any
statute, law or custom, and all powers given to any such
court or to any such judges or judge by any statute, and
also all ministerial powers, duties and authorities incident to
any and every part of the jurisdiction so vested "
The court's jurisdiction, accordingly, to order a child to be
blood tested, which was in effect the jurisdiction by consent of the
7 8
[1964] P. 67; [1963] 3 W.L.R. Ante, p. 119. : • • .
540; [1963] 2 All E.R. 841, Cairns J.
andC.A. . r - :.:,'•
476 PROBATE DIVISION [1968]

C.A. child to its blood being tested is thus part of the ancient paternal
1968 jurisdiction of the court.
B. (B. R.) In In re L. (An Infant)8 the matter came before the court in pro-
B V (J.) ceedings under section 34 of the Act as to the custody of the child
and a controversy arose between the members of that court by way
DlPLOCK L.J.
of obiter dicta as to whether the jurisdiction was confined to cases
where the custody of the child was in issue. The Master of the B
Rolls9 in the passage which he has already read took the view
that the jurisdiction was not so confined; but Willmer L.J., in
a passage at the end of his judgment, says this 10 :
" Having regard to what has been said by [the Master of
the Rolls], I think it right to add two further observations.
First, I confine my judgment with regard to the court's power
to order a test of a child's blood to cases arising, as this case
does, within the court's custodial jurisdiction. I am not, as
at present advised, prepared to hold that such a power exists
in a paternity issue, and still less on a petition for divorce
on the ground of adultery. So to hold would, in my judgment,
be contrary to the decision of this court in W. v. W. (1963)." "
Davies L.J. said 12 that he concurred with the two reservations D
made by Willmer L.J. with the judgment of the Master of the
Rolls.
In this case we have to make our choice between the conflicting
views expressed obiter by the Master of the Rolls, on the one
hand, and Willmer L.J. and Davies L.J. on the other. Having
heard full argument on the case, I am satisfied beyond any reason-
able doubt (to use the expression used in rebutting the presumption
as to legitimacy) that such an order may be made in any case
where the child is made a party to the proceedings and in the opinion
of the judge of the High Court it is in the child's best interests that
it should be made. Where such a blood test is made, whether, as in
the present case, on an issue as to paternity, or whether where the
judge thinks it is in the interests of the child on an issue as
to adultery in a suit for dissolution of marriage, the evidence of
that blood test is in my view clearly admissible in any proceedings
in which the parentage of the child is relevant.
I also agree with Lord Denning M.R. that this jurisdiction,
being one conferred upon the High Court alone by section 18 of
the Judicature Act, 1925, and not by Part III of the Matrimonial
Causes Act, 1965, relating to the protection of children, the
8 11
9
Ante, p. 119. [1964] P. 67.
Ante, p. 157. 12
Ante, p. 172.
" Ante, p. 171.
P. PROBATE DIVISION 477
CA
jurisdiction to order such a test on behalf of a child is not -
transferred to a divorce county court under section 2 (1) of the 1968
Matrimonial Causes Act, 1967, for that provides that B. (B. R.)
V.
" . . . a divorce county court shall have jurisdiction to B. (j.)
exercise any power exercisable under Part n or Part III of x>mJocx.LJ.
the Matrimonial Causes Act, 1965, in connection with any —
petition, decree or order pending in or made by such a court
and to exercise any power under section 22 or section 24
of that Act."
It does not purport to confer upon a divorce county court the
parental jurisdiction acquired by the High Court under section 18
of the Supreme Court of Judicature (Consolidation) Act, 1925.
I would add in passing that—since I have been speaking about
the admissibility of blood tests as evidence—I reserve any views
about the evidential inferences to be drawn by the refusal of
anyone to take a blood test. As the Master of the Rolls said in
In re L. {An Infant),12" that is a matter of common sense,
and I would prefer to leave it to common sense. My un-
familiarity with the procedure in the Probate, Divorce and
Admiralty Division to which I have already confessed makes
it highly undesirable that I should attempt to lay down
any rules as to how this discretion should be exercised
by the judge who exercises it in any particular case. His
consideration must be what is the best interest of the child, and
I can conceive of cases where it may be in the child's interest to
rely upon the presumption of legitimacy rather than to put it to
the risk. Such cases must I think be rare, because on the whole I
agree with the Master of the Rolls that in most cases it is in the
best interests of everyone, including the child, that truth should
out. In the present case, however, there seems to me to be no
doubt, and the commissioner had no doubt, that it is in the
interests of the child that the blood test should be taken. Whether
the test shows that the father is the former husband or that the
child is the child of the present husband, who was the co-respon-
dent in the suit, the child will be legitimate either by being the
child of the marriage or because he will have been legitimated by
the subsequent marriage of his two parents. He cannot, therefore,
in my view in any way suffer by whatever the result of the blood
test is. Here it is plainly a case where it is in the interests of the
child that he should know who his father is.
12
» Ante, p. 159.
478 PROBATE DIVISION [1968]

C
-A- SACHS L.J. I agree that this appeal should be dismissed, but \
1968 at the outset I emphasise that the Official Solicitor was entirely
B. (B. R.) correct in bringing the matter before this court, for there are
B.V(j.) involved questions of transcending importance to many children.
The sole issue raised in this case by Mr. Comyn on behalf
of the Official Solicitor has been as to the extent of the inherent
jurisdiction of the court qua parens patriae to consent on behalf B
of the infant to the taking of a blood test of the child. In the
present case—and indeed as appears to have been the case in In
re L. {An Infant)13—it is to be noted that the age of the infant is
such that no questions of an order in invitum can arise. The sole
question posed here today is whether that jurisdiction qua parens
patriae is limited to what has been referred to as custodial cases C
where it will be for the benefit of the infant to use that jurisdiction,
or whether the jurisdiction extends to all cases when it would be of
benefit to the infant that the test be made. In using the word
" benefit" I have in mind the sense in which it is used in the
exercise of the court's parens patriae functions, and would mention
that when I refer to benefit of the infant in other places in this D
judgment it has to be interpreted in that particular sense.
As regards discretion, if the jurisdiction exists, Mr. Comyn
specifically disclaimed any intention to discuss whether such a
test was or was not in the above sense for the benefit of the
infant in this particular case. What he did do was very properly
to draw the attention of the court to the great range of different E
cases that could arise if the jurisdiction is unlimited. So great and
so diverse is that range that it includes many cases in which it
would be extremely difficult to ascertain what is for the benefit
of the infant or to determine whether the test is in truth being
asked for the benefit of that infant or for the benefit of others.
On the issue of jurisdiction, once it had been decided by this F
court in In re L. {An Infant)13 to exist at all, in a case where it was
to the interests of the child, I cannot for my part see any ground for
limiting it to any particular class of cases, unless it can in some
instance be said that as to the discretion in that class of case,
it could never be for the benefit of a child for that jurisdiction to
be exercised. It follows from my view that the sole test when G
exercising the jurisdiction is whether or not it is for that benefit.
Neither in In re L. {An Infant)13 nor in the present case has the
court been so composed as to have on it a member who has had
experience of the exercise of the Chancery wardship procedure at

13
Ante, p. 119.
P. PROBATE DIVISION 479

c A
first instance and has been brought up in the principles there exer- - -
cised. It is in Courts of Chancery that the parens patriae functions 1968
were first conceived, and certainly those courts have had the main B. (B. R.)
v
development of them—at any rate, until relatively recently. B \,
To ascertain and declare the existence of the facet of the S A C ~ L J

High Court's inherent jurisdiction with which we are today con- —

cerned may be said to have been relatively easy. It is no less
easy to see that it is one of transcending importance on the lives
of many infants. What troubles me is the question of the appli-
cation of this jurisdiction: and that subdivides itself into questions
(1) relating to the procedure for determining whether the consent
should be given; and (2) how the discretion should be exer-
cised. Perhaps I take a more cautious view of these matters
owing to experience in the division exercising divorce jurisdiction,
but there seems to me no doubt that the taking of blood tests may
produce a real revolution in the approach to many issues that
are canvassed there. Moreover, from what has been said today
at the bar, it looks like producing a veritable flood of cases. That
caution of mine may perhaps be reflected in the views of those
two Lords Justices in In re L. (An Infant)13 who were so ex-
perienced in their day in divorce matters and were not disposed
readily to agree that the jurisdiction even existed in relation to deter-
mining paternity and adultery issues. Prominent to my mind is the
fact that it is essential to remember that the parens patriae juris-
diction is one for the benefit and protection—I emphasise the words
" and protection "—of the infant; and that it, it must be emphasised,
can be something very different from the self-centred interests that
adults may have in sorting out their own affairs. The latter
interests may obviously be very different from those of the infant
who may in the course of the proceedings be deprived- of the
name which he thought he bore, not to mention the fortune which he
might have inherited. Moreover, one must not wholly overlook
the potential existence of cases where the adults wish so to
manoeuvre that the infant comes out of his prima facie position. To
bastardise a child may be in the interests of the adults or some
other child, but not of the infant bastardised. The same may apply
to the break-up of a parental home. .
. In some ways the position as to this new facet of the jurisdic-
tion in the court, or, perhaps I should say, newly developed facet
of its jurisdiction, has a parallel to that which obtained when the
courts declared the existence of its important jurisdiction to insist
13
Ante, p. 119.
480 PROBATE DIVISION [1968]
c A
- - on discretion statements in divorce proceedings. The case of Apted A.
1968 v. Apted and Bliss,1* which discussed the measure of the discretion
B. (B. R.) to be exercised, was followed first by practice directions (cf. Rayden
B. (j.) & Mortimer's Practice and Law in The Divorce Division (1932),
SACHS~L.J. 3rd ed. at p. 588), and later by Rules of the Court: but it was
not until 1943, some 13 years later, that in Blunt V. Blunt15 the
House of Lords finally laid down the principles on which the
discretion should be exercised. In this instance the Official Solici-
tor has expressed himself as being most anxious to have some
guidance on matters, and manifestly needs it. In regard to these
blood tests it seems to me that without guidance great divergencies
both of practice and of views on discretion may arise. Rules of C
practice seem to me to be an early and imperative necessity, and
preliminary guidance on discretion would no doubt be helpful as
soon as it can be obtained.
In the absence of any real opportunity to consider what may
be the answers to some of the problems which have been raised
today in this court, I naturally do not propose to propound rules D
either of practice or of discretion, but to call attention to matters
which have come to the surface in the course of helpful submis-
sions by counsel very experienced in the work of the Divorce
Division. First of all, as regards practice the question arises
whether the Official Solicitor should act without coming to the
court for guidance. I say no more than that I would assume that, E
until matters have sorted themselves out, if he were in any doubt, he
would come to the court and would so advise the many
solicitors who consult him.
The next matter which arises is whether the tests should be
ever ordered unless, as in the two cases which have so far been
before this court, there is known (by reference to concluded tests "
on all relevant adults) to be a really substantial chance that the
tests would resolve the issue which was troubling the court: I
would doubt it.
The next is whether there should be precautions against a
possibility of abuse, or whether it can be said that the importance
to an infant of his parentage and of his fortune is less than the
importance of a chance of his being convicted under certain sec-
tions of the Road Traffic Act.
Finally, there is a question of practice and procedure as to
1S
" [1930] P. 246. [1943] A.C. 517; [1943] 2 All
E.R. 76, H.L.(E.).
 Pi PROBATE DIVISION 481

CA
A whether a welfare report ought not normally to be obtained in -
the same way as it was in In re L. (An Infant).1* I would so hope. 1968
Turning from practice to discretion again, a whole crop of B. (B. R.)
v
problems become evident on the questions whether a child should B ;j •.
be permitted to bastardise itself, and whether and to what extent —•
the court should or should not try to put itself into. the position —
B of that child. Should the child be allowed or should the child
not be allowed to consent to an order which will assist the break-
up of the parental home? What happens if the child objects,
knowing what is the purpose of the test? How should the court
deal with the cases of affiliation and separation orders? All these
are matters which need careful consideration. That consideration,
C I am very glad to say, is, at any rate, at the moment confined
to judges of the High Court—a relatively small number of judges
specially experienced in such matters. But, of course, one must
envisage that there may well be a short Act transferring that
consideration to the manifold county courts who deal with other
matters ancillary to a divorce.
D But, wherever the consideration lies, there is no doubt that the
matters to be dealt with are such as to give scope, as was plainly
shown arguendo in the present case, for deeply different individual
judicial views as to what is and what is not in the interests of the
child in relation to potential bastardisation on the given facts of
any one case. For instance, is it or is it not held all over the
E country and in all sections of the community that it is of no or of
minimal. importance to a child to call it out of its name? The
sooner authoritative guidance can be given on that point, the better.
Having said that, and having, I hope, put at any rate into the realm
of consideration matters which may arise from a decision which
will have such wide effects, I can do no more to help the Official
F Solicitor.
Appeal dismissed.
Leave to appeal refused.

Solicitors: Myer Cohen & Co., Cardiff; D. C. Passmore,

Walters & Co., Cardiff.
G

16
Ante, p. 119.