Director-General, NSW Department of Community Services v "A"

[2000] NSWSC 1179

CITATION:	DIRECTOR-GENERAL, NSW DEPARTMENT OF COMMUNITY SERVICES V. "A" & ORS. [2000] NSWSC 1179
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 3040/99
HEARING DATE(S):	7 October 2000
JUDGMENT DATE:	13 December 2000
PARTIES :	Director-General, NSW Department of Community Services - plaintiff "A" - first defendant "B" - second defendant "C" - third defendant "D" - fourth defendant
JUDGMENT OF:	Hodgson CJinEq at 1

COUNSEL :	Mr. G. Moore for plaintiff Mr. T.F. Robertson for A Mr. M. Anderson for B Miss P. Nash for C Mr. D O'Neil for D
SOLICITORS:	I.V. Knight, Crown Solicitor, Sydney for plaintiff Leonie Miller, Solicitor for A No solicitor on record for B Legal Aid Commission, Sydney for C No solicitor on record for D
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - Declaration of paternity - Child of 12 year old girl alleged to be that of her 13 year old brother - Whether DNA test should be ordered - Whether paternity proved on other evidence - Whether declaration should be made.
LEGISLATION CITED:	Statutes of Children Act 1996 ss.21, 22, 26, 28, 29 Births Deaths & Marriages Registration Act 1995 ss.4, 12, 15, 43, 46, 47, 48 Evidence Act ss.60, 64, 136
CASES CITED:	E v. H (1986) 7 NSWLR 212 G v. H (1993) 16 FamLR 525 G v. H (1994) 181 CLR 387 Roberts v. Balancio (1987) 8 NSWLR 436
DECISION:	See end of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Wednesday 13th December 2000

NO. 3040 OF 1999
DIRECTOR-GENERAL, NSW DEPARTMENT OF COMMUNITY SERVICES V. “A” & ORS.

JUDGMENT

1 In January 1998, the second defendant B, then aged 12, gave birth to the fourth defendant D. It appears possible that the first defendant A, then aged 13, who is B’s brother, may have been the father. The third defendant C is the mother of A and B. In these proceedings, the Director-General of the Department of Community Services seeks a declaration under s.21 of the Status of Children Act that A is the father of D. The Director-General also seeks an order under s.26 for DNA testing on A and D.

OUTLINE OF FACTS

2   At the time of the birth, the Department received a notification regarding B, in which it was asserted that B did not know she was pregnant until she had the baby, and that C suspected that C’s boyfriend might be the father. 3   Later in January 1998, the Children’s Court made an order placing B and D in the care of the Director-General. Further orders were made in October 1998, whereby D was made a ward under the Children (Care & Protection) Act for twelve months, and B was placed under the supervision of officers of the Department for two years. Subsequently, D was made a ward under the Children (Care & Protection) Act until he was 18; but there is no intention to renew the care order relating to B after it terminates on 29th October 2000. 4   From February 1998 to the present, D has been in foster care. 5   In April 1998, DNA testing showed that C’s boyfriend was not the father of D. 6   Later in April 1998, according to an officer of the Department, C said to him that her children A and B had copied what they saw on the TV, they were kids, they did not know what they were doing, they were sharing a bed together watching TV. C expressed great concern about A being taken away from her. 7   In July 1998, there was an interview between officers of the Department and B. In the course of that interview, according to one of the officers, B said she had sex “a few times” before she had the baby, that her brother was the father, that she learnt to have sex by seeing it on television, that “it’s different now, we were young then, we didn’t know what we were doing”. She expressed great concern about her brother being taken away. 8   In the same month, there was an interview between an officer of the Department and A, but no relevant admissions were made. 9   A social worker’s report concerning C in August 1998 noted traumatic experiences in C’s life prior to 1983, her depression, two suicide attempts, and noted C’s view that the events of the previous months had ruined her life. It noted her fear that her children might be taken away, and her wish that D be placed in her care. 10   In August 1999, in an interview with his tutor, A said that he did not want an order made that he was D’s father, it would not be good for the family and would be shameful for him and the family; and that he was scared and wanted “this” to end, and did not want to be punished forever. He also said he wanted D to be looked after by C. 11   In an affidavit by C made in October 1999, C said she did not know B was pregnant until B was in the hospital having the baby. C said that she wanted to raise D as her own, and tell the rest of the family that D was adopted. If it was known that D was B’s baby, this would shame B and the family. C expressed concern that disclosure of D’s parentage would cause shame, and result in the family being isolated from and shunned by their community. C expressed concern that the Court proceedings and possible outcome was putting stress on her children, and affecting their school work and lives generally. C expressed concern that a paternity test could be destructive to the family. C said she did not consent to tests being carried out on A or D. 12   C’s concern about ostracism was supported by an affidavit sworn in September 2000 by a counsellor. The counsellor expressed the opinion that C’s community could withdraw contacts and support from her family, and that individual members of the family would face rejection from members of the community. There would be a stigma which could last for generations, if incest became known.

LEGISLATION

13 As noted earlier, the application is brought under the Status of Children Act 1996. The relevant sections are ss.21, 22, 26, 28 and 29, which are in the following terms:

21.(1) Any of the following persons may make an application to the Supreme Court for a declaration of parentage under this section:
(a) a person who alleges that the relationship of parent and child exists between the person's child and any named person, or
(b) a person who alleges that the relationship of parent and child exists between the person and another named or identified person, or
(c) the Registrar when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or
(d) the Director-General when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or
(e) a person prescribed by the regulations who seeks a determination that the relationship of parent and child exists between a named person and another named or identified person, or
(f) a person who may be affected by the result who seeks a determination that the relationship of parent and child exists between a named person and another named or identified person.
(2) On any such application, the Supreme Court may make a declaration that a named or identified person is a child's parent.
(3) A declaration of parentage may be made:
(a) whether or not the parent or the child (or both) are alive, or
(b) whether or not the child has been born.
(4) If a declaration of parentage is made, the Registrar of the Division of the Court in which the order was made must immediately cause a copy of the declaration to be transmitted to the Registrar of Births, Deaths and Marriages to be dealt with under the Births, Deaths and Marriages Registration Act 1995 .

22.(1) The Supreme Court may make an order annulling a declaration of parentage on the application of any person who applied or could have applied for the making of the declaration if it appears to the Court:
(a) that new facts or circumstances have arisen that have not previously been disclosed to the Court, and
(b) those facts could not, by the exercise of reasonable diligence, have previously been disclosed to the Court.
(2) On the making of such an order, the declaration ceases to have effect from that time. Accordingly, the annulment does not affect anything done in reliance on the declaration before the making of the order.
(3) If the Court makes such an order, it may, if it thinks that it would be just and equitable to do so, make such ancillary orders (including orders varying property rights) as may be necessary to place any person affected by the annulment of the declaration, as far as practicable, in the same position as the person would have been in if the declaration had not been made.
(4) If a declaration is annulled under this section, the Registrar of the Division of the Court in which the order was made must immediately cause a copy of the order of annulment to be transmitted to the Registrar of Births, Deaths and Marriages to be dealt with under the Births, Deaths and Marriages Registration Act 1995.

26.(1) In proceedings where the parentage of a child is in issue, the Supreme Court may make an order requiring a parentage testing procedure to be carried out on any of the following persons for the purpose of obtaining information to assist in determining the parentage of the child:
(a) the child, or
(b) a person known to be a parent of the child, or
(c) any other person, if the Court is of the opinion that the information that could be obtained if the parentage testing procedure were to be carried out in relation to the person might assist in determining the parentage of the child.
(2) A parentage testing order may be made by the Court:
(a) on the application of a party to the proceedings, or
(b) on the application of the Director-General, or
(c) on the application of a person representing the child under an order made under section 34, or
(d) of its own motion.
(3) A parentage testing order may be made subject to terms and conditions.
(4) In deciding whether to make a parentage testing order, the Court must:
(a) consider and determine any objection made by a party to the proceedings on account of medical, religious or other grounds, and
(b) if it determines that an objection is valid, take the objection into account in deciding whether to make the order.

27. ...

28.(1) This section applies if a parentage testing order or an order under section 27 requires a medical procedure or other act to be carried out in relation to a child who is under 18 years of age.
(2) The procedure or act must not be carried out in relation to the child under the order unless a parent or guardian of the child consents to the medical procedure or act being carried out.
(3) However, the Court may draw such inferences from a failure or refusal to consent as appear just in the circumstances.

29.(1) If a person who is 18 years or more of age contravenes a parentage testing order or an order under section 27, the person is not liable to any penalty in relation to the contravention.
(2) However, the Court may draw such inferences as appear just in the circumstances.

14 It is also relevant to consider some of the provisions of the Births, Deaths and Marriages Registration Act 1995. Section 43(2)(a) of that Act provides that the Register “must contain the particulars of each registrable event required under this Act, or another law, to be included in the Register”. Under s.4 of the Act, “registrable event” includes a birth. In relation to births, s.12 of the Act requires notification to the Registrar by a hospital, doctor or midwife of the fact of birth, specifying particulars required by the Regulations; and the relevant regulation requires the identity of the mother to be disclosed, but not the father. However, s.15 of the Act provides that the parents of a child are jointly responsible for having the child’s birth registered under the Act, and this registration is required to specify particulars required by the Regulations (see ss.14 and 17); and under the Regulations, the particulars required in this case include the identity of the father. 15 Having regard to concern expressed by A, B and C about the parentage of D becoming known, it is relevant also to have regard to ss.46-48 of the Births, Deaths and Marriages Registration Act, dealing with access to Register entries. Those sections are in the following terms:

46.(1) The Registrar may, on conditions the Registrar considers appropriate:
(a) allow a person or organisation that has an adequate reason for wanting access to the Register, access to the Register, or
(b) provide a person or organisation that has an adequate reason for wanting information from the Register, with information extracted from the Register.
(2) In deciding whether an applicant has an adequate reason for wanting access to the Register, or information extracted from the Register, the Registrar must have regard to:
(a) the nature of the applicant's interest, and
(b) the sensitivity of the information, and
(c) the use to be made of the information, and
(d) other relevant factors.
(3) In deciding the conditions on which access to the Register, or information extracted from the Register, is to be given under this section, the Registrar must, as far as practicable, protect the persons to whom the entries in the Register relate from unjustified intrusion on their privacy.

47.(1) The Registrar may, on application, search the Register for an entry about a particular registrable event.
(2) The applicant must state the reason for the applicant's interest in the subject-matter of the search.
(3) The Registrar may reject the application if the applicant does not show an adequate reason for wanting the information to which the application relates.
(4) In deciding whether an applicant has an adequate reason for wanting information, the Registrar must have regard to:
(a) the relationship (if any) between the applicant and the person to whom the information relates, and
(b) the age of the entry, and
(c) the contents of the entry, and
(d) other relevant factors.

48. In providing information extracted from the Register, the Registrar must, as far as practicable, protect the persons to whom the entries in the Register relate from unjustified intrusion on their privacy.

SUBMISSIONS

16   Mr. Moore for the Director-General referred me to G v. H (1993) 16 FamLR 525 at 534, where Fogarty, J. said this:

Paternity is now a medical and not a legal issue. Society is entitled, through the legislature and the Courts, to an inexpensive, prompt and virtually certain procedure to decide this question. Paternity is no mere inter-parties issue. The child and society have a vested interest in the correct outcome. The reasons for that are many, including heredity, the sense of identity and the private and public obligations of financial support directly relevant in this case and so emphasised by the legislature over the paste decade.

Mr. Moore emphasised the child’s right to know parentage, and the legal consequences attaching to it.

17   Mr. Moore submitted that, even in the absence of a DNA test, there was sufficient evidence to show that A was the father. Firstly, there was the statement by B, which in the circumstances was very persuasive. Secondly, the absence of denial by A, coupled with statements that could be considered admissions, namely that it was “a shameful thing for me”, and that he did not “want to be punished forever”. Next, there was the exclusion of C’s boyfriend by DNA tests. Finally, C’s evidence as to the family situation made any other possibility highly unlikely. 18   Mr. Moore submitted that the Court was bound to act in the best interests of the child D; but accepted that the Court could take into account the interests and wishes of the mother B and the putative father A, particularly when they were so young. 19   Mr. Robertson, for A, submitted that proceedings of this kind were usually brought to set at rest doubts or to resolve some question that had actually arisen, or to deal with medical questions that could arise. In this case, there was no suggestion of any medical reason to know parentage. There was no pending application where knowledge of paternity would be of assistance, and no evidence that this knowledge would be useful to resolve any family problems or to assist the life of the child. Mr. Robertson submitted that the Court was exercising a parens patriae jurisdiction, and the paramount consideration was the best interests of all three children involved in the case. 20   Mr. Robertson referred to an earlier decision of mine in E v. H (1986) 7 NSWLR 212 at 220 where I expressed the view that in most cases it was “in the interests of the child and of justice that questions such as this be decided on the best available evidence”. I went on to express the view that “to overcome that consideration would require quite specific and powerful evidence that the interests of the child would be harmed by the making of blood tests”. Mr. Robertson submitted that that view was too strongly expressed, and in any event had been changed by the introduction, into ss.26 and 27 of the Status of Children Act, the requirement that the Court must “consider and determine any objection made by a party to the proceedings on account of medical, religious or other grounds”. 21 In support of his submission that the paramount consideration was the best interests of the three children involved in the case, Mr. Robertson referred me to Minister of State for Immigration & Ethnic Affairs v. Teoh (1995) 183 CLR 273, at 286-7, 304, 315. He also referred me to Marion’s Case (1992) 175 CLR 218, especially at 259. 22 Mr. Robertson submitted that what was sought was that I order invasive medical procedure against A and D, which would be futile. 23 Mr. Robertson submitted that the only purpose of the order sought was to enable a bureaucratic exercise of registration and the advancing of some abstract public policy of enabling identification of both parents. On the other hand, the impact on this family of making the order would be extreme. At the relevant time, A and B were 13 and 12 years old. The interview with B was made in most unsatisfactory circumstances. B was still 12 years old, she had given birth shortly before having not known she was pregnant, her mother was not present and did not know of the interview, questions were asked that could implicate her in a criminal offence. 24 Mr. Robertson submitted that if a declaration of paternity was made, it was required to be notified to the Registrar of Births, Deaths and Marriages, it was then required to be entered on the Register, and ss.46-48 did not give adequate protection to persons wishing to keep such information confidential. 25 Mr. Anderson, for B, advised the Court that B wished the matter to go no further. However, the person appointed to represent B in these proceedings was of the view that it was in B’s interest that there be a determination; and that B’s concern was not so much as to what was the truth, but as to the consequences of what had actually occurred. B’s representative was of the view that it was in B’s interests to have the matter determined now rather than later; and that to face up to the truth could assist in having D return to the family. 26 Miss Nash, for C, adopted Mr. Robertson’s submissions. She submitted that it would be futile to make an order for DNA testing, because C would not give the consent required under s.26 to the testing of A. She submitted that the evidence was not sufficient to make a finding of paternity: there was no evidence from A or B, and the statement made by B was taken in most unsatisfactory circumstances. Miss Nash submitted that it was not the practice of the Department to bring such an application in all cases where the father is not noted on the birth certificate, and there was no compelling reason why it should be done in this case. 27 Miss Nash submitted that there would be no benefit to D. She submitted that, on the evidence, A and B were progressing well now, and could be damaged by a declaration being made; and A, B and C could lose the benefit of support from their community. 28 Mr. O’Neil for D submitted that s.46 of the Births, Deaths and Marriages Registration Act gave adequate protection to persons wishing to keep matters such as this confidential: these provisions showed the limitations placed on access to birth certificates. There was in fact no basis for thinking that, as a result of these proceedings, the relevant information would become public. 29 Mr. O’Neil submitted that the current guardian of the child D was entitled to know now the true status of the child’s parentage, in order to make decisions as to the future care of the child, and Mr. O’Neil referred me to s.75 of the Children (Care & Protection) Act. The earlier this could be determined, the earlier consideration could be given to returning D to some member of the family. 30 Finally, in response to a suggestion of mine that it may be appropriate to adjourn the proceedings until A attained 18, Mr. Robertson submitted that, if I considered it inappropriate to make either a declaration or an order for DNA testing now, the appropriate course was to dismiss the proceedings. The people concerned were suffering by reason of the proceedings, and that would continue if the proceedings were adjourned. Circumstances could change, and fresh proceedings could be commenced when A attained 18. Mr. Robertson also submitted that questions concerning the return of the child to the family were pure speculation: they could have been the subject of evidence, but no evidence about that had been given.

MEMORANDUM AND RESPONSES

31   After reserving my decision, on 31st October 2000 I sent a memorandum to all Counsel in the following terms:

Apart from one matter, I am tentatively of the view that it would be appropriate for me to make a decision now on the evidence before me, and to declare that A is the father of D, so that the Director-General would plainly be justified in making decisions about the future of D in the light of that decision; but to reserve leave for A, B or C to apply at any time within the next four years to have that declaration set aside, on the basis either of DNA testing or on the basis of other evidence not put before the Court to date. The purpose of reserving the liberty would be to ensure that the declaration could be set aside on the basis of DNA evidence, even if it could be argued that the DNA evidence does not fall within s.22(1) of the Status of Children Act for the reason that the evidence could by the exercise of reasonable diligence have previously been disclosed to the Court.

The consideration that makes me doubtful about making this declaration is a matter not debated before me. It was recognised that the effect of making a declaration would be that the particulars would be put on the Register concerning D’s birth; but reference was made to the provisions of ss.46-48 of the Births, Deaths and Marriages Registration Act, in order to suggest that this does not involve any real risk of disclosure to persons other than the parties to these proceedings. What was not debated was the effect of what I understand to be a practice of schools (and employers) to require production of birth certificates, and the possibility that the production of D’s amended birth certificate when D first attends school could prejudice D and lead to risk of wider disclosure to the disadvantage of A and B. I think it would be best to receive submissions on this, and I would propose to give all parties 14 days to make written submissions on this point.

32   In response, I received two further affidavits, and also written submissions. All parties agreed to my admitting the additional affidavits into evidence, and to my deciding the case on the basis of these affidavits and additional submissions, along with the material received at the hearing. 33   On behalf of the plaintiff, there was an affidavit which annexed a letter from the Principal Legal Officer of the New South Wales Department of Education and Training, in the following terms:

I refer to your inquiry regarding what information parents or care givers are required to produce to prove the age of children when seeking enrolment of those children in NSW government schools.

While principals have an obligation to maintain enrolment registers that include date of birth details, there is no legal or administrative requirement for principals to sight a full birth certificate or extract certificate. Though birth certificates are generally the most usual form of proof of age, a range of other documentation can be utilised such as immunisation certificates and baptism certificates.

Frequently no birth certificate is available for children in which event written confirmation from the parents or caregivers as to the date of birth of the child will be accepted.

In relation to your specific inquiry, I confirm that an extract of a birth certificate is acceptable for the purposes of enrolment in government schools.

There may be some principals who insist on the production of a full birth certificate as part of the enrolment process. If this occurs and the parents or caregivers have reasons why they do not wish to provide the document, they should make contact with the Student Services Coordinator at the relevant district office applicable to the school. The Student Services Coordinator will then confirm with the principal consistent with the advice above what documentation can be relied upon for proof of age.

1 trust this information is of assistance.

34   On behalf of A, there was evidence of enquiries directed to the Department of Education and Training, resulting in advice from a person in the Public Relations Section to the effect that the procedural requirement of the Department was that a full birth certificate be produced on enrolment; and also evidence of enquiries to a bank and to Australian Passport Information, and advice to the effect that a full birth certificate was needed for a passport, and that to open a bank account, it was necessary to have a birth certificate or passport or citizenship certificate or a written statement from an educational institution. 35   It was submitted by Mr. Robertson for A that schools would require a full birth certificate, because they require parental consent to activities, and also reliable information as to carers entitled to collect a child from school. 36   Mr. Moore for the Director-General advised that the Director-General was prepared to undertake to supply carers of D with a birth extract certificate, not a full birth certificate, and would use this when enrolling the child at a school. Mr. Moore submitted that the Minister, as guardian of the child, would give consent to activities and authorise carers to collect the child from school. He submitted that an extract of a birth certificate was identified as a “primary identification document” in s.3 of the Financial Transaction Reports Act 1988 (Cwlth), with the result that a bank account could be opened with such an extract. 37   The remaining Counsel advanced no further submissions, but adhered to their previous positions.

DECISION

38 The first question I consider is whether I should order a DNA test of A and/or D. 39 In relation to A, since he is still under 18 years of age, s.28 of the Status of Children Act means that no procedure or act which I ordered could be carried out unless C consented; and in my opinion, it is clear that, at the present time at least, C will not consent. The Court may draw inferences from C’s failure or refusal to consent, but in this case, no relevant inference could be drawn. C does not, of her own observation, know any relevant facts; and any inference which the Court might draw as to views she may have, as a result of what other people have told her, would not relevantly assist the Court. 40 In those circumstances, it would at present be a futility to order a DNA test of A; and it would thus be a futility to order a DNA test of D. It may be otherwise when A attains 18 years of age: if after that time, A contravenes a parentage testing order then made, a relevant inference could be drawn: see G v. H. (1994) 181 CLR 387. 41 The next question is whether the paternity of A is proved by the evidence before me, on the balance of probabilities; and if so, whether a declaration of paternity should be made. 42 In my opinion, if it were appropriate to make a decision here and now as to the paternity of D, the evidence before me would justify, on the balance of probabilities, a decision that A is the father of D. 43 In my opinion, although the circumstances of the interview with B in July 1998 could be considered unsatisfactory, and would certainly be unsatisfactory if the results were to be used in any proceedings against B, the content of that interview is very strongly probative that A is the father of D. Although the evidence is hearsay, objection was not taken on that ground. In any event, in my opinion the evidence would be admissible under s.64(2) of the Evidence Act, because I would not regard it as reasonably practicable to call B to give evidence in these proceedings. In my opinion also, the evidence was admissible for a non-hearsay purpose, under s.60, as being relevant to the investigations made by the plaintiff and the circumstances in which a declaration is sought; and no application was made for an order under s.136 limiting its use. This case is one where, under the law prior to the Evidence Act, the Court would not have applied the strict laws of evidence: see Roberts v. Balancio (1987) 8 NSWLR 436. Although that approach may not now be possible, because of the Evidence Act, the rationale behind it would in my opinion support the approach I have taken in relation to s.60 and s.64. 44 In my opinion, as submitted by Mr. Moore, other evidence supports a conclusion that A was D’s father, in particular the statements made by A, the exclusion of C’s boyfriend, and the evidence as to the family situation making unlikely any other possibility. I think the conclusion is justified on the Briginshaw standard; although I do not think any crime was committed, because it seems clear that A and B, who were under 14 years of age, did not know that what they did was wrong. 45 However, that does not necessarily mean that the Court will make a declaration of paternity. The evidence is not conclusive, and plainly the Court would be in a better position to make a declaration one way or the other if it had available DNA tests or if A, having attained 18, did not comply with an order that DNA tests be taken. Although I would put the probability of A not being the father at very much under 50%, on the material presently before me, that possibility cannot entirely be disregarded; and as I have said, it could be affected by further evidence. Furthermore, as submitted by Mr. Robertson, there is at present no absolutely compelling requirement for a decision to be made immediately. And it is also appropriate that I take fully into account the strong wish of A, B and C to put the matter behind them, and particularly to avoid the risk of any disclosure of the circumstances of D’s birth. 46 On the other hand, the Births, Deaths and Marriages Registration Act and the Status of Children Act disclose a clear policy in the law that the parentage of children be established and known, at least to those who need to know. Important legal rights depend upon this. Ultimately, the child has a right to know its parentage. It is very desirable that decisions now to be made by the Director-General concerning D’s future be made in the light of knowledge of D’s parentage. And the wish of A, B and C to put the matter behind them, without first squarely facing and accepting whatever may be the truth of the matter, is in my opinion unrealistic. D’s birth is a fact that cannot be undone, and cannot ultimately be escaped from. Although I respect the view of C, and also apparently of A and B, that this matter can best be dealt with by directing attention away from the circumstances surrounding D’s birth, I must come to my own view as to what is truly in the best interests of D, and also of A and B; and my own view is that, in the long run, it is better for all of them that A and B face up to and accept the truth of what happened rather than attempt to ignore and suppress it. Furthermore, to establish the truth does not necessarily require disclosure and shame; and it need not interfere with the education and subsequent careers of A and B. 47 This brings me to the final matter, which was the subject of my memorandum of 31st October 2000 and the further affidavits and submissions. The evidence suggests that at least some schools may seek production of a full birth certificate, and that, although the Director-General may successfully resist this and get by with production of an extract, the matter could be an issue which draws attention to problems concerning D’s parentage, and carries a possible risk of wider dissemination of information on D’s birth certificate. 48 On the whole, however, I remain of the view which I tentatively expressed in the memorandum, namely that the best course would be to make a decision now on the evidence before me, and to declare that A is the father of D, so that the Director-General would plainly be justified in making decisions about the future of D in the light of that decision; but to reserve leave for A, B or C to apply at any time within the next four years to have that declaration set aside, on the basis either of DNA testing or on the basis of other evidence not put before the Court to date. The purpose of reserving the liberty would be to ensure that the declaration could be set aside on the basis of DNA evidence, even if it could be argued that the DNA evidence does not fall within s.22(1) of the Status of Children Act for the reason that the evidence could by the exercise of reasonable diligence have previously been disclosed to the Court. 49 At present, my view is that the plaintiff should in any event pay the costs of all parties to the proceedings.

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Last Modified: 12/21/2000