Does the child exist?
When applying for a Child Arrangement Order, few people would ever consider the need to prove the actual existence of the child it is for. In this article, Chloe Hall examines a current case in the High Court, where the dispute is whether children have ever been born.
In the ongoing case of AA v ZZ, a man is seeking an order that allows him to spend time with the twin sons he shares with his former wife. The problem is the mother disputes that the children even exist!
The former couple were married in 2019 and divorced in 2020, before the twins were supposedly born in February 2021. The father alleges that the mother sent him various scan pictures, updates on her pregnancy, and spoke about giving birth, but the mother says that these were forgeries and that she lied to her ex-husband.
The birth of the twins, or potentially just one son, was not recorded, nor was the mother’s pregnancy. Her GP provided evidence to the Court to show that they were not told of her pregnancy or birth, which would have been expected, even if the children had been born in a private hospital.
The father, who has never met the children, was able to contradict these claims by presenting evidence of their existence to the Court and the mother’s psychotherapist was called as a witness to state that the mother had visited her at her home accompanied by a toddler who called her ‘Mummy’.
Various witnesses who knew the former couple had also been shown to refer to the children in text messages and voice notes, all of which “sounded authentic” to the judge, Mrs Justice Arbuthnot DBE. In fact, there was a recording of an old friend of the mother stating that she would “be honest” with the father, confirming that the children had been given to their uncle by the mother, to be raised.
Despite this, the mother vehemently denies the existence of the children. In a case where both parties are litigants in person, the Court has had to stress that they are not able to investigate this matter. Judges usually expect the evidence to be investigated and a case presented to them to pass judgment on. In this case, if either party had explored some evidence more appropriately and thoroughly, it may well have led to a different conclusion – one of them may have been able to convince the Judge at this stage that the twins exist or not.
Ultimately, Lady Arbuthnot held that there is strong evidence that there was a pregnancy, and some evidence that at least one child was born. She could not say where the birth took place, and she could not say where the child or children are now.
This extremely unusual case highlights the ever-evolving nature of Family Law and the difficulties judges have when deciding on these cases. If the Court finds that a child does exist, it would necessitate the involvement of Social Services, and of course raise questions as to why the Mother went so out of her way to hide their existence.
It also raises questions over whether the Court should be so involved in a case without concrete evidence – judges are often being asked to make decisions in complex cases based on incomplete or ambiguous information; there is often the need to distinguish fact from fiction.
The matter will be listed for further directions in due course and will definitely be something to look out for.
