This is the story told by the Court of Appeal[408] after the Family Division of the High Court had refused the applicant’s plea that her birthgiving be confidential. The woman in question gave birth to a child, having concealed the pregnancy from her husband and two children. She gave the child into the care of the local authority after the birth and wanted no further contact. Her explanation was that she was raped after a night out with women friends; that her husband could not be the child’s father, as he had undergone a vasectomy six years previously; and that no sexual intercourse had taken place with him at the relevant time.

The local authority applied for a care order prior to the placing of the child for adoption. As the woman wished to exclude her husband from knowledge of the proceedings, this became an issue before the High Court. The decision was that the husband should be joined to the proceedings. The rule, at common law and by statute, is that the husband of a woman who gives birth is presumed to be the father of the child.[409] There is space in the application of court rules on care proceedings for the exercise of discretion as to the parties to be joined. However, both the trial court and, subsequently, the Court of Appeal refused to exercise this discretion not to join the husband.[410] This case illustrates the gendered content given by courts to the status of marriage, but also the continuation of stereotypical assumptions about motherhood.

It is true that, had the court exercised discretion, this might be considered as tantamount to an acknowledgment that the husband was not the child’s father. And in the instant case, the trial court was ‘far from persuaded that the mother’s account of all that [rape and relationship with the husband] was either truthful or accurate’. The judge said: ‘I have no confidence that her purpose in giving evidence before me was to give an accurate, full and truthful account of the relevant events.’[411] The woman’s statement of her fears of domestic violence was cursorily ignored, both at trial and on appeal.