In what is believed to be the first case of its kind in this country the High Court has directed that the DNA of a person who has died can be tested for the purpose of providing evidence of paternity.
As stated by Mr Justice Peter Jackson, the facts in Spencer v Anderson (Paternity Testing: Jurisdiction) were unusual. The applicant, Mr Spencer, was born in 1986. His application was for a declaration that his father was the late William Anderson, who died in July 2012. According to his mother, Mr Spencer was conceived as a result of a relationship she had with Mr Anderson. That relationship ended when she was about three months pregnant. She then formed a relationship with another man, who was registered as Mr Spencer’s father.
When he was a child Mr Spencer was told by his mother that his real father had moved away. At some point (we are not told when), his mother named Mr Anderson as his father.
In 2006 Mr Anderson, who may not even have known of Mr Spencer’s existence, was diagnosed with bowel cancer. In the course of his treatment a blood sample was taken and DNA was extracted from it. The hospital still retains a sample of the DNA.
Mr Anderson died of a heart attack in July 2012. Exactly what happened next is in dispute, but essentially Mr Spencer became aware that he might have inherited a form of hereditary cancer from Mr Anderson, and that there was a DNA sample available that could be used to confirm whether or not Mr Anderson was his father.
Mr Spencer therefore issued his application, seeking a direction that the DNA sample should be tested alongside a sample of his own to establish whether or not he is Mr Anderson’s son. The application was supported by Mr Spencer’s mother, but was opposed by Mr Anderson’s mother, who is the personal representative of his estate. Various arguments were put forward by her, for example that testing could not have taken place in her son’s lifetime without his consent, which Mr Spencer had not sought, and that to allow testing in this case would be against the public interest, by undermining patient confidence in the confidentiality of providing samples for medical treatment.
Considering the application Mr Justice Jackson had to decide whether the court had the power to direct post-mortem scientific testing to establish biological relationships and, if so, whether testing should be ordered in this case.
He began by taking a thorough look at all of the statutory provisions, and concluded that there was no such power contained in them. He therefore turned to consider whether the High Court has an inherent power to order testing. Here, he concluded that the High Court does possesses the inherent power, to be exercised sparingly, to direct such testing in cases where the absence of a remedy would lead to injustice. “If the court was unable to obtain evidence of this kind,” he said, “severe and avoidable injustice might result.” He went on:
“Awareness of the implications of ordering testing without consent and of the wider public interest does not lead to the conclusion that the jurisdiction does not exist, but rather to the realisation that it should be exercised sparingly in cases where the absence of a remedy would lead to injustice.”
So, should the power be exercised here? Weighing the factors for and against Mr Justice Jackson came down in favour of testing taking place. He concluded:
“I accordingly find that Mr Spencer’s interest in knowing his biological parentage, the questions raised by the medical history, and the marked advantages of scientific testing as a means of resolving both issues, collectively carry more weight in the particular circumstances of this case than the counter-indicators to testing that undoubtedly exist. It is in the interests of justice that testing should take place, and it is a proper exercise of the court’s inherent jurisdiction to secure this outcome.”
Accordingly, a direction for testing was made.
The full judgment can be read here.
Photo of DNA test by micahb37 via Flickr