Appeal against DNA order dismissed

Family Law|February 14th 2018

Sometimes it is interesting to follow a case through from the original decision of the court to an appeal, especially where that original decision could be considered somewhat controversial. Back in April 2016 I wrote here about the case Spencer v Anderson (Paternity Testing: Jurisdiction), which concerned an application by a man for a declaration that a deceased man was his father. The primary reason for the application was that the deceased man had a form of hereditary cancer, which the applicant may have inherited from him.

There are essentially two ways that parentage can be established: by a court taking evidence from the parties (often of a very personal nature) and reaching a decision based upon that evidence, or by DNA testing, which is a virtually certain way of establishing paternity. Obviously, DNA testing is the preferred method, and therefore the applicant, knowing that a DNA sample of the deceased had been retained by the hospital where he was treated, sought a direction that the DNA sample should be tested alongside a sample of his own to establish whether or not he was the deceased’s son. The application was opposed by the deceased’s mother.

There was a problem, however. Parliament had legislated regarding DNA testing of the living (in particular providing that DNA samples could only be taken with consent), but it had not legislated regarding the use of DNA samples from someone who had died. At first instance Mr Justice Peter Jackson (as he then was) held that the court did have power to direct a DNA test under the Court’s inherent jurisdiction, and that that power should be exercised in this case. The deceased’s mother appealed against that decision.

There were essentially three grounds for the appeal: that Mr Justice Jackson had erred in finding that the court had power to make the direction; that there had been a breach of the mother’s right to respect for her private and family life under Article 8 of the European Convention on Human Rights; and that even if the court did have power to make the direction, it had been wrong to exercise it in this case.

Lady Justice King gave the leading judgment of the Court of Appeal. Dealing with the first ground of appeal, she looked in some detail at the law on inherent jurisdiction. I will not go into the technicalities here, but the inherent jurisdiction is essentially used by the courts (i.e. the High Court and above) to ‘fill in’ any gaps in the law left by Parliament. It is, of course, only to be used sparingly and where the existence of a remedy is imperative. Here, Mr Justice Jackson had:

“…carefully considered all the legal and ethical factors which related to the issue as to whether what he intended to do amounted to a principled extension of the use of inherent jurisdiction. Having weighed up those matters [he] decided, not that the best interests of justice on the facts of this case required a finding that there was jurisdiction, but that the interests of the living in knowing their biological identity together with the interests of justice including the desirability of knowing the truth, when set against the other identified considerations, led to the conclusion that the High Court possessed the jurisdiction to make the order sought.”

Lady Justice King found that this approach had been entirely correct, and that Mr Justice Jackson had also been correct in concluding that there was power under the inherent jurisdiction to make such a direction.

As to the second ground of appeal, Lady Justice King found, quite simply, that the mother’s Article 8 rights, if any, were outweighed by the applicant’s rights, including the right to medical treatment.

Lastly, as to whether the order for DNA testing should have been made, Lady Justice King found that the argument that the mother’s refusal to consent to the testing should be determinative of the application did not hold water, for two reasons. Firstly, the consent related to the taking of a sample, not to the testing – here, the sample had already been taken. Secondly, the mother had as recently as February 2015 regarded it as ‘essential’ for medical reasons that the applicant’s paternity should be established, but then changed her mind – as Mr Justice Jackson had observed: “It does not now lie easily in her mouth to say the opposite.”

Accordingly, Lady Justice King found that there was no basis for interfering with the decision of Mr Justice Jackson. She said:

“This was a case of a claimant wanting to know his paternity for a sound medical reason and in my view, once the issues in relation to jurisdiction and the human rights obligations have been cleared away, the wording of the order made by the judge allowing the DNA testing to take place, was not only inevitable but right.”

Lords Justices Simon and McFarlane gave concurring judgments. The appeal was therefore dismissed.

You can read the full report of the appeal here.

Author: Stowe Family Law

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