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19 February 2018

28: Who’s the daddy?

Issues of paternity can arise for a multitude of different reasons but usually they involve two living parents arguing over maintenance or contact. However, the Court of Appeal has recently confirmed that a direction can be made for a DNA sample to be tested even when the person thought to be the father has died.

David Spencer’s mother had a relationship with William Anderson. Subsequently, William was diagnosed with bowel cancer of a type which carried a 50% risk of inherited predisposition. In fact both his father and grandfather had the same condition. Because of the family history, a blood sample was taken from William and DNA extracted from it. The hospital retained the single DNA sample but no blood or tissues.

About a year after William’s death, his mother, Valerie Anderson, had contact with David. There appears to have been a dispute about what actually happened but it was David’s case that Valerie warned him of the risk of having inherited the syndrome and advised him to have a DNA test. Subsequently, Valerie wrote to David’s GP setting out the history, informing the GP that the hospital held DNA samples from William, and asking that David be referred to the hospital’s genetic team in order to see if he was at risk of bowel cancer and to clarify paternity. However, three months later, she contacted the hospital, asking that the DNA sample be destroyed. It is not clear why there were this volte face but, in any event, David went ahead and saw the genetic counsellor at the hospital. He was told that, if William was his father, he should have screening by colonoscopy every two years.

David therefore made an application for a declaration of paternity and a direction which would enable him to have access to the DNA sample retained by the hospital, in order to scientifically prove whether William was his biological father.

The High Court judge who initially heard the application determined that he had the power under the inherent jurisdiction of the High Court to direct that the DNA extracted from the sample provided by William and held by the hospital should be tested against a bodily sample taken from David. The judge had to rely on the court’s inherent jurisdiction as the testing of a sample post-mortem fell distinctly outside of the scope of the relevant legislation.

Valerie was unhappy about this decision and appealed to the Court of Appeal which has just upheld the decision of the original judge.

Valerie sought to challenge the original decision in three ways. Firstly, it was said that the judge should not have used the inherent jurisdiction in the way he did to make the direction for testing. Secondly, she argued that the judge had given insufficient weight to her right to respect for private and family life under the European Convention on Human Rights. Thirdly, she argued that as William’s personal representative, her decision to refuse permission should have been an end to matters.

The Court of Appeal reviewed the various statutes and concluded that there was no statutory power to make the direction for the testing of DNA sample. Valerie’s case was that the inherent jurisdiction could not be used to make the direction.

The Court of Appeal determined that the judge had been acutely conscious of the dangers of an indiscriminate use of the inherent jurisdiction as a means primarily to achieving what a court might view as ‘fair’. The jurisdiction had to be exercised in a ‘principled’ way. In order for an extension of the jurisdiction to be principled, it was unnecessary for it to slot into a previously recognised category. To do so would constrain the legitimate use of the great safety net. However, that did not give a judge open season to expand the use of the inherent jurisdiction and the judge had been sensible of the need to avoid any unprincipled extension of the jurisdiction.

The Court of Appeal found that the judge had carefully considered all the legal and ethical factors which had related to the issue as to whether what he had intended to do amounted to a principled extension of the use of the inherent jurisdiction. Having weighed up those matters, he had decided, not that the best interests of justice on the facts of the case required a finding that there had been 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, had led to the conclusion that the High Court possessed the jurisdiction to make the order sought.

The judge had been entirely correct in both his approach and his conclusion that there was a residual power under the inherent jurisdiction for a court to make a direction that William’s extracted DNA should be utilised in order for David’s paternity to be determined.

The Court of Appeal also determined that the judge had properly considered Valerie’s human rights arguments and that the order was not incompatible with her rights under Article 8(1) of the European Convention on Human Rights – the right to respect for private and family life.

The Court of Appeal also dismissed the argument that Valerie’s refusal, as William’s personal representative, to consent should be determinative of the application, even under the inherent jurisdiction. That argument did not hold water. In appropriate circumstances, where, as in the present case, the DNA sample was already available and the parties’ consent was not required in order to obtain a sample, the court could make an effective direction for DNA testing to be carried out on that sample, notwithstanding the refusal of the party whose DNA it was to consent to its use. It followed that a court could, in the same way, order the DNA testing of an existing sample, notwithstanding the refusal of a personal representative to consent to its use. Moreover as Valerie had regarded it as essential for medical reasons that David’s paternity should be established, it did not lie easily to say the opposite.

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