Spencer v Anderson (Paternity Testing)  EWHC 851 (Fam) – read judgment
A fascinating case in the Family Division throws up a number of facts that some may find surprising. One is that this is the first time the courts in this country have been asked to direct post-mortem scientific testing to establish paternity. The other is that DNA is not covered by the Human Tissue Act, because genetic material does not contain human cells. One might wonder why the statute doesn’t, given that DNA is the instruction manual that makes the human tissue that it covers – but maybe updating the 2004 law to cover genetic material would create more difficulties than it was designed to resolve.
The facts can be briefly stated. The applicant had been made aware of his possible relationship to S, who had died of bowel cancer some years before. When S had presented with the disease, it turned out that there was a family history of such cancer. The hospital treating him therefore took a blood sample and extracted DNA from it to test for high-risk genes. If the applicant was the son of the deceased he would have a 50% risk of inherited predisposition to bowel cancer. This risk would be mitigated by biannual colonoscopies.
The applicant – who had been made aware made aware of the possibility that S might have been his father – therefore sought the consent of the deceased’s next of kin for testing of this DNA sample. S’s mother (one of the respondents in this case) refused.
The applicant argued, inter alia, that his rights to autonomy, bodily integrity and family life under Article 8 entitled him to know his true paternity and exposure to disease risk.
Peter Jackson J formulated the questions before the court as follows:
(1) was there was a power under the Family Law Reform Act 1969 to direct post-mortem scientific testing to establish paternity;
(2) if not, did the High Court have an inherent power to order testing;
(3) if so, whether testing should be ordered.
The judge considered the Human Tissue Act and the Family Reform Act, and found that the testing of DNA post-mortem fell outside the scope of both. There was clearly “a legislative void” in relation to that issue, and no indication that Parliament was likely to turn its attention to it at an early date. That gave rise to the possibility of an indefinite period during which individuals would be left without a remedy, and therefore it was incumbent upon the court to properly deploy to direct scientific testing to provide evidence of parentage in these circumstances.
Reasoning behind the decision
First, the judge addressed the arguments under Article 8. There is not a great deal of Strasbourg case law on the point, and the decision in one case against Switzerland was to reject it on grounds that it was manifestly ill-founded. Here, a the estate of a deceased person had challenged a ruling of the Swiss Supreme Court that his body could be exhumed for DNA testing. In rejecting the case the Court effectively implied that the right to privacy under Article 8 could not prevent someone from calling for DNA of a deceased person to be tested in order to establish his parentage. (The Estate of Kresten Filtenborg Mortensen v Denmark [App No 56581/00, May 15 2006]).
As for domestic law, the judge reached the following conclusions:
(1) There was no statutory power to make the direction sought. The Family Reform Act did not apply for various reasons, largely because it only governs the taking of samples from living people and makes no provision for samples being taken after death. In any event it does not provide for the testing of DNA itself, but of bodily fluid or bodily tissue.
(2) In the absence of any statutory power, there was the inherent jurisdiction of the court to make orders in the interest of justice. This inherent jurisdiction of the High Court is a description of the court’s common law powers insofar as they have not been removed or supplanted by statute. In the Court of Appeal in Re F (Sterilization: Mental Patient) Lord Donaldson MR described the common law as
… the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and insofar as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges. It is not a legislative function or process – that is an alternative solution the initiation of which is the sole prerogative of Parliament. It is an essentially judicial process and, as such, it has to be undertaken in accordance with principle.
As Peter Jackson J observed, inherent jurisdiction is plainly a valuable asset, “mending holes in the legal fabric that would otherwise leave individuals bereft of a necessary remedy.” The present case (DNA testing) might be said to fall between the court’s inherent powers to protect the vulnerable or strike out claims for want of prosecution. In fact, we have posted on a previous case not dissimilar to this one: in CM v The Estate of EJ  EWHC 1680, a passing doctor went to the aid of a dying woman who had fallen from a building. Fearing that she might have become infected with a blood-borne disease, the doctor began to take antiretroviral medication that had significant side-effects. She wished for the deceased’s blood to be tested to clarify any medical risks. A sample taken during the post-mortem examination was held by the Coroner, but the approval of the court was requested as the legal situation was thought to be unclear. Cobb J considered the provisions of the Human Tissue Act 2004. He found that a cousin was capable of giving the requisite consent and had done so; however, to put the matter beyond doubt, he also went on to authorise the use of samples under the inherent jurisdiction.
On the other hand, this present application was not without its difficulties. There were sound policy reasons for the absence of any statutory power to permit testing in the circumstances of this case.
DNA testing is an interference of the highest order with the subject’s right to confidentiality and the privacy of their known family members whose genetic relationships will also be revealed by such testing. If the court allows post-mortem DNA testing in the absence of consent, this is likely to discourage patients from providing DNA during medical treatment and encourage those in Mr Spencer’s position to defer making applications until after the death of the alleged father so as to circumvent the absence of consent.
On the other hand, there is clearly a legislative void, both in relation to post-mortem paternity testing and in relation to paternity testing using extracted DNA. The judge accepted that in an area of this kind, policy considerations arose which would be better regulated by Parliament than by individual decisions of the court. In one sense, this spoke for judicial reticence. However,
there is no indication that Parliament has turned its attention to the situation that arises in the present case, or that it is likely to do so at any early date. This gives rise to the possibility of an indefinite period during which individuals would be left without a remedy.
…Knowledge of our biological identity is a central component of our existence. The issue can have consequences of the most far-reaching kind, perhaps above all for those who do not know or are not sure of their parentage. Within our lifetimes, DNA testing has made the truth available. At the same time, it has made all other kinds of evidence almost irrelevant. While it remains possible to reach a conclusion about paternity without scientific tests, the practical and psychological consequences are different. A declaration made without testing is a finding, while the result of a test is a fact.
Taking all these considerations into account, and the relevant case law, the judge concluded that the High Court does possess an inherent jurisdiction that it can properly deploy to direct scientific testing to provide evidence of parentage in circumstances falling outside the scope of the Family Law Reform Act.
If the court was unable to obtain evidence of this kind, severe and avoidable injustice might result. 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.
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