Posthumously proving paternity: can the courts direct DNA testing after death?

Photo credit: Composite – Reuters/Corbis/Getty

The subject of posthumous DNA testing received international attention last year in the case of Salvador Dalí and we have had two decisions this month on the issue from the courts of England and Wales: Anderson v Spencer [2018] EWCA Civ 100, in which the Court of Appeal upheld the High Court’s use of inherent jurisdiction to direct posthumous paternity testing against an existing DNA sample, and, last week, the High Court in Nield-Moir v Freeman [2018] EWHC 299 Ch directed that a woman undergo DNA testing to establish whether or not she is the true daughter of the deceased entitled to a share of his estate on intestacy.

 

Dalí’s daughter?

In June 2017, a Spanish court ruled that the body of surrealist artist, Salvador Dalí be exhumed for paternity testing to establish whether or not he was the father of Pilar Abel, a tarot card reader and fortune teller from Girona, a city close to Figueres in Northern Spain, where both Abel and Dalí were born. If Abel could successfully establish that Dalí was her father, she would have been entitled to a quarter share of Dalí’s considerable estate.

A month later, the world waited with mawkish curiosity as Dalí’s body, screened at least from prying eyes by the erection of awnings, was disinterred from from his last resting place in the crypt beneath the museum he had designed for himself in Figueres.

Narcís Bardalet, the embalmer who had prepared Dalí’s body after his death in 1989, assisted with the exhumation and announced to the media, with great pride, that the surrealist’s iconic moustache had survived the ravages of time and decay and still stood, like hands on a clock, pointing to 10 past 10.

I am not a Spanish speaker and have not read the judgment that led to these extraordinary events, however the evidential basis (from what is reported in the press) for disturbing Dalí’s body appeared somewhat flimsy.

Abel claimed that her mother had had an affair with Dalí in the year before Abel’s birth and that she had learnt of her supposed parentage from the woman she had been raised to believe was her maternal grandmother, who had reportedly stated to Abel that she was “the daughter of a great painter [naming Dalí], but I love you all the same” and that she was “odd, just like your father“. Abel claimed that the resemblance between her and her Dalí was so striking that “the only thing I’m missing is a moustache“.

Abel had spent a decade attempting to establish her paternity. DNA testing had been previously carried out on samples taken from skin and hair samples found clinging to Dalí’s death mask but had proved inconclusive. A second round of tests took place using samples from possessions of Dalí provided by his biographer, but Abel claimed not to have received those results.

Finally, and conclusively, the tests undertaken on samples obtained from Dalí’s exhumed body proved that Abel was not in fact his daughter.

In October 2017, and seemingly under opposition from Abel who argued, amongst other matters, that the chain of custody in respect of the samples had been broken, the Madrid court dismissed her application and ordered her to pay the costs of the proceedings (estimated at the fairly modest, to my mind, figure of €7,000).

 

Posthumous paternity testing in the ECHR and English Courts

Whilst the circumstances surrounding the Dalí saga were extraordinary, they are not wholly unprecedented. The European Court of Rights has on two occasions considered cases involving requests for the exhumation of bodies for paternity testing in The Estate of Kresten Filtenborg Mortensen v Denmark [App No 56581/00, May 15 2006] and Jaggi v Switzerland [2008] 47 EHRR 30. 

The issue was not fully explored in Mortenson, which had been framed as a complaint that the private life of the deceased had been infringed by the decision of the Danish court to permit his body to be exhumed to allow testing to take place to establish the paternity of two putatuive sons. The ECHR held that the private life of a deceased person from whom a DNA sample was to be taken could not be adversely affected by a request to that effect made after his death.

In Jaggi, the applicant, by then in his 60s, had striven throughout his life to ascertain the identity of his natural father. The alleged father had refused to undergo testing during his lifetime and successive proceedings brought by or on behalf of the applicant had been dismissed by the Swiss courts. Finally, after the death of the alleged father, the applicant sought DNA testing using his remains. The Swiss court held that the applicant had been able to develop his personality despite his uncertainty as to his parentage. The Government justified the refusal to allow the DNA test by citing the need to preserve both legal certainty and the interests of others.

The ECHR held by a majority that there had been a violation of Article 8. The court considered that persons trying to establish their ancestry had a vital interest, protected by the Convention, in obtaining the information they needed in order to discover the truth about an important aspect of their personal identity. However, the need to protect third parties might exclude the possibility of compelling them to submit to any kind of medical analysis, particularly DNA tests. The court would therefore weigh against each other the conflicting interests, namely the applicant’s right to discover his parentage against the right of third parties to the inviolability of the deceased’s body, the right to respect for the dead and the public interest in the protection of legal certainty.

In weighing those interests, in the first place, the court considered that an individual’s interest in discovering his parentage did not disappear with age. The applicant had always shown a real interest in discovering his father’s identity throughout his life. Secondly, the court noted that, in opposing the DNA test, the deceased’s family had not cited any religious or philosophical reasons.The court observed that right to rest in peace enjoyed only temporary protection, and that the body of the deceased was due to be exhumed in 2016 when the current lease on his tomb expired (although the family had previously extended the lease). In addition, the court observed that the private life of the deceased person could not be impaired by such a request since it was made after his death. Lastly, the court noted that the protection of legal certainty alone could not suffice as grounds to deprive the applicant of the right to discover his parentage.

All of that being the case, the Court considered that Switzerland had not secured to Mr Jäggi the right to respect for his private life and held that there had been a violation of Article 8.

In the course of my own researches on this topic, I was able to turn up one ecclesiastical case on the issue of exhumation for posthumous DNA testing: In Re Saint Nicholas’, Sevenoaks (2004) Times, 29 October, where an application to exhume human remains for the purposes of confirming a family belief, based on anecdotal evidence and speculation, that the applicant and his family had royal ancestors, was dismissed on the basis that it provided insufficient justification for making an exception to the principle that Christian burial was final and that human remains once interred should not be disturbed.

As yet, there have been no reported cases in the courts of England and Wales concerning a request to exhume a body for paternity testing. That this is so, no doubt primarily reflects the fact that the circumstances in which such an application could be contemplated are rare indeed and there are usually other means of proving parentage to be explored first. However, the lack of such cases most likely further reflects the fact that, until the decision in Anderson v Spencer, the jurisdiction to order paternity testing after death (by any means) was uncertain.

Disputes about paternity in the context of establishing succession rights are not uncommon. I have advised in a handful of such cases, all of which were resolved without recourse to the courts. It was, and is, indisputably the case that applications to establish parentage could be made, and decided on the basis of narrative evidence and with the aid of evidential presumptions such as the presumption of legitimacy where a person is born in the course of a marriage, but the question of whether or not the court had the power to direct DNA testing that could conclusively resolve the issue was unclear. I am pleased to see that my view, that the High Court most likely did have the jurisdiction to order DNA testing, has now been confirmed by the Court of Appeal.

Cases involving disputes over parentage, following a person’s death, even where they do not involve the unpalatable prospect of disturbing the final resting place of the dead, are extremely sensitive and difficult. Quite aside from the financial consequences that may result from the fact that a party is proved or disproved to be a child of the deceased, the truth of a person’s parentage may strike at the fabric of family life, raising the risk that a person may discover information that challenges their understanding of their identity, the prospect of uncovering infidelity that causes upset to the living and tarnishes the memory of the deceased, and the risk of rejection and damage to established family relationships.

The decisions in Anderson v Spencer and Nield-Moir v Freeman both weigh firmly in favour of the conclusion that justice is best served by establishing the truth of a person’s parentage by the most reliable means available.

 

Anderson v Spencer

This was an appeal against the order of Mr Justice Peter Jackson (as he then was) to direct DNA testing of a sample of the late William Anderson to establish whether or not he was the father of the applicant, David Spencer. The respondent to the application was the deceased’s mother (and thus therefore the applicant’s putative grandmother), Valerie Anderson, and was the personal representative of his estate, the deceased having died intestate.

The deceased had an affair with Mr Spencer’s mother, which had ended before Mr Spencer’s birth, and there was no contact between the deceased and Mr Spencer in the deceased’s lifetime.

The deceased had a family history, on the paternal side, of Lynch Syndrome, a type of bowel cancer. Both the deceased’s father and grandfather had had the condition. At the age of 38, the deceased himself was diagnosed with bowel cancer due to this condition and, in view of the family history, a blood sample was taken from the deceased and DNA was extracted from it. A single DNA sample was retained by the hospital. Mr Spencer, if he were the deceased’s son, would himself have a 50% risk of inherited predisposition to bowel cancer.

The deceased died intestate from a heart attack in 2012.

Mrs Anderson, in February 2015, had contacted Mr Spencer’s GP informing the GP of the deceased’s history and that the hospital held DNA samples and suggesting that Mr Spencer be referred to the hospital’s genetic team for testing to see if he was at risk of bowel cancer and to clarify paternity.

By April 2015, she had changed her mind and contacted the hospital now asking for the sample to be destroyed. The hospital advised Mr Spencer that, in the event that it was determined that the deceased was his father, he should have testing by way of colonoscopy every two years. However, in the absence of Mrs Anderson’s consent, paternity testing could not proceed.

Procedurally, the proceedings commenced as an application under s.55A of the Family Law Act 1996, which provides that any person may apply to the court for a declaration that a person named in the application is, or was, his or her parent. The jurisdiction is available where the putative parent is deceased, provided that they died domiciled in England and Wales.

S.20 of the Family Law Reform Act 1969 (“FLRA”) permits the court in any civil proceedings, in which the parentage of any person falls to be determined, to give a direction for the use of scientific tests to ascertain whether or not a party to the proceedings is, or is not, the father or mother of that person and for the taking of bodily samples from the person whose parentage is in issue, any party alleged to be the father or mother of that person, or any other party to the proceedings.

However, the FLRA makes no provision for the posthumous testing of samples taken in life and the question for the court in Anderson v Spencer to decide was whether or not the lacuna in relation to post mortem DNA testing could be filed by the court directing DNA testing pursuant to its inherent jurisdiction.

In an exceptionally careful and thorough judgment Mr Justice Peter Jackson reasoned that the court did possess an inherent jurisdiction to direct such testing. You can read the judgment here and I also recommend the analysis given by Andrew over on the suesspiciousminds blog, here

His conclusion that such a power existed rested on an evaluation of the competing issues relevant to the existence of the power [71]:

  1. Statutory interpretation: there was a legislative void in relation to post mortem paternity testing. This was an area that would be better regulated by Parliament than individual decisions of the court, however there was no indication that Parliament was likely to turn its attention to the issue.
  2. Consent: It is necessary, when considering the availability of a remedy after death, to consider the situation that would have arisen in life. The person concerned would have had the right to decide whether or not to participate in paternity testing and to allow his human tissue to be used for that purpose.
  3. Public interest: extending the inherent jurisdiction might give rise to uncertainty and concern that in effect the door was being opened to post-mortem paternity testing on demand. Although it does not arise in the present case, the prospect of applications for exhumation cannot be regarded as fanciful in view the circumstances in Mortensen and Jaggi, or indeed those of Richard III. However, there was nothing to suggest that applications of this kind are likely to be at all numerous, particularly if they could only be heard in the High Court, and thereby be subject to very close scrutiny.
  4. Identity: 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. 
  5. Rights of others:  genetic testing has the potential to affect not only the individual being tested but also those to whom he is closely related. Depending on the facts, the rights of surviving relatives may be engaged, but it is difficult to envisage a situation in which the establishment of the truth about biological relationships could amount to an unlawful interference with those rights; at the very least any interference may be necessary and proportionate. The rights of third parties certainly cannot represent an absolute bar to the existence of an inherent power.
  6. Interests of justice: Where a court makes findings of fact based upon witness and documentary testimony, there is always the possibility of error. Evidence will be incomplete because people will have died and memories may have faded. When dealing with matters as important as parentage, the need to reach the right conclusion is obvious. The prospect of a court trying to ascertain the truth to the best of its ability when the truth is in effect there for the asking was a troubling one. Account must also be taken of the waste of resources that would accompany a trial involving narrative evidence.
  7. Range of circumstances: Although it was possible to envisage opportunistic or unmeritorious applications, the existence of a power could not depend on its merits.

Having found that such a power existed, Mr Justice Peter Jackson, after weighing the competing considerations for and against exercising the power to order testing, concluded that testing should be ordered for the following reasons [77]:

  • The application was not speculative or opportunistic, if it had been it would probably not have succeeded. The overall evidence raised the real possibility that the deceased was Mr Spencer’s father.
  • There was a significant medical issue that turned on the possibility of a biological relationship between the deceased and Mr Spencer – whilst he could periodically undergo colonoscopy, he should be entitled to know whether or not that was necessary or to be relieved of the need to do so.
  • There was no particular reason to regard it as likely that the deceased would have refused to consent to testing and it may not do justice to his memory to assume that he would have withheld his support from a young man who might have inherited a serious medical condition from him.
  • The information was readily available, since a DNA sample was available. There was no need for physical intrusive investigations, such as exhumation.
  • There was no objection on the part of the hospital.
  • The interests of third parties, including those of Mrs Anderson, were of lesser significance. There was no indication of any real risk of harm and establishing the truth carried greater weight than the question of whether or not it was palatable.

The Court of Appeal’s decision

Mrs Anderson appealed against the order of Mr Justice Peter Jackson to the Court of Appeal. By the date of the hearing, she did not wish to pursue the appeal. Nonetheless, given the importance of the issue, in view of the fact that it dealt with a novel use of the inherent jurisdiction, her skeleton argument was considered in addition to the oral arguments advanced for Mr Spencer. Mrs Anderson was further given the opportunity to respond in writing to a transcript of the hearing and a full judgment was given.

The appeal focused on three questions:

  • whether or not the inherent jurisdiction of the court did empower the court to make an order of this kind;
  • whether, if it did, Mr Justice Peter Jackson had been right to so order, as a matter of discretion;
  • Whether or not his order amounted to a disproportionate interference with Mrs Anderson’s Article 8 rights.

Inherent Jurisdiction

King LJ considered that Peter Jackson J had been correct to conclude that there was a lacuna that was not covered by the Act in relation to posthumous DNA testing.

Reliance was placed for Mrs Anderson on the provisions of s.19(2) of the Senior Courts Act 1981 (“SCA”), which provides:

“Subject to the provisions of this Act, there shall be exercisable by the High Court—
(a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and
(b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act (including jurisdiction conferred on a judge of the High Court by any statutory provision).”
 
It was argued for Mrs Anderson that Mr Spencer must therefore show that there was jurisdiction to make an order of this kind before the coming into force of the Senior Courts Act. King LJ dismissed this argument, as Peter Jackson J had, noting that the SCA did not have the effect of freezing the powers of the High Court – had this submission been correct, and had the inherent jurisdiction been limited to those categories already identified prior to the SCA coming into force, the inherent jurisdiction could not have been called upon to fill the gap left following the Mental Capacity Act 2005 in relation to vulnerable adults who had retained capacity (which has been held to be a legitimate use of the inherent jurisdiction) [43].
 
The submission that it was necessary to fit any extension of the court’s inherent jurisdiction into a previously recognised category of cases where the jurisdiction has been said to apply was further rejected [46]. To do so would constrain the legitimate use of the jurisidiction which had been described in the following terms Lord Donaldson in Re F (Sterilisation: Mental Patient)  [1990] 2 AC 1:

“… 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 initiative 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.”

The argument for Mrs Anderson that the direction for DNA testing was not a ‘principled extension’ of the jurisdiction did not find favour, given the very cautious and considered approach of the judge, who had considered all of the competing legal and ethical factors relating to whether or not what he proposed to do amounted to a principled extension of the power and had properly directed himself on this point in noting at para. 60 of his judgment:

“The court is bound to be cautious, weighing up whether the existence of a remedy is imperative or merely desirable, and seeking to discern the wider consequences of any development of the law”.

Human rights

King LJ was not persuaded that Mrs Anderson’s Article 8 rights were engaged in the manner suggested on her behalf. It was argued that the prospect of identifying a genetic relationship between Mrs Anderson and Mr Spencer was an interference with her Article 8 rights. King LJ considered that it would be to take Article 8 too far to base a relevant interference on a right not to know whether or not Mrs Anderson had an additional grandchild.

If she were wrong in that conclusion, however, it would be necessary to consider the competing rights of the parties and in her judgment the balance fell firmly on the side of the Article 8 rights of Mr Spencer who not only has the right to an identity, but also the right to medical treatment, as an adjunct to both Art. 2 (Right to Life) and Art.3 (Prohibition of Torture) of the Convention.

Discretion

It was argued, in particular, that the Peter Jackson J had been wrong to order DNA testing on the basis that it could not have happened within the deceased’s lifetime without his consent and the court should not now circumvent the obtaining of that consent, given that the delay in making the application deprived the deceased of the opportunity to make his own decisions about his private life.

The argument that the lack of consent of the deceased or Mrs Anderson should be determinative of the application did not hold water for two reasons: first, the FLRA permitted testing on a sample that had already been obtained, notwithstanding the refusal of consent of the party whose DNA it was, and secondly, it did not lie easily in the mouth of Mrs Anderson to refuse to give consent in circumstances where she had previously described it as being “essential” for Mr Spencer’s paternity to be established.

 

Nield-Moir v Freeman

In Nield-Moir v Freemanthe court had to consider a slightly different issue: whether or not the court had the power to direct a living person to submit to DNA testing for the purposes of establishing whether or not the deceased was her father for succession reasons.

Both Lorraine Freeman and her elder sister Janice Nield-Moir were born to Mrs Veronica Birtles, in the course of her marriage to the late Mr Colin Birtles. Their parents were divorced in 1977 and Veronica Birtles had since died.

The deceased, Colin Birtles, had died intestate in June 2013 leaving a modest estate consisting of a terraced house in Oldham and a small amount of cash. Mrs Freeman obtained a grant of administration to distribute the estate, without notice to her sister, who lived in Australia.

Upon learning of this, Mrs Nield-Moir issued a claim for revocation of her sister’s grant of administration, on the basis that she wished to administer the estate herself. She further sought a declaration that Mrs Freeman is not entitled to share in the deceased’s estate on intestacy, on the basis that she is not his biological daughter. Mrs Nield-Moir had collected a number of witness statements from third parties to the effect that the deceased had confirmed that this was the case to several persons during his lifetime. Mrs Freeman, in her own evidence, conceded that she had confronted the deceased about these rumours but that, rather than assuring her of her paternity, he had stated that he did not want to discuss it, because he had a new life now.

It is difficult to evaluate the strength of the evidence concerning the paternity of Mrs Freeman, as the quality of the evidence, and the basis of the deceased’s belief, is not explored in detail in the judgment, Mrs Freeman’s position is summarised as follows:

“In her evidence, the respondent accepts that she has refused to agree to the DNA test. She has done so on the basis that, at the time of her birth, her father was married to Veronica, her birth certificate states that the deceased was her father and the deceased paid maintenance pursuant to a court order for her until she was 16 years old. Her evidence is that the deceased never challenged paternity, despite having opportunity to do so. She dismissed the evidence collected by the applicant of alleged statements by the deceased to others that she (the respondent) was not his daughter as “nothing but gossip and hearsay”. She also refers to an email received by her solicitors dated 3 August 2017 from Dr Syndercombe-Court. That email, the respondent says, states that the question whether the claimant and the defendant are full sisters cannot be answered “definitively”. Moreover, “she does not say that she would be able to provide ‘sufficient proof’ just that she expects that she could”. And the email also raises the possibility of the test producing false positives and false negatives.”

The reliability of the expert evidence to be derived from the testing process is explored in the judgment and it was expected to yield a 98% certain result in relation to the question of whether or not Mrs Freeman and Mrs Nield-Moir were full or half siblings and the prospect of establishing (by testing a cousin who was the niece of the deceased) whether or not either was the daughter of the deceased to a 20:1 probability (91% probability) was 50%. This was considered by the judge to be evidence that was worth having for the purposes of resolving the dispute [13].

Following the decision of the Court of Appeal in Anderson, HHJ Matthews considered that he had jurisdiction to make an order requiring Mrs Freeman to submit to DNA testing in the terms sought. Mrs Nield-Moir was not seeking an order requiring Mrs Freeman to forcibly submit to testing but rather that an order should be made in an ‘unless’ form providing that adverse inferences would be drawn from a failure to undergo testing.

HHJ Matthews drew an analogy with the jurisdiction to justify an Anton Piller search order in concluding that the court had an inherent jurisdiction to order someone to consent (this is the language that HHJ Matthews used but perhaps ‘submit’ would be a better word) to something that would otherwise amount to an invasion of their rights [28]. He further noted that the courts further had the power to require a person to undergo a physical examination, where it was relevant to an issue in dispute, and to strike out their statement of case if they declined to do so.

He considered the severity of the invasion in relation to the direction to give a saliva sample to be comparatively slight, at least in physical terms [30]. He acknowledged the risk of mental upset, in the event that the results revealed the deceased not to be Mrs Freeman’s father, but thought that this was a risk that she faced in any event given that there was litigation on foot concerning her parentage that the court would have to resolve on the balance of probabilities.

HHJ Matthews cited, with apparent approval, the following passage from the judgment of Thorpe LJ in Re H & A (Children) [2002] EWCA Civ 383, [30], a case which considered paternity testing in the context of an application for contact:

“The judge made it plain that in the absence of scientific evidence then the issue was to be decided on the application of ‘a very important, well established principle …. that is, the presumption of the legitimacy of children born during the currency of the marriage’. He went on to refer to the case of Serio v Serio [1983] 4 FLR 756. Twenty years on I question the relevance of the presumption or the justification for its application. In the nineteenth century, when science had nothing to offer and illegitimacy was a social stigma as well as a depriver of rights, the presumption was a necessary tool, the use of which required no justification. That common law presumption, only rebuttable by proof beyond reasonable doubt, was modified by section 26 of the Family Law Reform Act 1969 by enabling the presumption to be rebutted on the balance of probabilities. But as science has hastened on and as more and more children are born out of marriage it seems to me that the paternity of any child is to be established by science and not by legal presumption or inference. Were the judge’s order to stand in the present case the consequence would be a long and acrimonious trial of the paternity issue when, in the absence of the only decisive evidence, each side would resort to evidence of marginal or doubtful worth in the determination to prevail. Such a development would be wasteful of both legal costs and judicial time.”

In evaluating the human rights arguments against ordering testing, he concludes [48]:

“In my judgment the balance comes firmly down on the side of holding that directing such a test is justified as in accordance with the law and necessary in a democratic society for protecting the rights of others (ie the applicant), and accordingly does not involve a violation of the article 8 right, even if that is engaged. Directing a saliva sample to be taken and tested is a proportionate (some might even argue under-proportionate) means of protecting the public interest in the accurate resolution of inheritance disputes.”

I am not quite sure what HHJ Matthews meant by “under-proportionate” here, perhaps simply to say that the direction was wholly proportionate. I would submit that the proposed order in this case represented a far more extensive interference with Mrs Freeman’s rights than was the case in Mrs Anderson’s circumstances, given that it directly impacts upon her identity, and than HHJ Matthews credits (arguably even greater than the interference where a search order is directed, given the fundamental right to bodily integrity and identity). 

It was submitted for Mrs Freeman that this was a ‘fishing expedition’ and reliance was placed upon what Lord Macdermott said in S v S, W v Official Solicitor [1972] AC 24, 48:
” … if the court had reason to believe that the application for a blood test was of a fishing nature, designed for some ulterior motive to call in question the legitimacy, otherwise unimpeached, of a child who had enjoyed a legitimate status, it may well be that the court, acting under its protective rather than its ancillary jurisdiction, would be justified in refusing the application.”

HHJ Matthews did not consider that this could be properly described as a fishing expedition, in view of the fact that there were witnesses who were willing to give evidence that the deceased had said that he was not Mrs Freeman’s father (it is not said in the judgment whether or not there was any other person who had been identified as her putative father).

Accordingly, he ordered that Mrs Freeman provide a mouth-swab within 28 days, failing which the court would be at liberty, on the trial of the claim, to draw an adverse inference against the respondent.

I would argue that the threshold for directing that a living person submit to paternity testing ought to be placed somewhat higher than it has been by HHJ Matthews in this analysis; which arguably places insufficient weight on the factual circumstances of Mrs Freeman having been born in the course of the marriage of the deceased and her mother, the deceased being named as her father on her birth certificate and having paid child support without protest, and without himself having sought to challenge her paternity and upon the impact on her of disturbing her understanding of her family identity and history. 

It is perhaps worthwhile giving some further thought to the analogy drawn by HHJ Matthews in relation to the Anton Piller jurisdiction. The exceptional and draconian nature of the Anton Piller jurisdiction is well recognised. A party seeking a search order must establish an “extremely strong prima facie case”, there must be a risk of “very serious” damage to the applicant, “clear evidence” that the defendants possess incriminating documents and a “real possibility” of destruction. The harm likely to be caused to the defendant must not be out of proportion to the legitimate object of the order. There are strict safeguards imposed on the execution of the order and of course undertakings must be given that the claimant will pay damages in the event that it transpires that the order should not have been made.

It would be to stretch the point too far to suggest that some formulation of the Anton Piller test should be imported here. However, it is quite difficult to discern principles of broader application from either Anderson v Spencer or Nield-Moir v Freeman as to when it will be appropriate for the court to direct that paternity testing should take place. In a case, such as that of Mrs Freeman, I would have liked to have seen the court give greater consideration to the credibility of the evidence and the proportionality, having regard perhaps to the size of the estate and other considerations in favour of a definitive conclusion, of directing that a person should submit to testing that threatens to challenge their personal identity and understanding of their family history – particularly where the deceased in his lifetime could have sought to establish the issue of her paternity but had not. 

The notion that a person could be found to be in contempt of court, where they decline to submit to testing ordered by the court, mooted at para. 36 of HHJ Matthew’s decision troubles me. It does not seem to me to be right that a person who elects not to proceed with testing that is of profound consequences for their personal identity and family relationships could face sanctions for contempt of court.

 

Learning points for practitioners

  • The advantages of scientific certainty, over establishing paternity by way of a trial of narrative evidence, were of particular importance on the specific facts of the case in Anderson v Spencer given the necessity for Mr Spencer of establishing his risk of having inherited a susceptibility to bowel cancer. Mr Justice Peter Jackson noted that the court could have proceeded to establish the issue of paternity in the usual way of hearing evidence and that, although no statutory inferences would arise from the refusal to submit to testing, the court could draw such inferences as it saw fit.
  • There were no such special circumstances in Nield-Moir v Freeman, which broadens the scope of Anderson to apply the inherent jurisdiction to require a living person to provide a sample for the purposes of establishing her relationship to the deceased. It would appear to be the position that, provided that the court is satisfied that the application is not a mere fishing expedition,”If science can help, then it should.” (per HHJ Matthews at [52]). This nudges the position closer to paternity testing ‘on demand’, which Peter Jackson J had noted as a possible concern weighing against extending the inherent jurisdiction to permit posthumous paternity testing.
  • It seems likely, judging by the decision in Nield-Moir v Freeman, that we will see more of these applications and that the courts will readily grant them in the interests of resolving such disputes with greater certainty and less expense than the traditional approach of a trial on the evidence of witnesses. Following this decision, the presumption of legitimacy does not seem to stand for much, if DNA testing is a possibility.
  • The prospect of applications for exhumation for the purposes of paternity testing being made following Anderson and Nield-Moir is far from inconceivable. However, such a measure is only likely to be ordered, in my view, in the most exceptional of cases and where other avenues for testing have been exhausted and a trial on narrative evidence is unlikely to lead to a satisfactory conclusion – perhaps, for example, where witnesses have passed away or are unwilling to cooperate, or where, as here, there is a particular interest in establishing as a matter of fact, rather than merely a finding on the balance of probabilities, that the deceased is the parent of the applicant.
  • More generally, the decision in Anderson v Spencer is an important one as it opens up the prospect of the court’s finding that the inherent jurisdiction is available to plug other gaps in the law, even where the case does not fit within previously established categories of cases where the jurisdiction is available. This, broadly speaking, is welcome, in my view, as a practical response to circumstances where statute does not provide a solution to a problem that obviously requires one, however there is a danger of the inherent jurisdiction being waved as something of a magic wand and of incremental expansion to the detriment of legal certainty.

 

 

 

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