Analysis
The mother and executor (V) of the deceased appealed against an order that a DNA sample from the deceased, held by a hospital, be tested against the respondent (D), to determine whether he was the son of the deceased. The deceased had suffered from an hereditary form of bowel cancer called Lynch Syndrome, and so D wanted to discover if he was at risk of this condition developing. V refused consent. D applied for a declaration of paternity under s55A Family Law Act 1986, in the context of which he sought an order for testing of the DNA sample collected by the hospital during the deceased’s life. The trial judge had held that the High Court had inherent jurisdiction to make such an order, and exercised it in favour of testing.
V argued that the court had no such jurisdiction, because no such jurisdiction had been exercised prior to the coming into force of the Senior Courts Act 1981 s19(2), or because it had been ousted or circumscribed by the enactment of the blood testing provisions Family Law Reform Act 1969, or was not a desirable or proper extension of the court’s inherent jurisdiction.
V further argued that the order interfered with her rights under Article 8(1) of the European Convention on Human Rights, and that in any event no direction should have been made for testing without her consent.
Held, dismissing the appeal:
1)The court had no statutory power to direct testing of a deceased person’s DNA. The power to direct blood tests under Family Law Reform Act 1969 did not apply to posthumous testing. The Human Tissue Act 2004 did not apply to DNA samples, already extracted from bodily material. However, the policy behind the Human Tissue Act 2004 could be a relevant consideration behind the exercise of the court’s inherent jurisdiction.
2)The Senior Courts Act 1981 had not frozen the court’s inherent jurisdiction to those categories identified prior to its coming into force. Posthumous testing was wholly outside the scheme of the Family Law Reform Act 1969, and so that Act should not be treated as having delimited the court’s jurisdiction outside that scheme.
3)The power to order posthumous DNA testing was a desirable power in the interests of justice, and accordingly the Court had a residual inherent jurisdiction to direct that posthumous DNA samples be tested.
4)It was doubtful whether V’s human rights were engaged, either as the deceased’s representative or personally, because the private life of a deceased person could not be affected by a DNA request after his death, and because it is not an interference with the appellant’s own rights to know whether or not she had an additional grandchild. In any event, they were outweighed by D’s interest in knowing the identity of his father.
5)The inherent power should be exercised in favour of testing. V’s consent was not necessary. First, the DNA sample was already available and did not need to be obtained. Secondly, V had previously stated that she considered it essential that D’s paternity be established for medical reasons.
KING LJ [1] This is an appeal against an order made under the inherent jurisdiction of the High Court on 9 May 2016 by Mr Justice Peter Jackson (as he then was). The order now challenged directed that DNA extracted from a sample provided by William Anderson (deceased) and now held by Central Manchester University Hospitals NHS Foundation Trust, should be tested against a bodily sample …Continue reading "Anderson v Spencer [2018] WTLR 1"