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The Court’s Magical Sparkle Powers (TM) – can you take a DNA paternity test from a dead man?

In Spencer V Anderson 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/851.html

a Mr David Spencer, now 20 years old, wanted to establish whether the late William Anderson, who had died intestate (without making a will), was his father. William Anderson had provided tissue samples as part of his medical treatment. Could those tissue samples be used to extract DNA, and thus undertake a paternity test? And presumably establish a form of claim against Mr Anderson’s estate.

It is a judgment by Mr Justice Peter Jackson, so it is highly informative and elegant.

 

  • The application under s.55A was issued on 18 September 2015. His Honour Judge Duggan made a series of directions, giving the respondents and the hospital the opportunity to make representations, and listing the DNA testing issue for decision. He identified the following questions:

 

(1) Does the phrase “bodily samples” in section 20(1)(b) Family Law Reform Act 1969 extend to DNA material already extracted?

(2) Alternatively, does the inherent jurisdiction of the High Court extend beyond the ambit of the Family Law Reform Act 1969 to permit comparison of the DNA of an applicant with samples of DNA already extracted from bodily samples of the deceased and kept in storage?

(3) What is the legal basis of paragraph 66 of Mrs Justice Thirlwall’s judgment of Goncharova v Zolotova [2015] EWHC 3061 (QB)?

(4) Does the testing of the DNA already extracted from a deceased person require consent and if so from whom?

(5) Is the refusal of consent by the deceased’s estate capable of creating an adverse inference whether under the Family Law Reform Act 1969 or the inherent jurisdiction of the High Court?

 

  • I will consider each of these questions in the course of this judgment.

 

Damn good set of questions, those.

 

D FIRST ISSUE: DOES THE FLRA 1969 APPLY?

    • On behalf of Mr Spencer, Mr Kemp initially sought to argue that a direction might be given under the FLRA. However, in the course of the argument he conceded that this argument could not succeed. In my view, the concession was rightly made for the reasons analysed above, which can be summarised by saying that the FLRA:
  • governs the taking of samples from living people
  • makes no provision for samples being taken after death
  • does not contemplate separate directions for sampling and testing
  • does not provide for the testing of existing samples
  • does not provide for the testing of samples that had been taken for reasons other than establishing parentage
  • requires samples to be collected in accordance with regulations
  • does not provide for the testing of DNA itself.

 

  • Mr Kemp rightly described the difficulties as being insurmountable and accepted that in the circumstances of this case a direction under s.20 is not available to his client.
  • There being no other legislation in point, I therefore conclude that there is no statutory power to direct post-mortem scientific testing to establish a person’s biological relationships and consequently no statutory power to make a direction for the testing of Mr Anderson’s stored DNA

 

E SECOND ISSUE: DOES THE HIGH COURT HAVE AN INHERENT POWER TO ORDER TESTING?

 

  • On behalf of Mr Spencer, it is argued that there are two possible sources of such a power: Civil Procedure Rules r.25.1 (or its equivalent, Family Procedure Rules r.20.2) or the inherent jurisdiction.

 

(By “Inherent Jurisdiction” here, everyone means the Court’s “Magical Sparkle Power” (TM), which I have decided should be used from now on, to illustrate just how much of a legal sleight of hand the whole thing is)

The inherent jurisdiction

 

  • The 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 (above) 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.”

 

  • The inherent jurisdiction is therefore a jurisdiction of long-standing that nowadays exists in a number of important contexts. With regard to children, it has been used in a wide variety of creative ways to supplement statutory powers, both through the medium of wardship and otherwise. As recorded in FPR PD 12D, the court can, for example, make orders to restrain publicity, to prevent an undesirable association, to endorse medical treatment, to protect children abducted from abroad and to recover children from abroad. These orders not only affect the individual family members but are also directed towards third parties, either as orders or requests.
  • More recently, the jurisdiction has been developed to provide remedies for the protection of vulnerable but not legally incapable adults. In Re SK [2004] EWHC 3202 (Fam), Singer J said:

 

“I believe that the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and social values.”

That manifestation of the jurisdiction was cemented by Munby J in Re SA [2005] EWHC 2942 (Fam) and the Court of Appeal has confirmed that it has survived the enactment of the Mental Capacity Act 2005: see DL v A Local Authority [2012] EWCA Civ 253.

 

  • These cases and others concerned the protection of vulnerable individuals at risk of coercion or abuse. At the other end of the scale, the inherent jurisdiction can relate to the court’s power to control its own procedures, as in Bremer Vulkan v. South India Shipping [1981] 1 AC 909, where Lord Diplock said this at 977:

 

“The High Court’s power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. … The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an “inherent power” the exercise of which is within the “inherent jurisdiction” of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice.”

 

  • The 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 above examples of the court’s inherent powers (protection of the vulnerable, striking out).
  • At the same time, the need for predictability in the law speaks for caution to be exercised before the inherent jurisdiction is deployed in new ways. 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 in the law.

 

That is the problem with the Court’s Magical Sparkle Power – because it isn’t set down properly in statute what the powers are, and the limitations of those powers, and the constraints for using those powers, it ends up being built on with case after case – extending its reach outwards and upwards, and then each case thereafter says “Well, if Munby J was able to use the Court’s Magical Sparkle Powers to do X, then I can use them to do Y” and the next Judge says “Well, if Colombo J was able to use the Court’s Magical Sparkle Powers to do Y, then I can use them to do Z” and so it goes.

There’s a neat argument against the Court’s Magical Sparkle Power here, which rather appealed to me

Submissions on behalf of Mrs Anderson

 

  • Mr Mylonas QC and Ms Street advance the following propositions in relation to the existence of an inherent jurisdiction:

 

(1) The High Court does not have the power to make any order it wishes; see Hayden J in Redbridge London Borough Council v A [2015] Fam 335:

“The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right…”

(2) The court’s powers are limited by s.19(2) of the Senior Courts Act 1981:

“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).”

So, the applicant must, but cannot, show that there was jurisdiction to make an order of this kind before the coming into force of the Senior Courts Act.

(3) Paternity testing within litigation is regulated by Part III of the 1969 Act. Any power to make a direction for scientific testing to establish paternity under the inherent jurisdiction was ousted by the Act: Re O (A Minor)(Blood Tests: Constraint) [2000] Fam 139.

In that case, two men had each obtained directions for the testing of a child to establish paternity, but the mothers, with care and control of the child, refused to consent to the testing. Wall J accepted with reluctance that there was no power to compel the mothers to allow testing when the statute required their consent: this soon led to the enactment of s.21(3). At page 151, he stated:

“In my judgment, unattractive as the proposition remains, both the inherent jurisdiction to direct the testing of a child’s blood for the purpose of determining paternity and any consequential power to enforce that direction is entirely overridden by the statutory scheme under Part III of the Family Law Act 1969. If the remedy is to be provided it is, accordingly, for Parliament to provide it.”

It is said that the present position is on all fours with that facing the court in Re O. Although the decision was given nine months before the Human Rights Act came into effect in October 2000, the court showed itself well aware of the rights engaged on all sides.

(4) There are 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. If testing in a case such as the present were to be permitted, it ought to be by way of a scheme (i) devised following the kind of consideration, consultation and scrutiny which Parliament but not the High Court can carry out; (ii) which provides for regulation (eg guaranteeing the integrity of samples and testing); and (iii) which provides clear rules which can be easily understood by healthcare professionals, patients, their family members and those who seek testing.

(5) At present, the law is clear: you cannot test samples taken for one purpose for a different purpose without consent. That clarity would be lost if an inherent power was found to exist. The law must be accessible and sufficiently precise to enable the individual to understand its scope and foresee the consequences of his actions: R v Purdy [2010] AC 345 at 390. In the present case, Mr Anderson was deprived of the opportunity to require his samples to be destroyed or of making a will excluding Mr Spencer.

(6) The decision in CM v EJ does not take matters further forward. It was not a case about paternity testing, no arguments were made against the existence of an inherent jurisdiction, and the use of the jurisdiction was consistent with the relevant statutory scheme, not inconsistent with it.

(7) Re H and A is a case in which the power to order testing was not in question. Likewise, the decision in Jaggi concerned the failure to exercise a power that existed, not the question of whether a power existed in the first place.

(8) As Re O demonstrates, the interests of justice alone do not provide a basis for ordering testing where no power to do so has been identified.

(9) Similarly, a series of cases in the analogous field of assisted reproduction show the reluctance of the courts to subvert a carefully-devised statutory scheme.

 

I happen to agree with all of that, but good luck in ever persuading a Judge that they should make a decision limiting the use of Magical Sparkle Power. You may have picked up from time to time, that I don’t much like the Jedi hand-wave that is Magical Sparkle Power, with Judge’s deciding that they can conjure powers out of thin air to solve a problem. It doesn’t sit well with me in terms of checks and balances.

 

Anyway, the important thing is that Mr Justice Peter Jackson did not agree with me, or the estate of Mr Anderson (and I don’t think on the law as it stands that was a wrong decision – the problem is, as I alluded to earlier, that the law in relation to Magical Sparkle Power is developing as a series of stepping stone cases, each relying on the one before it to extend the power further, and with no real tackling of the foundations of the earliest stepping stones and whether the Courts were ever given quite the scope of Magical Sparkle Power that they are now using)

 

Conclusion as to inherent jurisdiction

 

  • In my view, the following features are relevant to the existence or non-existence of an inherent power:

 

(1) Statutory interpretation

Before the enactment of the FLRA, the preponderant judicial opinion was that there was power to direct the taking of blood to establish a child’s paternity, and such orders were on occasion made: see In re L (An Infant) [1968] P 119 and B (BR) v B (J) [1968] P 466.

The FLRA is the only statute concerned with testing for evidence of biological relationships. It is comprehensive in relation to cases falling within its scope: Re O. In that case, the issue that had arisen lay squarely within the scheme of the Act. It fell under what Wall J referred to at 150 as the “rug” of the legislation, or what Hale LJ referred to as the “footprint” in the Court of Appeal in Re R (see paragraph 39 of the House of Lords’ opinions). In contrast, the testing of DNA post-mortem falls distinctly outside the scope of the legislation. The FLRA cannot be read purposively or convention-compliantly so as to cover cases of the present kind. I therefore do not accept that a power to give directions for post-mortem DNA testing has been ousted by the Act.

Nor do I accept that the court’s powers are limited by s.19(2) Senior Courts Act 1981. This formal, descriptive subsection cannot be taken to have defined or circumscribed the powers of the High Court, or to have frozen them as at the date of the legislation. Were it otherwise, the vulnerable adult jurisdiction could not have existed.

There is a legislative void, both in relation to post-mortem paternity testing and in relation to paternity testing using extracted DNA. I accept that in an area of this kind, policy considerations arise which would be better regulated by Parliament than by individual decisions of the court. In one sense, this speaks 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.

(2) Consent

Both the FLRA and the HTA (and the HFEA 1990 and 2008, insofar as they may be analogous) regard consent as the central component of lawfulness.

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.

Although neither the FLRA nor the HTA apply to extracted DNA as opposed to human tissue, the use of human tissue is a necessary forerunner to the extraction of DNA and similar considerations and sensitivities must apply when DNA testing is being considered.

If the issue related to the post-mortem testing of human tissue (as opposed to DNA), the terms of the HTA would apply. For testing to be lawful, there would have to have been consent from the individual in life or by a relative after death. Or there would have to be a court order.

(3) The public interest

An intervention of the kind suggested in this case might give rise to uncertainty and concern within the medical world and beyond at the possibility that such orders might be made in other cases, or 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 when one recalls the circumstances in Mortensen and Jaggi, or indeed those of Richard III.

Against this, there is no sign that the present application has caused alarm to the major hospital involved in the present case (indeed it appears to welcome the court’s assistance), or 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. The prospect of this limited development in the law affecting the behaviour of the patient population as a whole is likely to be more imaginary than real.

(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.

The contrast can be found in the opinion of Lord Wilberforce in The Ampthill Peerage Case [1977] 1 AC 547 at 569:

“Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book.”

While at 573 he said:

“One need not perhaps, on this occasion, face the question whether, when technology or science makes an advance, so as to enable to be known with certainty that which previously was doubtful, such evidence ought to be admitted in order to destroy the binding force of a judgment or of a declaration with statutory force. It may be that within the limits within which a new trial may be ordered and, on the precedents, those limits are comparatively short, such evidence could be admitted for that purpose.”

The European Convention, as interpreted in Jaggi, underscores the importance of the opportunity to discover one’s parentage. Although the Convention cannot on its own create a remedy, it is desirable that our law is consistent with the approach taken in other jurisdictions if that is possible.

(5) The interests of others

It is a peculiar feature of genetic testing that it inescapably 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) The interests of justice

When all is said and done, the court is faced with a civil dispute that must be resolved. In cases where a power exists, it has long been emphasised that the establishment of the truth is both a goal in itself and a process that serves the interests of justice. As noted above, 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 (by definition in a case of the present kind) 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 is a troubling one. Account must also be taken of the needless waste of resources that would accompany a trial involving narrative evidence.

(7) The range of circumstances

The existence of a power cannot depend upon the circumstances of the particular case. What is relevant is the range of cases that might arise. It is possible to envisage opportunistic and unmeritorious applications, but there might equally be applications, perhaps concerning young children, where the need to know the truth about parentage is compelling. The answer cannot be that the court can consider an application in the second case but not in the first: jurisdiction cannot depend on merits.

 

  • Reflecting the complexity of the legal and ethical issues, the above features pull in a number of different directions. If the only considerations related to the interests of the deceased and the public interest, the arguments against the existence of an inherent power would surely prevail. However, the interests of the living and the interests of justice must also be brought into consideration.
  • Taking all these matters into account, my conclusion is 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 FLRA. 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.

 

This is not a surprising conclusion. Magical Sparkle Power continues to be most efficacious in evey case. The remedy for all ills.

 

Having established that the Court COULD use Magical Sparkle Power to compel a DNA test from a deceased person’s tissue samples, given for another reason, the Court then had to decide whether they SHOULD in this case.   (This of course raises the issue as to whether someone who is terminally ill should make legal arrangements for the destruction of any tissue samples on death, or whether that should be part of a formal consent procedure when the samples are taken, but that’s a bit beyond our scope)

 

F THIRD ISSUE: SHOULD TESTING BE DIRECTED IN THIS CASE?

 

  • The following factors are relied upon in support of testing:

 

(1) Mr Spencer’s natural desire/right to know his parentage.

(2) Combined with this, the value that knowledge of paternity will have in clarifying his medical status and the need (or not) for intrusive investigations.

(3) The interests of justice and the need for the best available evidence: cf Re H and A.

 

  • In response, it is said on behalf of Mrs Anderson that:

 

(1) An order for testing would be an unjustified interference with her own Art. 8 rights by compounding a distressing situation and creating a risk that a genetic relationship would be identified between herself and a person who has caused her stress and anxiety.

(2) Human DNA is intensely personal and very strong justification is therefore required if it is to be used for any purpose without that person’s consent. The sample was provided by Mr Anderson for his own benefit during the course of medical treatment. He was entitled to a high expectation of confidentiality.

(3) Testing could not have taken place in Mr Anderson’s lifetime without his consent. This statutory bar has been given greater weight than any other rights, including those of a supposed child. Mr Anderson’s option to consent or withhold consent during his lifetime (and to explain his decision) was circumvented by Mr Spencer’s choice not to raise the issue until after his death. It would be unjust if his extensive delay allowed Mr Spencer to achieve testing without consent.

(4) To allow testing in this case would be against the public interest by undermining patient confidence in the confidentiality of providing samples for medical treatment.

(5) Mr Spencer’s delay deprived Mr Anderson of the opportunity to make decisions about his private life and his property.

(6) Mr Spencer’s interest weighs less heavily in the balance than that of Mr Anderson, Mrs Anderson and the public interest because:

(i) His lack of interest in testing until after Mr Anderson’s death shows that he had no interest in testing for paternity in order to satisfy himself of that relationship for its own sake. The court is not obliged to take positive steps to uphold his rights in these circumstances.

(ii) If the request is now motivated by inheritance reasons, his delay denied the deceased the opportunity to manage his estate in the light of relevant knowledge.

(iii) If the request is now motivated by medical reasons, on Mr Spencer’s own case, a test would merely serve to confirm what he already believes to be the case; if no testing is carried out he will continue to benefit from low-risk screening which will reduce his chance of cancer.

(7) Making no order for testing in this case would not exclude the possibility of an order for testing of a DNA sample being made on different facts, for example, where national security or the life of a child was at stake.

 

  • Weighing these matters up with appropriate caution, and seeking to strike a fair balance between the competing private and public interests, I have reached the conclusion that scientific testing should take place to seek to establish the paternity of Mr Spencer by using the stored DNA sample of the late Mr Anderson. These are my reasons:

 

(1) If the application for a declaration of parentage had appeared to be speculative or opportunistic, the request for scientific testing would probably not have succeeded. However, the overall evidence here raises the real possibility that Mr Anderson was Mr Spencer’s father, he having undeniably been in a relationship with Mr Spencer’s mother at the time of conception.

(2) It is common ground between the parties that there is a significant medical issue that turns on the possibility of a biological relationship between Mr Anderson and Mr Spencer. It is of course possible for Mr Spencer to be tested periodically by colonoscopy, but that is only a partial solution because he is surely entitled to know the reason why he should undergo those procedures, or to be relieved of the need to do so. As recently as February 2015, Mrs Anderson regarded it as “essential” that Mr Spencer’s paternity should be established. It does not now lie easily in her mouth to say the opposite.

(3) Although it is possible that the late Mr Anderson (like the alleged father in Jaggi) might have refused to consent to testing during his lifetime, there is no particular reason to regard that as likely. Whether or not he would have welcomed the possibility that he was a father, 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.

(4) The information, in the form of the DNA sample, is readily available and does not require physically intrusive investigations. In particular, it does not require exhumation, as to which particular considerations would undoubtedly arise.

(5) There is no objection on behalf of the hospital, which might be seen as being a nominal representative of the public interest in this case.

(6) The interests of third parties, and in particular those of Mrs Anderson to the extent that they may be engaged, are, with all respect, of lesser significance. There is no indication of any real risk of harm and the establishment of the truth carries greater weight than the question of whether it is palatable.

 

  • I accordingly find that Mr Spencer’s interest in knowing his biological parentage, the questions raised by the medical history, and the marked advantages of scientific testing as a means of resolving both issues, collectively carry more weight in the particular circumstances of this case than the counter-indicators to testing that undoubtedly exist. It is in the interests of justice that testing should take place, and it is a proper exercise of the court’s inherent jurisdiction to secure this outcome.
  • For completeness I would add that, had testing not been directed, the court would have heard the evidence in the normal way. Statutory inferences could not be drawn in a case where the statute did not apply, but this would not have prevented the court from drawing whatever inferences seemed proper from the evidence before it.
  • I pay tribute to the considerable help that I have received from counsel and invite them to submit a draft order that reflects this decision and replicates so far as possible the protections that would accompany a direction for testing under the FLRA.

 

Magical Sparkle Power, eh. Amazing. For me, it’s a bit like Superman. If you’re writing a Superman comic or film, you know the powers that Superman has been given. It’s a broad spectrum – he has super strength, he has flight, he has X-ray vision, he has heat rays, he has extraordinary speed. That’s a lot to work with, it should cover most of what you need in any given scenario. If you start adding to that with the power to kiss people and make them forget things, to peel his logo off his chest and throw it as a super weapon, to fly so fast round the earth backwards that he can turn back time, then you’re CHEATING.  Superman does have super powers, yes, but he has particular and specified superpowers. He can’t just suddenly produce claws out of his fists because Krypton, or have control over metal because “Superman”.  So “Magical Sparkle Power” is my little way of reminding myself and others that there are consequences to using the inherent jurisdiction to do wholly new and imaginative things that aren’t written down anywhere, because every time you do, it is stepping stone that others will stand on to go a little bit further.  Some of these stepping stones are now just floating in thin air.

 

 

 

 

 

 

I would put this as a must-read (adoption case, dynamite)

 

The case is very fact-specific (the facts are extraordinary) but it is still very important.

 

I’ve written before about the leave to oppose adoption case law and whether this is a meaningful legal right given that there are no reported cases of an adoption being successfully opposed (there’s one law report of a Court being persuaded to make a Residence Order rather than adoption, but the child remaining with the prospective adopters).

 

For it to be a meaningful legal right, there must be some set of circumstances which would result in the opposition to adoption resulting in placement back in the birth family. But, the consequences of that for the recruitment and retention of adopters is massive.

 

As Holman J observed, this case is likely to attract strong opinions on both sides, and it does turn very much on an unprecedented set of facts.

 

Re A and B and Rotherham Metropolitan Borough Council 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/47.html

 

 

 

The child, C, was the subject of Care proceedings and a Care Order and Placement Order were made in August 2013. The child was placed with prospective adopters (A and B) and they duly applied for an adoption order.

 

At the time of this hearing, the child was 20 months old and had lived with A and B for 13 months.

 

The child’s genetic father, who had not been a party to the care proceedings (and who does not hold PR for the child) sought leave to oppose.

 

This is the telling paragraph

 

It is accepted by all concerned in this case that if the father had come forward and the true paternity had been established at any time up to the moment when the child was actually placed with A and B, then he would not have been placed with them and, after due assessment of her, would almost certainly have been placed with the aunt.

 

 

I’d urge you to read the whole thing, but that paragraph is dynamite.

 

As is this one

 

The case and dilemma has provoked divergent professional opinions. The front line social workers for each of the child and A and B support the making of an adoption order. A child psychologist who was jointly instructed to perform a “paper exercise”, but has not met anyone concerned, favours the making of an adoption order. The Director of Safeguarding Children and Families and interim Strategic Director Children’s Services of the local authority (equivalent to the Director of Social Services in this field), who is the decision maker and who expresses the considered opinion and case of the local authority, firmly resists adoption and advocates that the child moves to live with the aunt. The child’s guardian also strongly advocates that outcome.

 

 

That made me blink several times, so I will spell it out. The social workers supported the adoption, but the Guardian AND MORE SIGNIFICANTLY the Director of Social Services supported the child being placed with the paternal aunt.

 

That really is an extremely difficult issue to resolve. As a Local Authority legal hack, the idea of a Director and Social Worker in an intractable difference of opinion makes me shudder. [This Director was clearly very fair minded in not just saying “well, I’m the big boss, so do what I say”]

 

I’m not surprised by what Holman J says at the opening of this judgment.

 

 

I have been a full time judge of the Family Division for almost twenty years. In all that time, apart from cases concerning serious ill health, I have rarely heard a more harrowing case. The hearing was a very painful one for all concerned, and I sincerely thank all parties and the professional witnesses for their attention, dignity and, to the extent possible, good humour. I know, and deeply regret, that my decision will cause intense grief. After hearing all the evidence and argument, and after due consideration, I am, however, clear as to the outcome, which I do not reach narrowly or marginally.

 

 

I’ve read many of Holman J’s judgments over the last few years, and he really has dealt with harrowing, peculiar and emotionally draining cases repeatedly, so to say that speaks volumes.

 

 

This passage will probably appear again – it is how the Court deals with the issue of “speculation” (and I think it is wonderfully constructed)

 

There is one further “legal” matter which it is convenient to mention in this section of this judgment. At times during the hearing, when longer term risks or advantages were being mentioned or considered, Mr Power referred, understandably but somewhat dismissively, to “speculation”. Advocates, and also judges, often do dismiss points as speculative or speculation. However, in relation to adoption, the Adoption and Children Act 2002 very clearly does require courts (and adoption agencies) to speculate. It requires, as the overarching duty, that the paramount consideration must be the child’s welfare throughout his life. This child is still less than two. He is healthy, and his normal life expectancy may be around a further 80 years. It is probable (but speculative) that he and his half sister, F, and his cousin, G, will outlive all the adults in this case by many years. I am required by statute to take a very long term view, but I cannot gaze into a crystal ball. I can only speculate. More specifically, the court is required by section 1(4) (c) of the Act to have regard to “the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person.” Whilst that paragraph requires the court to consider only the “likely” effect, any such consideration involves speculation; and (speaking generally) the further ahead one looks (and one must envisage a whole lifetime) the more speculative such consideration necessarily becomes. My decision in this case does include speculation. That is what Parliament has told me to do.

 

 

You may, as I was, be interested in how it was that this aunt was not a feature in the care proceedings. If she had been known about then, the Placement Order would not have been made and the child never placed with the prospective adopters A and B. So why wasn’t she known about?

 

 

This is the most fact-specific bit of the case, I think. (It is not THAT unusual for a birth father to be untraced during the proceedings and to appear later, it is the WHY that is significant here. Mr E here is NOT the genetic father, but he is the man who appears on the birth certificate as the father, and who was treated as the father in care proceedings)

 

The mother is a young woman of white ethnicity who is still in her very early twenties. She has had problems with both alcohol and drugs. While a teenager she had already had two children by different fathers. They are now aged about 5 and nearly 4. They were removed into care and have since been adopted together by one adoptive family. (I will refer to them later as the adopted maternal half siblings.) The mother began a relationship with Mr E. He, too, has had an unstable past and has a criminal record for a range of offences of both violence and dishonesty, and a recorded history of drug abuse. In March 2013 the mother gave birth to C. He was a normal, healthy baby, and is now a normal, healthy young child. As had already been pre-planned by Rotherham, care proceedings were immediately commenced and the baby was removed from the mother five days after his birth and placed with foster parents. Neither the mother nor Mr E engaged with the care proceedings nor, effectively, with the local authority. However, the mother and Mr E jointly registered the birth on 18 April 2013, jointly stating and signing that Mr E was the father to the best of their knowledge and belief.

 

[Keep that in mind – the mother was white]

 

 

The child’s social worker, from the end of March 2013 and still now, is Miss Claire Fogwill. She did not know or meet Mr E for some time. She did, however, see the baby. I have seen photographs taken of him shortly after his birth, including the original colour photograph which is part of the later formal application form for the placement order. Although not black, the baby is very obviously very brown and has obvious negroid features. These are not racist comments. They are relevant facts. As all concerned with the case agree, he very obviously appeared to be of mixed race. Miss Fogwill said in her oral evidence that “when [she] first saw him as a baby he seemed obviously to have a black parent or at any rate a strong black/negroid genetic strain.”

 

Miss Fogwill was finally able to meet Mr E, who was in prison, on 22 May 2013. She said that she was expecting to meet a black man and “was quite shocked” when he came into the room, since he appeared to be an entirely white man. She asked him whether he was the biological father. He said that he was. (It is, of course, entirely possible that the mother had assured Mr E that he was the father, if she had never confessed to him that she had been having sex on the side with the actual father. As I have no evidence at all from either the mother or Mr E, I simply do not know.) Miss Fogwill questioned Mr E further and, according to Miss Fogwill, he told her that the baby was very brown because he, Mr E, had a Burmese mother, and added that the baby would become paler with age. Neither Miss Fogwill nor, so far as I am aware, anyone else, took any steps to seek to verify whether in truth Mr E has a Burmese mother. I personally do not have the slightest idea. Miss Fogwill claimed that she was “not able to meet the mother again to ask her about paternity”, but in truth she made little effort to do so, and she made no enquiries of the mother’s own mother whose whereabouts were settled and known.

 

Miss Fogwill made reports to Looked After Reviews on 12 April, 13 May and 11 July 2013. Also present at, and chairing, these reviews was the Independent Reviewing Officer (IRO). The minutes of the first two reviews record that the child “… is a child of mixed heritage. His mother is white British … the social worker is, to date, unclear of father’s ethnicity and has asked [sic] father to clarify this …” The minutes of the review on 11 July, also chaired by the IRO, record that “… the social worker has clarified with father that he is dual heritage as his mother is Burmese … the parents wished for the child to be referred to as White British, despite his presentation not reflecting this. Father [viz Mr E] informed the social worker that he expected the child’s skin colour to change with age …” There is no hint in those minutes that the IRO queried the account of paternity or suggested that further enquiries should be made. I do not make a criticism of the IRO for she has not been involved in this hearing and has had no opportunity to state her own point of view, but I accept the point made by Mr Prest that the responsibility of Miss Fogwill appears to have been shared with others. Miss Fogwill has, however, accepted that she made a serious error in swallowing the explanation of the Burmese mother (i.e. the child’s grandmother) and not investigating paternity further, and she has apologised from the witness box to both the true paternal family and the applicants for adoption. Miss Fogwill’s formal report to the court dated 28 June 2013 in support of the application for a placement order depicts a photograph of the child as I have already described, and refers to his having black hair and brown eyes and a dark complexion. It continues that the mother is white British and Mr E is half white British and half Burmese as his mum was Burmese and father white British. “[C’s] skin is quite dark however [Mr E] states that as [C] becomes older his skin will become paler. [Mr E’s] skin is white.”

 

The present guardian, Mrs Sheila Hassall, also acted in the care and placement proceedings. In her report dated 19 July 2013 she describes Mr E as “White British Burmese” and says at paragraph 12 “[C’s] paternal grandmother is Burmese, although I understand his father [viz Mr E] views himself as white British. At present [C] has the appearance of a baby who is not white British …” As I understand it, the guardian herself never actually met either the mother or Mr E. So she merely accepted the story via the social worker. She said that she only ever saw a blurred black and white photocopy photograph of the child. She said that she visited the baby once at the home of the foster mother. However he was asleep, face downwards, with his head largely covered. She only saw one arm sticking out. The arm looked brown but she did not examine the baby further. Mrs Hassall accepted her share of responsibility. She said during her oral evidence: “I make a heartfelt apology we are in this situation. I feel desperately sorry for all those involved.”

 

I have already referred to the report to the court for the application for a placement order. I do not know whether the circuit judge saw the original with the colour photograph which, as I have described, very clearly depicts a brown child of mixed race with negroid features; or whether he saw a black and white photocopy, one version of which I have seen, which shows the child’s face as a barely distinguishable large black blob like a large blob of spilt ink. At all events, the judge appears not to have raised any question about true paternity at the, probably short, hearing when he made the care and placement orders.

 

 

If you are following this, Mr E was named as the father on the birth certificate, the mother said that he was the father, and he said he was the father. The contradictory evidence (of people’s eyes) was firstly an area that people feel uncomfortable with – that of colour, and secondly Mr E had given an explanation for it that was accepted. On that first point, just reading the paragraph, even when said by a Judge, it made me feel uncomfortable to read that ‘n’ word.

 

So a last opportunity seriously to question paternity and consider obvious avenues of further enquiry was lost. I accept, of course, that such enquiries might not necessarily have uncovered the true father, but they well might have done, for the affair between the true father and the mother was well known in the community and circle within which they lived. The mother’s own mother certainly knew the true facts, as will later appear.

 

 

Let’s also not forget that in a culture of 26 weeks, no delay, and assessments only being done if they are ‘necessary’, it might have taken some persuasion to get the DNA test of Mr E done. If it had been done, the proceedings would have been delayed, but an inordinate amount of time and pain would have been avoided.

 

How did the real father ever find out about this? Deep breath, because this is quite complicated too.

 

The father was in a long-term relationship with someone else, Miss D. When he had been sleeping with the mother, he was cheating on Miss D. There had been speculation in the community and gossip, and someone came up to Miss D and showed her a photograph of the child as a baby.

 

Soon after the child was born someone showed Miss D a photograph of the baby. She could see that the colour and the features looked like her own daughter, F, and also like the father. She told him “I really think he is your child.” He continued to deny to her that he had had sex with the mother and that, therefore, he could be the father.

 

It seems, though this is not explicit, that these suspicions continued and finally the father’s sister (the aunt in question) approached the Local Authority in March 2014   to say that she thought her brother was the true father of this child. (For timing purposes, that’s seven months after the Placement Order, and two months after the prospective adopters had made their application to adopt)

 

On 6 March 2014 the aunt first contacted the social services and said that her brother might be the father of the baby. Miss Fogwill was shocked and surprised by this news. She and a more senior colleague interviewed the father on 14 March 2014. She then immediately arranged for DNA sampling and testing of the baby and the man, and a report dated 24 March 2014 established a 99.9999 per cent probability that he is indeed the father. All parties including A and B accept that he definitely is the father and the case has since proceeded on that basis. The father is a black African who was born and brought up in that continent. He is now aged 32. His own father died when he was young. He himself travelled to England in 2001 and claimed asylum. He has lived here ever since and has indefinite leave to remain. He is the seventh of a large family of eight children. His own mother, now aged 64, now lives in the Midlands. Two brothers live in the Midlands and South Wales. A sister lives in East Anglia, and his youngest sister, the aunt, lives in the Home Counties. The brothers and sisters in England and Wales have between them eight children who are paternal first cousins of C. Some of them are of mixed race, having also a white parent. The father’s three other siblings live variously within Africa and Canada. There is, therefore, a considerable extended paternal family, mostly located within England and Wales.

 

 

But hold on a minute – this all happened within a small community, and whether the father knew or not that he was the genetic father of this baby, he must surely have known that as he had been sleeping with the mother, there was a chance that he might have been?   The Judge found that he was aware of that.

 

And did he know that the baby was in care?

 

This evidence as a whole satisfies me that, within a very few weeks of the birth at the latest, the father knew perfectly well that it was highly likely that he was the father of the baby. He could not of course be certain, since he knew also that the mother had had other sexual partners. But she told him, in effect, that the baby was half black and that he had been her only black partner. Short of DNA testing, the likelihood was obvious.

 

He took no action at all. He showed no real interest in the baby, or even much interest in seeing him, although he did ask the mother if he could do so. I do not know why not, but it was probably due, at least in part, to his continuing stance of denial to Miss D. Whatever the reason, it is a significant part of the history of this case that for almost a year the father showed no interest at all in, or commitment at all to, the child, and denied rather than asserted that he was the father. So as well as the responsibility of Rotherham, the guardian, and possibly the court, for not investigating paternity further, a very heavy responsibility for events lies upon the father. If he had shown any real interest in the baby and put himself forward in any way as the likely father, then the true facts would probably have emerged much earlier and the baby would never have been placed with A and B.

 

A separate and distinct question is when the father first learned that the baby was in care. His case is that he learned this for the first time at the beginning of March 2014. He said that he saw the mother’s mother in the town. He asked her where the child was. The mother’s mother said that he was in care and that the mother had lied to him. He then immediately spoke to and told his sister, the aunt, and at his request she immediately contacted the social services. He says that in the first weeks after the birth he had indeed asked the mother if he could see the baby and she had fobbed him off by saying that the baby was staying with her mother or sister. She also misled him into thinking that she was caring for the baby by asking him on a few occasions for money for nappies.

 

To the very end of his evidence, even when recalled and admitting what I have recorded above with regard to his knowledge of paternity, the father remained adamant that it was only around early March 2014 that he first learned that the baby was in care, and that he at once informed the social services and requested that he or his family could care for the baby.

 

 

This last point might be critical – if the father knew that he was probably the baby’s father, he could have legitimately kept quiet not to rock the boat and jeopardise his relationship with Miss D UP UNTIL he knew that the baby was in care, whereupon it was time to speak up.

 

The Court concluded that his evidence that he had not known until shortly before his sister approached Social Services should be accepted.

 

I have to decide whether I am satisfied on a balance of probability that the father knew that the baby was in care as early as about April 2013, as the local authority allege; or only in early March 2014, as he himself claims. On this issue there is force in the point Miss Ford makes on the third page of her written closing submissions dated 21.11.14, and as she elaborated orally. The father’s case is that he first learned that the baby, of whom he was likely to be the father, was in care in early March 2014. He immediately contacted the social services (initially via his sister) and has, unquestionably, strenuously sought the move of the child to live with him or his family ever since. It was only later that he learned that the child had actually been placed for adoption or that there was a current application to adopt him. So, as Miss Ford puts it, his conduct by contacting social workers in March 2014 can only be explained by his having only recently learned that the child was in care. No other event or trigger has been identified as to why, having done nothing and shown no interest for so long, he suddenly did then make the contact which he did. Miss Ford asks, rhetorically: Assuming that he had known that the child was in care from, say, mid or late April 2013, why did he suddenly do something and with such resolve in March 2014? She submits that the activity in and after March 2014, for which there is no known other explanation, is really only consistent with his having recently learned in March 2014 that the child was in care.

 

I take into account the demeanour of the father in the witness box when he was recalled. At the same time as now admitting that soon after the birth the mother herself had told him that he was the father, he maintained his account, apparently convincingly, that he only knew that the baby was in care almost a year later, and said that the social worker must have misunderstood him. I also accept the force of Miss Ford’s point as described in the previous paragraph. There was room for misunderstanding, and I am not satisfied on a balance of probability that the father knew that the baby had been taken into care earlier than early March 2014, when he took action at once.

 

 

 

So, that’s how this situation arose. The person who had been treated as the father in the care proceedings was not the real father, and the real father had not known of the care proceedings because nobody had thought to tell him. The only person who knew both key sets of facts was the mother, and she had taken no action.  [The maternal grandmother might have known, by my reading, but whether that is definitive is hard to say]

 

 

The judgment then talks about the various assessments, but the long and the short of it is, the options available were to make an adoption order to A and B, or to remove the child from A and B and to place with the paternal aunt.

 

A and B were clearly very good, capable and loving people, well capable of caring for the child. The Judge said this about them :-

 

 

Even before C was matched with them, A and B prepared themselves very thoroughly as prospective adopters. They read widely. They attended courses. They learned about the importance of attachment, stimulation and other parenting qualities. This stood them and him in good stead. I accept unreservedly the current assessment by Miss Lancaster that A and B are the “perfect” adoptive couple. She said in her oral evidence that in spite of all the challenges they are remarkable people. They are excellent adopters doing a remarkable job. If she could paint the ideal adopters they are not far from the mark. They have an excellent understanding about attachment, about which they were trained. The have a very good understanding about the impact of loss and trauma. They have great appreciation of the kind of parenting styles that work well.

 

I accept unreservedly that C is now very well attached to A and B. He feels, and is, secure with them. They provide an excellent home. They are also undoubtedly deeply attached to him. B said very movingly “He is such a happy, settled, loving little person who knows who we are … I am so proud of him. I love him so much. I will always love him. He will always be my son.” C is also a familiar and much loved member of the extended families of both A and B.

 

There is no doubt that if the true paternal family had not emerged and put themselves forward in the way that they have, an adoption order would have been made several months ago.

 

 

And the Aunt?

My own impression of the aunt was very favourable. She is much more articulate than her brother, the father. She appeared to be thoughtful and flexible, and insightful and understanding of the issues in this case. She said that she has prepared her own son, G, for the possibility that he might be joined by another, younger, boy. She talks to G about C, and G would not be surprised if C became part of their family. She said that G himself is a lovely boy, very caring and very sharing, who plays very well with other kids. She paid generous and sincere tribute to A and B although of course she has never met nor seen them. She said she was just so grateful for what they have done. It is beautiful. They have taken very good care of him.

 

 

Even the social workers who were supporting the child being adopted by A and B were not critical of the aunt, just feeling that the child ought not to be moved.

 

 

[I will quickly note that the Aunt and Miss D were represented pro bono by counsel and solicitors, which was an extremely helpful and generous thing]

 

Holman J made it plain at the outset and repeatedly, that he was not approaching the case in a narrow “nothing else will do” manner, due to the recent authorities, but in weighing everything up as to what order would best meet the child’s needs throughout their lifetime.

 

 

The legal framework as I have so far described it is agreed by all the advocates in the case, including that I must apply all the relevant parts of section 1 of the Act. In their written skeleton arguments and written final submissions, as well as in their brief oral final submissions, there has been some debate between the advocates as to whether, in applying section 1, I should adopt the approach that I should only make an adoption order if “nothing else will do”. This led to some brief examination of the judgments of the Supreme Court in Re B (a child) [2013] UKSC 33, and some later judgments of the Court of Appeal in which that court appears to have been exercised by what the Supreme Court actually meant by what they said in Re B (most recently the judgments delivered by the Court of Appeal only two weeks ago on 18 November 2014 in CM v Blackburn with Darwen Borough Council [2014] EWCA Civ 1479).

 

In my view that is a debate and territory into which I need not and should not enter. The legal and factual situations in those cases were different. In the present case, the child has already been lawfully and appropriately placed for adoption with A and B for over a year. A range of rights under Article 8 of the ECHR is engaged. There is a continuing legal relationship between the child and his paternal genetic family, with whom he has a father, grandmother, aunts, uncles and a paternal half sibling, but no current psychological relationship. He has never met any of them. (He also has several cousins but they are outside the definition of “relative” in section 144 (1) of the Act.) In this case the child unquestionably also has a private and family life and a home with A and B, and they with him, for which all three of them have the right to respect under Article 8. With so many Article 8 rights engaged and in competition, it does not seem to me to be helpful or necessary in the present case to add a gloss to section 1 of only making an adoption order if “nothing else will do”. (Indeed Mr Nicholas Power might have argued on behalf of A and B, but wisely chose not to do so, that there could now be no interference with the Article 8 rights as between A and B and C mutually except if “necessary” within the meaning of Article 8(2).) Rather, I should simply make the welfare of the child throughout his life the paramount consideration; consider and have regard to all the relevant matters listed in section 1(4) and any other relevant matters; and make an adoption order if, but only if, doing so “would be better for the child than not doing so”, as section 1(6) requires. If the balance of factors comes down against making an adoption order, then clearly I should not make one. If they are so evenly balanced that it is not possible to say that making an adoption order would be “better” for him than not doing so, then I should not do so. If, however, the balance does come down clearly in favour of making an adoption order, then, in the circumstances of this case, I should make one. I do not propose to add some additional hurdle or test of “nothing else will do”.

 

 

 

The parties had all drawn up balance sheets, and the Judge said something that I find very helpful when looking at balance sheets.

 

I have read and re-read those “balance sheets” and all the written closing submissions, and I have all the points listed there in mind. Judges frequently use the language of “balance” and “balance sheets” (and I do myself. I think lists such as the above are indeed very helpful). But the analogy with balancing scales may be misleading. When weights or objects are put on either side of a scale, their individual precise weights are known, or ascertainable. You can put four objects in one scale pan and seven in the other, and the scales will come down one way or the other due to the aggregate of the individual precise and ascertainable weights on each side. In a case such as this, however, none of the factors have precise weights. All that may be said of any individual factor is that, as a matter of judgment, it is more or less important or weighty than another. Mr Power’s list is long on the advantages of adoption and short on the disadvantages. It is not, however, the number of factors which counts but their respective importance. The Adoption and Children Act 2002 does not itself use the language of balance. It requires the court to “have regard to” all relevant matters, including those specifically referred to in section 1(4). The effect of section 1(6) is that the court must then make a judgment (applying section 1(2) and the paramountcy of welfare throughout the child’s life) whether making (in this case) an adoption order “would be better for the child than not doing so.”

 

 

 

I often read judgments from the High Court and thank my lucky stars that I am not, and never will be a Judge called upon to decide between two impossible situations. This was one of those occasions.

 

My condensing of this judgment is not, and could not be, a fair reflection of the deliberation that the Judge undertook. I would urge you to read the whole judgment to get a proper reflection of the complexities of this matter.

 

Nonetheless, you want to know the outcome, and I need to give it to you, so that debate can occur.

 

 

This case clearly requires taking both a short term and a long term view. C is currently very well placed with “perfect adopters”. They are a well trained couple with whom he is very well attached. He is of mixed race. They are both white and share with him that half of his ethnicity. A and B are “tried and tested” as has been said. His aunt and the principal members of the paternal family are black and share with him that half of his ethnicity. The aunt is a single person. She has not been “tried and tested” as a carer for C, but she has been observed as a carer of her own child, G, and thoroughly assessed as entirely suitable to care long term for C. There would be likely to be short, and possibly long term harm if he now moves from A and B to the aunt, but that is mitigated by his embedded security and attachments with A and B, and can be further mitigated by specialist training and support for the aunt, which she will gladly accept. The unquantifiable but potentially considerable advantage of a move to the aunt is the bridge to the paternal original family.

 

It is my firm judgment and view that it is positively better for C not to be adopted but to move to the aunt. In any event, I certainly do not consider that making an adoption order would be better for C than not doing so. Accordingly I must, as I do, determine not to make an adoption order and must dismiss the adoption application. Pursuant to section 24(4) of the Act, I exercise a discretion to revoke the placement order made in respect of the child on 2 August 2013.

 

The care order made on 2 August 2013 now once again has effect. Rotherham, in whose care C again now is, must engage intensively with all the relevant parties, and file and circulate within three weeks a written care plan setting out their plan for C and how they will implement, in the least damaging way, the process of his move from A and B to the aunt. It is impossible for me or any court to micro-manage that plan and process, and inconsistent with the respective roles and duties of the local authority and the court that I or the court should attempt to do so. If (as I sincerely hope will not be the case) any further resort to the court is necessary, application must be made locally to the designated family judge in Sheffield. A copy of this judgment must be given to, and read by, the Independent Reviewing Officer and all social workers having any continuing role with these families.

 

I have found this decision extremely painful, for I sincerely and deeply appreciate the intense grief it will cause to A and B and to their extended families and friends. But I have not, in the end, found it difficult; and, as I said at the outset of this judgment, it is not one which I reach narrowly or marginally. At the directions hearing in Leeds, when I had read few of the papers (and there were several key documents still to come) and before I had heard any of the oral evidence or argument, I described this as a finely balanced case. By the end, I do not think that it is. I am clear that the welfare of C throughout his life decisively requires that he is not adopted but moves to live with the aunt. It is my duty to make that welfare paramount.

 

 

 

There are a lot of very fact specific components to this case – it is unlikely that another case with exactly these issues will ever appear again. So it is not a definitive ruling for anything other than a case with these particular facts.

 

Nonetheless it is

 

 

  • The first successfully opposed adoption that I have seen since the 2002 Act came into being (and I didn’t find any reported ones going back to the 1976 Act, though I could have missed them)

And

 

  • Potentially significant – here, the assertions of mother and Mr E that Mr E was the father was accepted, and a true father emerged later. That particular set of circumstances (stripped of all of the ethnic features and clandestine affairs) is probably not that unusual. Local Authorities and Courts are somewhat dependent on a mother telling them that there is more than one putative father. Will we see successful challenges to adoption on that narrower aspect? Will we see Courts being more inclined to DNA test putative fathers even where mother is saying that there is only one putative father?

CSI : President

 

A decidedly quirky case in which the President (not for the first time and  probably not for the last), does something unique. Kudos throughout to Mr Roger McCarthy QC, who navigated some very tricky law to find one of the great loophole solutions to what appeared at first to be an insoluble problem.

 

Re Z (Children) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1999.html

 

Within care proceedings involving several children, an issue arose as to whether a man, X, was the father of those children. X said that he was, but he refused to undertake a DNA test that would have settled it. Now, there’s quite a bit of legal authority about the Courts being able to draw an inference from a refusal to participate in a DNA test  (indeed, one of those authorities was one of my own cases).  But it has always felt a bit unsatisfactory, the Court ends up deciding on a “legal basis” who a child’s parent is, or is not, based on non co-operation, but the live possibility exists that X (or others like him) is being awkward and objectionable for other reasons than that the test would go against them – i.e that if you actually did the test, you would find out the truth rather than making a guess based on a person’s unwillingness to take the test.

 

The Court can’t compel an adult to give a DNA test (in fact, as a matter of law, the Court doesn’t really have much power to compel an adult to do anything in care proceedings – they can make an order that if breached can send the adult to prison, and they can compel the adult to attend Court and to give evidence, but that’s about it. Everything else is about there being consequences and adverse inferences if you refuse to do something)

i.e the Court can say “If you don’t give a hair-strand test, it might be inferred that you are still using heroin”  but they can’t say “you WILL give a hair-strand test because the Court says that you must”

 

So, the Court can’t make X give a DNA test. That seems to be the end of it.

 

Except that in this case, X is a serving prisoner, and as part of the criminal investigation and trial, X gave a DNA sample. The issue then, was whether the Family Court could order that the existing DNA sample, held by the police, could be put to this purpose, even in the teeth of X’s objections.

X’s position

 

  • X’s position is hard to understand. He asserts that he is the children’s father, yet he refuses to do the obvious thing which would establish that, namely agree to DNA testing. Being anxious to understand his stance, I asked his counsel, Ms Rebecca Mitchell to put it in writing. This she did:

 

 

“[X] opposes the application made by the Guardian in its entirety. He does not agree to paternity testing for the children and he does not agree to provide a DNA sample in any form.

[X] believes that he is the father of all the children and the children believe he is their father. He does not therefore believe that a paternity test is required.”

He appears to be saying that he knows best.

 

  • The situation is an odd one. More usually a refusal accompanies a denial of paternity. In such a case the court may readily draw an adverse inference: see Re A (A Minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463. But what is the court to do if, as here, the refusal accompanies an assertion of paternity? That is a matter which I do not have to decide and, not least because it could arise later in this litigation, it is better that I say nothing about it.

 

 

 

As the President outlined, there are some competing interests here – the child’s right to know who their real parents are, X’s right to keep his medical and genetic material confidential, the balance between material obtained for criminal proceedings and for care proceedings, and lastly, what PACE (Police and Criminal Evidence Act 1984) has to say about DNA samples and how they can and cannot be used after being provided to the police.

 

 

The legal framework

 

  • The issue I have to determine, which is important and thus far unresolved, lies at a number of intersections. First, there is the intersection between the conflicting rights and interests of X and of the children. Secondly, there is the intersection between the conflicting rights and interests of X and of the public authorities responsible for his arrest and prosecution. Thirdly, there is the consequential intersection between the family justice system and the criminal justice system. And, fourthly, there is, as we shall see, the intersection between Part II and Part V of the Police and Criminal Evidence Act 1984 as amended (PACE). If it is the last of these which is ultimately determinative of the question I have to decide it is necessary first to consider the others.

 

 

 

  • It is convenient to start with the rights and interests of the children. They have a right (I put the matter descriptively rather than definitively) to know who their father is. That has long been recognised in our domestic law. In S v McC (Otherwise S) and M (DS Intervener), W v W [1972] AC 24, 57, 59, Lord Hodson said that:

 

 

“The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth … it must surely be in the best interests of the child in most cases that paternity doubts should be resolved on the best evidence, and, as in adoption, the child should be told the truth as soon as possible.”

In In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 106, Ward LJ said, apropos paternity:

“every child has a right to know the truth unless his welfare clearly justifies the cover-up.”

It is recognised in Strasbourg law as an ingredient of the rights protected by Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36, [1990] 1 FLR 167, Mikulic v Croatia (2002) 11 BHRC 689, [2002] 1 FCR 720. It is also recognised in Articles 7 and 8 of the United Nations Convention on the Rights of the Child.

 

  • From the children’s perspective their interests are best served by the ascertainment of the truth, whatever that truth may be. As I said in Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, para 13(vii):

 

 

“the children … have a direct and important interest … in ensuring that the truth, whatever it may be, comes out. As they grow older they will need to know, if this is the case, and however painful it may be, that their father is a murderer … In this as in other respects, better for the children that the truth, whatever it may be, comes out.”

 

  • X, on the other hand has the right (again I put the matter descriptively rather than definitively) to keep his medical and genetic data confidential. That has long been recognised in our domestic law. It is also recognised in Strasbourg law as an ingredient of the rights protected by Article 8, indeed, a “vital principle” of “fundamental importance”: see Z v Finland (1998) 25 EHRR 371, para 95, and MS v Sweden (1999) 28 EHRR 313, para 41. Moreover, if there is to be disclosure of such data which entails an interference with the right to respect for private life, then that interference will be justified only if there are what in Z v Finland, para 103, the Court referred to as “effective and adequate safeguards against abuse”. What those safeguards should be will, no doubt, depend upon the particular circumstances.

 

 

 

  • In the specific context of DNA samples and profiles the Strasbourg Court emphasised in S and Marper v United Kingdom (2008) 48 EHRR 50 paras 70-75, the highly personal nature of such material, the sensitivity of the substantial amounts of unique personal data contained in such material, and the possibility, bearing in mind the rapid pace of developments in the field of genetics and information technology, that genetic information might in future be deployed in novel ways or in a manner which cannot be anticipated with precision today. The Court described DNA material as being among the special categories of sensitive data attracting a heightened level of protection.

 

 

 

  • In domestic law the balance between these various interests is struck in different ways. Where paternity is in issue in a family court, the balance is defined by Part III of the Family Law Reform Act 1969, a statutory scheme which abrogates any power to direct the taking of a sample under the inherent jurisdiction: In re O (A Minor) (Blood Tests: Constraint), In re J (A Minor) [2000] Fam 139, 151. Unless he is himself a child, the father cannot be compelled to provide a DNA sample: see section 21(1). The only remedy for such a refusal is provided by section 23(1), which enables the court to “draw such inferences, if any, from that fact as appear proper in the circumstances.” It is X’s refusal to give his consent in accordance with section 21(1) that has given rise to the present application.

 

 

 

  • It is clear from the illuminating account of the history set out by Ward LJ in In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 98-101, that the policy underlying Part III of the 1969 Act had little if anything to do with the protection of personal medical data (let alone with DNA, the unforeseen forensic use of which in 1969 still lay in an unimagined future). Rather the policy derived from the undoubted fact that, at common law, the process of taking a blood sample without consent involves an attack on the integrity of the individual’s body – an assault – and the view of the Law Commission in its 1968 Report on Blood Tests and the Proof of Paternity in Civil Proceedings that it would not be acceptable to public opinion in general or to the medical profession in particular to exert physical compulsion in order to obtain blood samples.

 

 

 

  • In the context of the criminal justice system the balance is struck very differently. Part V of PACE enables DNA samples to be taken in certain circumstances without consent but provides stringent safeguards in relation to their use. Specifically, Part V prohibits use of such samples except as specifically permitted by Part V. I shall return to the relevant provisions of PACE below.

 

 

 

  • Where Part V of PACE prevents the use of a DNA sample in circumstances where the Family Court would wish to have access to that sample, or information derived from it, in a case where paternity is in issue, PACE trumps the needs of the Family Court. Neither the Family Court, nor the High Court in exercise of its inherent jurisdiction, can order the release or use of DNA material in circumstances prohibited by PACE: see Lambeth London Borough v S, C, V and J (by his Guardian) [2006] EWHC 326 (Fam), [2007] 1 FLR 152, and Lewisham London Borough Council v D (Police Disclosure of DNA sample to local authority) [2010] EWHC 1239 (Fam), [2011] 1 FLR 908.

 

 

 

{My goodness, we have finally found a problem that the inherent jurisdiction can’t solve – remember the regular claim that inherent jurisdiction is a power that has no theoretical limit. Well here’s one. If Part V of PACE says no to something, the inherent jurisdiction has to slink off with its tail between its legs}

 

We also get into the Human Tissue Act 2004, which makes it an offence to use DNA samples without lawful authority.

 

What specifically was the President being asked to authorise?

 

The facts

 

  • The facts that bear on the issues I have to decide are very shortly stated. X murdered the children’s mother. In the course of his attack he wounded her. Evidence at X’s criminal trial referred to the mother’s wound as “bleeding”. There was also evidence that X had cut his wrists, which were also bleeding, with a knife. Various samples of blood were taken from the crime scene and submitted for analysis. A sample of blood from the knife was also analysed. A sample of the mother’s blood was obtained during the post mortem examination of her body and analysed. A comparison of the various samples showed that two of the samples taken from the crime scene matched the mother’s DNA profile. The remaining samples from the crime scene did not match the mother’s DNA profile and were therefore each from a person other than the mother.

 

 

The order sought

 

  • The application before me is by the children’s guardian, whose stance is supported by the local authority but opposed by X. It is also opposed by the two interveners, the Metropolitan Police and the Secretary of State for the Home Department.

 

 

 

  • The relief sought by the guardian has been refined during the course of the hearing. In its final form, what is sought is an order that:

 

 

“1 The Commissioner for the Metropolitan Police shall provide to the … Local Authority a photocopy/scanned copy of the DNA profiles for each and every individual whose blood was found at the crime scene of the murder of [the mother] and a photocopy/scanned copy of the DNA profile in respect of the blood taken at [her] post mortem … (“copies”) provided that any copies in relation to an individual other than [the mother] shall remain anonymous.

2 The copies obtained by virtue of paragraph 1 above may be used for the purposes of (a) comparing the respective DNA profiles with one another and reaching any appropriate conclusions, (b) comparing the respective DNA profiles with the DNA profiles of each of the … children and reaching any appropriate conclusions and (c) reaching a conclusion as to whether any of the DNA profiles, and if so which, is of a person who is related to any of the … children and of demonstrating the nature of that relationship. Upon receipt by the Local Authority the copies shall only be used for these purposes and shall be returned to the Commissioner at the end of the appeal period from the substantive hearing, or if an appeal is instituted, at the date of determination of any appeal.”

 

  • It is important to be clear as to what is not being sought. I am not being asked to direct the disclosure of any DNA sample (only DNA profiles); any exhibit or original DNA profile (only copies or scans); any DNA profile derived from a DNA sample which a person has provided on a voluntary basis; any DNA profile derived from a DNA sample taken from a person under some statutory provision or power; or, except in the case of the mother, the DNA profile of any identified person. Nor am I being asked to direct the disclosure of any DNA profile with a view to proving that a man who denies paternity is a father (for X asserts that he is the father). It is also important to note the proposed safeguards. I am not being asked to direct the disclosure, use or retention of any DNA profile for any purpose beyond that defined in the order.

 

 

 

  • I emphasise the fact that I am not being asked to direct the production of any exhibit or the original of any profile. The Metropolitan Police is, understandably and appropriately, concerned that there should be no risk by contamination or otherwise to the integrity of any of the exhibits from the criminal proceedings or any of the original profiles. To understand the importance of preserving the integrity of such materials, against some future day when they may need to be put to some at present unforeseen and even unforeseeable use, one has to look no further than the eventual resolution in 2002, by the DNA testing of the original trial exhibits, of the question of whether or not the man who had been executed in 1962 for having committed the A6 murder was in act guilty: R v Hanratty [2002] EWCA Crim 1141, [2002] 3 All ER 534.

 

 

 

Okay, this is very clever and elegant. It would be unlawful to take a DNA sample provided by X in criminal proceedings and make use of it in care proceedings (and the inherent jurisdiction would be helpless). But, what the family Court can do is ask for the police to provide details of the DNA found at the crime scene, in the blood present at the scene which was not that of the victim.  We know, to the criminal standard of proof that the DNA samples of the blood at the scene will be the victim’s and the person convicted of the offence (namely X), because if there was some other unexplained person’s blood at the scene, X wouldn’t have been convicted.

 

So we know that the crime-scene DNA is going to be a match to X’s DNA, although it is NOT a sample that he provided which would be covered by Part V of PACE.  If you test the children’s DNA and look at the crime scene DNA profile, and the result says that the crime-scene DNA is unrelated to the children, then by inference you are sure that X is not the father, and vice versa.

That’s so clever that if they do another series of Silk they should use it as a plotline.

 

But, clever as it is, does it stack up, or is it a breach of Part V of PACE or the Human Tissues Act?

 

The issues

 

  • There are three issues. First, does what is proposed offend section 45 of the Human Tissue Act 2004? Second, is what is proposed prohibited by Part V, specifically section 63T, of PACE? Third, if not, what order should I make?

 

 

The issues: section 45 of the Human Tissue Act 2004

 

  • It is common ground, and in my judgment correctly so, that what is sought does not offend section 45, essentially because what is proposed to be done does not satisfy the criteria in section 45(1)(a). Ms Samantha Broadfoot, on behalf of the Secretary of State, suggests that section 45 is nonetheless relevant for two reasons.

 

 

 

  • First, because she says it demonstrates the clear intention of Parliament that a person should not be subject to having his or her DNA analysed except where either (i) the material held is “excepted material” under section 45(2) or (ii) it is to be used for an “excepted purpose” in accordance with section 45(1)(a)(ii). The establishment of paternity, as she correctly observes, is not an “excepted purpose”. To that, the short answer in my judgment is that what matters is what Parliament effected by the language it chose to use. Ms Broadfoot accepts, as she has to, that section 45 is not directly applicable to what is proposed in the present case.

 

 

 

  • Secondly, she says, but for the happenstance of the existence of DNA profiles deriving from crime scene samples, the only way to obtain the information sought by the guardian would be by obtaining and handing over X’s DNA profiles without his consent, something not permitted either by PACE or by the Family Law Reform Act 1969. That no doubt is so, but, putting the point robustly, so what. Either section 45 applies or it does not, and here it does not.

 

 

 

  • I shall return to these points when considering, if it arises, the question of how I should exercise any discretionary power I may have.

 

 

[I am keen to be able to use this ‘putting the point robustly, so what’  line of argument in due course, and when a Judge pulls me up on my use of language to simply smile and say that I am borrowing from the President]

 

The issues: section 63T of PACE

 

  • Mr Roger McCarthy QC on behalf of the guardian submits that the answer on this point is clear. Neither the samples taken from the crime scene nor the samples taken post mortem from the mother’s body were “taken from a person under any power conferred by this Part of this Act”. Nor were they “taken by the police, with the consent of the person from whom they were taken”. So section 63T has no application, whether in relation to the samples themselves or in relation to the DNA profiles derived from them. The samples taken from the crime scene were seized in accordance with the powers conferred by section 19, which is in Part II of PACE, not Part V. Moreover, no consent was either required or given to the taking of the crime scene samples. So far as concerns the post mortem samples, they were not taken under any power conferred by Part V of PACE, they were not taken with the mother’s consent – no such consent was required – and they were in fact not taken from a “person” within the meaning of that word as it is used in the relevant provisions in Part V, because, as Mr McCarthy points out, the normal and ordinary meaning of the word “person” is a living person: R v Newham London Borough Council ex p Dada [1996] QB 507.

 

 

 

  • I add, for the avoidance of doubt, that Mr McCarthy accepts, as in my judgment he has to, that if and to the extent that any of the materials he seeks are caught by Part V of PACE, this would be an absolute bar to the relief he seeks.

 

 

 

  • Ms Broadfoot submits that a DNA sample or profile derived from a crime scene sample seized under Part II of PACE which has been matched to a DNA sample or profile taken under Part V of PACE may not be ordered to be disclosed for paternity purposes because the disclosure of the Part II sample would, as she puts it, involve the collateral (and prohibited) use of the Part V sample, in breach of section 63T. I agree with the proposition and the conclusion but it rests on an unspoken assumption which is at odds with what is sought in this case.

 

 

 

  • Ms Broadfoot says that crime scene samples and the profiles derived from them are of limited use on their own as they cannot identify any particular person. DNA, she says, only becomes significant for identification purposes once compared with that of a known person. She amplifies the point by postulating a case where samples at a crime scene produce 15 different DNA profiles. After 14 persons have been eliminated from the inquiry, the remaining man is convicted. A paternity issue arises and the guardian seeks the DNA profile from the crime scene relating to the convicted man. The only way, she says, the police can identify his DNA profile from the other 14 is by matching it to the Part V sample. This involves a use of the Part V sample (see section 63A(1)), which is not permitted for paternity purposes.

 

 

 

  • The short answer to all this, as Mr McCarthy points out, is that, whatever might be needed in another case, there is no need in this case to compare anything with a Part V sample, and that is not what he is proposing.

 

 

 

  • Evidence, entirely independent of any samples or DNA profiles, demonstrates that the blood at the crime scene in all probability includes both the mother’s blood and X’s blood. The unidentified DNA profiles obtained from those samples can, without reference to any other samples (whether obtained under Part V of PACE or, post mortem, from the mother’s body), be compared with the DNA samples obtained, pursuant to the order already made by Hogg J, from the children. If those unidentified DNA profiles identify two persons as being parents of the children, then that will, without more, establish X’s paternity. If those unidentified DNA profiles identify one person as being a parent of the children, then it will be necessary to compare the relevant profile with that obtained from the mother’s post mortem sample to establish whether it is hers or, by elimination, X’s.

 

 

 

  • Mr McCarthy submits that Ms Broadfoot’s submissions entirely miss the point of this application, which makes no reference to and is not in any way dependent upon any Part V sample. As he says, none of the examples given by Ms Broadfoot have anything to do with the factual basis upon which the guardian’s application is mounted. With brutal simplicity, he summarises his case as follows: The guardian’s case is simple. No reference is made to any Part V samples; no reference is made to any comparison with any Part V sample; no disclosure is sought of any Part V sample (or, I might add, anything derived from a Part V sample). Section 63T, he submits, does not apply.

 

 

 

  • I agree with Mr McCarthy.

 

 

 

  • Ms Tina Cook QC on behalf of the police seeks to avoid these difficulties by submitting that section 22(2) of PACE provides what she calls clear guidance as to what articles “seized” in accordance with section 19 can be retained for, and this, she says, does not include allowing others to use DNA samples or DNA profiles. It would, she suggests, be bizarre if such samples could be disclosed for a purpose not provided for by the retention provisions.

 

 

 

  • The short answer to this, in my judgment, is two-fold. In the first place, the relevant materials have in fact been retained and, moreover, in circumstances where it is impossible to suggest that such retention has been improper, let alone unlawful. Secondly, the particular purposes specified in section 22(2) are explicitly said to be “without prejudice to the generality” of section 22(1), which permits retention “so long as is necessary in all the circumstances”.

 

 

 

  • In my judgment there is nothing in Part II of PACE or Part V of PACE to prevent my making the order Mr McCarthy seeks.

 

 

 

I don’t know the President personally, and have only come to know him through his judgments, but at this point, given that he has established that there is a very very clever and cunning and unique legal mechanism that can be used to achieve an outcome, I would bet most of my internal organs that he is about to go on and decide to exercise his discretion to use said mechanism.

The issues: a balancing exercise

 

  • Having got thus far in the analysis, the starting point is clear. There is no insuperable statutory obstacle to the order the guardian seeks. Nor is there any public policy or other insuperable obstacle created by the mere fact that the material sought is in the hands of the police: Marcel and others v Commissioner of Police of the Metropolis and others [1992] Ch 225. There is, therefore, no absolute bar. The exercise is accordingly the familiar one of balancing the various competing interests, both public and private.

 

 

 

  • I start with the obvious and compelling point that DNA, and the information derived from it, demands a high degree of protection and that any use of it without the subject’s consent requires the imposition of robust and effective safeguards. The decision of the Grand Chamber in Marper is eloquent on the point, and not just in the passages to which I have drawn specific attention. And I readily accept the point made by Ms Cook and Ms Broadfoot of how important it is that public confidence in the system for taking, storing and using DNA samples and profiles is maintained.

 

 

 

  • Ms Broadfoot identifies the following factors which, she submits, in the circumstances of the present case argue against my making the order Mr McCarthy seeks:

 

 

i) First, she says that disclosure here would undermine the integrity of the national DNA database. There is, for the reasons I have already explained, no question of any damage to the integrity of the information on the database. Her concern is with the potential loss of confidence if the public came to believe that samples provided for one purpose could be used for wholly different purpose, thus seriously undermining the ability to detect crime. Individuals might no longer be prepared to come forward. Part of the response to public concerns about the database is to ensure that it is kept confidential and seen to operate in the least invasive manner possible. This entails, she says, that the data is retained securely and that there are strictly observed limits as to who may use the data and for what purposes.

ii) Secondly, she submits that, as a matter of principle, information gathered and retained for one purpose (the detection and prevention of crime) should not be permitted to be used for a different purpose (proving paternity) absent express statutory provision to that effect. Any widening of those purposes should result only from the operation of the democratic processes.

iii) Thirdly, she submits that it is “highly significant” that the exceptions to what she calls the “blanket ban” in section 45 of the Human Tissue Act 2004 do not include testing for paternity purposes.

iv) Finally, she makes a ‘floodgates’ point, suggesting that success in this application would pave the way for “many” such further orders in a “range” of cases. She points to what she says is the “breadth” of the guardian’s submissions and suggests that it is very difficult to articulate a coherent set of principles which would govern the circumstances in which discretion should be exercised so that it is confined to a very limited pool of cases.

 

  • I see the force of all this, but these concerns have to be seen in context. The fact is that nothing which is here proposed offends any statutory prohibition and in that situation the principle in Marcel is significant. The fact is that I am not being asked to do anything with material provided voluntarily by anyone. The fact is that the order which Mr McCarthy seeks is very narrowly drawn and includes very clear limitations and safeguards. The fact is that granting the order in this very unusual case – unusual not because of the horrific circumstances of the mother’s murder but because no recourse of any kind is needed or sought to any Part V material – is not of itself going to open the floodgates. As Mr McCarthy says, it is almost impossible to see how anything more than a very small number of cases could result from an order of the kind sought in the circumstances of this case. The reality, as it seems to me, is that the floodgates argument here is an argument against ever making an order in any case, even where statute is not determinative.

 

 

 

  • Moreover, there are powerful countervailing arguments. In the first place there are the interests of the children, to which both the guardian and the local authority draw attention and which, they say, should be preferred in the circumstances. In addition to all the usual arguments based on a child’s right to know their paternity, one cannot ignore the enormous implications for these children of what happened to their mother. Their futures will be indelibly marked by it. They need to know if the man who murdered their mother, the man who they believe to be their father, is in truth their father. As Mr Matthew Stott on behalf of the local authority points out, because X is not named on their birth certificates, the local authority has at present sole parental responsibility for the children. Moreover, as he also points out, Hogg J has already, in making orders under section 21 of the Family Law Reform Act 1969, determined that it is in the interests of the children that the truth, whatever it may be, should out. I agree with Mr Stott that the material being sought is vitally important for the ongoing care planning for the children. I agree with him that in light of the circumstances of their mother’s death it is fundamentally important for the children to have the opportunity to understand their family history and ascertain their familial identity. It will, as he says, have an enormous impact on their emotional welfare, now and into the future. As Mr McCarthy asks rhetorically, how can the children’s life story work start, how can therapy or counselling be arranged, how is the children’s psychological integrity to be preserved, if the paternity issue is not resolved?

 

 

 

  • In these circumstances the balance, in my judgment, comes down in favour of the children. The criminal justice policy arguments are weighty, though in the circumstances of this case significantly less weighty than Ms Broadfoot would have me accept. The interests of the children are compelling. There are likely to be few other cases in which an order can sensibly be sought without having recourse – prohibited – to Part V material or material the use of which is prohibited by the Human Tissue Act 2004. The order I propose to make will be subject to stringent limitations and safeguards.

 

 

 

  • I emphasise that my decision is confined to the forensically unusual circumstances of this particular case. Every case where an application is made for access to DNA samples or profiles requires the most anxious scrutiny and an intense focus on the specific facts and circumstances of the particular case. Even if there is no statutory prohibition of what is sought, an order is never to be had just for the asking. There will be cases where the policy arguments put forward by Ms Broadfoot will be found to weigh heavier in the balance than I have found in this case – a case which is not merely forensically unusual as requiring no recourse to Part V material but one where the children’s claims are unusually compelling.

 

 

As the President points out, the issue will probably never come up again (much like our recent fun case about whether diplomatic immunity for personal affairs applies after death in office) but it makes the case particularly recherche for law buffs.