In Spencer V Anderson 2016
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  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  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  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  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  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  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)  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  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)  P 119 and B (BR) v B (J)  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.
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.
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  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.