David Spencer v Carol Spencer and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 15 April 2016 |
| Neutral Citation | [2016] EWHC 851 (Fam) |
| Docket Number | Case No: PR15P00702 |
| Court | Family Division |
| Date | 15 April 2016 |
[2016] EWHC 851 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice Peter Jackson
Sitting at Manchester Civil Justice Centre
Case No: PR15P00702
James Kemp (instructed by TM Solicitors Ltd) for the Applicant
Michael Mylonas QC and Amy Street (instructed by Slater Gordon) for the Respondents
Hearing date: 14 March 2016; Judgment date: 15 April 2016
JUDGMENT:
Spencer v Anderson (Paternity Testing: Jurisdiction)
Introduction
These proceedings raise the issue of whether the Court can direct scientific testing of the DNA of a person who has died for the purpose of providing evidence of paternity.
The facts are unusual. David Spencer, who was born on 13 August 1986, has applied under Section 55A of the Family Law Act 1986 for a declaration that his father was the late William Anderson, who died intestate on 23 July 2012. The respondents to the proceedings are Mr Spencer's mother Carol Spencer, her former husband Darren Hall (who is named as Mr Spencer's father on his birth certificate), and the late Mr Anderson's mother, Valerie Anderson, who is the personal representative of his estate.
Mr Spencer now seeks a direction that a stored DNA sample extracted for medical purposes during Mr Anderson's lifetime should be tested alongside a sample of his own to establish whether or not he is Mr Anderson's son. The application is apparently unprecedented in this jurisdiction, though similar requests have been made in other countries. It is supported by Mrs Spencer and opposed by Mrs Anderson, Mr Hall remaining neutral. The arguments have been presented by Mr James Kemp on behalf of Mr Spencer and Mr Michael Mylonas QC and Ms Amy Street on behalf of Mrs Anderson.
My conclusions are that:
(1) There is no statutory power to direct post-mortem scientific testing to establish biological relationships.
(2) The High Court possesses the inherent power, to be exercised sparingly, to direct such testing in cases where the absence of a remedy would lead to injustice.
(3) In the present case testing should be directed.
This judgment is arranged in this way:
A. The background
B. The proceedings
C. Statutory provisions
(1) The Family Law Act 1986
(2) The Family Law Reform Act 1969
(3) The Human Tissue Act 2004
(4) The Human Rights Act 1998
D. First Issue: Does the FLRA 1969 apply?
E. Second Issue: Does the High Court have an inherent power to order testing?
F. Third Issue: If the Court has the power, should testing be ordered in this case?
A THE BACKGROUND
Mr Spencer's case, based on his mother's account, is that he was conceived in the course of a relationship between his mother (then Ms Potter) and Mr Anderson which ended when she was about three months pregnant. His mother then began a relationship with Mr Hall and they registered him as the child's father at birth, knowing that this was not the case. Recently, DNA testing has confirmed that Mr Hall is not Mr Spencer's father.
The relationship between Mr Spencer's mother and Mr Hall later broke down and his mother married a Mr Spencer. Thereafter, in 1996, when he was aged 9, David Spencer's surname was changed from Potter (his surname at birth) to Spencer.
There was no contact between Mr Spencer and Mr Anderson during Mr Anderson's lifetime and it is not clear from the evidence whether Mr Anderson knew of Mr Spencer's existence, though everyone lived in the same general area. Mr Spencer states that as a child he was told by his mother that his real father had moved away. He never made any attempt to trace his father. At some point Mr Spencer's mother named Mr Anderson, but it was not until 2013, when Mr Spencer was 26 and Mr Anderson deceased, that Mr Spencer sought to establish his paternity.
The means by which Mr Spencer now seeks scientific testing arose in this way. In 2006, Mr Anderson was diagnosed with bowel cancer and underwent treatment at Central Manchester University Hospital. Because of a family history of bowel cancer, a blood sample was taken and DNA was extracted from it. This was used for testing for two high risk genes, which were not found. The hospital retains a single DNA sample and no longer holds blood or tissues.
In 2010 and 2012, the hospital wrote to Mr Anderson enclosing a consent form regarding testing to allow recommendations to be made in relation to his siblings. He did not sign and return these forms.
Mr Anderson died of a heart attack on 23 July 2012. He did not leave a valid will and on 1 May 2013, Mrs Anderson became his personal representative.
Mr Spencer's case is that Mrs Anderson contacted him out of the blue in June 2013 to express her concern that Mr Anderson had died from a rare form of hereditary cancer and that in consequence Mr Spencer may be at risk and should take a DNA test. Having raised the issue, Mrs Anderson then progressively withdrew her co-operation.
Mrs Anderson's case is that Mrs Spencer contacted her out of the blue to announce that she was the mother of Mr Anderson's son and that Mr Spencer thereafter badgered her at a time when she was mourning the death of her son.
It is not necessary to resolve this conflict in the evidence, the known facts being sufficient for present purposes.
At all events,
(1) there is no reason to believe that Mr Spencer was aware of the history of bowel cancer in Mr Anderson's family before Mr Anderson's death, and
(2) the hospital states that Mrs Anderson contacted it in September 2013 to discuss paternity testing.
Further, in February 2015, Mrs Anderson gave Mr Spencer a handwritten letter to take to his GP. It read:
"Dear Doctor,
The question has arisen as to whether your patient David Spencer is the unknown son of the late William B Anderson who I am the mother of.
Since there is a history of colon cancer in the family, it is essential we know David's parentage. The Manchester Centre for Genetic Medicine at the University Hospital have agreed to see David Spencer to establish one way or the other as they hold DNA samples on my son. That is, David would be tested to see if he is at risk of bowel cancer and clarify paternity.
Under the NICE guidelines I am requesting that you refer David as soon as possible using the reference [number given]. The consultant genetic counsellor is [name, address and telephone number given].
Many thanks for your co-operation,
Yours sincerely,
V Anderson"
However, in April 2015, Mrs Anderson and one of her daughters contacted the hospital to request that the stored DNA sample should be destroyed.
In May 2015, Mr Spencer was seen by the hospital's genetic counsellor. She wrote to him after the consultation, saying that Mr Anderson had been diagnosed with bowel cancer at the age of 38 and that Mr Anderson's father and grandfather had both had the condition. This suggested that if Mr Spencer is Mr Anderson's son, he himself would have a 50% risk of inherited predisposition to bowel cancer, a condition known as Lynch Syndrome. Bowel screening by colonoscopy every two years was recommended and could dramatically reduce the risk of developing the disease. The counsellor asked to be informed of the outcome of any paternity testing.
A consultant surgeon has advised that the pattern of colonoscopy surveillance would not apply if Mr Spencer was unrelated to Mr Anderson and that the risks of colonoscopy are an approximately 1:1000 risk of bowel perforation.
The hospital takes a neutral stance and does not seek to participate in the proceedings. In a letter to Mr Anderson's sister in August 2015, the Chief Executive, stated the hospital's position:
"Your brother provided the sample on the understanding that it would be used for genetic testing in respect of hereditary/genetic conditions in relation to himself and for other family members, specifically in relation to potential bowel cancer. As the DNA sample does not come under the jurisdiction of the Human Tissue Act because… it does not contain human cells, we have been advised that we can only release his sample if we receive written consent from both Mrs Anderson (as your brother's next-of-kin) and from the putative son or on receipt of a court order. Otherwise, we will retain the DNA sample indefinitely, as is our usual practice."
It should be noted that the words "and for other family members" go further than the hospital's previous position, which is that the test was taken for Mr Anderson's own health benefit, with only the implicit possibility that the sample might be used for the medical benefit of other family members. It is nonetheless clear that the sample was not given or stored with any contemplation of, still less consent for, its use in paternity testing.
As appears below, the hospital has been asked to clarify the basis on which it retains the sample.
B THE PROCEEDINGS
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...
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