LG v DK
| Jurisdiction | England & Wales |
| Judge | Sir Nicholas Wall,SIR NICHOLAS WALL, THE PRESIDENT OF THE FAMILY DIVISION |
| Judgment Date | 05 October 2011 |
| Neutral Citation | [2011] EWHC 2453 (COP) |
| Court | Court of Protection |
| Date | 05 October 2011 |
| Docket Number | Case No: COP11562311 |
[2011] EWHC 2453 (COP)
IN THE HIGH COURT OF JUSTICE
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Nicholas Wall, The President of the Family Division
Sitting as President of the Court of Protection
Case No: COP11562311
Luke Harris (instructed by Thackray Williams LLP) for the Deputy Applicant
Alexander Ruck Keene (instructed by the Official Solicitor) for the Respondent
Approved Judgment
Hearing date: 23 August 2011
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 5 October 2011. It consists of 15 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
DK (as I shall call him) is 84. Unfortunately, he suffers from dementia, and this judgment is being written on the basis that DK is not able to manage his affairs. He lives in a Nursing Home. LG, who is unrelated to him, and who is the senior partner in a firm of solicitors, is his Deputy for his property and affairs in the Court of Protection (COP). She has acted in that capacity since 15 July 2008.
During the course of looking after his affairs, LG came across a reference to a daughter. She therefore asks the court to decide whether or not it would be in DK's best interests to provide a bodily sample for DNA purposes in order to decide whether or not BJ (as I shall call her) is his daughter. This is the only issue in the proceedings.
The Official Solicitor, who represents DK in these proceedings, has doubts about the appropriateness of such an order in the context of the current proceedings, and on 23 August 2011 invited me to adjourn the proceedings in order to enable LG to make an application that a statutory will be executed for DK. That application was not opposed by counsel for LG, and I acceded to it. This judgment explains my reasons for doing so.
I wish to make it clear at the outset of this judgment that BJ, who is not a party to these proceedings, and who is a married woman in her early fifties with children of her own, is not motivated by any mercenary considerations. She contacted DK prior to the onset of his dementia, but lost touch with him when he became ill. I am entirely satisfied that she wishes to establish that DK is her father so that (1) the fact is established; and (2) so far as is possible, she can maintain a father / daughter relationship with him. She is, of course, willing to provide a bodily sample for DNA purposes.
The facts
For present purposes, these have, in effect, already been stated. One or two matters can, however, be added. DK is not named on BJ's birth certificate. Her evidence is that her mother and DK had a brief relationship in 1959, as a result of which she was conceived. Her mother is still alive, but does not wish to be involved, and BJ does not wish to upset her. BJ's evidence is that she was brought up to understand that DK was her absent father: indeed, her mother changed her surname by deed poll to K, and when BJ herself married, she gave DK's name as her father on her marriage certificate. BJ's youngest son also bears the name K as one of his forenames.
DK's mental state
DK has been seen by a consultant in old age psychiatry Dr. C, on a yearly basis since 2003. In October 2007, Dr. C's opinion was that, whilst DK had "significantly impaired intellectual function" and had required an emergency admission to hospital in November 2007, he nonetheless at that date retained "testamentary capacity" since he was aware of his estate in broad terms and acknowledged that he would like his assets to pass to his family. On 9 February 2011, however, Dr. C assessed DK as unable to decide whether he could give fully informed consent to cooperating with a DNA test.
When Dr. C assessed DK again on 18 and 22 July 2011 she formed the view that he no longer had the capacity to make a will but considered that "he was able to understand the matters I raised with him in these proceedings" (these included the suggestion that he had a daughter and that he should undergo a DNA test). She added that DK was able furthermore to "retain their implications such that he spontaneously enquired of me how he could—as he put it—"make an association with this lady".
In these circumstances, the Official Solicitor proposes to invite Dr. C to attend the final hearing for cross-examination since it would appear that her latest conclusion (as set out in paragraph 7 above) is inconsistent with her earlier views.
The position to date
The case has been before the court on three occasions. BJ was initially made a party to the proceedings, but that part of the court's order was discharged on 11 July 2011. She was, however, given permission to intervene and give evidence.
BJ has given full disclosure of her correspondence with DK prior to the onset of his dementia. This reveals that they met on one occasion. The correspondence shows that DK was not willing to give a DNA sample. On 23 September 2001 he wrote to BJ:—
"So finally now you have put the DNA ball back in my court what will it achieve?
If I am right, sadly you will not have met your father. If I am wrong, it means I will regret a 40 year hole in my life of which I was not aware.
Either way, one of us is going to be hurt……"
The question of law which arises can best, I think, be formulated in the following way: under what circumstances is it appropriate for the court to order the taking of a bodily sample from a person who lacks the capacity to consent to such a sample being taken?
The relevant statutory provisions
Before setting out the Official Solicitor's argument, it seems to me sensible to set out the relevant statutory provisions. I start with sections 20 and 21 of the Family Law Reform Act 1969 in its amended form (the 1969 Act):—
"20 Power of court to require use of scientific tests
(1) In any civil proceedings in which the parentage of any person falls to be determined, the court may, either of its own motion or on an application by any party to the proceedings, give a direction—
(a) for the use of scientific tests to ascertain whether such tests show that a party to the proceedings is or is not the father or mother of that person; and
(b) for the taking, within a period specified in the direction, of bodily samples from all or any of the following, namely, that person, any party who is alleged to be the father or mother of that person and any other party to the proceedings;
and the court may at any time revoke or vary a direction previously given by it under this subsection.
…
21 Consents, etc, required for taking of bodily samples
(1) Subject to the provisions of subsections (3) and (4) of this section, a bodily sample which is required to be taken from any person for the purpose of giving effect to a direction under section 20 of this Act shall not be taken from that person except with his consent.
(2) The consent of a minor who has attained the age of sixteen years to the taking from himself of a bodily sample shall be as effective as it would be if he were of full age; and where a minor has by virtue of this subsection given an effective consent to the taking of a bodily sample it shall not be necessary to obtain any consent for it from any other person.
(3) A bodily sample may be taken from a person under the age of sixteen years, not being such a person as is referred to in subsection (4) of this section,
(a) if the person who has the care and control of him consents; or
(b) where that person does not consent, if the court considers that it would be in his best interests for the sample to be taken.
(4) A bodily sample may be taken from a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to give his consent, if consent is given by the court giving the direction under section 20 or by—
(a) a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or
(b) a deputy appointed, or any other person authorised, by the Court of Protection,
with power in that respect."
The relevant sections of the Mental Capacity Act 2005 (the 2005 Act) seem to me to be the following:—
"1. The principles
……….
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action…….
4. Best interests
(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—
(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider—
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is...
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