Re F (Children) (DNA Evidence)
| Jurisdiction | England & Wales |
| Judge | MR ANTHONY HAYDEN QC,Mr Anthony Hayden QC |
| Judgment Date | 20 December 2007 |
| Neutral Citation | [2007] EWHC 3235 (Fam) |
| Court | Family Division |
| Docket Number | Case No: MA06C01125 |
| Date | 20 December 2007 |
[2007] EWHC 3235 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Manchester Civil Justice Centre
Crown Square
Manchester M60 9DJ
Mr Anthony Hayden Qc
Sitting as a Deputy High Court Judge
Case No: MA06C01125
Miss Alison Woodward (instructed by Local Authority Legal Department) for the Local Authority
Miss Elena Waddell (instructed by Messrs Glaisyers Solicitors) for the First Respondent
Miss Samantha Birtles (instructed by Messrs Harry Boodhoo & Co Solicitors) for the Second Respondent
Miss Kate Bramall (instructed by Lomax Geddes & Co Solicitors) for the Third Respondent
Mr Nick Hodson (instructed by Messrs Stephensons Solicitors) for the Fourth Respondent
Miss Kath Koral (instructed by Messrs Green & Co Solicitors) for the Fifth Respondent
Mr Christopher Cook (instructed by William Holden Cooklin Gibbons LLP) for the Fifth Respondent
Approved Judgment
Hearing date: 16 October 2007
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 public on 20 December 2007. It consists of 20 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.
Background:
I have been concerned in this case with the welfare of 8 children. On 21st December 2006, following a 15 day fact finding hearing, in which evidence was taken in two different languages, I found that one of the children had been subjected to significant physical, sexual and emotional abuse. I was also able to identify the perpetrators of those assaults. A transcript of the judgment has been handed down to the parties. I address the background here, in summary format only, to give some context to the issues that fall to be considered and which have resonance beyond the facts of this case. At that earlier hearing it was necessary to investigate in some detail the dynamics of the family. There were a number of adults involved in the children's care and the children moved readily between two separate households. One of the children, for rather complex reasons, gave an account of her early life and her country of origin which was inconsistent with the account given by the adults. Some of the older children were also uncertain about their parentage.
At an early stage of the investigations in this case the court requested the Home Office files and confirmation of the parties' immigration status. The response received was that the files had been lost and were unlikely to be recovered. Fortunately and largely due to the local authority's perseverance, they were eventually located in a local Home Office Immigration Department. Those files enabled me to ascertain the nationality of each of the parties.
The transcript of the court's findings were disclosed to the Crown Court where there were concurrent criminal proceedings. On the day of the Crown Court trial each of the adults pleaded guilty to amended indictments. Those guilty pleas were followed by a broad acceptance by them of the findings of this court. The social services are satisfied that the perpetrator of the sexual abuse is permanently excluded from the family. He was not a family member. As the assessment of the family has progressed it has become clear that there is real prospect of reunification for most of the children to their parents' care, the final decisions have yet to be taken.
Having identified the parties' nationality, a factual substratum as to what had occurred and clarified something of the family dynamics, a further important issue remained outstanding. It was not clear whether and to what extent, each of the children were related to each other or who their respective parents might be. Accordingly, I agreed with the unanimous applications by the advocates that DNA testing be ordered. I think it is fair to say that the confidence in, and reliance placed upon DNA testing in the family justice system, is such that there was an expectation that these issues could be speedily and vigilantly resolved. In the event, that proved not to be the case. The experience of this hearing has been to underscore the need for greater clarity in relation to the terms of instruction to DNA experts, particularly where inter-sibling relationships are being analysed, as opposed to relatively straightforward paternity testing. It has also served to be a timely reminder of the importance of identifying the jurisdictional route by which such tests are ordered (for reasons which I will identify below) and the need to ensure that suitably approved specialists are instructed. In the light of this, each of the parties has submitted that this is a judgment which should be delivered in open court in order to minimise the risk of future confusion or potential error in other cases and because it might well be of interest to the wider public. I agree with those submissions and endorse the reasoning upon which they are based. Perhaps predictably, however, there is resistance for differing reasons to any individual or individual company being named in the judgment. I am bound to say that I have found some of those objections to have been of varying cogency and weight. I have nonetheless looked at the arguments in turn and, as the judgment progresses, it will become obvious that I have declined to name either the children or the adult parties. Their identities have no relevance to the issues being explored. I have also declined to name the relevant local authority, for reasons which relate exclusively to the welfare of the children. I have, however, found it necessary to identify the DNA testing companies and, where relevant, the Directors of those companies. To fail to do so would, in the circumstances of this case, be both illogical and defeat the identified objectives of an open court judgment, which all parties agree is needed. I will return to the more detailed reasoning in forming these decisions later in the judgment. I turn now to the difficulties encountered with the DNA evidence.
On the 6th September 2006 I made a direction facilitating the DNA testing of the adults and the children. The Order also provided for the cross-referencing of the children's testing in order to identify the sibling relationships. The Order did not specify which company. The solicitor for the children was charged with the responsibility for making the arrangements and he identified a company called “DNA Diagnostics” to undertake the work. The Children's solicitor, an experienced practitioner, whose assistance in this aspect of the case has been extremely helpful, selected the company because he had instructed them in previous cases and knew them to regularly undertake reports for the courts.
I was told that DNA Diagnostics would usually accept instructions by way of completion of their own pro-forma document. The complications of this case properly led Mr Hodson to send a comprehensive letter of instruction which reflected my Order of the 6th September 2006. By the 25th October it was clear that the lawyers were having difficulties interpreting the results that DNA Diagnostics had by then provided. In an attempt to assist, I made a further Order clarifying the need for cross-referencing the children's test results with the adults and any putative fathers. By November, two putative fathers had been identified and located and Orders were made to specifically facilitate their testing. It is unnecessary to recite the complex specifics of the DNA results, but it is sufficient to say that some of the results were challenged by the adult parties. It was agreed that the matter should proceed by way of Mr Hodson, the lead solicitor, making some enquiries of DNA Diagnostics and informing them of the challenge to their conclusions. One of the possibilities advanced by the adult parties was that the samples had been mixed up. In due course it was necessary for me to invite the Director of the company, Mr David Thomas, to attend and to be represented, if he wished. Wisely, he secured the services of Mr Cook, experienced Counsel specialising in Chancery and Commercial Litigation. Mr Cook has, if I may say so, represented his client with conspicuous skill and sound judgment. In a statement dated the 22nd May 2007, Mr Thomas gave his account of what unfolded when he began to respond to Mr Hodson's enquiries:
“By the morning of the 19th March 07, our Customer Care Team had been made aware that the tests results were being challenged. They had become aware (as we all had at this time) that efforts to accurately cross-reference all the photographs to all the individuals sampled was proving impossible. As a result, Customer Care proactively began to make arrangements to conduct re-tests.
Shortly after that we received a 'phone call from Mr Hodson expressing considerable concern that we had made efforts to arrange re-testing. In light of this we immediately ceased all effects to arrange re-tests and confirmed this to Mr Hodson by way of email at 15.01 on the 19th March 06”
I share Mr Hodson's concern that on discovering the deficiencies in their system, Mr Thomas's response, without any reference to the court, the Guardian or the local authority, was to instruct a member of his staff to travel to the children's foster home and re-test them. One of the foster carers was bewildered to be faced with the...
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Subject Index
...(1993) 108DLR (4th) 32(SCC) . . 276,280Evans vR [2007] HCA59 . . . . . . . . . . . . . . . . . . . 167F (Children) (DNA Evidence), Re [2007] EWHC3235 (Fam). . . . . . . . . . . . . . . . . . . . . . . . . . . 263Fitzgerald vDPP [2003] 3IR 247 . . . . . . . . . . . . 210Folkes v Chadd (1782)......
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