Valerie Anderson (Personal Representative of William Brian Anderson Deceased) v David Spencer
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Simon,Lord Justice McFarlane |
| Judgment Date | 07 February 2018 |
| Neutral Citation | [2018] EWCA Civ 100 |
| Docket Number | Case No: B4/2016/2164 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2018 |
Neutral Citation Number: [2018] EWCA Civ 100
Lord Justice McFarlane
Lady Justice King
and
Lord Justice Simon
Case No: B4/2016/2164
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(FAMILY DIVISION)
Mr Justice Peter Jackson
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant did not appear and was not represented
James Kemp (instructed by TM Solicitors) for the Respondent
Hearing date: 10 October 2017
Judgment Approved
This is an appeal against an order made under the inherent jurisdiction of the High Court on 9 May 2016 by Mr Justice Peter Jackson (as he then was). The order now challenged directed that DNA extracted from a sample provided by William Anderson (deceased) and now held by Central Manchester University Hospitals NHS Foundation Trust, should be tested against a bodily sample to be taken from the Respondent, David Spencer. The purpose of the order is to establish whether Mr Anderson was or was not the Respondent's biological father.
The application, made by the Respondent, was resisted by Valerie Anderson, the Appellant; the mother and, the then, personal representative of the deceased. The Appellant has informed the court that some months after the trial, a valid will providing for her to be the sole beneficiary of Mr Anderson was discovered and probate was, in due course, granted. Whilst the Appellant thereafter became the Executor under the will, none of the issues with which the court were concerned are affected by that change in status and I will continue to refer to the Appellant as the personal representative of Mr Anderson, that having being the position at the date of the trial.
The Appellant has not in the event pursued her appeal, her legal team have come off the record and a late application made by her to adjourn this hearing was refused for the reasons given by McFarlane LJ at the hearing. Prior to the position becoming apparent, a full skeleton argument had been prepared and submitted on the Appellant's behalf by Mr Michael Mylonas QC. Notwithstanding the Appellant's failure to attend, given that the order in question represented a novel use of the inherent jurisdiction, Mr Kemp, on behalf of the Respondent and at the Court's request, responded orally to the written arguments filed by Mr Mylonas and answered a number of supplementary questions put to him by the court with skill and economy.
In addition an order was made that a transcript of the appeal hearing was to be obtained and served on the Appellant with leave for her to make submissions in writing, with regard to any additional arguments that she would have raised in response to the Respondent's skeleton argument and oral representations in court. Those written submissions were received on 24 January 2018 in accordance with the order a little under a month from the date upon which the Appellant was served with the transcript.
The issue before the court is whether the judge fell into error in finding that he had the jurisdiction, or power, to make an order under the inherent jurisdiction and, if he had such jurisdiction, whether, on the facts, the judge had been wrong in exercising it in the way in which he did.
Background
The background is set out in the judge's judgment and can be found at [2016] EWHC 851 (Fam), the key features can be summarised for the purposes of the appeal.
The Respondent's mother had a relationship with Mr Anderson, which came to an end prior to the birth of the Respondent. There was no contact between the Respondent and Mr Anderson during the latter's lifetime. Mr Anderson died (it was believed) intestate following a heart attack on 23 July 2012; his mother, the Appellant, became his personal representative.
In 2006, when aged 38, Mr Anderson was diagnosed with bowel cancer. The type of cancer was a condition known as Lynch Syndrome which carried a 50% risk of inherited predisposition; indeed both Mr Anderson's father and grandfather had had the condition. Because of the concerning family history, a blood sample was taken from Mr Anderson and DNA extracted from it. The hospital retains a single DNA sample but no blood or tissues.
In June 2013, nearly a year after the death of Mr Anderson, there was contact between the Appellant and the Respondent. The Respondent's case was that he was contacted by the Appellant who warned him of the risk of his having inherited Lynch Syndrome and advised him to have a DNA test. The Appellant's case is that it was the Respondent who had initiated contact, ‘badgering’ her at the time of her bereavement.
Notwithstanding this conflict, it is not in dispute that, in February 2015, the Appellant wrote to the Respondent's GP setting out the history, informing the GP that the hospital held DNA samples from Mr Anderson and asking that the Respondent be referred to the hospital's genetic team in order to see if he was at “risk of bowel cancer and to clarify paternity”.
Three months later, in April 2015, the Appellant contacted the hospital, now asking that the DNA sample be destroyed. Notwithstanding this volte face, the Respondent saw the genetic counsellor at the hospital and was advised of the risks to him of having inherited the syndrome. The Respondent was told that in the event that it was determined that Mr Anderson had been his father, then he, should have screening by way of colonoscopy every two years. There was however now a stalemate which could not be resolved, the hospital feeling unable to carry out the paternity testing absent the consent of the Appellant.
In her written submissions the Appellant takes issue with the facts. She reiterates her version of the events as told to the judge which had led up to the making of the application by the Respondent. The judge did not find it necessary to resolve that dispute. For my part, whilst understanding that this is a highly emotive issue for both parties, I entirely agree with the approach of the judge and it is not for this court to go behind his view that it was unnecessary to make findings in this regard or in relation to the letter which had undoubtedly been written by the Appellant to the Respondent's GP in February 2015.
The Appellant further seeks to undermine the basis of the application itself; she suggests that the evidence given by the Central Manchester University Hospital to the court at first instance in relation to the desirability of there being genetic testing is inaccurate. In her written document she sets out her understanding of the relevant Guidance and links it to her account of the family history. She concludes by submitting: “therefore the Appellant does not consider the Respondent to be a vulnerable adult (medical) or deemed to be at risk”.
Strictly speaking such assertions should have been the subject of an application to adduce additional evidence. In my judgment any such application would have been refused on Ladd v Marshall [1954] 1 WLR 1489, principles. The judge, having had evidence on this critical issue from the hospital, and his conclusions not having been the subject of appeal, it seems to me that only the most compelling expert evidence (not available at the date of the trial) would now be considered admissible by this court. I accordingly proceed on the basis of the medical evidence at the trial, namely that genetic testing is desirable for the reasons given.
On 18 September 2015 the Respondent applied under s.55A Family Law Act 1986 for a declaration of paternity. It was within these proceedings that the Respondent sought a direction which would enable him to have access to the DNA sample retained by the hospital, in order scientifically to prove whether Mr Anderson was or was not his biological father.
The hospital holding the DNA sample has taken a neutral stance in the proceedings. At the request of the judge, the hospital clarified the basis upon which it holds the DNA sample. In a letter dated August 2015 written to Mr Anderson's sister by the hospital, they said they would release the DNA sample only with the consent of both the Appellant and the Respondent, or on receipt of a court order.
The judge recorded [34], that the hospital intends to retain the sample for at least 30 years in accordance with guidance given in: The retention and storage of pathological records and specimens: Royal College of Pathologists and the Institute of Biomedical Science, 5 th Ed, April 2015 (para 139). This guidance recommends that DNA samples are retained for at least 30 years if ‘ needed for family studies in those with genetic disorders’. The judge referred also to advice to the same effect found in further guidance: Consent and confidentiality in clinical genetic practice: Guidance on genetic testing and sharing genetic information: Joint Committee on Medical Genetics, 2 nd ed, 2011 (at para 5.4). The trust, the judge recorded, had also explained that there is no obligation to retain the sample after 30 years.
Grounds of Appeal
The grounds of appeal can be summarised as follows:
i) Ground 1 states that the judge erred in law in concluding that the High Court had the jurisdiction or power to make the order under its inherent jurisdiction.
ii) Grounds 2 and 3 state that the judge failed to address the Appellant's Human Rights arguments in his judgment and, in any event, the judge had acted unlawfully in making an order which was incompatible with the Appellant's Article 8(1) ECHR rights. Interference with those Article 8(1) rights could not be justified as the purported use of the inherent jurisdiction was “novel and unpredictable” rather than “clear and accessible” and thus not ‘ in accordance...
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