Z (Children)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 18 June 2014 |
| Neutral Citation | [2014] EWHC 1999 (Fam) |
| Docket Number | Case No: IL13C00895 |
| Court | Family Division |
| Date | 18 June 2014 |
[2014] EWHC 1999 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: IL13C00895
Mr Roger McCarthy QC and Mr Neil Shah (instructed by T V Edwards) for the children's guardian
Mr Matthew Stott (instructed by local authority solicitor) for the local authority
Ms Rebecca Mitchell (instructed by Sternberg Reed) for the children's alleged father
Ms Tina Cook QC and Ms Martha Gray (instructed by Directorate of Legal Services) for the Metropolitan Police Service
Ms Samantha Broadfoot (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department
Hearing date: 20 May 2014
Sir James Munby, President of the Family Division:
I have before me an application which arises in the context of ongoing care proceedings relating to some young children. It concerns the question of whether or not X, as I shall refer to him, is, as he asserts, the father of the children. The question arises because X, despite his assertion, refuses to submit to DNA testing.
The question arises in the most appalling circumstances: X murdered the children's mother, in particularly horrible circumstances. He is serving a sentence of life imprisonment, with a long minimum term. Whatever role it might be thought that X should have in these children's lives – a matter with which I am not concerned – the issue of his paternity goes also to the question of what role his wider family should have.
I shall return in due course to examine the facts in a little more detail and to identify precisely what relief is being sought. First, however, it is convenient to consider the legal framework.
The legal framework
The issue I have to determine, which is important and thus far unresolved, lies at a number of intersections. First, there is the intersection between the conflicting rights and interests of X and of the children. Secondly, there is the intersection between the conflicting rights and interests of X and of the public authorities responsible for his arrest and prosecution. Thirdly, there is the consequential intersection between the family justice system and the criminal justice system. And, fourthly, there is, as we shall see, the intersection between Part II and Part V of the Police and Criminal Evidence Act 1984 as amended (PACE). If it is the last of these which is ultimately determinative of the question I have to decide it is necessary first to consider the others.
It is convenient to start with the rights and interests of the children. They have a right (I put the matter descriptively rather than definitively) to know who their father is. That has long been recognised in our domestic law. In S v McC (Otherwise S) and M (DS Intervener), W v W [1972] AC 24, 57, 59, Lord Hodson said that:
"The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth … it must surely be in the best interests of the child in most cases that paternity doubts should be resolved on the best evidence, and, as in adoption, the child should be told the truth as soon as possible."
In In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 106, Ward LJ said, apropos paternity:
"every child has a right to know the truth unless his welfare clearly justifies the cover-up."
It is recognised in Strasbourg law as an ingredient of the rights protected by Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36, [1990] 1 FLR 167, Mikulic v Croatia (2002) 11 BHRC 689, [2002] 1 FCR 720. It is also recognised in Articles 7 and 8 of the United Nations Convention on the Rights of the Child.
From the children's perspective their interests are best served by the ascertainment of the truth, whatever that truth may be. As I said in Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, para 13(vii):
"the children … have a direct and important interest … in ensuring that the truth, whatever it may be, comes out. As they grow older they will need to know, if this is the case, and however painful it may be, that their father is a murderer … In this as in other respects, better for the children that the truth, whatever it may be, comes out."
X, on the other hand has the right (again I put the matter descriptively rather than definitively) to keep his medical and genetic data confidential. That has long been recognised in our domestic law. It is also recognised in Strasbourg law as an ingredient of the rights protected by Article 8, indeed, a "vital principle" of "fundamental importance": see Z v Finland (1998) 25 EHRR 371, para 95, and MS v Sweden (1999) 28 EHRR 313, para 41. Moreover, if there is to be disclosure of such data which entails an interference with the right to respect for private life, then that interference will be justified only if there are what in Z v Finland, para 103, the Court referred to as "effective and adequate safeguards against abuse". What those safeguards should be will, no doubt, depend upon the particular circumstances.
In the specific context of DNA samples and profiles the Strasbourg Court emphasised in S and Marper v United Kingdom (2008) 48 EHRR 50 paras 70–75, the highly personal nature of such material, the sensitivity of the substantial amounts of unique personal data contained in such material, and the possibility, bearing in mind the rapid pace of developments in the field of genetics and information technology, that genetic information might in future be deployed in novel ways or in a manner which cannot be anticipated with precision today. The Court described DNA material as being among the special categories of sensitive data attracting a heightened level of protection.
In domestic law the balance between these various interests is struck in different ways. Where paternity is in issue in a family court, the balance is defined by Part III of the Family Law Reform Act 1969, a statutory scheme which abrogates any power to direct the taking of a sample under the inherent jurisdiction: In re O (A Minor) (Blood Tests: Constraint), In re J (A Minor) [2000] Fam 139, 151. Unless he is himself a child, the father cannot be compelled to provide a DNA sample: see section 21(1). The only remedy for such a refusal is provided by section 23(1), which enables the court to "draw such inferences, if any, from that fact as appear proper in the circumstances." It is X's refusal to give his consent in accordance with section 21(1) that has given rise to the present application.
It is clear from the illuminating account of the history set out by Ward LJ in In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 98–101, that the policy underlying Part III of the 1969 Act had little if anything to do with the protection of personal medical data (let alone with DNA, the unforeseen forensic use of which in 1969 still lay in an unimagined future). Rather the policy derived from the undoubted fact that, at common law, the process of taking a blood sample without consent involves an attack on the integrity of the individual's body – an assault – and the view of the Law Commission in its 1968 Report on Blood Tests and the Proof of Paternity in Civil Proceedings that it would not be acceptable to public opinion in general or to the medical profession in particular to exert physical compulsion in order to obtain blood samples.
In the context of the criminal justice system the balance is struck very differently. Part V of PACE enables DNA samples to be taken in certain circumstances without consent but provides stringent safeguards in relation to their use. Specifically, Part V prohibits use of such samples except as specifically permitted by Part V. I shall return to the relevant provisions of PACE below.
Where Part V of PACE prevents the use of a DNA sample in circumstances where the Family Court would wish to have access to that sample, or information derived from it, in a case where paternity is in issue, PACE trumps the needs of the Family Court. Neither the Family Court, nor the High Court in exercise of its inherent jurisdiction, can order the release or use of DNA material in circumstances prohibited by PACE: see Lambeth London Borough v S, C, V and J (by his Guardian) [2006] EWHC 326 (Fam), [2007] 1 FLR 152, and Lewisham London Borough Council v D (Police Disclosure of DNA sample to local authority) [2010] EWHC 1239 (Fam), [2011] 1 FLR 908.
In the first of these cases, Ryder J as he then was said (para 44):
"the use of retained DNA samples for any purpose other than that related to the specified uses in the Act would be contrary to the clear wording of the Act and inconsistent with the public policy that underpins the Act. Furthermore … the prohibition on other uses is a proportionate interference having regard to that public policy."
In the other case, Mr Stephen Cobb QC as he then was said (para 43):
"I cannot treat the children's welfare as paramount in reaching the decision in this case; it is not in fact even a factor which can affect my decision".
I respectfully agree. True it is that both those decisions related to a previous version of PACE which did not include various amendments which are now in force, and on the basis of which I must decide the present case, but the principle recognised and applied by both Ryder J and Mr Cobb is still as good now as it was then. All turns on the relevant provisions of PACE.
I note at this point that the use of DNA material is also regulated by the Human Tissue Act 2004, to which I will return in due course.
Part II of PACE relates to powers of entry,...
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