F (Children)

Orders for DNA testing in family proceedings must be made under the Family Law Reform Act 1969. The court must use a laboratory on the Ministry of Justice Accredited List, and only appropriately accredited laboratories may undertake court-directed testing. The court’s inherent jurisdiction cannot be used to circumvent that statutory scheme.

Experts must identify uncertainty, clarify ambiguous instructions and draw relevant results to the court’s attention, even where those matters fall outside the precise hypothesis posed by the instructing solicitor. DNA reports should explain likelihood ratios and their limitations in accessible terms.

Publicity applications require an independent proportionality assessment under Articles 8 and 10. Where serious administrative failings affect the reliability of genetic testing, the public interest and the Article 8 rights of potentially affected persons may justify identifying the testing company and its director.

The judgment arose from care proceedings concerning eight children whose parentage and sibling relationships were uncertain. The court had previously ordered DNA testing. Problems then emerged concerning the identification and storage of samples, the interpretation of sibling testing and the conduct of the testing company, DNA Diagnostics.

Further testing by accredited laboratories resolved the apparent conflict in the results. The court considered the statutory route for ordering DNA tests, the duties of DNA experts, the accreditation requirements applicable to laboratories, and applications concerning anonymity and delivery of the judgment in open court.

The central issues were whether the original testing had been lawfully commissioned, what safeguards should govern DNA evidence in family proceedings, and whether the company and its director should be identified.

1. Statutory route. The court held that the only route by which the Family Court may order DNA samples for the purpose of establishing parentage or family connections is Part 3 of the Family Law Reform Act 1969, particularly section 20. Section 38(6) of the Children Act 1989 was not apt because obtaining a genetic sample is not medical or psychiatric examination or assessment of a child.
2. Accreditation. Section 1A required a party directed to undergo paternity testing to use a laboratory on the Ministry of Justice Accredited List. The court’s inherent jurisdiction could not be used to avoid those requirements. DNA Diagnostics was not accredited and ought not to have been instructed. The court’s conclusion was reinforced by the company’s inadequate procedures for sample identification, data storage and privacy.
3. Expert evidence. DNA experts owe their overriding duty to the court. Instructions must identify the relationships and hypotheses to be tested, including possible unrelatedness. An expert must clarify ambiguity and disclose results relevant to the case, even if they do not answer the precise question initially framed. Reports must explain likelihood ratios, uncertainty and the limitations of expressions such as good evidence.
4. Publicity and anonymity. The anonymity protections in section 97(2) of the Children Act 1989 required the children, adults and local authority to remain unidentified. The court nevertheless balanced the competing Article 8 and Article 10 rights. The rights of persons potentially affected by unreliable testing, and the public interest in confidence in the family justice system, outweighed the company director’s asserted privacy and reputational interests. The company and its director were therefore identified.
5. The court accepted undertakings concerning future conduct. Breach could result in the usual potential custodial sanction.