L (A Child)

In exercising the discretion to direct scientific paternity testing of a young child, the court should ordinarily permit the test unless satisfied that it would be adverse to that child’s interests. It need not first be satisfied that testing will positively benefit the child. This is the test under section 20, which must be kept distinct from the consent provisions in section 21 of the Family Law Reform Act 1969.

A direction may nevertheless be set aside where there is no adequate evidence to assess the vulnerable child’s psychological position or how the test and its implications should be explained. Testing which cannot assist imminent fact-finding, but may affect later welfare decisions, may properly await expert evidence and the welfare stage.

Care proceedings concerned D and G, children from the Ivory Coast. A fact-finding hearing had been listed to investigate serious injuries and other allegations. Doubts had also arisen about whether the father was G’s biological father.

The father lawfully refused to provide a DNA sample. On 15 June 2009, sitting in the Bristol County Court, Coleridge J directed DNA testing using samples from D and G under section 20 of the Family Law Reform Act 1969. D’s guardian appealed, contending that testing D was inappropriate and premature.

The central issue was the proper statutory test for directing a child’s sample and whether the order could stand without evidence addressing D’s vulnerability, the psychological consequences of testing, and the information that should be given to her.

Appeal allowed. Ward LJ, with whom Waller and Stanley Burnton LJJ agreed, discharged the direction requiring DNA samples from D and G.

1. Section 20 of the Family Law Reform Act 1969 gives the court a discretionary power to direct scientific testing where paternity falls to be determined. The judge had conflated that discretion with section 21, which regulates consent to the taking of samples after a section 20 direction. The applicable section 20 approach, derived from [1972] AC 24, was that testing of a young child should be permitted unless the court was satisfied that it would be against the child’s interests. The court need not be positively satisfied that the outcome would benefit the child.

2. Although Coleridge J had therefore stated the test too highly by asking whether testing was in D’s best interests, the Court of Appeal intervened for a separate and decisive reason. There was no evidence capable of resolving the unusually difficult question whether testing, and the way it would be explained to D, would adversely affect this particularly vulnerable child. Expert psychological advice was required before that assessment could properly be made.

3. The testing could not assist the forthcoming fact-finding hearing. Its possible relevance was to the later welfare stage, when decisions about the children’s futures would be made. It was premature to require D to participate before the facts were determined, consequential reports obtained, and she was better able to understand and decide whether to cooperate.

4. The application for testing was adjourned until after the fact-finding enquiry. Directions were to be given then for the necessary expert or other evidence to determine whether D’s interests precluded the test.

• Court of Appeal (Civil Division): Allowed D’s appeal and discharged the DNA-testing direction in [2009] EWCA Civ 1239.
• Bristol County Court (Coleridge J): On 15 June 2009, directed scientific testing of samples from D and G under section 20 of the Family Law Reform Act 1969.