Z (Children), Re

The Family Court may order disclosure and limited use of DNA profiles held by the police where no statutory prohibition applies. The court must balance the competing private and public interests, giving DNA material a high degree of protection and imposing robust safeguards on any non-consensual use. The interests of children in establishing their paternity may prevail where the application is forensically unusual, does not depend on prohibited criminal-justice material, and is narrowly framed. Such orders are exceptional. Each application requires anxious scrutiny of its particular facts, the statutory scheme, the public interest in preserving confidence in forensic databases, and the proposed safeguards.

The application arose in ongoing care proceedings concerning young children whose mother had been murdered by X. X asserted that he was their father but refused DNA testing. The children’s guardian sought copies of DNA profiles derived from blood recovered at the crime scene and from the mother’s post-mortem sample. The proposed order excluded disclosure of samples, original profiles, profiles obtained under Part V of the Police and Criminal Evidence Act 1984, and identified individuals’ profiles other than the mother’s.

The issues were whether the proposed disclosure was prohibited by section 45 of the Human Tissue Act 2004 or section 63T of the Police and Criminal Evidence Act 1984, and, if not, whether the order should be made.

1. The application was granted. The court ordered disclosure of copies of the relevant DNA profiles, subject to anonymity, restricted purposes and return of the copies after the care proceedings and any appeal.

2. Section 45 of the Human Tissue Act 2004 did not apply. The proposed use did not satisfy the statutory criteria in section 45(1)(a), and the court was required to apply the language Parliament had enacted rather than extend the section by implication (paras 35–39).

3. Section 63T of the Police and Criminal Evidence Act 1984 did not prohibit the order. The crime-scene samples had been seized under Part II, not taken under Part V, and the proposed analysis did not require reference to any Part V sample. The post-mortem sample was likewise outside the relevant Part V categories. Part II did not prevent disclosure: section 22(2) was expressly without prejudice to the general power in section 22(1) to retain material as necessary in all the circumstances (paras 40–50).

4. There was consequently no absolute statutory or public-policy bar. The court had to balance the competing interests. DNA and information derived from it required a high degree of protection, and any non-consensual use required robust and effective safeguards. Relevant considerations included the integrity and public confidence in the national DNA system, statutory purpose limitations, the absence of a paternity exception in section 45, floodgates concerns, the children’s interest in knowing their paternity and the importance of resolving their familial identity for care planning and emotional welfare (paras 51–56).

5. The balance favoured the children. The decision was confined to the forensically unusual circumstances of the case. It did not establish that access to police-held DNA material should routinely be ordered merely because a family case required it; every application required intense scrutiny of its particular facts and safeguards (para 57).