Goncharova v Zolotova & Ors

The High Court may assist foreign civil proceedings by ordering the release and transfer of physical samples for forensic testing where the statutory requirements for obtaining evidence are met. A foreign court’s order may constitute a request even if it is not in the precise form required by the Hague Convention, provided it sufficiently identifies the evidence and the assistance sought. The court should adopt a pragmatic approach consistent with the governing statute and international comity. Alternatively, interim relief may be granted in support of foreign proceedings where the relief would have been available had the substantive proceedings been brought in England and Wales, and foreign proceedings do not make relief inexpedient. Consent requirements under the Human Tissue Act 2004 do not prevent court-ordered DNA testing in these circumstances.

Ms Goncharova applied for an order permitting the Westminster Coroner to release blood and other samples taken from the body of Mr Kakha Bendukidze for DNA testing in Russia. She claimed to be his daughter and was involved in Russian and Georgian proceedings concerning paternity and succession to his estate.

The Gagarinsky District Court in Moscow had ordered forensic molecular-genetic testing by the Bureau of Forensic Medical Examination and directed that the samples be obtained from the Westminster Coroner. Ms Zolotova, Mr Bendukidze’s widow, opposed the application, relying on concerns about testing in Russia, the Human Tissue Act 2004, existing probate proceedings and the alleged inadequacy of the Russian order.

The central issues were whether relief was available under section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 and, alternatively, under section 25 of the Civil Jurisdiction and Judgments Act 1982.

1. Relief under the 1975 Act. The application concerned the obtaining of evidence. The DNA results depended on the original samples, and transferring them to Russia for testing was necessary for the evidence to be obtained for the Russian proceedings.
2. The Russian court’s order was a request within section 9 of the Evidence (Proceedings in Other Jurisdictions) Act 1975. It identified the samples, the proposed testing, the laboratory and the steps required. It was unnecessary for the request to be a Hague Convention-compliant letter of request or to be directed initially to the central authority. The court adopted a pragmatic approach, consistent with international comity and the need to minimise delay, applying the approach described in Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] QB 547.
3. The statutory comparison required by section 2(3) was satisfied. If the paternity proceedings had been in England, the High Court could have ordered DNA testing under its civil procedural and family-law powers. The fact that the samples would be tested abroad did not prevent the order.
4. The Human Tissue Act 2004 was not a bar. Although the samples constituted relevant material and the widow was treated as the person able to give qualifying consent, court-ordered testing in proceedings determining parentage would not be unlawful. The alleged religious and scientific objections were not accepted as genuine reasons to withhold consent.
5. Alternatively, section 25 of the Civil Jurisdiction and Judgments Act 1982 conferred a broad power to grant interim relief in support of the Russian proceedings. The court would have ordered testing if the substantive proceedings had been domestic, and the foreign location made the relief highly expedient rather than inexpedient. The application succeeded. An order was to be made for the release of one half of the samples for testing in Russia, with the precise mechanics, timing and ancillary matters to be settled.

Not an appeal. The judgment records earlier interim and probate orders, including an order of Mann J on 30 July 2015 and a Probate Registry order dated 25 September 2015, but no appellate decision.