Spencer v Anderson (Paternity Testing: Jurisdiction)

There is no statutory power under the Family Law Reform Act 1969 to direct testing of DNA extracted during a person’s lifetime after that person has died. The High Court nevertheless possesses an inherent jurisdiction to direct scientific testing of stored DNA to establish biological relationships where the case falls outside the statutory scheme. That jurisdiction must be exercised sparingly and only where the absence of a remedy would cause injustice. In deciding whether to order testing, the court must balance the applicant’s interest in knowing his parentage, the value of reliable scientific evidence, medical considerations, the interests of relatives, consent and confidentiality, and the wider public interest. The court ordered testing where paternity was reasonably arguable, the result had significant medical consequences, the sample was readily available without exhumation, and the balance favoured establishing the truth.

David Spencer applied under section 55A of the Family Law Act 1986 for a declaration that the late William Anderson was his father. Mr Anderson had died intestate. A DNA sample extracted from him during medical treatment remained stored at hospital, and Mr Spencer sought an order that it be tested against his own DNA.

The Family Law Reform Act 1969 issue was whether its provisions permitted testing of extracted DNA taken during life for a different purpose. The further issues were whether the High Court had an inherent power to order testing outside the statutory scheme and, if so, whether testing should be ordered on the facts.

1. Statutory power. The application could not be dealt with under Part III of the Family Law Reform Act 1969. Sections 20 and 25 contemplate a direction for future sampling and testing, with the sample taken for the purpose of the scientific test. Section 21 protects an adult’s refusal to provide a sample, with non-compliance addressed through section 23. The statutory scheme does not provide for post-mortem testing, testing of existing extracted DNA, testing of a sample obtained for another purpose, or testing of DNA itself. There was therefore no statutory power to direct testing.
2. Rules and inherent jurisdiction. The Family Procedure Rules could accommodate an order for inspection, sampling or experimentation, but procedural rules were not the source of a substantive power to compel or authorise this form of testing. The statutory scheme had not ousted the inherent jurisdiction because the present situation fell outside its scope. Nor did section 19(2) of the Senior Courts Act 1981 freeze the High Court’s powers at the date of enactment.
3. The inherent jurisdiction is a common-law power which may fill gaps where necessary to prevent injustice, but its development requires caution and regard to predictability and wider consequences. In exercising it, relevant considerations included consent and confidentiality, the public interest, the importance of biological identity, the interests of justice, the interests of relatives, and the range of circumstances in which the power might be invoked. The power existed, but was to be exercised sparingly where the absence of a remedy would lead to injustice.
4. Application. Testing was ordered. There was a real possibility that Mr Anderson was Mr Spencer’s father, and the medical consequences were substantial because the result affected the need for invasive bowel surveillance. The sample was readily available and no physical intrusion or exhumation was required. The hospital did not object. The applicant’s interest in knowing his biological parentage, the medical issues and the advantages of scientific evidence outweighed the countervailing interests and public-policy concerns in the particular circumstances.
5. If testing had not been ordered, the court could still have drawn appropriate evidential inferences, but not statutory inferences under the 1969 Act. The parties were invited to submit a draft order incorporating, so far as possible, the safeguards applicable under that Act.

First-instance decision of the High Court (Family Division). The judgment does not state any prior appellate decision in the same proceedings.