EB v TN & Ors

A declaration of parentage is determined on the balance of probabilities, but the court must be satisfied that the evidence, including scientific evidence, is sufficiently reliable for the declaration to be made. Historic DNA evidence is not necessarily excluded by defects or gaps in chain-of-custody documentation. Its weight must be assessed in the context of the totality of the evidence.

For jurisdiction under Family Law Act 1986, domicile and habitual residence are distinct concepts. An adult’s habitual residence may be assessed by reference to the person’s centre of interests. A lawful correction to a birth register may be affirmed where the statutory procedure has been followed.

EB applied for a declaration that LWB, who had died in 2016, was her biological father. Her mother, TN, and members of LWB’s family and estate were respondents. EB relied on historical and recent DNA testing, documentary evidence, and the history of her relationship with LWB.

The proceedings followed earlier litigation in Turkey and an English application issued in October 2016. The English court had previously determined that the English proceedings should continue and that England was the more appropriate forum. The issues at the final hearing included jurisdiction, paternity, correction of the birth register, service, and associated procedural matters.

1. Jurisdiction. The court had jurisdiction under s 55A of the Family Law Act 1986. EB retained her domicile of origin in England and Wales. Her periods of residence abroad were temporary or indefinite and did not establish a domicile of choice elsewhere. Her habitual residence also supported jurisdiction because her centre of interests was in England, having regard to her employment base, property, bank accounts and family connections.
2. Paternity and scientific evidence. The applicable standard was the balance of probabilities. A declaration of parentage is a solemn and binding act, so the court had to be satisfied of the reliability of the evidence. Following the approach in Spencer v Anderson and Elliot v Radcliffe, the court assessed the DNA evidence in the context of all the evidence. Gaps in historic chain-of-custody records did not require rejection of the tests. The relationship evidence, documentary material, several DNA tests, and the evidence that LWB had treated EB as his daughter established paternity comfortably on the balance of probabilities.
3. Birth registration. The correction removing BN as the recorded father had been made through the statutory procedure and was lawful under s 29 of the Births and Deaths Registration Act 1953. Section 29A did not apply because there had been no judicial finding on which the correction was based.
4. Service and orders. Service on respondents in Turkey was valid under the applicable conventions and, in any event, the respondents’ participation justified a direction under FPR 6.19(2). The court made the declaration of paternity, affirmed the lawfulness of the birth-register correction, confirmed service, and directed that judicial liaison with the Turkish court should be considered to reduce the risk of inconsistent decisions.

The judgment was a first-instance determination in the High Court following earlier directions and a forum decision by Mr Justice Holman. Permission to appeal from that earlier decision had been refused by the Court of Appeal. The present court determined the final application.