Anderson v Spencer

A statutory scheme for parentage testing limited to living persons does not necessarily displace the High Court’s inherent jurisdiction to direct testing of extracted DNA retained after death. Such a residual power may fill a legislative gap, but only through a principled and cautious assessment of necessity, predictability and wider consequences. The right to know one’s parentage forms part of private life and identity, requiring particularly rigorous scrutiny when competing interests are balanced. Where a DNA sample already exists and no new bodily sample is required, testing may be ordered despite refusal by a personal representative, where the circumstances justify it.

The respondent sought a declaration of parentage under the Family Law Act 1986 and an order permitting DNA extracted from the deceased’s blood sample to be tested. The High Court held that it had inherent jurisdiction to make the order and directed testing: [2016] EWHC 851 (Fam). The personal representative appealed, arguing that the statutory scheme excluded inherent jurisdiction, that the order unlawfully interfered with Article 8 rights, and that it should not have been made on the facts. She did not attend the appeal, but written arguments were considered. The central issues were whether the High Court possessed the power, whether its exercise was Convention-compliant, and whether the order was justified.

1. The appeal was dismissed. Lady Justice King gave the leading judgment, with Lord Justice Simon and Lord Justice McFarlane agreeing.
2. Part III of the Family Law Reform Act 1969 provides for scientific testing in parentage proceedings involving living persons. It makes no provision for testing extracted DNA retained after death. The statutory scheme was therefore comprehensive within its own field, but did not extend to post-mortem testing. Re O (a Minor) (Blood Tests: Constraint) [2000] Fam 139 was distinguishable because it concerned enforcement of an order falling squarely within the statutory scheme. Applying the principle stated in Shiloh Spinners Ltd v Harding [1973] AC 691, the legislation had not ousted the general law outside its defined field.
3. The High Court retained a residual inherent jurisdiction to fill a legislative gap where necessary. An extension of that jurisdiction did not need to fit an already recognised category, but it had to be principled. The court had to consider whether the remedy was imperative or merely desirable, the need for predictability, wider consequences, the interests of third parties and the interests of justice. The jurisdiction was not a lawless power to achieve a merely fair outcome. The approach was consistent with Redbridge LBC v A [2015] Fam 335 and the safety-net principle in Re F (Sterilisation: Mental Patient) [1990] 2 AC 1.
4. The court first had to determine whether the appellant’s Article 8 rights were engaged and whether the proposed testing interfered with them. Even if they were engaged, the respondent’s right to know his parentage and identity required particularly rigorous scrutiny under Jaggi v Switzerland (2008) 47 E.H.R.R.30. The respondent’s identity and medical interests outweighed the appellant’s interests.
5. Because the DNA sample already existed and no new bodily sample was required, the consent requirement for taking a sample under section 21(1) of the Family Law Reform Act 1969 did not prevent a direction for testing. The order was justified by the respondent’s sound medical reason for establishing paternity and the appellant’s earlier position that testing was essential. The appeal was accordingly dismissed.

• Court of Appeal (Civil Division): Appeal dismissed. [2018] EWCA Civ 100 .
• High Court of Justice (Family Division): Mr Justice Peter Jackson held that the High Court had inherent jurisdiction to direct testing of the deceased’s extracted DNA and made the testing order. [2016] EWHC 851 (Fam) .