Nield-Moir v Freeman

The High Court has an inherent jurisdiction to direct a party to provide a saliva sample for DNA testing where parentage is in issue and the statutory scheme does not apply. The jurisdiction must be exercised cautiously and proportionately, having regard to the importance and likely reliability of the evidence, the limited physical intrusion, privacy, confidentiality and the rights of others. A direction may provide for an adverse inference if the party does not comply. In an inheritance dispute, DNA testing may be justified under article 8(2) where it is necessary to resolve competing succession rights and the evidence raises a genuine issue rather than being a fishing expedition.

The claimant challenged the defendant’s entitlement to administer and inherit from the estate of the deceased. Both parties were born during the deceased’s marriage, but the claimant alleged that the defendant was not his biological daughter. The claimant sought an order requiring the defendant to provide a saliva sample for DNA testing. The proposed testing was likely to establish whether the parties were full or half-sisters and might assist in determining whether either was the deceased’s child.

The defendant relied on the birth certificate, the presumption arising from birth during marriage and maintenance paid by the deceased. The court considered the accuracy of the proposed test, its jurisdiction to direct testing, the effect of the Family Law Reform Act 1969, human-rights considerations and whether the application was a fishing expedition.

1. Accuracy. The proposed testing was sufficiently accurate. It was expected to establish the full- or half-sibling relationship to a very high degree of probability. Further testing concerning cousin relationships had a lower prospect of success, but remained sufficiently worthwhile.
2. Statutory and common-law powers. The direction-making power in section 20 of the Family Law Reform Act 1969 did not apply because the proposed testing was not to ascertain whether a party was the father or mother of a child. Sections 21 and 23 provided consent and adverse-inference mechanisms within that statutory scheme. The common law nevertheless recognised powers to draw adverse inferences, stay proceedings or make an unless order where a party withheld relevant evidence.
3. Inherent jurisdiction. Following and applying the approach in Anderson v Spencer [2018] EWCA Civ 100, the court held that the inherent jurisdiction could extend to directing scientific testing outside the statutory scheme. The jurisdiction required caution and principled development, but did not depend on fitting the case into an existing category. The court could direct consent to a mouth-swab test, without authorising forcible extraction.
4. Proportionality and article 8. The test was quick, painless and carried no appreciable health risk. The resulting information was confidential and could be used only for the purpose for which it was obtained. The defendant’s privacy in relation to her parentage engaged article 8, but any interference was justified under article 8(2). Accurate determination of inheritance rights and the claimant’s interests outweighed the limited intrusion.
5. Application. The evidence raised a genuine issue for trial and the application was not a fishing expedition. The claimant had proper grounds, and the defendant showed no good reason to refuse testing. The application was granted. The defendant was directed to provide a saliva sample to Dr Syndercombe-Court by mouth swab within 28 days, failing which the court could draw an adverse inference at trial.

First-instance decision. No appellate history is stated in the judgment.