A practitioner’s guide to DNA testing for paternity, by Charles Foster
In April 2007, Larry Birkhead, former boyfriend of Playboy model Anna Nicole Smith, appeared on prime time TV announcing that a Bahamian judge had declared that DNA tests showed him to be the father of Smith’s daughter, Dannielynn. It was the end of a long and complex dispute. Since Smith’s death, several men had claimed paternity. The case highlighted the use of the relatively new technique of DNA sequencing in determining genetic origins, but there was nothing legally or technically novel about this litigation.
Biological basics
Apart from identical twins, who are identical at genetic level too, every individual has a unique set of genetic information. That information is coded on their DNA—the template which is present in more or less every cell. The template consists of a long sequence of bases, which determine the sequence of amino acids in the body’s proteins, and therefore the characteristics of the proteins and the body they compose. Half of a person’s DNA derives from their mother; half from their father. By comparing a child’s DNA sequence with that of a putative parent, it is possible to say with a high degree of certainty whether the putative parent’s DNA has contributed to the child’s. The degree of certainty will depend on the technique used and other factors, but is likely to be 99.99% or more.
Testing procedure
DNA can be recovered from most cells. In criminal contexts DNA is recovered from blood, semen, saliva, hair roots and sweat. Blood testing used to be the commonest testing ordered in the family courts, but it has been replaced with mouth swabs.
Testing for the purposes of family litigation can only be carried out by laboratories accredited by the government, all of whom adhere to the Code of Practice and Guidance on Genetic Paternity Testing Services. Such accreditation is not given to laboratories who provide the increasingly popular home testing kits.
It is crucial that the person taking the sample ensures that relevant consent has been obtained. Some good practical guidance is set out in the Codes of Practice issued by the Human Tissue Authority to accompany the Human Tissue Act 2004 (HTA 2004). Subject to some exceptions, HTA 2004, s 45 makes it an offence to have any “bodily material intending (i) that any human DNA in the material be analysed without qualifying consent, and (ii) that the results of the analysis be used otherwise than for an excepted purpose”, and where the possessor “does not reasonably believe the material to be of a kind so excepted”. That section has obvious implications for potential uses of home testing kits.
Jurisdiction to order a test
Although there has long been power under the court’s inherent jurisdiction to order blood tests in relation to children, and although that inherent jurisdiction has probably not been ablated by subsequent statute, the jurisdiction is now spoken of as deriving from the Family Law Reform Act 1969 (FLRA 1969), Pt III, ss 20–25.
An application in respect of a test can be made:
(i) by any party to the proceedings; and
(ii) in relation to the question of whether a party to the proceedings is or is not excluded by the test as being the father or mother of someone whose parentage is in issue in the proceedings.
Thus if it is sought to see if X is the father of the child, and X is not currently a party to the proceedings, he must be made a party before the application can proceed.
The form of the order
The usual order made in respect of an adult is along the lines of: “pursuant to s 20 of the Family Law Reform Act 1969 it is directed that scientific tests be used to ascertain whether the [named party] is or is not excluded from being the [father/mother] of the child” (see Re H (a minor) (blood tests: parental rights) [1997] Fam 89, [1996] 4 All ER 28).
Consent to testing
Note that the conventional order in respect of an adult is not in the terms “X shall provide samples”. This is because a competent adult can refuse consent to the taking of a sample. This is the common law position, and broadly, with some exceptions to which we will come, FLRA 1969 does nothing to displace the common law of consent. Although HTA 2004 deals expressly with DNA analysis, it says nothing to change the law in relation to consent so far as court-ordered paternity testing is concerned. The law of consent bristles with nuance, but in summary the position is this:
Adults
Competent adults can refuse to consent to the taking of samples. In a family law context they cannot be compelled. In the case of an adult suffering from mental disorder within the meaning of the Mental Health Act 1983 (MeHA 1983), s 1, the person having care and control of that adult can consent, subject to a medical practitioner confirming that sampling will not prejudice the proper care or treatment of the patient: see FLRA 1969, s 21(4). It does not deal with adults who are incompetent but who do not fall within MeHA 1983.
Children under 16
FLRA 1969 is clear. A sample can be taken if the person having care and control of the child consents, or, where that person does not consent, if the court decides that it is in the child’s best interests for it to be taken: s 21(3). Thus the refusal of a Gillick-competent child can be trumped by the carer, but would weigh with the court in deciding any application.
Can such a direction to test the child be enforced against the child’s objection? It is still a moot point (see Re R (a minor) (blood test: constraint) [1998] Fam 66, [1998] 1 FCR 41 and Re O, Re J (children) (blood tests: constraint) [2000] Fam 139, [2000] 2 All ER 29) but the view is that it can. The inherent jurisdiction in relation to incompetent persons can compel, eg, medical treatment. There is no reason in principle why it should not be able to stretch to a buccal swab and the consequent testing.
16- and 17-year-olds
FLRA 1969, s 21(2) provides that a 16- or 17-year-old’s consent to testing is as valid as that of an adult. But what about a refusal to consent? FLRA 1969 is silent. Section 8 permits the court to override a 16- or 17-year-old’s refusal to consent to treatment. But surely it cannot apply here? Testing is not treatment. The draftsman’s silence requires the common law to speak. The inherent jurisdiction would allow the court to compel testing: there is no reason to assume it has been ousted.
Non-compliance
Where compliance cannot be compelled, the likely sanction is the drawing of adverse inferences.Use of samples obtained for other reasons
Samples retained by the police should not be used for purposes connected with family proceedings: see Lambeth LBC v S [2006] EWHC 326 (Fam), [2007] 1 FLR 152.
The samples will be retained pursuant to the Police and Criminal Evidence Act 1984, and cannot be used except pursuant to it.
Charles Foster is a barrister at Outer Temple Chambers. E-mail: charles.foster@outertemple.com
