Spencer v Anderson (Paternity Testing: Jurisdiction)

These proceedings raise the issue of whether the Court can direct scientific testing of the DNA of a person who has died for the purpose of providing evidence of paternity.

The facts are unusual. David Spencer, who was born on 13 August 1986, has applied under Section 55A of the Family Law Act 1986 for a declaration that his father was the late William Anderson, who died intestate on 23 July 2012. The respondents to the proceedings are Mr Spencer’s mother Carol Spencer, her former husband Darren Hall (who is named as Mr Spencer’s father on his birth certificate), and the late Mr Anderson’s mother, Valerie Anderson, who is the personal representative of his estate.

Mr Spencer now seeks a direction that a stored DNA sample extracted for medical purposes during Mr Anderson’s lifetime should be tested alongside a sample of his own to establish whether or not he is Mr Anderson’s son. The application is apparently unprecedented in this jurisdiction, though similar requests have been made in other countries. It is supported by Mrs Spencer and opposed by Mrs Anderson, Mr Hall remaining neutral. The arguments have been presented by Mr James Kemp on behalf of Mr Spencer and Mr Michael Mylonas QC and Ms Amy Street on behalf of Mrs Anderson.

My conclusions are that:

This judgment is arranged in this way:

Mr Spencer’s case, based on his mother’s account, is that he was conceived in the course of a relationship between his mother (then Ms Potter) and Mr Anderson which ended when she was about three months pregnant. His mother then began a relationship with Mr Hall and they registered him as the child’s father at birth, knowing that this was not the case. Recently, DNA testing has confirmed that Mr Hall is not Mr Spencer’s father.

The relationship between Mr Spencer’s mother and Mr Hall later broke down and his mother married a Mr Spencer. Thereafter, in 1996, when he was aged 9, David Spencer’s surname was changed from Potter (his surname at birth) to Spencer.

There was no contact between Mr Spencer and Mr Anderson during Mr Anderson’s lifetime and it is not clear from the evidence whether Mr Anderson knew of Mr Spencer’s existence, though everyone lived in the same general area. Mr Spencer states that as a child he was told by his mother that his real father had moved away. He never made any attempt to trace his father. At some point Mr Spencer’s mother named Mr Anderson, but it was not until 2013, when Mr Spencer was 26 and Mr Anderson deceased, that Mr Spencer sought to establish his paternity.

The means by which Mr Spencer now seeks scientific testing arose in this way. In 2006, Mr Anderson was diagnosed with bowel cancer and underwent treatment at Central Manchester University Hospital. Because of a family history of bowel cancer, a blood sample was taken and DNA was extracted from it. This was used for testing for two high risk genes, which were not found. The hospital retains a single DNA sample and no longer holds blood or tissues.

In 2010 and 2012, the hospital wrote to Mr Anderson enclosing a consent form regarding testing to allow recommendations to be made in relation to his siblings. He did not sign and return these forms.

Mr Anderson died of a heart attack on 23 July 2012. He did not leave a valid will and on 1 May 2013, Mrs Anderson became his personal representative.

Mr Spencer’s case is that Mrs Anderson contacted him out of the blue in June 2013 to express her concern that Mr Anderson had died from a rare form of hereditary cancer and that in consequence Mr Spencer may be at risk and should take a DNA test. Having raised the issue, Mrs Anderson then progressively withdrew her co-operation.

Mrs Anderson’s case is that Mrs Spencer contacted her out of the blue to announce that she was the mother of Mr Anderson’s son and that Mr Spencer thereafter badgered her at a time when she was mourning the death of her son.

It is not necessary to resolve this conflict in the evidence, the known facts being sufficient for present purposes.

At all events,

Further, in February 2015, Mrs Anderson gave Mr Spencer a handwritten letter to take to his GP. It read:

“Dear Doctor,

The question has arisen as to whether your patient David Spencer is the unknown son of the late William B Anderson who I am the mother of.

Since there is a history of colon cancer in the family, it is essential we know David’s parentage. The Manchester Centre for Genetic Medicine at the University Hospital have agreed to see David Spencer to establish one way or the other as they hold DNA samples on my son. That is, David would be tested to see if he is at risk of bowel cancer and clarify paternity.

Under the NICE guidelines I am requesting that you refer David as soon as possible using the reference [number given]. The consultant genetic counsellor is [name, address and telephone number given].

Many thanks for your co-operation,

Yours sincerely,

V Anderson”

However, in April 2015, Mrs Anderson and one of her daughters contacted the hospital to request that the stored DNA sample should be destroyed.

In May 2015, Mr Spencer was seen by the hospital’s genetic counsellor. She wrote to him after the consultation, saying that Mr Anderson had been diagnosed with bowel cancer at the age of 38 and that Mr Anderson’s father and grandfather had both had the condition. This suggested that if Mr Spencer is Mr Anderson’s son, he himself would have a 50% risk of inherited predisposition to bowel cancer, a condition known as Lynch Syndrome. Bowel screening by colonoscopy every two years was recommended and could dramatically reduce the risk of developing the disease. The counsellor asked to be informed of the outcome of any paternity testing.

A consultant surgeon has advised that the pattern of colonoscopy surveillance would not apply if Mr Spencer was unrelated to Mr Anderson and that the risks of colonoscopy are an approximately 1:1000 risk of bowel perforation.

The hospital takes a neutral stance and does not seek to participate in the proceedings. In a letter to Mr Anderson’s sister in August 2015, the Chief Executive, stated the hospital’s position:

“Your brother provided the sample on the understanding that it would be used for genetic testing in respect of hereditary/genetic conditions in relation to himself and for other family members, specifically in relation to potential bowel cancer. As the DNA sample does not come under the jurisdiction of the Human Tissue Act because… it does not contain human cells, we have been advised that we can only release his sample if we receive written consent from both Mrs Anderson (as your brother’s next-of-kin) and from the putative son or on receipt of a court order. Otherwise, we will retain the DNA sample indefinitely, as is our usual practice.”

It should be noted that the words “and for other family members” go further than the hospital’s previous position, which is that the test was taken for Mr Anderson’s own health benefit, with only the implicit possibility that the sample might be used for the medical benefit of other family members. It is nonetheless clear that the sample was not given or stored with any contemplation of, still less consent for, its use in paternity testing.

As appears below, the hospital has been asked to clarify the basis on which it retains the sample.

The application under s.55A was issued on 18 September 2015. His Honour Judge Duggan made a series of directions, giving the respondents and the hospital the opportunity to make representations, and listing the DNA testing issue for decision. He identified the following questions:

I will consider each of these questions in the course of this judgment.

The Family Law Act 1986

Section 55A of the FLA 1986, which came into effect in 2001, provides:

It is common ground between the parties that Mr Spencer is entitled to bring his application and that the court must hear it. There is narrative evidence that would doubtless enable a conclusion to be reached on the balance of probabilities. However, DNA testing would answer the question of parentage with near certainty and would in effect determine the outcome.

Part III of the FLRA 1969 provides a structured regime within which the court can direct the use of scientific tests for the purpose of determining parentage in the course of civil proceedings. In its original form, this was by means of blood testing to provide evidence of the probability of paternity. The Family Law Reform Act 1987 updated the legislation to take account of the advances in DNA science (though it did not consistently update the part and section headings used in the original Act).

It is necessary to set out the relevant provisions of the legislation extensively.

A number of observations bearing on the present case can be made:

The HTA does not apply to the present case as it does not regulate the use to which DNA itself can be put. s.45 defines bodily material as material which (a) has come from a human body, and (b) consists of or includes human cells. The Human Tissue Authority guidance states that:

This is therefore not the occasion for a detailed examination of the HTA. It is sufficient to say that its purpose, as appears from the Explanatory Notes, is to provide a consistent framework relating, amongst other things, to the storage and use of human tissue. The Act arose from concern raised by events such as those at Bristol Royal Infirmary and Alder Hey Children’s Hospital, where organs and tissue from children who had died were retained and used without proper consent. It was the product of a number of reports and of wide-ranging consultation.

Part 1 makes the use of human tissue lawful if the appropriate consent has been obtained and provides that an offence is committed if it has not. In the case of a person who has died, the appropriate consent can come from a range of family members and others. Further, section 45 provides that a person commits an offence if he has any bodily material intending that DNA in the material should be analysed without qualifying consent and that the results of the analysis should be used otherwise than for an excepted purpose. Excepted purposes are defined in Schedule 4, paragraph 5, to include such things as the functions of a coroner, the prevention or detection of crime or the purposes of national security. Sub-paragraph 5(g) gives as an excepted purpose “implementing an order or direction of a court or tribunal, including one outside the United Kingdom.” but sub-paragraph 5(5) states that this shall not be taken to confer any power to make orders or give directions.

Guidance has been issued in this field by the Government and number of professional bodies. Examples are:

At my request, the hospital has clarified the basis upon which it holds Mr Anderson’s DNA. It follows the guidance just referred to from the Royal College of Pathologists and the Institute of Biomedical Science, which recommends at paragraph 139 that DNA samples are retained for at least 30 years “if needed for family studies in those with genetic disorders or if stored as donor/recipient material in the context of cell or tissue transplantation”. It also refers to the advice to the same effect at paragraph 5.4 of the report of the Joint Committee on Medical Genetics (also referred to above). It notes that there is no obligation to store DNA for longer than 30 years and that thereafter it can be disposed of by the Trust as with any other clinical waste. A request for disposal of a DNA sample can also be made in writing by the individual from whom the sample was obtained.

These conclusions can be drawn concerning the HTA:

s.6 of the HRA makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right. s.3 provides that so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. s.4 provides that if the court is satisfied that a provision of primary legislation is incompatible with a Convention right, it may make a declaration of that incompatibility.

Article 8 of the European Convention on Human Rights provides that:

The effect of Art. 8 in this context was considered by the European Court of Human Rights in Jaggi v Switzerland [2008] 47 EHRR 30. The applicant, by then in his 60s, had striven throughout his life to ascertain the identity of his natural father. The alleged father had refused to undergo testing during his lifetime and successive proceedings brought by or on behalf of the applicant had been dismissed by the Swiss courts. Finally, after the death of the alleged father, the applicant sought DNA testing using his remains. The Swiss court held that the applicant had been able to develop his personality despite his uncertainty as to his parentage. The Government justified the refusal to allow the DNA test by citing the need to preserve both legal certainty and the interests of others. The ECHR held by a majority that there had been a violation of Article 8. The right to know one’s ascendants fell within the scope of “private life”. The state was not only compelled to abstain from interference, but might also be subject to positive obligations (paragraph 33):

“These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundaries between the state’s positive and negative obligations under Art. 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In determining whether or not such an obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation.”

The Court further held that:

•

The choice of means calculated to secure compliance with Art. 8 is a matter for the individual state, depending on the particular aspect of private life that is in issue.

•

The right to an identity, which includes the right to know one’s parentage, is an integral part of the notion of private life and in such cases particularly rigorous scrutiny is called for when weighing up the competing interests.

•

Persons seeking to establish their identity have a vital interest, protected by the Convention, in receiving the information necessary to under to uncover the truth about an important aspect of their personal identity. At the same time, it must be borne in mind that the protection of third persons may preclude their being compelled to make themselves available for medical testing of any kind, including DNA testing.

•

In weighing up the different interests, consideration should be given, on the one hand, to the applicant’s right to establish his parentage and, on the other hand, to the rights of third parties, to the inviolability of the deceased’s body, the right to respect for the dead, and the public interest in preserving legal certainty.

•

With regard to the deceased’s rights, it had been held in The Estate of Kresten Filtenborg Mortensen v Denmark [App No 56581/00, May 15 2006] that the private life of a deceased person from whom a DNA sample was to be taken could not be adversely affected by a request to that effect made after his death.

•

With regards to the preservation of legal certainty, that cannot in itself be a ground for depriving the applicant of the right to ascertain his parentage.

•

Having regard to the circumstances of the case and the overriding interest at stake for the applicant, the Swiss authorities did not secure for him the respect for his private life to which he was entitled under the Convention.

I note the circumstances that arose in The Estate of Mortensen v Denmark, referred to above. After the death of Mr Mortensen, two putative sons asked for DNA testing to be carried out and for his body to be exhumed for that purpose. The Danish High Court refused the application. It found that Danish law did not allow for the taking of body samples by compulsion and that an order for this purpose after death interfered with the sanctity of the grave in a way that was comparable with compulsion in life. Such interference could not be effected without an explicit legal basis, which the High Court found did not exist in domestic law. Accordingly, the High Court refused to order the exhumation of Mr Mortensen and the taking of samples for use in the paternity suit. This decision was reversed by the Danish Supreme Court by a narrow majority. It held that:

“The fact that the [legislation] does not contain any specific rules on forensic genetic testing of deceased persons should not lead to the existing rules, according to which [in a paternity case] the court may decide to compel the parties to undergo genetic testing, being narrowly construed to mean that the existing legal basis does not cover testing of deceased persons… In these circumstances we consider that… if deemed necessary, the court may decide that forensic genetic tests should be carried out, even on a deceased party. In its assessment, however, having regard to the principle of proportionality, the court must balance the extent of such interference with the need to elucidate the particular case.”

The estate of the deceased man applied to the ECHR, complaining that the exhumation for the purpose of taking DNA samples constituted a breach of Art. 8, as it was not “in accordance with the law” as required by Art. 8(2). The Court declared the complaint by the estate to be manifestly ill-founded: it was not a claim brought by the deceased during his lifetime or by one of his relatives, but a complaint brought on behalf of someone who had died. The substance of the Supreme Court’s decision was therefore not scrutinised.

On behalf of Mr Spencer, Mr Kemp initially sought to argue that a direction might be given under the FLRA. However, in the course of the argument he conceded that this argument could not succeed. In my view, the concession was rightly made for the reasons analysed above, which can be summarised by saying that the FLRA:

Mr Kemp rightly described the difficulties as being insurmountable and accepted that in the circumstances of this case a direction under s.20 is not available to his client.

There being no other legislation in point, I therefore conclude that there is no statutory power to direct post-mortem scientific testing to establish a person’s biological relationships and consequently no statutory power to make a direction for the testing of Mr Anderson’s stored DNA.

For completeness, I refer to the decision in Goncharova v Zolotova [2015] EWHC 3061. In that case, a Georgian businessman died in London. A post-mortem examination was carried out, giving rise to a number of stored samples from which DNA could be extracted. In inheritance proceedings in Russia and Georgia, the applicant claimed that the deceased was her father, a claim disputed by his widow. The Russian court ordered DNA testing and requested the English court to secure transmission of the samples to Moscow for that purpose. The request was placed before the English court by the applicant and opposed by the widow.

The application was granted by Thirlwall J. She considered that there was a risk of injustice in depriving the Russian court of the best evidence upon which to determine whether the applicant was the deceased’s daughter, “a question to which she has a right to an answer irrespective of her rights to a share in the estate.”

In the course of her judgment, Thirlwall J referred to the FLRA at a number of points. In particular, she said this at paragraphs 57 and 66:

“Were the proceedings taking place in the High Court for (e.g.) a declaration of parentage under the Family Law Act 1986 or for relief under the Inheritance Act 1975 and paternity was in issue the court could and would make an order for DNA samples to be tested (pursuant to its powers under the Family Law Reform Act and/or CPR 25.1)."

“I am satisfied that were the English Court concerned with determining the parentage of someone in Ms Goncharova’s position (in Inheritance Act proceedings or proceedings under the Family Law Act 1986) and post-mortem samples were available in the circumstances that pertain here it would have no hesitation in ordering DNA testing of the samples for the reasons I have already given. It is not unlawful to carry out DNA testing in accordance with an order of the court.”

In the present case, it was initially argued on behalf of Mr Spencer that this decision may justify a wider interpretation of the 1969 Act to encompass the testing of post-mortem samples. I do not accept that argument for these reasons:

On behalf of Mr Spencer, it is argued that there are two possible sources of such a power: Civil Procedure Rules r.25.1 (or its equivalent, Family Procedure Rules r.20.2) or the inherent jurisdiction.

There is no practical difference between the two sets of Rules but, strictly speaking, the provisions of FPR 20 (as opposed to the CPR) apply to an application under s55A: see CPR 2.1, s.73(3) Courts Act 2003 and s.61(1) and Sch. 1 para 3(e) Senior Courts Act 1981.

FPR 20.1 gives the court the power to grant interim remedies. A long illustrative list includes:

21.2 defines ‘relevant property’ as “property (including land) which is the subject of a claim or as to which any question may arise on a claim.”

21.3 provides that the fact that a kind of interim remedy does not appear on the list does not affect the court’s power to grant that remedy. The White Book notes to the CPR state that this sub-rule is intended to make clear that absence from the list does not cast doubt on the existence of other powers derived from statute.

I note that in Goncharova at paragraph 76, Thirwall J stated that:

“Whatever the precise nature of the application, the court in civil proceedings has comprehensive powers under the CPR to order inspection of property, the taking of samples, the carrying out of experiments (see CPR 25.1). The Family Law Reform Act also permits DNA testing.”

The terms of the Rules accordingly do not stand in the way of a direction for DNA testing. However, I do not see the Rules as being the source of a non-statutory power. Even if a DNA testing direction can properly be described as an interim remedy, a procedural rule surely cannot be the origin of a power of this nature. A further mild indication that the rules did not intend to create a wider power is found in CPR PD.23B, which relates specifically to applications under the 1969 Act: there is no reference in the CPR or FPR to paternity testing by any other means.

The position in respect of the Rules is in my view analogous to that found in Re F (Sterilization: Mental Patient) [1990] 2 AC 1, where Lord Brandon, speaking of the jurisdiction of the High Court to make declarations said this:

“I do not think that it is right to describe this jurisdiction as being ‘under RSC Ord. 15 r.16’. The jurisdiction is part of the inherent jurisdiction of the High Court, and the rule does no more than say that there is no procedural objection to an action being brought for a declaration …”

The inherent jurisdiction of the High Court is a description of the court’s common law powers insofar as they have not been removed or supplanted by statute. In the Court of Appeal in Re F (above) Lord Donaldson MR described the common law as

“… the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and insofar as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges. It is not a legislative function or process – that is an alternative solution the initiation of which is the sole prerogative of Parliament. It is an essentially judicial process and, as such, it has to be undertaken in accordance with principle.”

The inherent jurisdiction is therefore a jurisdiction of long-standing that nowadays exists in a number of important contexts. With regard to children, it has been used in a wide variety of creative ways to supplement statutory powers, both through the medium of wardship and otherwise. As recorded in FPR PD 12D, the court can, for example, make orders to restrain publicity, to prevent an undesirable association, to endorse medical treatment, to protect children abducted from abroad and to recover children from abroad. These orders not only affect the individual family members but are also directed towards third parties, either as orders or requests.

More recently, the jurisdiction has been developed to provide remedies for the protection of vulnerable but not legally incapable adults. In Re SK [2004] EWHC 3202 (Fam), Singer J said:

“I believe that the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and social values."

That manifestation of the jurisdiction was cemented by Munby J in Re SA [2005] EWHC 2942 (Fam) and the Court of Appeal has confirmed that it has survived the enactment of the Mental Capacity Act 2005: see DL v A Local Authority [2012] EWCA Civ 253.

These cases and others concerned the protection of vulnerable individuals at risk of coercion or abuse. At the other end of the scale, the inherent jurisdiction can relate to the court’s power to control its own procedures, as in Bremer Vulkan v. South India Shipping [1981] 1 AC 909, where Lord Diplock said this at 977:

“The High Court's power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. … The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an "inherent power" the exercise of which is within the "inherent jurisdiction" of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice.”

The inherent jurisdiction is plainly a valuable asset, mending holes in the legal fabric that would otherwise leave individuals bereft of a necessary remedy. The present case (DNA testing) might be said to fall between the above examples of the court’s inherent powers (protection of the vulnerable, striking out).

At the same time, the need for predictability in the law speaks for caution to be exercised before the inherent jurisdiction is deployed in new ways. The court is bound to be cautious, weighing up whether the existence of a remedy is imperative or merely desirable, and seeking to discern the wider consequences of any development in the law.

Against that background, I turn to the parties’ submissions.

Mr Kemp argues that the existence of a power to make the order requested in this case is necessary in the interests of justice and to protect the Art.8 rights of his client. He draws attention to a number of reported cases.

In Re H and A (Paternity: Blood Tests) [2002] EWCA Civ 383, the Court of Appeal overturned the judge’s refusal to order scientific tests to establish the paternity of young children because of the risk to the stability of their family. Thorpe LJ recalled the statement of Lord Hodson in S v McC, W v W [1972] AC 24 at 58:

“The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth. Scientific evidence of blood groups has been available since the early part of the century and the progress of serology has been so rapid that in many cases certainty or near certainty can be reached in the ascertainment of paternity. Why should the risk be taken of a judicial decision being made which is factually wrong and may later be demonstrated to be wrong?”

Thorpe LJ then summarised the points of principle to be drawn from the earlier cases:

“… first that the interests of justice are best served by the ascertainment of the truth and second that the court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences.”

Mr Kemp relies heavily on Jaggi (above). He further cites CM v The Estate of EJ [2013] EWHC 1680, a decision of Cobb J. A passing doctor went to the aid of a dying woman who had fallen from a building. Fearing that she might have become infected with a blood-borne disease, the doctor began to take antiretroviral medication that had significant side-effects. She wished for the deceased’s blood to be tested to clarify any medical risks. A sample taken during the post-mortem examination was held by the Coroner, but the approval of the court was requested as the legal situation was thought to be unclear. Cobb J considered the provisions of the Human Tissue Act 2004. He found that a cousin was capable of giving the requisite consent and had done so. However, (and it may be that in doing so he wished to put the matter beyond doubt) he also went on to authorise the use of samples under the inherent jurisdiction, balancing up the considerations that applied.

In Roberts v HM Coroner for North and West Cumbria [2013] EWHC 925 (Admin), the Divisional Court ordered a new inquest after DNA testing on the remains of a body washed up on a beach established the previously unknown identity of the deceased.

Finally, Mr Kemp properly draws attention to the decision of the Court of Appeal in Re Z (Children)(DNA Profiles: Disclosure) [2015] EWCA Civ 34. The police had taken swabs of blood at a murder scene, including from the murderer, and DNA profiles were derived. In family proceedings concerning the victim’s children, the murderer claimed to be their father but refused to undergo DNA testing. The local authority and the Children’s Guardian applied for disclosure of the DNA profiles. This application succeeded before the President, but the Court of Appeal ruled that the relevant legislation (the Police and Criminal Evidence Act 1984 as amended) prohibited the police from disclosing the profiles for any purpose other than criminal law enforcement and that the court could not exercise its inherent jurisdiction to require the police to do something contrary to statute, whether by applying a purposive approach to statutory interpretation or by interpreting the provisions in a way which was compatible with Art. 8. Lord Dyson MR accepted the submission that the alternative outcome would not be “in accordance with the law”:

“What matters in this context is having a law which is clear and certain so that it avoids arbitrary conduct on the part of the state and provide a yardstick by which an independent court or tribunal can measure the lawfulness of conduct. On the other hand there are many contexts where knowledge of the precise scope of a law will enable individuals affected to regulate their behaviour. The two reasons are different facets of the same general principle, namely that the law must be as clear and certain as is practicable in all the circumstances.”

Mr Kemp distinguishes the decision in Re Z on the basis that it arose from a statutory prohibition of a kind that does not exist in the present case.

Mr Mylonas QC and Ms Street advance the following propositions in relation to the existence of an inherent jurisdiction:

In response, Mr Kemp submits that the decision in Re O rested on the fact that the statutory scheme covered the situation that had arisen in that case. Here, the application falls outside the FLRA, which does not apply to post-mortem DNA testing at all.

He further begs to doubt whether the Article 8 rights of Mrs Anderson are engaged in this application; if they are, it is no lack of respect for her family life to know the truth about whether or not she has a grandchild.

Lastly, he contends that the court should be cautious about the conclusions to be drawn from the very different field of assisted reproduction.

In my view, the following features are relevant to the existence or non-existence of an inherent power:

Reflecting the complexity of the legal and ethical issues, the above features pull in a number of different directions. If the only considerations related to the interests of the deceased and the public interest, the arguments against the existence of an inherent power would surely prevail. However, the interests of the living and the interests of justice must also be brought into consideration.

Taking all these matters into account, my conclusion is that the High Court does possess an inherent jurisdiction that it can properly deploy to direct scientific testing to provide evidence of parentage in circumstances falling outside the scope of the FLRA. If the court was unable to obtain evidence of this kind, severe and avoidable injustice might result. Awareness of the implications of ordering testing without consent and of the wider public interest does not lead to the conclusion that the jurisdiction does not exist, but rather to the realisation that it should be exercised sparingly in cases where the absence of a remedy would lead to injustice.

In the circumstances, it is not necessary to consider whether the existing legislation is not compliant with Convention rights.

The following factors are relied upon in support of testing:

In response, it is said on behalf of Mrs Anderson that:

Weighing these matters up with appropriate caution, and seeking to strike a fair balance between the competing private and public interests, I have reached the conclusion that scientific testing should take place to seek to establish the paternity of Mr Spencer by using the stored DNA sample of the late Mr Anderson. These are my reasons:

I accordingly find that Mr Spencer’s interest in knowing his biological parentage, the questions raised by the medical history, and the marked advantages of scientific testing as a means of resolving both issues, collectively carry more weight in the particular circumstances of this case than the counter-indicators to testing that undoubtedly exist. It is in the interests of justice that testing should take place, and it is a proper exercise of the court’s inherent jurisdiction to secure this outcome.

For completeness I would add that, had testing not been directed, the court would have heard the evidence in the normal way. Statutory inferences could not be drawn in a case where the statute did not apply, but this would not have prevented the court from drawing whatever inferences seemed proper from the evidence before it.

I pay tribute to the considerable help that I have received from counsel and invite them to submit a draft order that reflects this decision and replicates so far as possible the protections that would accompany a direction for testing under the FLRA.