The difficult science of parentage identification

Identifying parentage is essential in an ncreasing number of cases, especially public law Children Act 1989 proceedings. The recent case of Re F (Children) (DNA Evidence) [2007] EWHC 3235 (Fam); [2008] 1 FLR 348 (Re F) demonstrates the complications which may arise when evidence is produced to assist the court with identifying parentage.

Where a parentage dispute arises an application can be made to the court for a declaration of parentage under s 55A Family Law Act 1986 (FLA 1986) and the proceedings are governed by the Family Proceedings Rules 1991, r.3.13. There is a separate statutory framework for declarations of paternity for the purposes of child support.

The science bit

Where paternity is in issue in any civil proceedings, the court can direct under s 20(1) FLRA 1969 that scientific tests be used to ascertain whether or not a party to the proceedings is the mother or father of a person whose parentage requires determination. In doing so only bodies who feature on the Ministry of Justice's accredited list can carry out such tests (s 20(1A) FLRA 1969).

A direction can be made upon the application of any party or of the court's own motion. The court can also direct the taking of bodily samples from any party to the proceedings, the person whose parentage falls to be determined and any party who is alleged to be the mother or father.

Section 23 sets out the consequences to those who do not consent to having a bodily sample taken from himself or a person of whom he has care and control of and who is named in the direction.

A person who finds himself in this position will be considered by the court to have failed 'to take a step required of him for the purpose of giving effect to the direction' and therefore 'the court may draw such inferences, if any, from that fact as appear proper in the circumstances' (s 23(1) FLRA 1969).

The court has the discretion to control when scientific testing takes place. In Re D (Paternity) [2006] EWHC 3545 (Fam); [2007] 2 FLR 2 the judge made the direction but stayed the order. The issue of how the truth following ascertainment of parentage be told to a child can be the subject of a specific issue order under s 8 Children Act 1989 (Re F (Paternity: Jurisdiction) [2007] EWCA Civ 873; [2008] 1 FLR 225. It is also held that while the welfare of the child is a relevant consideration, it is not determinative or paramount; the interests of other persons may potentially hold greater weight (Re H (Paternity: Blood Test) [1996] 2 FLR 65). Welfare will normally go directly to the child's upbringing whereas usually parentage can be considered a free-standing issue which does not go to upbringing. There will be various factors to be balanced when deciding proceedings relating to parentage, but the pendulum certainly sways towards children knowing the truth and that truth be told sooner rather than later.

The case of Re F

The case involved eight children and following a fact-finding hearing the court found that the one of the children had been subject to various forms of abuse. Concern had been raised about the number of adults involved with the children, the children's movement between two households, some of the adults' immigration status and the fact that some of the older children were uncertain as to their parentage. There was a considerable lack of clarity about whether and to what extent the children were related to each other and who the respective parents were. The parties sought scientific testing and the court agreed. The following is a summary of events in the case.

• A direction for scientific testing was made by the court. The order containing the direction also provided for the cross-referencing of the children's testing in order to identify sibling relationships.
• The solicitor for the children (as lead solicitor in the instruction) identified a company to conduct the tests. However, it later became clear that the company did not have the relevant accreditation required to undertake such work.
• The analysis was completed but the parties' representatives found difficulty in interpreting the results.
• The court made a further order clarifying the needs for cross-referencing the children's test results with those of the adults and any putative fathers.
• Some of the results were then challenged by the adult parties and allegation that the samples had been mixed up were made.
• Further enquiries were made of the testing company by the solicitor for the children.
• It became clear that he company faced difficulty in cross-referencing all the photographs to all the individuals sampled and so without recourse to the court (in order to seek leave) the company started to make arrangements to conduct the tests again, including seeking to travel to the foster carer's home to take further samples from the children.
• Concern was raised about the retesting arrangements by the solicitor for the children and so the arrangements were brought to a halt.
• When the matter was returned to the court one of the parties' solicitors made the court aware that she had had another case with the same company instructed where similar failures occurred. As a result of the concerns raised in court the company audited its cases.

At the outset of the judgment the judge, Mr Anthony Hayden QC stated that 'the experience of this hearing has been to underscore the need for greater clarity in relation to the terms of instruction to DNA experts, particularly where inter-sibling relationships are being analysed, as opposed to relatively straightforward paternity testing' (para. 4). Of particular unease in this case was that the company:

• Had lost important data and had no back-up system. The information was 'highly sensitive material which went right to the core of the business's function and upon which information hugely important decisions would be taken in relation to the lives of adults and children' (para. 16);
• Sought to arrange retesting of the children without consulting the court or any of the parties in advance;
• Was affected by failures which were not of the 'one-off' variety; the audit undertaken by the company revealed within a period of four months' loss of data had affected 122 cases; and
• Had published promotional literature which could have been viewed as creating a false impression that the company was accredited when it was not.

Guidance from Re F

Mr Anthony Hayden QC pulled no punches in making it resolutely clear that the company involved in this case had made mistakes which were deplorable. His judgment was made in open court and named only the DNA testing companies involved. The judgment contains cogent reasoning at paragraphs 33 '“ 42 as to why the judgment was delivered in this way. The judge also set out why testing is imperative in that 'I think it is fair to say that the confidence in, and reliance placed upon, DNA testing in the family justice system is such that there was an expectation that these issues could be speedily and vigilantly resolved. In the event, that proved not to be the case' (para. 4).

It is plain from the complexities evident in Re F that 'The integrity of sample collection, safe database storage and guarantees of privacy are vital. . . It is intrinsic to the reliability of the conclusions. In plain terms, without rigorous procedural safeguards, the science is worthless' (para. 17) and therefore all practitioners (both lawyers and testing companies) involved in arranging for and undertaking such testing would be wise to head to the guidance of this case.