Expertise and advice so you're always one step ahead - sign up to receive the latest legal updates, events & seminar news
HomeInsights & thinking“If science can help, then it should”: Court orders woman to take DNA test in landmark judgment
“If science can help, then it should”: Court orders woman to take DNA test in landmark judgment
23 February 2018
Litigation partner Paul Gordon is acting for a client in an inheritance dispute which has given rise to a “significant development” in the law. The case was heard in the High Court, Bristol with the judgment handed down on Wednesday. It has resulted in a successful interim application that the court make an order for parties to provide saliva samples for DNA testing.
Colin Wilson Birtles (the deceased) died in 2013 without a will, leaving two ‘alleged’ daughters behind – Janice Nield-Moir and Lorraine Karen Freeman. Under the rules of intestacy, each would normally inherit 50% of the estate. Freeman had applied for a grant of administration claiming an interest in the estate. However, Nield-Moir (our client) insisted that the grant should be revoked and given to her instead, as she alleges that Freeman is not in fact the biological daughter of the deceased. If this were found to be true, Nield-Moir would inherit the whole estate.
On behalf of our client, Paul requested that the defendant (Freeman) submit to a DNA test to ascertain if they are full or half siblings, which would entail taking saliva samples from both parties. Freeman refused, and therefore Paul asked the court for an order that the defendant submit to the test, with an ‘adverse inference’ drawn in the event she fails to do so.
In terms of testing to establish parentage, the law is complex. In the absence of existing case law or appropriate statute to assist, Paul asked the court to make the order under its ‘inherent jurisdiction’. Barrister Michael Clarke of St John’s Chambers, who we instructed to represent our client in court, said: “The issue was whether the court had jurisdiction to order the respondent to submit to DNA testing. It was accepted by the applicant that the provisions of the Family Law Reform Act 1969 did not apply and that there was no direct authority that a person could otherwise be ordered to submit to DNA testing in the circumstances of the case – there was authority that the court may order samples already obtained to be tested (albeit on very different facts) but that is very different.”
In giving judgment, the court accepted our argument, holding that this was indeed within its inherent jurisdiction and that Freeman has 28 days to provide the saliva sample. Judge Paul Matthews set out: “The inherent jurisdiction of the court extends to directing that a party to proceedings give a saliva sample by way of mouth swab for the purposes of establishing paternity in a case where paternity is in issue” and that “if science can help, then it should”.
There’s no suggestion that Freeman will be forced to do the test, but if she refuses, the court is likely to hold it against her by forming a ‘negative inference’.
Paul Gordon said: “This case is a further demonstration that the courts are showing a willingness to control evidence and recognise that scientific reports play a part in modern litigation. This is a case that would otherwise be decided upon competing witness evidence and an order for the provision of DNA testing is a useful and practical step in the process, particularly where it could lead to an early and cheap resolution to the case.”
City-trained litigation partner Paul Gordon is a specialist in a range of areas to include complex inheritance and trust disputes. He frequently acts for clients in High Court proceedings and is an accredited mediator. Leading directory Legal 500 rates him with “strong technical knowledge” and says he is “excellent at preparing cases for trial”, albeit Paul maintains that probate and trust disputes can usually be resolved at an early stage if all parties are given sensible advice.
Disclaimer: All legal information is correct at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation - contact us; we’d be delighted to help.
In a new series – ‘What does the law say?’ – our property litigation specialists discuss the key parts of residential possession law landlords and tenants should be aware of.…
In November 2023, HM King Charles delivered the King’s speech which set out the government’s planned legislative programme for the coming year. Our litigation specialists summarise the proposed bills that…
The Leasehold Reform (Ground Rent) Act 2022 came into force in June 2022 to ensure ground rent does not exceed one peppercorn per year. This only applies to new leases…
Our website uses cookies to improve your experience while you navigate through our website. Out of these cookies, the cookies that are categorised as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyse and understand how you use our website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies but it may affect your browsing experience on our website. You can find our cookie policy here.
Necessary cookies are absolutely essential for our website to function and enable core functionality such as security and accessibility. These cookies do not store any personal information. You can block these cookies by changing your browser settings, but this may affect how the website functions.
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Cookie
Duration
Description
__cf_bm
30 minutes
This cookie, set by Cloudflare, is used to support Cloudflare Bot Management.
mgref
1 year
This cookie is set by Eventbrite to deliver content tailored to the end user's interests and improve content creation. It is also used for event-booking purposes.
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
Cookie
Duration
Description
_ga
2 years
The _ga cookie, installed by Google Analytics, calculates visitor, session and campaign data and also keeps track of site usage for the site's analytics report. The cookie stores information anonymously and assigns a randomly generated number to recognize unique visitors.
_gat
1 minute
This cookie is installed by Google Universal Analytics to restrain request rate and thus limit the collection of data on high traffic sites.
_gid
1 day
Installed by Google Analytics, _gid cookie stores information on how visitors use a website, while also creating an analytics report of the website's performance. Some of the data that are collected include the number of visitors, their source, and the pages they visit anonymously.
G
1 year
Cookie used to facilitate the translation into the preferred language of the visitor.
vuid
2 years
Vimeo installs this cookie to collect tracking information by setting a unique ID to embed videos to the website.
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.