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“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.”

View the judgment here.

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.

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