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Cite as: [2018] EWHC 299 (Ch), [2018] 3 WLR 1802, [2019] Ch 85, [2018] WLR(D) 109

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		Neutral Citation Number: [2018] EWHC 299 (Ch)
		Case No: D31BS679

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)

Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR

21/02/2018

B e f o r e :

HHJ PAUL MATTHEWS
(sitting as a Judge of the High Court)
____________________

IN THE ESTATE OF COLIN WILSON BIRTLES DECEASED

Between:

	Janice Elizabeth Nield-Moir	Claimant/ Applicant
	- and –
	Lorraine Karen Freeman	Defendant/ Respondent

____________________

Michael Clarke (instructed by Willans LLP) for the Claimant
Julie Case (instructed by Wrigley Claydon) for the Defendant

Hearing dates: 8 February 2018
____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

HHJ Paul Matthews :

Introduction

On 8 February 2018 I heard an application by the claimant for an order that the defendant submit to DNA testing to establish whether she was the biological daughter of Colin Wilson Birtles ("the deceased"), in relation to whose estate this claim is brought. At the end of the hearing, I announced that I had decided that the application should succeed, but said that I would put my reasons in writing. However, when I began to compose those reasons, I realised that the impact of human rights on the question had not been sufficiently explored. Accordingly, I told counsel that my decision announced at the conclusion of the hearing could not be regarded as definitive, and asked them to let me have written submissions on the human rights aspect. They have now kindly done so, and I am very grateful to them for responding so rapidly. This is accordingly my decision.

The claimant and the defendant were both born to the deceased's late wife Veronica, in 1961 and 1962 respectively. This was during the deceased's marriage to Veronica, although they subsequently divorced, in 1977. The claimant and the defendant are therefore at least half-sisters. However the claimant denies that the defendant is the biological daughter of the deceased. They have been estranged for many years. The claimant has lived in Australia since 2007.

The deceased died in England on 16 June 2013, intestate, a divorcee and without living parents. On 5 September 2013, the defendant obtained a grant of administration in respect of the deceased's estate through solicitors. The only assets in the estate were the terraced house known as 31 Lily St, Royton, Oldham, Lancashire, and some cash at bank. On 11 November 2013 the defendant as personal representative appears to have sold 31 Lily Street to herself.

The claim

The claim itself was begun by claim form issued on 13 October 2017. It seeks the revocation of the grant of letters of administration of the estate of the deceased to the defendant and the grant of letters of administration instead to the claimant. Moreover, it seeks a declaration that the defendant is not entitled to any interest in the estate and also a declaration that a sale and transfer of 31 Lily Street to the defendant be set aside. It seeks other relief as well, but I am not concerned with that now. The claim form was accompanied by particulars of claim setting out the claim in detail, including a clear allegation that the defendant was not the biological child of the deceased, but also an alleged breach of the 'self-dealing' rule as administrator in selling 31 Lily Street to herself.

The defendant filed and served a defence and counterclaim dated 22 November 2017. It made the case that the defendant was indeed the child of the deceased. It also said that at the time of the defendant's birth the deceased and the defendant's mother Veronica were married, and the defendant's birth certificate stated that the deceased was her father. Accordingly there was a (common law) presumption that the deceased was the defendant's father, rebuttable on the balance of probabilities (Re Baronetcy of Pringle of Stichill [2016] 1 WLR 2870, [36]-[41]; Family Law Reform Act 1969, s 26). Moreover, after the deceased was divorced from Veronica, the deceased paid maintenance in respect of the defendant pursuant to a court order until the defendant was 16 years old. The allegation of breach of trust and duty in relation to the administration of the estate and the sale of the property to herself was denied. A reply and defence to counterclaim was filed and served dated 30 November 2017.

The application

The present application was made by notice dated 28 November 2017. It is supported by two witness statements of Paul Gordon, a partner in her solicitors Willans LLP. The first is dated 28 November 2017 and the second is dated 7 February 2018. It is opposed by a witness statement of the defendant herself dated 31 January 2018. At the hearing before me on 8 February 2018, Mr Michael Clarke of counsel appeared for the claimant/applicant and Ms Julie Case of counsel appeared for the defendant/respondent.

The evidence for the applicant supports her case that the deceased told a number of persons during his life that the defendant was not his biological daughter, despite the fact that she was born to his wife during the subsistence of their marriage. Accordingly, the claimant had sought the defendant's agreement to submit to a DNA test which would provide scientific evidence as to whether the deceased was indeed the defendant's father. The applicant would also be tested. A comparison of the DNA of the applicant and the respondent would probably show whether they were related, and if so whether as full or half-sisters. However, the defendant has so far refused to consent to such a test. The applicant therefore now seeks an order to require the defendant to submit. The test would be by means of a saliva mouth swab. The tester would be Dr Denise Syndercombe-Court. She is reader in forensic genetics at King's College London. The costs would be met in the first instance by the applicant.

In her evidence, the respondent accepts that she has refused to agree to the DNA test. She has done so on the basis that, at the time of her birth, her father was married to Veronica, her birth certificate states that the deceased was her father and the deceased paid maintenance pursuant to a court order for her until she was 16 years old. Her evidence is that the deceased never challenged paternity, despite having opportunity to do so. She dismissed the evidence collected by the applicant of alleged statements by the deceased to others that she (the respondent) was not his daughter as "nothing but gossip and hearsay". She also refers to an email received by her solicitors dated 3 August 2017 from Dr Syndercombe-Court. That email, the respondent says, states that the question whether the claimant and the defendant are full sisters cannot be answered "definitively". Moreover, "she does not say that she would be able to provide 'sufficient proof' just that she expects that she could". And the email also raises the possibility of the test producing false positives and false negatives.

There is a niece of the deceased called Valerie Nettleship. Any child of the deceased would be Valerie's cousin. It appears that she would be willing to undergo a DNA test as well (see the first witness statement of Paul Gordon dated 28 November 2017, [10]), so that the DNA test carried out on the defendant could not only provide information relevant to the question whether the claimant and the defendant are full or half-sisters, but also are daughters of the deceased.

As I have said, the defendant obtained a grant of administration in respect of the deceased's estate through solicitors. But the evidence (including the particulars of claim, to which the claimant has attached a statement of truth) shows that she did not take any steps to locate the applicant. The defendant in her witness statement does not deny this. In her defence and counterclaim she admits not having advertised for claims. She says this was as a result of her solicitors' advice.

Three questions for the court

Accuracy of the test

Mr Clarke, for the applicant, said there were three questions that the court needed to deal with. The first was whether the test would be sufficiently accurate. The second was whether the court had jurisdiction to make the order. The third was whether in the circumstances the court ought to make order. As to the first of these, in his second witness statement, Mr Gordon, on behalf of the applicant, responds to the suggestion by the respondent that there is doubt about the accuracy and efficacy of the DNA testing. Dr Syndercombe-Court was sent a copy of the respondent's witness statement and responded by letter dated 6 February 2018.

In that letter she says this:

"I have read the comments made by Lorraine Freeman at paragraphs 6 to 9 of her witness statement dated 31 August 2018 and, in particular, her concern that the question of whether she and Ms Nield-Moir are full or half sisters may not be tested definitively by me.

I am a scientist. In my work I use the word 'definitively' to mean 'beyond any doubt' or 'absolute (100%) certainty'. In that sense I am unable to provide a definitive result. However, I would like to reassure both parties and the court that I will be able to provide a result which establishes whether the parties are full or half siblings to a very high degree of probability.

[ ... ]

When testing as between full and half siblings, I have never failed to provide a useful result, although sometimes that might mean using very extensive testing. It follows that in the present case, given the number of times I have tested siblings, the possibility that I will be unable to provide a result in this case is remote in the extreme. The possibility that the result I reach will be inaccurate is expected to be very low. I may not be able to say that the result will be definitive (in the sense I use the word) but I would fully expect it to be a result that the court could seek to rely on.

Taking into account and aggregating both the possibility that I may not be able to produce a result and that any result I produce may be inaccurate I quantify the risk of the same as 2 or 3%. In other words if I were asked to quantify the possibility that my testing will produce an entirely accurate result I would say 97 to 98%.

As I understand it, if the parties are found to be full siblings that will answer the issue in dispute, but if they are found to be half siblings a further test may be required to establish if one or other of the parties are related to Valerie Nettleship who is understood to be the cousin of one or both of the parties.

I cannot be as confident in respect of the relationship of cousins as I can with the relationship of full or half siblings. It depends upon how certain the parties and the court would like the result. I would typically recommend working initially on the ratio of 20:1 (equating to 91%) so that it is 20 times more likely that the relationship of cousins exists than not. At that ratio the chance of a successful test is 50%. However, a lower ratio could be used and the chance of a successful test would accordingly increase. I should clarify that by successful test I mean a result in which I can confidently state my findings to the required ratio.

[ ... ]"

Mr Clarke accordingly submits that although the test cannot answer the question of full or half-siblings "definitively" it can do so to a very high degree of probability. I accept this submission. In my judgment the proposed evidence would be sufficiently accurate for the purpose of answering this question. As to the further question which would arise in the event of the parties being found to be half-sisters, that is, whether either was the daughter of the deceased, at a ratio of 20:1 likelihood, the chances of successfully testing are 50:50. That is certainly evidence worth having, and a 50% chance of obtaining it is high enough to make the test worthwhile, at least in principle.

Jurisdiction of the court

The second question (the jurisdiction of the court) is more complicated. There were isolated examples of courts making orders for medical examinations in early times (for example, when a woman was alleged to be pregnant and it was necessary for the purposes of some litigation that the fact should be ascertained: Re Brown (1792) 4 Bro CC 91). In modern times a number of statutory powers have been introduced. But the common law is relevant too.

First, a principle has been developed that, where a party could without apparent difficulty give or call relevant evidence on an important point, a failure to do so might in some circumstances entitle the court to draw an inference adverse to that party, which will be sufficient to strengthen evidence adduced by the other party or weaken evidence given by the party so failing: see for example Thames Valley Housing Association v Elegant Homes (Guernsey) Ltd [2011] EWHC 1288 (Ch), [19].

Second, the common law has used the power to order a stay on proceedings to encourage the claimant to consent to a medical examination where this was necessary for the purposes of the claim being made. If the claimant did not consent, the claim could not continue: see eg Edmeades v Thames Board Mills Ltd [1969] 2 QB 67, CA; Croydon London Borugh Council v Y [2016] EWCA Civ 398.

In the present case the defendant/respondent makes a counterclaim. The court might accordingly stay the counterclaim until the respondent provided a DNA testing sample. But in fact there is authority that goes further. In Lacey v Harrison (1992) 11 BMLR 75, the High Court made an order requiring the defendant alleged to have caused a road traffic accident case to submit to a medical examination or else his defence would be struck out. HH Judge Dobry, sitting as a judge of the High Court, referred to and relied upon an unreported decision of the Court of Appeal, Cosgrove v Baker, 14 December 1979, where at first instance Milmo J had made an order, in a road traffic collision case, that the defendant submit himself to a medical examination by the plaintiff's medical adviser. An appeal against the decision was refused by the Court of Appeal (Roskill and Templeman LJJ).

Roskill LJ said:

"For my part I do not think that this raises any questions of law. I think it raises a somewhat novel point, how what is now the well-established rule that a court can order a party in a personal injury accident action to submit to a medical examination should be operated on the rather peculiar facts of this case.

[ ... ]

In my view there is the well established rule that a party to a personal injuries action, whether plaintiff on a claim or defendant on a counterclaim, can be required to submit to a medical examination."

From this case HH Judge Dobry drew the following conclusion:

"It seems to me that the judgment of the Cosgrove case indicates that in exceptional circumstances this rule can be extended to a defendant whose liability depends on his medical condition. This is perhaps a novel point but is consistent with rule 38 (2) (a) about the disclosure of proofs and with the general cards on the table principle which now prevails. The opposite view is that the order sought would be an infringement of liberty of the subject.

The key point in the Cosgrove case was that the court considered that it is possible to examine a defendant on a medical issue which affects his liability, which is the case here. The question of fact in the present case is whether the defendant can remember the accident, and, having regard to the circumstances of it, this can apparently be tested by a medical examination."

The judge then referred to the decision of the Court of Appeal in Edmeades v Thames Board Mills [1969] 2 QB 67, and went on:

"I have come to the conclusion that striking out the defence unless the defendant submits to a medical examination is comparable to the stay granted in the Edmeades case. It is appreciated that in order to strike out a defence is draconian. The burden of proof in respect of an order to stay proceedings and an order to strike out is different. The nature of the two orders is different. Nevertheless, when one deals with an unless order the ruling consideration is whether the defendant in refusing a reasonable request prevents the just determination of the course. In very exceptional circumstances such as the present this is the situation which has occurred, and in my judgment the appeal should be allowed."

That therefore was the common law position in 1992. As I have said, there are some statutory provisions permitting the court to direct a medical or other examination of a defendant. The nearest such provision to the facts of the present case appears to be section 20 of the Family Law Reform Act 1969. Section 20(1) (as substituted in 2001 by the Family Law Reform Act 1987, s 23; SI 2001/777, art 2) provides:

"In any civil proceedings in which the parentage of any person falls to be determined, the court may, either of its own motion or on an application by any party to the proceedings, give a direction—

(a) for the use of scientific tests to ascertain whether such tests show that a party to the proceedings is or is not the father or mother of that person; and

(b) for the taking, within a period specified in the direction, of bodily samples from all or any of the following, namely, that person, any party who is alleged to be the father or mother of that person and any other party to the proceedings;

and the court may at any time revoke or vary a direction previously given by it under this subsection."

There are some important supplementary provisions. Section 21(1) provides (as also slightly amended in 2001, by the same authority) that:

"Subject to the provisions of subsections (3) and (4) of this section, a [bodily sample] which is required to be taken from any person for the purpose of giving effect to a direction under section 20 of this Act shall not be taken from that person except with his consent."

And section 23(1) provides that:

"Where a court gives a direction under section 20 of this Act and any person fails to take any step required of him for the purpose of giving effect to the direction, the court may draw such inferences, if any, from that fact as appear proper in the circumstances."

It will be seen from these supplemental provisions that a direction for a blood test could still be frustrated by the refusal of the respondent to consent. The 'sanction' imposed by the statute was the drawing of an adverse inference, in line with the common law principle already referred to above.

Mr Clarke accepted that the jurisdiction under s 20 of the 1969 Act did not apply in the present case, because the scientific testing for which that section provides would not be undertaken in order to ascertain whether a party to the proceedings was or was not the father or mother of a child (see s 20(1)(a)). He did not seek to argue that the court could nevertheless give a direction for the taking of the sample from the defendant as a party to the proceedings (under s 20(1)(b)). In other words, he conceded that both limb (a) and limb (b) had to be satisfied before the court could order a sample to be taken and tested.

However, he said that the court retained an inherent jurisdiction to order a test to be administered in the present case. He referred me to a number of authorities on this point. I think that it is only necessary for me to refer to one of them. This is the decision of the Court of Appeal, delivered the day before the hearing, on 7 February 2018, in Anderson v Spencer [2018] EWCA Civ 100. The Court affirmed the decision of Peter Jackson J (see [2016] EWHC 851 (Fam)).

Factually, the case was different from the present. It was a case where an application was made and an order was granted that DNA already extracted from the body of William Anderson, deceased, and held at a particular hospital in the UK, should be tested against a bodily sample to be taken (voluntarily) from David Spencer, in order to establish whether the deceased was or was not the biological father of Mr Spencer. The application had been made by Mr Spencer, and had been opposed by Ms Anderson (the deceased's mother).

In that case, King LJ (with whom McFarlane and Simon LJJ agreed) said:

"23. Prior to the introduction of Part III of the Family Law Reform Act 1969 (FLRA 1969) which, as set out above, provides the vehicle whereby the court can direct the use of scientific tests for the purpose of determining parentage, the court had on occasion used its inherent powers to order blood tests which, whilst not providing the near certainty of DNA tests, gave the courts evidence with which to corroborate oral evidence: see In re L ( An Infant) [1968] P 119.

[ … ]

31. Absent statutory power, the question arose as to whether the High Court has an inherent power to order the DNA testing in circumstances where the Appellant (qua mother and qua personal representative) was now objecting to use being made of Mr Anderson's extracted DNA for the purposes of establishing (or otherwise) the paternity of the Respondent.

32. The judge briefly referred to the fact that the inherent jurisdiction is a jurisdiction of long standing which has been used in a wide variety of ways to supplement statutory powers. He referred to the recent cases which have seen the jurisdiction develop to provide remedies for the protection of vulnerable, but not legally incapable, adults: (Re Sa [2005] EWHC 2942 (Fam)) and also to the confirmation by the Court of Appeal that the use of the inherent jurisdiction has survived the enactment of the Mental Capacity Act 2005 see: Re DL v A Local Authority [2012] EWCA 253.

33. The judge also referred to Bremer Vulkan v South India Shipping [1981] 1 AC 909 by way of an example of the use of the inherent jurisdiction by the court in relation to its power to control its own procedures.

34. Before turning to the submissions of each of the parties, the judge said:

"59. 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).

60. 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 of the law."

[ … ]

46. I accept the submission of Mr Kemp that in order for an extension of the jurisdiction to be principled, it is unnecessary for it to slot into a previously recognised category. To do so would constrain the legitimate use of Lord Donaldson's 'great safety net.' That does not, however, give a judge open season to expand the use of the inherent jurisdiction and this judge was sensible of the need to avoid any unprincipled extension of the jurisdiction saying:

"71(1):…there is a legislative void, both in relation to post-mortem paternity testing and in relation to paternity testing using extracted DNA. I accept that in an area of this kind, policy considerations arise which would be better regulated by Parliament than by individual decisions of the court. In one sense, this speaks for judicial reticence. However, there is no indication that Parliament has turned its attention to the situation that arises in the present case, or that it is likely to do so at any early date. That gives rise to the possibility of an indefinite period during which individuals would be left without a remedy."

47. In considering the interests of justice the judge said:

The interests of justice

"71(6) When all is said and done, the court is faced with a civil dispute that must be resolved. In cases where a power exists, it has long been emphasised that the establishment of the truth is both a goal in itself and a process that serves the interests of justice. As noted above, where a court makes findings of fact based upon witness and documentary testimony, there is always the possibility of error. Evidence will be incomplete because (by definition in a case of the present kind) people will have died and memories may have faded. When dealing with matters as important as parentage, the need to reach the right conclusion is obvious. The prospect of a court trying to ascertain the truth to the best of its ability when the truth is in effect there for the asking is a troubling one. Account must also be taken of the needless waste of resources that would accompany a trial involving narrative evidence."

The judge went on to say:

"71(7)…the existence of a power cannot depend upon the circumstances of the particular case… jurisdiction cannot depend upon merits."

He concluded:

"73. 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 the 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."

48. Mr Mylonas protests that the emphasis on the 'interests of justice' by the judge does not justify an unprincipled extension to the jurisdiction. In my judgment, that submission fails properly to take into account the focus of the judge's finding in relation to the interests of justice. The judge's emphasis was on the prospect of a court trying to make a finding on a matter as important as parentage (and therefore the identity of the Respondent) on incomplete oral and written evidence. The nature of the evidence upon which the court would be compelled to rely (absent scientific testing) would be the recollection of the surviving protagonists, of events which took place several decades ago, in circumstances where, the undoubted truth could be easily and cheaply made available through DNA testing. The judge in reaching this conclusion had well in mind, and said in terms, that the existence of a power cannot depend upon the circumstances of the case and that the jurisdiction cannot depend upon merits [71(7)].

49. The judge carefully considered all the legal and ethical factors which related to the issue as to whether what he intended to do amounted to a principled extension of the use of inherent jurisdiction. Having weighed up those matters the judge decided, not that the best interests of justice on the facts of this case required a finding that there was jurisdiction, but that the interests of the living in knowing their biological identity together with the interests of justice including the desirability of knowing the truth, when set against the other identified considerations, led to the conclusion that the High Court possessed the jurisdiction to make the order sought.

50. In my judgment the judge was entirely correct in both his approach and in his conclusion that there is a residual power under the inherent jurisdiction for a court to make a direction that the extracted DNA of Mr Anderson should be utilised in order for the paternity of the Respondent to be determined.

51. In so concluding, it goes without saying that I wholly endorse Hayden J's stricture that the inherent jurisdiction is not a 'lawless void', and I would adopt the words of Jackson J in his judgment in the present case that:

"60… 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 of the law."

In argument before me, Ms Case sought to distinguish this case from the present. In Anderson the person whose DNA was to be tested was dead, whereas in the present case the defendant is very much alive. Second, in Anderson, the sample had in fact already been taken from the body of the deceased. So the only direction which the court had to give was for the testing of the sample. In the present case the direction sought is that the defendant provide a sample which shall then be subject to DNA testing.

I certainly accept that no authority or case cited to me or of which I am aware goes to the extent of requiring a person to submit unconditionally to an invasion of bodily (or property) integrity, however slight, except where a specific jurisdiction is engaged, eg in relation to persons lacking mental capacity and children, or in cases of emergency, such as a patient in a coma (see eg Re F (Mental Patient) [1990] 2 AC 1, 55). None of those special cases applies here. So as the law stands the court cannot normally order a person to have a sample forcibly taken. But there are cases such as Lacey v Harrison, showing that an order can be made in an "unless" form, so that the party (here the defendant) has to choose between giving the sample and having her defence struck out. And then, going on further, there are also cases which demonstrate that the court possesses an inherent jurisdiction in appropriate circumstances to require a person to consent to something which would otherwise amount to such an invasion. The most obvious is the Anton Piller jurisdiction, derived from the case of Anton Piller AG v Manufacturing Processes Ltd [1976] Ch 55. Such orders are now called search orders: see now Civil Procedure Act 1997, s 7, and CPR r 25.1(1)(b). There, the respondent is ordered to consent to a search of his or her premises for material which is required for the purposes of the claim and in respect of which there is a justified fear that it will disappear. If the respondent does not consent to the search and seizure as set out in the order, he or she risks being in contempt of court.

Stepping back from the taking of samples by force (which the applicant in this case does not seek), I do not see why, in principle, a person cannot be ordered to consent to a mouth swab saliva test for DNA testing purposes, in the same way as a search order requires a person to consent to a search of premises and the seizure of items falling within the scope of the court order. In considering whether the court may properly make an order that a saliva sample be given, it is relevant to consider how severe the invasion would be, and what risks it might carry.

In physical terms, the DNA testing sought in the present case consists of the collection of a small amount of saliva by means of a mouth swab: see the first witness statement of Paul Gordon dated 28 November 2017, [9], and his second witness statement dated 7 February 2018, [20]. Self-evidently, it is quick, painless and carries no appreciable risk to the health of the donor of the sample. It is much less of a physical invasion than even the blood tests contemplated by the 1969 Act.

In mental terms, there is obviously a risk of upset to a person who has long believed herself to be the child of a certain person and then is shown not to be (if that is the result). But given that there is already litigation on foot in which the issue of parentage has arisen, and given that the judge will decide it on the balance of probabilities, on the basis of the evidence available at trial, whether the sample is given or not, that is a risk to which the sample donor is already exposed. The DNA test merely adds to the evidence available to the court. No concerns of a physical or mental health nature specific to the defendant have been raised by her which ought to be taken into account by the court in considering whether to make the order sought.

The confidentiality of the data obtained by the test is assured (in the same way as in the case of a search order) by the

"underlying principle … that private information obtained under compulsory powers cannot be used for purposes other than those for which the powers were conferred" (see Marcel v Metropolitan Police Commissioner [1979] Ch 225, 237, and see also CPR r 31.22 in relation to documentary disclosure).

It is also relevant to consider the value of the evidence that would be made available to the court if the saliva sample is given and tested. As appears from the email and the letter from Dr Syndercombe-Court, referred to above, the evidence derived from DNA testing is likely to be very useful indeed to the court, if not determinative. As Peter Jackson J said in Anderson v Spencer [2016] EWHC 851 (Fam),

"71(6) … As noted above, where a court makes findings of fact based upon witness and documentary testimony, there is always the possibility of error. Evidence will be incomplete because (by definition in a case of the present kind) people will have died and memories may have faded. When dealing with matters as important as parentage, the need to reach the right conclusion is obvious."

This too is a parentage dispute. The truth is as important here as it was there. The Court of Appeal ([2018] EWCA Civ 100) summed up and approved the judge's approach in a passage already quoted, as follows:

"49. The judge carefully considered all the legal and ethical factors which related to the issue as to whether what he intended to do amounted to a principled extension of the use of inherent jurisdiction. Having weighed up those matters the judge decided, not that the best interests of justice on the facts of this case required a finding that there was jurisdiction, but that the interests of the living in knowing their biological identity together with the interests of justice including the desirability of knowing the truth, when set against the other identified considerations, led to the conclusion that the High Court possessed the jurisdiction to make the order sought."

In his skeleton argument Mr Clarke for the applicant cited a passage from the judgment of Thorpe LJ (with whom Dame Elizabeth Butler-Sloss, P, and Kay LJ agreed), overturning the judge at first instance, in Re H & A (Children) [2002] EWCA Civ 383, [30]:

"The judge made it plain that in the absence of scientific evidence then the issue was to be decided on the application of 'a very important, well established principle .... that is, the presumption of the legitimacy of children born during the currency of the marriage'. He went on to refer to the case of Serio v Serio [1983] 4 FLR 756. Twenty years on I question the relevance of the presumption or the justification for its application. In the nineteenth century, when science had nothing to offer and illegitimacy was a social stigma as well as a depriver of rights, the presumption was a necessary tool, the use of which required no justification. That common law presumption, only rebuttable by proof beyond reasonable doubt, was modified by section 26 of the Family Law Reform Act 1969 by enabling the presumption to be rebutted on the balance of probabilities. But as science has hastened on and as more and more children are born out of marriage it seems to me that the paternity of any child is to be established by science and not by legal presumption or inference. Were the judge's order to stand in the present case the consequence would be a long and acrimonious trial of the paternity issue when, in the absence of the only decisive evidence, each side would resort to evidence of marginal or doubtful worth in the determination to prevail. Such a development would be wasteful of both legal costs and judicial time."

Another sixteen years have passed since that was said. In my judgment, in a case such as the present, where an important issue is one of parentage, where DNA testing is likely to produce a robust conclusion one way or the other, and where the testing nowadays requires merely a saliva sample by mouth swab from one or more of the parties, the court may well have an inherent jurisdiction to order a person to consent to giving such a sample so that it may be DNA tested. A failure in such a case to consent might then amount to a contempt of court.

But I need not decide that question now, because in fact that is not the order sought here. What the applicant instead asks for is similar to a direction given under s 20 of the 1969 Act, with a similar consequence in case of non-compliance, ie simply that an adverse inference may be drawn against the respondent. The court might in an appropriate case attach a different sanction to the direction, such as a stay of the claim or the striking out of the defence, in case it be not complied with (an "unless" order). Or the court could simply leave it for the applicant in case of non-compliance by the respondent to apply to the court for a further order, eg drawing an inference adverse to the respondent's case, the staying of the claim, making an "unless" order, or indeed striking out the party's statement of case then and there, as appropriate. Here, as I say, the applicant has asked only for a direction with an adverse inference in case it be not complied with.

Human rights considerations

At the hearing neither counsel referred me to any materials specifically dealing with the impact of the European Convention on Human Rights and the Human Rights Act 1998 on the common law position. But, as I said earlier, afterwards I asked for written submission on human rights aspects, which were speedily supplied. And, at the hearing, Mr Clarke did refer me to Anderson v Spencer [2018] EWCA Civ 100. In that case the Court of Appeal did consider the human rights perspective as well as the inherent jurisdiction. It looked in particular at article 8. That provides:

"Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

It will immediately be noted that article 8 does not confer an absolute right to anything. It is a right, at most, to respect for private and family life. Interference is specifically permitted on the grounds set out in article 8(2). On the facts of that case, where the sample had already been taken from the body of the deceased, and it was just a question of directing the testing, the court doubted that article 8 was engaged at all, or that there was an interference with that right (see at [57]). But even on the footing that both conditions were satisfied, the court considered that, on balancing the interests of the parties, the balance came down in favour of directing the test (see [58]-[60]).

The present case goes further than Anderson, because the sample has not yet been taken, and there is also the question of directing the sample to be given by the defendant. It is however a fair forensic point to make that, although the jurisdiction to order the giving and testing of samples has been part of English statute law since the Family Law Reform Act 1969, no challenge appears to have been made to it under the ECHR and now the Human Rights Act, let alone successfully.

I referred above to the Anton Piller (now "search order") jurisdiction by way of analogy, because it required the respondent to the application to consent to permitting the search and seizure in accordance with the court order. That was challenged under ECHR article 8, but in Chappell v United Kingdom (1990) 12 EHRR 1, the European Court of Human Rights held that it could be justified under article 8(2) as necessary to protect the rights of others. More relevantly, I have come across two Commission decisions which are factually closer to this case. I mentioned them specifically in my invitation to counsel to address me in writing on the human rights issues.

In X v Austria 18 DR 154 (1979), the European Commission on Human Rights held that a complaint by a defendant in a paternity suit ordered to undergo a blood test by force engaged article 8, as an interference with the right to respect for private life. However, it was held to be proportionate to the purpose sought and necessary in a democratic society for the protection of the rights of others under article 8(2). The Commission said:

"3. … As the respondent Government have pointed out, various family rights, for example the right to maintenance payments or the right of succession, depend on the determination of paternity relations. The public has an interest in that the courts have the power to make use of harmless scientifically proven methods of obtaining evidence for the purpose of determining paternity relationships and thereby determining paternity rights. These interests must prevail in the circumstances of the present case over the applicant's interests in being protected against interferences with his private life."

Again, in Peters v Netherlands 77-A DR 75 (1994), a prisoner complained about random drug testing by urine sample in prison. This too was compulsory, in the sense that a failure entailed a disciplinary sanction (five days' confinement). It was also held by the Commission to be an interference with the article 8 right. But the Commission was satisfied that it could reasonably be considered necessary in a democratic society for the prevention of disorder or crime and thus justified under article 8(2). The Commission said:

"… the Commission finds that the right of a convicted prisoner to respect for his private life must be appreciated having regard to the ordinary and reasonable requirements of imprisonment. The 'prevention of disorder or crime', for example, may justify wider measures of interference in the case of such a prisoner than in the case of a person at liberty."

What is interesting about these two cases is that they were both cases of unconditional orders to undergo testing, by force in the case of the blood test, and with a disciplinary sanction in the case of the urine test. It is therefore unclear whether a direction to give a saliva sample, which will not be taken by force, nor even by requiring consent to be given, although it may have certain procedural consequences in the civil proceedings, is necessarily to be regarded even as an interference with the article 8 right. But I do not need to determine that question, because it is clear that, even if it is an interference, it can be justified under article 8(2).

In the present case important rights of inheritance depend on paternity. Such rights were specifically mentioned by the Commission as a possible justification in X v Austria. There is already some evidence putting in play the rebuttable presumption arising from birth inside marriage, but the DNA testing is likely to prove the true position one way or the other. The test is even less invasive than the blood test in X v Austria, and has even less risk attached. It is not in any meaningful sense a medical intervention. The physical aspect of giving the sample is indeed trivial.

More significant, perhaps, is the respondent's right to respect of her privacy in relation to her parentage. Mr Clarke argues that what the respondent is seeking to do is not to keep her parentage private, but to leave it unascertained. This, he says, does not engage article 8. I disagree. The respondent may well prefer to leave doubtful matters doubtful to resolving them potentially in a sense which she does not welcome. Her parentage is a matter personal to her, even if it is uncertain. There is a family tie, even if it should turn out that the deceased was not her father. So article 8 is engaged, and, if there is an interference, there is a balancing of interests to be carried out.

Ms Case says that it is one thing to require a putative father to take a blood test to establish paternity of a child (as in X v Austria). There the person denying paternity was a party to the very relationship in question. Here, however, the challenge to the respondent's paternity does not come from any party to the relationship. Instead it comes from the applicant. Yet the applicant has her own relationship with the respondent. They are either half or full sisters. The applicant's own interests in inheriting from the deceased are strong, and are significantly affected by the exact nature of her relationship with the respondent. I do not think that the distinction drawn by Ms Case has any real weight here.

In my judgment the balance comes firmly down on the side of holding that directing such a test is justified as in accordance with the law and necessary in a democratic society for protecting the rights of others (ie the applicant), and accordingly does not involve a violation of the article 8 right, even if that is engaged. Directing a saliva sample to be taken and tested is a proportionate (some might even argue under-proportionate) means of protecting the public interest in the accurate resolution of inheritance disputes.

Whether an order should be made

Ms Case for the respondent says that this is a fishing expedition by the applicant, and that the court should not direct a test in such a case. She refers me to what Lord Macdermott said in S v S, W v Official Solicitor [1972] AC 24, 48:

" … if the court had reason to believe that the application for a blood test was of a fishing nature, designed for some ulterior motive to call in question the legitimacy, otherwise unimpeached, of a child who had enjoyed a legitimate status, it may well be that the court, acting under its protective rather than its ancillary jurisdiction, would be justified in refusing the application."

But I do not think that this case is a fishing expedition. The applicant has a number of witness statements from third parties, who say that they were told by the deceased that the respondent was not his daughter. Of course, I cannot and do not say at this stage that those statements are correct. They can and will be tested at trial. The respondent's own witness statement, made for the purposes of resisting this application, says that, about 18 months before his death, the respondent asked him about what she called the "rumours" that she was not his biological daughter. Her own evidence is that, instead of putting her mind at rest, which would have been easy for him to do, the deceased simply told her that he did not want to discuss it, because he had a new life now. On any view, the evidence raises an issue to be tried. And DNA evidence would be highly relevant to this issue. As I have already said, it is quick, painless, risk-free, and in this case also cost-free to the respondent, as the applicant has confirmed that she would pay in the first instance.

It is also relevant that, knowing what she knew (and what she did not know), the respondent positively extracted a grant and claimed an interest in the estate, in both cases on the basis of her asserted parentage. I accept that at that time the applicant was in Australia and the respondent did not have her address. However, the respondent did not take any steps to locate the applicant either. In my judgment, justice here requires that the DNA evidence be made available to the court in deciding this claim, and the respondent should not be allowed to obstruct that. Accordingly, the court should exercise its inherent jurisdiction to direct the giving and testing of a saliva sample, with the court being able to draw an adverse inference if the respondent does not consent to give the sample.

Conclusion

In the result, therefore, I hold that 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. In the present case, I consider that the applicant has made out proper grounds for such a direction to be made, and that the respondent has failed to show any good reason why it should not be. This sad litigation should be brought to a conclusion, one way or the other, as soon as practicable. If science can help, then it should.

In all the circumstances, I consider that I should accede to the application and direct the respondent to give a saliva sample to Dr Syndercombe-Court by way of mouth-swab within 28 days, failing which the court will be at liberty, on the trial of the claim, to draw an adverse inference against the respondent.