SOLICITORS TRURO: Collecting DNA from the dead

In the case of Spencer v Anderson (15 April 2016), the putative father died of bowel cancer and an order was  sought for declaration of parentage and direction permitting testing of deceased’s DNA sample.

The court directed that a DNA sample of the deceased could be used to establish the parentage of the applicant.

The putative son applied for a declaration pursuant to s 55A of the Family Law Act 1986 for a declaration that the deceased who died intestate in 2012 was his father.

The relief sought included a direction that a stored DNA sample from the deceased, extracted for medical purposes could be tested to establish the man’s paternity.

No such case had thus far come before the courts of England and Wales.

The deceased died of bowel cancer which was a hereditary disease and a DNA sample was taken to test for two high risk genes. A genetic counsellor informed the man that if the deceased was his father then he would have a 50% risk of an inherited disposition to bowel cancer.

The judge found that there was no statutory power to direct post-mortem scientific testing to establish biological relationship and, therefore, no statutory power to make the direction sought.

However, where the absence of a remedy would lead to injustice the judge held that the High Court possessed an inherent power to direct such testing.

In determining whether to exercise that power the judge had to weigh up the competing considerations of the interests of the deceased and the public interest arguments on the one hand against the interests of the living and the interests of justice.

On the facts of this case, if the court were unable to obtain evidence of parentage severe and avoidable justice might result. Consideration of the implications of ordering testing in the absence of consent and of the wider public interest did not lead to the conclusion that the jurisdiction did not exist but rather that the jurisdiction should only be used sparingly.

The judge ordered that scientific testing should take place to establish paternity. The man’s interest in knowing his parentage, the issues raised by the medical history and the marked advantage of scientific testing as a means of resolving the issues, carried more weight.

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