Re F (Children) (DNA Evidence) [2007] EWHC 3235 (Fam), [2008] All ER (D) 171 (Jan)
Family Division
Anthony sitting as a deputy high court judge
The High Court has given directions concerning obtaining DNA evidence in family court proceedings.
Alison Woodward (instructed by the local authority’s legal department) for the local authority.
Elena Waddell (instructed by Glaisyers) for the first respondent Samantha Birtles (instructed by Harry Boodhoo & Co) for the second respondent.
Kate Bramall (instructed by Lomax Geddes & Co) for the third respondent.
Nick Hodson (instructed by Stephensons Solicitors) for the fourth respondent.
Kath Koral (instructed by Green & Co) for the fifth respondent Christopher Cook (instructed by William Holden Cooklin Gibbons LLP) for the sixth respondent.
The proceedings were concerned with the welfare of eight children. In December 2006, following a 15-day hearing, it was found that one of the children had been subjected to significant physical, sexual and emotional abuse. The perpetrator, who was not a family member, was also identified. Each of the adults pleaded guilty to sexual abuse in concurrent criminal proceedings. It was not, however, clear to what extent each of the children were related to each other or who their respective parents might be. DNA testing was ordered. The order provided for the cross-referencing of the children’s testing in order to identify the sibling relationships. The order did not specify which company ought to carry out the testing; the solicitor for the children was given the task of doing so. He chose a company called DNA Diagnostics, having instructed them in previous cases and knowing them to have undertaken court work regularly.
The test led to confusion about the results, however, with the company unable to link donors with samples, due to photographs missing from the company’s database. It transpired on further investigation that some 122 cases were affected by the loss of the photographs. According to the company, the loss was the result of the installation of a new computer system. The issue arose as to the proper course to be taken for court-ordered DNA testing in the future.
ANTHONY HAYDEN QC:
(i) Any order for DNA testing made by the Family Courts should be made pursuant to the Family Law Reform Act 1969 (FLRA 1969).
(ii) The order should specify that it was being made pursuant to FLRA 1969 and either the company who was to undertake the testing should be named or the order should direct that the company identified to undertake the testing was selected in accordance with FLRA 1969, from the Ministry of Justice Accredited List. Only accredited companies could be instructed.
(iii) The taking of samples from children should only be undertaken pursuant to the express order of the court. If a need arose for further samples to be taken, that should be arranged only with the approval of the court. If all the parties agreed on the need for further samples to be taken, the application could be made in writing to the judge who had conduct of the matter. Those requirements should be communicated to the identified DNA company in the letter of instruction.
(iv) Save in cases where the issue was solely confined to paternity testing, where the identified company might have its own standardised application form, all requests for DNA testing should be by letter of instruction.
(v) The letter of instruction should emphasise that the responsibilities on DNA experts were identical to those of any expert reporting in a family case and that their overriding obligation was to the court. Further, if any test carried out in pursuance of their instruction cast any doubt on, or appeared relevant to the hypothesis set by their instructions, they should regard themselves as being under a duty to draw that to the attention of the court and the parties.
(vi) Any letter of instruction to a DNA company should set out in clear terms precisely what relationships were to be analysed and, where the information was available, the belief of the parties as to the extent of their relatedness.
In recent decades British society had become much more culturally diverse. Some cultures had different attitudes to consanguine relationships, others included children within the family for a variety of reasons (usually highly laudable) who might have remote or indeed no genetic connection to the adults. In those cases, separate statements from the parties setting out the family history and dynamics was likely to be helpful.
(vii) The letter of instruction should always make clear that if there appeared to the DNA expert to be any lack of clarity or ambiguity in their written instructions, or if they required further guidance, they should revert to the solicitor instructing them. The solicitor should keep a note or memorandum of any such request.
(viii) The reports prepared for the court by the DNA experts should bear in mind that they were addressing lay people. The report should strive to interpret their analysis in clear language. While it would usually be necessary to recite the ests undertaken and the likely ratios derived from them, care should be given to explain those results within the context of their identified conclusions.
(ix) Particular care should be taken in the use of phrases such as “this result provides good evidence”. That was a relative term—and might be overtaken by stronger contrary evidence. Such expressions should always be set within the parameters of current DNA knowledge and should identify in plain terms the limitations as to the reliability of any test carried out. A “likelihood ratio” by definition was a concept which had uncertainty inherent within it. The extent of uncertainty would vary from test to test and the author of the report had to identify and explain those parameters, eg it was not always possible to demonstrate half sibling relationship by DNA testing, even where it was given that a biological relationship existed.
(x) Where any particular test and subsequent ratio of likelihood was regarded as in any way controversial within the mainstream of DNA expertise, the use of the test and the reasons for its use should be signalled to the court within the report.
His lordship then dealt with the case on the facts.
