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“It is a wise father that knows his own child”

In a week when we have marked the 400th anniversary of the death of William Shakespeare, it seems appropriate that this week’s blog is set in an ordinary family, with a wide cast, comedy and tragedy, concealed identity, an intriguing sub-plot, and a little bit of magic to resolve everything at the end. (In case you were wondering, the title quote is from that most legal of Shakespeare’s plays, The Merchant of Venice.)

The headline question in this case was whether an adult man had the right to paternity test the DNA of a deceased man whom he thought had been his father. He wished to do so as he had been made aware that the potential father may have carried a defective gene that can lead to an early incidence of bowel cancer, and he wanted to know whether he should submit to the regular invasive testing that was recommended in the event that the gene had been passed on.

As with all good plays, there is a subplot. As the potential father had died without leaving a Will three years before, there was also a little matter of an inheritance at stake. When a person dies intestate leaving no spouse or civil partner and no children, any living parents take the deceased’s estate. If there is no spouse or civil partner but a living biological or adopted child, that child will take the estate in full.

We will leave the reader to decide on the relevance of this to the story below.

The cast was as follows: the main character, David, in his twenties; David’s mother, Carol; her former partner, Darren, who was named on the birth certificate as David’s father; and the deceased man’s mother, Valerie. We will also include the late Mr William Anderson, the protagonist’s potential real father, whom Shakespeare might perhaps have written in somehow. In a less Shakespearean manner, the hospital trust storing Mr Anderson’s DNA was also involved, although it took a neutral position on whether the DNA should be made available for paternity testing.

There was considerable circumstantial evidence that the late Mr Anderson was David’s father. Everyone agreed that the Mr Anderson and Carol had been in a relationship at the time of David’s conception. It appeared that this relationship ended when Carol was three months pregnant; when the child was born, her new partner Darren was named as his father on the birth certificate but they both admitted knowing that this did not represent the truth. Carol and Darren subsequently split up, and Carol married Mr Spencer, changing her son’s surname to Spencer when he was nine years old. Little was then said about the identity and whereabouts of David’s biological father. Although Carol named Mr Anderson at some point, David did not pursue the matter until after Mr Anderson’s death.

The question of how the court proceedings came about was not resolved in the judgment. Valerie said that Carol contacted her after the death of her son to tell her that she had had a child by him, and then David contacted her repeatedly while she was in mourning, which left her very upset. David said that after Mr Anderson’s death, Valerie contacted him out of the blue to express her concern that Mr Anderson had died from a rare form of hereditary cancer and that in consequence he might be at risk and should take a DNA test. Having raised the issue, David said that Valerie then progressively withdrew her co-operation.

The court felt that how it started didn’t matter. However, there was some evidence that Valerie had agreed with – even promoted – the idea of DNA testing for a while on the basis that David should know if he was a carrier of the faulty bowel cancer gene; but then later had a change of heart and sought to have her son’s DNA sample destroyed instead. She opposed David’s application to know whether Mr Anderson was his father. The first argument made on Valerie’s behalf was that “An order for testing would be an unjustified interference with her … rights by compounding a distressing situation and creating a risk that a genetic relationship would be identified between herself and a person who has caused her stress and anxiety.”

The court decided that David should be able to find out whether he was the son of Mr Anderson by using the stored DNA for paternity testing purposes. It gave weight to the fact that the evidence pointed strongly to paternity – it was not a speculative application – and to the significant medical issue involved. It also found that there was no reason to suspect that Mr Anderson would have refused testing while he was alive if he had been asked, and that it would not be difficult to do the test as the DNA was readily available and the hospital didn’t object (it is clear that there would have been a different analysis if, for example, testing would require exhuming a body). Fundamentally, it said, any third party interests – including Valerie’s – were less important than the establishment of the truth, where no significant harm was likely to be caused.

The court ordered testing to go ahead, using its ‘inherent jurisdiction’ in the absence of any specific existing legal basis to do so, a fact that greatly troubles certain legal commentators (see the piece by the fabulous Suesspicious Minds, who is not impressed by what he calls “the Court’s Magical Sparkle Powers”). So it seems – unless there is an appeal – that David will soon know whether or not he is really related to Mr Anderson. If he is, there is a likelihood of his suffering from bowel cancer at an early age, but it may entitle him to claim his deceased father’s estate. The slings and arrows of outrageous fortune, indeed.

If you have any queries on what you have read, any aspect of paternity or any other family law matter, give us a call on 01223 443333 and make an appointment with Tricia, Sue, Adam, Gail or Simon.

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