LG v DK

B e f o r e :

SIR NICHOLAS WALL, The President of the Family Division Sitting as President of the Court of Protection ____________________

____________________

Luke Harris (instructed by Thackray Williams LLP) for the Applicant Alexander Ruck Keene (instructed by the Official Solicitor) for the Respondent Hearing date: 23 August 2011 ____________________

HTML VERSION OF JUDGMENT ____________________

Crown Copyright ©

Sir Nicholas Wall:

DK (as I shall call him) is 84. Unfortunately, he suffers from dementia, and this judgment is being written on the basis that DK is not able to manage his affairs. He lives in a Nursing Home. LG, who is unrelated to him, and who is the senior partner in a firm of solicitors, is his Deputy for his property and affairs in the Court of Protection (COP). She has acted in that capacity since 15 July 2008.

During the course of looking after his affairs, LG came across a reference to a daughter. She therefore asks the court to decide whether or not it would be in DK's best interests to provide a bodily sample for DNA purposes in order to decide whether or not BJ (as I shall call her) is his daughter. This is the only issue in the proceedings.

The Official Solicitor, who represents DK in these proceedings, has doubts about the appropriateness of such an order in the context of the current proceedings, and on 23 August 2011 invited me to adjourn the proceedings in order to enable LG to make an application that a statutory will be executed for DK. That application was not opposed by counsel for LG, and I acceded to it. This judgment explains my reasons for doing so.

I wish to make it clear at the outset of this judgment that BJ, who is not a party to these proceedings, and who is a married woman in her early fifties with children of her own, is not motivated by any mercenary considerations. She contacted DK prior to the onset of his dementia, but lost touch with him when he became ill. I am entirely satisfied that she wishes to establish that DK is her father so that (1) the fact is established; and (2) so far as is possible, she can maintain a father / daughter relationship with him. She is, of course, willing to provide a bodily sample for DNA purposes.

The facts

For present purposes, these have, in effect, already been stated. One or two matters can, however, be added. DK is not named on BJ's birth certificate. Her evidence is that her mother and DK had a brief relationship in 1959, as a result of which she was conceived. Her mother is still alive, but does not wish to be involved, and BJ does not wish to upset her. BJ's evidence is that she was brought up to understand that DK was her absent father: indeed, her mother changed her surname by deed poll to K, and when BJ herself married, she gave DK's name as her father on her marriage certificate. BJ's youngest son also bears the name K as one of his forenames.

DK's mental state

DK has been seen by a consultant in old age psychiatry Dr. C, on a yearly basis since 2003. In October 2007, Dr. C's opinion was that, whilst DK had "significantly impaired intellectual function" and had required an emergency admission to hospital in November 2007, he nonetheless at that date retained "testamentary capacity" since he was aware of his estate in broad terms and acknowledged that he would like his assets to pass to his family. On 9 February 2011, however, Dr. C assessed DK as unable to decide whether he could give fully informed consent to cooperating with a DNA test.

When Dr. C assessed DK again on 18 and 22 July 2011 she formed the view that he no longer had the capacity to make a will but considered that "he was able to understand the matters I raised with him in these proceedings" (these included the suggestion that he had a daughter and that he should undergo a DNA test). She added that DK was able furthermore to "retain their implications such that he spontaneously enquired of me how he could – as he put it – "make an association with this lady".

In these circumstances, the Official Solicitor proposes to invite Dr. C to attend the final hearing for cross-examination since it would appear that her latest conclusion (as set out in paragraph 7 above) is inconsistent with her earlier views.

The position to date

The case has been before the court on three occasions. BJ was initially made a party to the proceedings, but that part of the court's order was discharged on 11 July 2011. She was, however, given permission to intervene and give evidence.

BJ has given full disclosure of her correspondence with DK prior to the onset of his dementia. This reveals that they met on one occasion. The correspondence shows that DK was not willing to give a DNA sample. On 23 September 2001 he wrote to BJ: -

If I am right, sadly you will not have met your father. If I am wrong, it means I will regret a 40 year hole in my life of which I was not aware.

Either way, one of us is going to be hurt……"

The question of law which arises can best, I think, be formulated in the following way: under what circumstances is it appropriate for the court to order the taking of a bodily sample from a person who lacks the capacity to consent to such a sample being taken?

The relevant statutory provisions

Before setting out the Official Solicitor's argument, it seems to me sensible to set out the relevant statutory provisions. I start with sections 20 and 21 of the Family Law Reform Act 1969 in its amended form (the 1969 Act): -

The relevant sections of the Mental Capacity Act 2005 (the 2005 Act) seem to me to be the following: -

The Official Solicitor's argument

On behalf of the Official Solicitor, Mr. Alexander Ruck Keene began his argument by asserting that in COP proceedings, a scientific test to determine parentage could only be directed pursuant to sections 20 and 21 of the 1969 Act and that the court could not bring about a scientific test to determine parentage under the provisions of section 15 (the power to make declarations) and 16 (powers to make decisions and appoint deputies) of MCA 2005.

Mr. Ruck Keene relied on a decision of mine at first instance ( Re O (A Minor) (Blood Tests: Constraint ) In re J (A Minor) [2000] Fam 139 for the proposition that, so far as children were concerned, sections 20 and 21 of the 1969 Act provided the only route whereby scientific tests to establish parentage could be directed. The passage on which Mr Ruck Keene relied was at [2000] Fam 139, 150G to 151B, where I said: -

I find myself in complete, albeit reluctant, agreement with these submissions. In my judgment, unattractive as the proposition remains, both the inherent jurisdiction to direct the testing of a child's blood for the purposes of determining paternity and any consequential power to enforce that direction is entirely overridden by the statutory scheme under Part III of the Family Law Act 1969."

As it happens, section 21(3) (b) was added after my decision: - see the Child Support Pensions and Social Security Act 2000, section 82 with effect from 1 April 2001. However, Mr Ruck Keene made the point that when Parliament came to pass MCA 2005, it chose to amend the 1969 Act by adding sub-section (4) to section 21. This, he submitted, reinforced the point that the only gateway to the ordering of a bodily sample from a person who lacks capacity was through section 21(4) of the 1969 Act.

These considerations led the Official Solicitor to submit that the "protective jurisdiction" in relation to vulnerable adults identified by the Court of Appeal in Re F (Adult: Court's Jurisdiction) [2001] Fam 38 had also been abrogated, as regards the taking of bodily samples, as had any question of the use of any inherent jurisdiction in relation to adults without capacity. Since any application for a declaration under MCA 2005 plainly constituted "civil proceedings" for the purposes of section 20 of the 1969 Act, sections 20 and 21 of the 1969 Act alone governed the way in which bodily samples could be taken from persons lacking capacity. Importantly, they "trumped" MCA section 15 and 16. Mr. Ruck Keene also relied on Bennion on Statutory Interpretation at page 306.

On this basis Mr. Ruck Keene posed two questions: (1) does the 1969 Act grant a free-standing power to direct DNA samples to be taken? and (2) through what prism should the court view the application under section 21(4)?

If the answer to the first question was "no", then the COP had no power, absent an application, for example, to execute a statutory will, to direct a DNA test for the purposes of determining paternity. There is, of course, no other issue in the proceedings.

As to the first proposition, Mr Ruck Keene referred me to Re E (A Minor) (Parental Responsibility) [1994] 2 FCR 709 (Re E), a decision of the Court of Appeal. A father made an application for contact with his daughter. The child's mother than had another baby, a boy. The man then sought an order for blood tests designed to ascertain if he was the father of the boy. The judge refused to make such an order, and the Court of Appeal dismissed the man's appeal.

Mr. Ruck Keene relied on a passage from the leading judgment in the case (with which the other two members of the Court agreed) which was given by Balcombe LJ. At [1994] 2 FCR 709. At 718, Balcombe LJ said: -

As to the second proposition, which Mr. Ruck Keene described as "more fundamental", he drew a distinction between paternity proceedings relating to children and those relating to adults lacking capacity. In the former, it was nearly always in the best interests of the child to know the truth about his or her parentage, and the interests of justice were usually served by the truth being ascertained. There is abundant authority for these propositions.

Furthermore, Mr. Ruck Keene argued, there was another distinction between ordering bodily samples to determine paternity in relation to a child and ordering such samples in the case of adults who were incapable of managing their affairs. The COP was duty bound by MCA section 1(5) to take decisions in the best interests of the person who was incapable of managing his affairs: contrast the approach to children set out by Ward LJ in Re L (Paternity Testing) [2009] EWCA Civ 1239 , [2010] 2 FLR 188 at paragraphs 11 to 14.

There were other conceptual differences between the positions of children and incapacitated adults to which Mr. Ruck Keene referred, and which I need not set out. MCA 2005, section 4, which I have set out above, is plainly in play. The fact that DK previously expressed a capacitous wish not to undergo a DNA test in respect of his parentage of BJ was, Mr Ruck Keene accepted, not determinative of whether it is objectively in his best interests for such a test now to be undertaken: - see Re P [2009] EWHC 163 (Ch) [2010] Ch 33 ; Re G (TJ) [2010] EWHC 3005 (COP) . However, it was at a minimum, a highly relevant factor to which substantial weight must be given.

Mr Ruck Keene also pointed out that Parliament has provided a route for parentage applications to be determined as a single issue by way of the enactment of section 55A of the Family Law Act 1986 (the 1986 Act), which allowed any person to apply to the High Court, a county court or a magistrates' court (but not to the COP) for a declaration as to whether or not a person named in the application is or was the parent of another person so named. Mr Ruck Keene invited me to give an indication as to whether, in future, applications which have as their sole purpose the determination of whether P is the parent of an individual should be brought under section 55A of the 1986 Act. I will return to this point at the end of the judgment.

In essence, the Official Solicitor's view was that the Court would be assisted by consideration (under section 1(6) MCA 2005) whether the purpose for which the DNA test was said to be needed could be as effectively achieved in a way that was less restrictive of DK's rights and freedoms. The Official Solicitor further submitted that it made sense (and, indeed, tracked the language of MCA 2005 sections 1(5) and (6) for this question to be considered before a detailed consideration was undertaken as to whether it was in DK's best interests for the sample to be taken.

Mr Ruck Keene submitted that perhaps the more important reason why the application had been brought was so as to determine whether DK's assets should transfer to BJ as his biological daughter upon his death, as they would do if he were to die intestate. However, the Official Solicitor had considerable reservations as to whether it could be said that was necessary that a DNA test be carried out for this purpose: DK, it was clear from Dr. C's evidence, now lacks testamentary capacity, such that it would be possible for a statutory will to be executed. Furthermore, upon an application by LG for the execution of such statutory will, it would be open to the Court to consider that it was in DK's best interests to leave his estate to BJ, whether or not she is his biological daughter. The evidence suggested that DK did not have close relationships with any other individuals or family members.

In the circumstances, Mr Ruck Keene argued, it may be that it would be in DK's best interests to leave his estate to BJ simply on the grounds that he would be likely to prefer that his estate go to someone he knew and cared about (to some limited extent), rather than to unknown distant relatives or, possibly, the Crown. While the genetic information that a DNA test would provide would determine whether BJ was entitled to inherit DK's estate under the intestacy provisions, it was not the sole answer to whether it was in DK's best interests to leave his estate to her.

The Official Solicitor invited me to bear in mind, when it came to the determination of the weight to be placed upon DK's previously expressed wishes, that some considerable assistance may be gleaned from the decision of Morgan J in Re G (TJ) [2010] EWHC 3005 (COP) . In this case, which was concerned with the making of maintenance payments in favour of a daughter, Morgan J concluded that:

In all the circumstances the Official Solicitor concluded that he had very considerable doubts as to whether (having regard to MCA 2005 section 1(6)) it was necessary for DK to give a sample for purposes of carrying out a DNA test for either of the purposes for which LG advanced it as necessary; and that in any event, he had grave doubts as to whether it could be said that it was in DK's best interests for the test to be carried out where such would represent so clear an overriding of a decision that he took with capacity in 2001.

Mr. Luke Harris, for LG, did not dissent from any part of Mr. Ruck Keene's argument, and invited me to adjourn the application to enable LG to make an application for the execution of a statutory will for DK. He submitted that LG's application, together with the application for the execution of a statutory will, could then be determined by applying whatever principles I found applied.

BJ was in person and did not seek to address the point of law raised.

Discussion

I have taken a good deal of time to think through the implications of the Official Solicitor's submissions. I am conscious that he represents a large number of people who are incapable of managing their affairs, and quite apart from the expertise which this gives him, I am anxious not to make his task more difficult by taking a different view on an important point of practice. At the same time, the COP has the same powers, rights and privileges and powers as the High Court (MCA 2005, section 47(1)) and the decision which I make in this case is likely to govern the practice of the COP in such cases, although they are likely to be a minority. It is, on any view, an important issue.

It is clear that all the authorities on DNA testing in relation to paternity cited to me relate to the taking of blood or bodily samples from children, and so far as I am aware, this is the first time that the question of taking a DNA sample from a person who is incapable of managing his affairs has been fully tested in argument.

During the course of his argument, Mr. Ruck Keene advised me that the Official Solicitor was aware of one case in January 2011 in which Senior District Judge Lush (in the context of an application for an order to execute a statutory will) made an order that, in the event that the medical evidence to the effect that P lacked capacity to give appropriate consent within the meaning of the Human Tissue Act 2004 to the taking of any sample for the purpose of DNA analysis, it was in P's best interests for a sample to be taken and subjected to analysis in order to establish whether or not a particular individual was P's son. For the avoidance of doubt, the issues of law canvassed before me were not before Senior Judge Lush, albeit that the Official Solicitor submitted that the decision of Senior Judge Lush was one to which he was entirely entitled to come.

Two matters, however, are clear to me namely; (1) that all proceedings under MCA 2005 in the COP are "civil proceedings" to which the strict rules of evidence apply (in this respect, I find myself in full agreement with McFarlane J (as he then was) in Enfield London Borough Council v SA (by her Litigation Friend, the Official Solicitor) FA and KA [2010] EWHC 196 (Admin), [2010] 1 FLR 1836 at paragraph 2); and (2) that MCA 2005 sections 1(5) and (6) (which I have set out at paragraph 13 above) are unequivocal. The test of any act done or decision made on behalf of DK must be that of his best interests and the court is duty bound to have regard to whether "the purpose for which it is needed can be as effectively achieved in a way that is less restrictive" of his rights and freedom of action.

In my judgment, quite apart from the distinctions drawn by Mr. Ruck Keene, there is an additional and important difference between a decision made on behalf of a person lacking the capacity to agree to the taking of a bodily sample (or a declaration that such an action would be lawful) and a decision relating to the taking of a body sample from a child. In relation to the latter, the court is both; (a) giving a direction for the taking of a bodily sample; and (b) overriding the otherwise effective and competent consent of the person with care and control of the child. The test to be applied in the latter context is the court's view that the provision of the sample is in the child's best interests.

In the case of a person lacking the capacity to consent to a bodily sample being taken, the subject of the proposed test (and of the inherent jurisdiction – assuming it to exist) is not the child but the person lacking capacity: in other words, it is one and the same person. I very much doubt whether the court in fact had inherent jurisdiction pre MCA 2005 to require a personal lacking capacity to provide a bodily sample for DNA purposes, but am perfectly content to work on the premise that the taking of such samples is governed by section 21(4) of the 1960 Act.

The phrase "In any civil proceedings….. the court" must, in my judgment, include the COP. However, for the reasons which follow, I see no reason why the 1969 Act and MCA 2005 cannot work together.

The more difficult question seems to me to be the making of an order under section 21(4) of the 1969 Act in the proceedings as presently constituted. LG has been DK's Deputy since 2008. The only relief which she seeks in the proceedings is a decision whether or not it is DK's interests to submit to a DNA test and for the court to make "a Health and Welfare Order giving authority for (DK) to take a DNA test". That, she believes, would be in DK's best interests. The question, accordingly, is whether or not these are "civil proceedings in which the parentage of any person falls to be determined" within section 20(1) of the 1969 Act.

I see the force of Mr. Ruck Keene's argument that, as presently constituted, the proceedings in the COP do not fall properly within sections 20(1) and 21(4) of the 1969 Act. I also see the force of the argument that, as a matter of language, the person identified in section 21(4) would need to be appointed or authorised to give consent in the proceedings to which section 20 applies. In my judgment, therefore, the Official Solicitor was wise to seek an adjournment, and the Deputy wise to issued proceedings for the making of a statutory will. Such an application will, in my judgment, resolve the jurisdiction issue beyond any doubt. There will undoubtedly in these circumstances be "civil proceedings" and within those proceedings the parentage of BJ will fall to be determined.

Here, too, I see the force of the Re E argument, despite the differences on the facts. As I have already stated, the only issue in the proceedings as presently constituted is the deputy's application for a decision whether or not it is DK's interests to submit to a DNA test and for the court to make "a Health and Welfare Order giving authority for (DK) to take a DNA test". I see, therefore, the force of the argument that there are, at present, "no civil proceedings" in which BJ's paternity falls to be determined other than LG's application for DK to provide a DNA sample.

At the same time, and whilst the application for the adjournment and the institution of proceedings for the execution of a statutory will put the matter beyond doubt, I find myself unable to accept the argument that, as a matter of jurisdiction, the COP lacks the jurisdiction to give a direction for, and to consent on DK's behalf to, the taking of a bodily sample as the proceedings are currently constituted. Having thought anxiously about the matter, I have come to the conclusion that, as a matter of jurisdiction, section 21(4) of the 1969 Act does give the court the power to consent to the taking of a bodily sample from a person lacking capacity notwithstanding the absence of a specific application within the COP proceedings putting the parentage of an individual in issue.

I reach that conclusion for a number of reasons. Firstly, of course, the court is not dealing with a child, but with an adult who is incapable of managing his affairs. The previous authorities are therefore distinguishable, as is Re E . Secondly, the words of section 21(4) are unqualified. If the court were to take the view, for any reason, that it was in the interests of the person lacking capacity to undergo a DNA test, it would be strange if the court did not have the jurisdiction to consent to such a sample being taken.

In addition, I am of the view that in dealing with the affairs of those unable to make their own decisions, the maximum flexibility is required, consistent with all necessary safeguards, to ensure that decisions can be taken in their best interests. Thus I have come to the conclusion that there may be circumstances in which it in the interests of the person lacking capacity to undergo a DNA test to establish paternity even though there is no "peg" within the COP proceedings on which to hang the application for a direction

Whether the court would ever do so is another matter. Certainly, in the instant case, I feel more comfortable contemplating such an order in the context of an application which specifically puts the parentage of BJ in issue. However, in my judgment, Re E and the other cases cited by Mr. Ruck Keene can be distinguished on the grounds that they involve children under the Children Act 1989, not persons lacking capacity under MCA 2005.

In any event, I am firmly of the view that it would be open to the COP on a properly constituted application to make an order under section 21(4) of the 1969 Act such as Senior District Judge Lush made in the case referred to in paragraph 35 above. Whether or not the court would do so would, of course. depend upon the evidence in the particular case.

This leaves the question whether or not people in the position of BJ in the instant case would be advised to take proceedings under section 55A of the 1986 Act in a court other than the COP. This in turn raises the question of the criteria which the court would apply in deciding whether or not to make a declaration under section 55A.

As material to the present case, section 55A of the 1986 reads as follows: -

(1) Subject to the following provisions of this section, any person may apply to the High Court, a county court or a magistrates' court for a declaration as to whether or not a person named in the application is or was the parent of another person so named…….

(3) Except in a case falling within subsection (4) below, the court shall refuse to hear an application under subsection (1) above unless it considers that the applicant has a sufficient personal interest in the determination of the application

(4)The excepted cases are where the declaration sought is as to whether or not—

……..;

There is a dearth of authority on the court's approach to section 55A, and it thus remains to be decided on what criteria a court would decide an application under that section.

It is, however, difficult on any view to depart from the following propositions, all of which seem to be established on the authorities: -

it is preferable, where scientific evidence is available to establish a point beyond doubt that such evidence be provided rather than the court relying on presumptions or inferences;

that a refusal to undertake a DNA test gives rise to an overwhelming inference that the person refusing such a test is the father of the child in question": - see the decision of the Court of Appeal in Re A (a Minor)(Paternity Refusal of Blood Test) [1994] 2 FLR 463.

An application under section 55A involving a person who is not capable of managing his affairs cannot be made to the COP. In practice, however the respondent to such an application would have to be represented by a third party, and the likelihood is; - (a) that the third party would be the Official Solicitor; and (b) that the application, if not issued in the High Court, would be transferred to it and heard by a judge who also had COP jurisdiction. In my judgment, such a judge is likely to determine that the correct test for deciding any such application on the facts of the instant case would be the best interests of DK.

My own view – as I have already stated – is that on any view it would be open to the COP to decide that it would be in DK's best interests to give a DNA sample, where the application for such a sample is ancillary to an issue within the COP's jurisdiction. In practice, I anticipate that where such a point arises, it will usually be in the context of financial provision for a child born out of wedlock or – as here – of a statutory will.

However, for the reasons I have given, I find that I do not agree with the Official Solicitor that absent an application which gives the COP jurisdiction (such as an application for a statutory will) there is no power to exercise the jurisdiction provided by section 21(4) of the 1969 Act. Furthermore, it does not seem to me necessary to invoke section 55A of the 1986 Act in order to achieve the same objective, and I would not encourage litigants on the position of BJ to do so.

Quite how I will proceed at the final hearing will depend on the evidence at that hearing. I will, of course, under MCA 2005 section 1(6)(a) consider DB's previous attitude to DNA testing, whilst at the same time considering that DB is unlikely, in the future to regain capacity in relation to the issue: - MCA 2005 section 4(3). BJ is prepared to "take the risk" and give a sample. It would, in my judgment, require unusual facts for DK's best interests to depart from the ascertainment of the truth or the interests of justice.