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E&W: Legal daughter ordered to take DNA test to prove parentage

Thursday, 22 February, 2018

The England and Wales High Court has directed the younger daughter of the late Colin Birtles to be DNA-tested, to verify whether she is indeed his biological daughter, and thus has an interest in his estate.

Both Lorraine Freeman and her elder sister Janice Nield-Moir were born to Birtles' wife Veronica in the early sixties. Their parents divorced in 1977, and Veronica Birtles has since died.

Birtles himself died intestate in June 2013, leaving only a terraced house in Oldham and a small amount of cash. Mrs Freeman obtained a grant of administration to distribute this modest estate in the absence of her sister, who had lived for many years in Australia.

When Mrs Nield-Moir learned of this she issued a claim for revocation of her sister's grant of administration, which she wants to perform herself. She also sought a declaration that Mrs Freeman is not entitled to any interest in the estate, alleging that she is not in fact Colin Birtles' biological daughter. Mrs Nield-Moir has collected a number of witness statements from third parties to the effect that Birtles said as much to several persons during his lifetime.

Accordingly, she wants Mrs Freeman to submit to a DNA test, which would provide scientific evidence as to whether Birtles was indeed her father. Mrs Nield-Moir would also be tested, to show whether they were related as full or half-sisters; so would one of the Birtles' nieces, who otherwise has nothing to do with the dispute.

Mrs Freeman refused to consent to the DNA test. She says that not only was her mother married to Colin Birtles at the time of her birth, but her birth certificate names him as the father, creating a common law presumption of their relationship. Moreover, after the Birtles were divorced, Colin Birtles paid maintenance in respect of Lorraine until she was 16 years old, under a court order to that effect. She dismisses the allegations of her irregular parentage as 'nothing but gossip and hearsay'.

Mrs Nield-Moir sought a court order forcing her sister to take the test. In court, Matthews HHJ accepted her position that there were three questions to be decided. These were whether the test would be sufficiently accurate; whether the court had jurisdiction to make the order; and, if the first two held, whether in the circumstances the court ought to make the order.

Ultimately, and after taking extra evidence regarding the human rights aspect of the case, Matthews agreed to grant the order for testing. Regarding jurisdiction, he accepted the Court of Appeal's recent ruling in Anderson v Spencer (2018 EWCA Civ 100), that the court has an inherent jurisdiction to order DNA testing, even though it has no statutory jurisdiction.

'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', said Matthews. '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, he observed.

Matthews duly directed that the test should go ahead. For the moment, Mrs Freeman cannot be compelled to provide a saliva sample for the DNA test. But the court will draw an adverse inference against her case if she continues to refuse (Nield-Moir v Freeman, 2018 EWHC 299 Ch).

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