Bishop & Sewell

Nield-Noir v Freeman (2018) – The Inherent Jurisdiction of the Court – DNA testing in Contentious Probate claims

The Claimant and Defendant in this action were, at the very least, half-sisters born to the late Veronica Birtles. Veronica was married to Colin Wilson Birtles (Deceased), who passed away intestate on 16 June 2016 and whose estate was the subject of this claim. The Claimant and the Defendant were estranged and the Claimant lived in Australia.

After the Deceased passed away, the Defendant obtained a grant of administration and took steps to administer the estate, including selling the Deceased’s only property to herself as the personal representative of the estate.

The Claimant issued proceedings against the Defendant in October 2017 seeking a revocation of grant of letters of administration and seeking a grant to herself instead. In addition, she sought to set aside the sale and transfer of the Deceased’s only property to the Defendant.

DNA testing

The Claimant claimed that the Defendant was not entitled to any interest in the estate given that she was not the biological child of the Deceased. The Claimant relied upon witness evidence from individuals confirming that the Deceased had informed them that the Defendant was not his daughter.

The Defendant countered by asserting that she was the biological child of the Deceased as he was recorded as being her father on her birth certificate and had made maintenance payments in respect of her after her mother and the Deceased had divorced. She admitted to having heard rumours that the Deceased was not her biological father.

DNA testing

Against this background the Claimant issued an application for the Defendant to submit to a DNA test, which was opposed by the Defendant. The DNA test would have tested both the Claimant and Defendant by way of mouth swabs to ascertain whether they were full sisters or half-sisters.

The Court, in deciding whether to make the order requiring the Defendant to submit to a DNA test had to consider, amongst other things, whether or not it had jurisdiction to make the order.

In the judgment of HHJ Matthews it was noted that there was no specific authority on jurisdiction that related to the circumstances of the case.

Family Law Reform Act 1969

Section 20 of the Family Law Reform Act 1969 allowed for the use of scientific tests in cases where parentage fell to be determined to ‘show that a party to the proceedings is or is not the father or mother’. The section further allowed the Court to make orders requiring relevant parties to provide bodily samples for the purposes of testing. If any party refused to provide consent for the samples to be taken, the Court could draw inferences against them.

Of course, the section could not apply to this case as it only applied to cases where it was necessary to establish whether a party to the proceedings was a mother or father. In this case, DNA testing was sought to determine whether or not the Defendant was the daughter of the Deceased.

The Court, instead, found that it could rely upon its inherent jurisdiction to order a DNA test be administered. In particular, the recent paternity case of Anderson v Spencer [2018] (which was not a contentious probate matter) had noted that, prior to the introduction of the Family Law Reform Act 1969 (the FRLA), the Court used its inherent jurisdiction to direct the use of blood tests for the purpose of determining parentage. Lord Justice King made the following conclusions:

“…the High Court does possess an inherent jurisdiction that it can properly deploy to direct scientific testing to provide evidence of parentage in circumstances falling outside the scope of the FLRA. If the Court was unable to obtain evidence of the kind, severe and avoidable injustice might result. Awareness of the implications of ordering testing without consent and of the wider public interest does not lead to the conclusion that the jurisdiction does not exist, but rather to the realisation that it should be exercised sparingly in cases where the absence of a remedy would lead to injustice.”

In the present case, the Court noted that the provision of a sample of saliva by means of a mouth swab was painless, quick and carried no appreciable risk to the health of the donor of the sample. The evidence of the DNA testing was likely to be very useful indeed to the Court and, in this case, was likely to assist in concluding the matter one way or the other as soon as practicable.

As such, the Court found that the inherent jurisdiction of the Court extended to directing a party to proceedings to give a saliva sample by way of mouth swab for the purposes of establishing paternity. The application duly succeeded and it was ordered that, in the event the Defendant failed to provide a mouth-swab within 28 days, the Court would be at liberty to draw an adverse inference against the Defendant at trial.

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