23 December 2019

Spitting image?

Article by Miranda Marshall, Director, Hayes + Storr.

There is a long held stereotype of judges being old-fashioned. Judge James Pickles became a household name in the 1960s when he asked ‘Who are The Beatles?’ The reality is that the Law Courts are open to scientific developments to help them achieve justice.

The Courts have always had to address the question of parentage. It was the stuff of tabloid newspapers in days past. Today, as DNA testing becomes more accessible, the Courts now have to consider how to balance the benefits of DNA testing against the rights of the individual.

Jordan Rogers, a care worker, inherited a large country estate, after proving through DNA testing that he was the son of an aristocrat. That ‘rags to riches’ tale came two years after the exhuming of the body of the Spanish artist Salvador Dali for paternity testing.

The two most frequent uses are to prove or, conversely, to disprove, that someone is biologically related to a person who has died; usually, but not always, because there is an inheritance at stake.

Arguments have been put to the Court, by someone refusing to submit to DNA testing, that it is interference with their human rights. In response the Judge held that the interference was a proportionate means of protecting the public interest in the accurate resolution of inheritance disputes.

Another case revolved on whether DNA evidence extracted from the deceased for medical purposes could be released to determine parentage. There, not to do so would have led to injustice, and so, the Judge gave permission for the DNA testing.

Where there are sound medical reasons, such as the treatment or prevention of inherited disorders or diseases, for the testing of paternity, and a medical sample is readily available following death, the Court can also order testing.

It has also been held that there is no infringement of a third party’s human rights by DNA testing, even if they find out that they have an additional grandchild. The appellant’s rights must be weighed against the respondent’s rights. Here, there is a slant in favour of the respondent, so as to err on the side of preserving the status quo. The Court is able to order directions where there is reluctance to cooperate.

In cases where there is doubt as to parentage, the only way that an executor of an estate can be certain that they are distributing the estate of a deceased person accurately, is to ascertain all the beneficiaries.

The improved ability to determine parentage through genetic testing is impacting on the law. A paternity test is generally cheap and painless and can be done using a hair or saliva sample; no blood or needles required! It is much cheaper than the production of witness statements and other evidence. Its great advantage is that it is both definitive and can help parties reach a settlement at an early stage.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

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