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May 5, 2020

Judgment in this case, in which I was briefed by Lisa Wilkes of Henriques Griffiths to represent the child, was handed down by the Court of Appeal on 30 April.

Although its name doesn’t reveal it, the main interest in the judgment concerns what is said about scientific testing for paternity without notice to the putative father. Towards the end of the judgment this is described by Peter Jackson LJ (who gave the judgment of the Court) as “fatherless testing”; until now I suspect that most of us (and I include myself) were content to refer to it as “sibling testing”. My experience in the Court of Appeal is that every day is a school day.

The facts were simple. M gave birth to a child, K, in July 2019. She had concealed the pregnancy until June. She then told a midwife that her ex-partner (“Mr C”) was the father but that she didn’t want him to know about K’s existence as in effect he had nothing to offer. M said she wanted to relinquish the baby for adoption. Subsequently M told other professionals the same thing.

Two days after K’s birth M signed an s20 agreement. K has been looked after by the LA ever since and has been with early permanence carers since the age of eleven days. M has had no contact. Mr C has not been told of K’s existence, though members of M’s family are aware. (M had been staying with a relative in the South West since early 2019, just after she discovered she was pregnant, though she has since returned to her home area some 200 miles away.)

Ten days after K’s birth M told her relative, a midwife and a social worker that Mr C was not in fact K’s father, that the baby was conceived in a one night stand with a stranger whose name she didn’t know and that she had previously lied because she was embarrassed about the circumstances of the conception.

In October 2019, M gave advance consent to adoption. It was only two months later that the LA applied to the Court for issues about paternity and about informing Mr C of K’s existence to be resolved. Initially the LA was asking for Mr C not to be informed but also asking for him to be invited to take part in DNA testing. This self-contradictory position was said to have been a result of a communication issue within the LA, and by the time the case first came before the court the LA’s position was that paternity needed to be established through testing involving Mr C and that if he was the father he should then be consulted about the future plans for K.

In January 2020, M filed a statement opposing Mr C’s involvement and, it seems for the first time, made allegations about his behaviour and said she feared for her own and her family’s safety if he became aware of the child’s existence. She continued to say Mr C was not K’s father.

M has two older children, born in 2017 and 2018, of whom Mr C is said to be the father. He has PR for one of them. M said the second was conceived at the very end of their relationship. That pregnancy was also concealed until quite late. Mr C was said by M to have had sporadic contact with the two children.

A series of hearings in January and February culminated in an order by His Honour Judge Marston, sitting as an s9 Judge, on 17 February 2020 in which he in effect confirmed an order he had previously made that the LA were to contact Mr C and “invite him to engage in DNA paternity testing.” Judge Marston refused M’s application “for permission to obtain DNA sibling testing.”

M appealed to the Court of Appeal on the grounds of procedural unfairness, unnecessary interference with her Article 8 rights by involving Mr C when parenting could be established by “sibling testing” and failure properly to consider the factors set out in Re A, B and C [2020] EWCA Civ 41.

Permission to appeal was granted by Lord Justice Peter Jackson on 31 March. His reasons were as follows: “There is a compelling reason for the appeal to be heard, so that this court can consider the issue of sibling testing. It is not clear that any of the other grounds has a real prospect of success, but they can be argued.” The authorities bundle was to include “only such authorities as may be relevant to the issue of sibling testing.”

During the course of argument it was conceded on behalf of M that any procedural unfairness that there might have been was in effect remedied by the fact of the appeal. It was also conceded that were it not for the option of sibling testing there would have been no appeal. The first and third grounds therefore fell away, leaving sibling testing as the only live issue.

Peter Jackson LJ reminds us at [23] that the FLRA 1969 provisions about scientific testing (sections 20 and 21) apply only to testing parties to the proceedings – hence in Re L (Paternity Testing) [2010] 2 FLR 188 those provisions were key when the Court of Appeal allowed an appeal by the older of two children against an order by Mr Justice Coleridge for the testing of the children (in care proceedings) which was intended to establish whether they had the same father. The older child, who was giving direct instructions, did not want to be part of a process that might reveal to her younger brother that they were not full siblings.

His Lordship goes on to make some interesting and informative remarks about paternity testing “on demand” and he quotes from BMA guidance about consent: “The BMA considers that health professionals should agree to provide assistance with testing only where this is considered to be in the best interests of the child or young person” (by which presumably is meant the child or young person whose paternity is in issue). The same guidance goes on to say that although legally where the putative father has PR there can be “motherless testing” which does not involve taking a sample from the mother, who need not know that the testing is being carried out, “the BMA believes this could be very harmful to the child, as well as to the family unit as a whole, and would prefer to see a situation in which the consent of all parties is required for paternity testing.”

At [24] Peter Jackson LJ specifically considers “fatherless testing” and he says “Such covert testing of another child may amount to an unlawful breach of the Article 8 rights of that child’s father and of the child.” He goes on “a court should in my view be extremely cautious before approving the testing of possible siblings as a means of clarifying the parentage of a child whose mother seeks adoption” and he concludes “The inherent ethical objections to sibling testing are therefore only likely to be overcome in compelling circumstances where the clarification of parentage is necessary and where standard paternity testing is for some reason not an acceptable option. In any case, such a course should only be contemplated after a thorough analysis that takes full account of the interests of the possible siblings.”

On the facts of this case the Court of Appeal took the view that sibling testing would be “a disproportionate interference with the rights of the other children and their father.” The other children would be involved in the secrecy requested by M and “The factors speaking against informing Mr C of K’s birth are not by any means strong enough to justify taking that course.”

Two potentially important issues appear to my small brain to remain unresolved by this judgment.

Firstly, on the question of whether any paternity testing was required M’s case was that on the balance of probabilities Mr C was not the father and that no testing was therefore needed. Alternatively, he was so unlikely to be the father that sibling testing, rather than testing involving Mr C, was justified. At [25](3) Peter Jackson LJ cites with apparent approval Judge Marston having “clearly found that there was a substantial possibility that Mr C is K’s father.” What, I wonder, would the correct decision have been if Judge Marston had found there was merely “a real possibility” (less than a “substantial possibility”)? How unlikely does it have to be that X is the father before fatherless testing is justified so as to preserve M’s right to respect for her privacy?

Secondly, assuming that “standard paternity testing is for some reason not an acceptable option” (perhaps because the putative father presents a serious risk to M and/or the child) how does the court then take into account the rights of the other children? K, a child who is likely to be adopted, was entitled to know about her paternity. If Mr C had been regarded by the court as dangerous, what then? Sibling testing is regarded as scientifically sound but only at establishing whether there is or is not a full sibling relationship. Both the LA and the CG argued that a false negative was possible if Mr C was not in fact the father of whichever other child was tested. I went further and argued that if both the other children were tested one possible consequence could be the discovery that they had different fathers. Who would tell them? When? And is running the risk of such disruption to them a necessary and proportionate interference with their Article 8 rights in an effort to satisfy K’s rights? Who can argue their case?

The Court decided it was not necessary to tangle with these issues. I think they are real, and could arise in future cases. However, what I think is clear from this judgment is that sibling testing, or “fatherless testing”, is not going to be seen in future as an easy option.

Stuart Fuller