Michael Mylonas QC and Amy Street in novel High Court case about posthumous DNA paternity testing and use of the inherent jurisdiction
18th April 2016
On 15th April 2016 Peter Jackson J handed down judgment in Spencer v Anderson (Paternity Testing: Jurisdiction) [2016] EWHC 851 (Fam), an unusual case involving novel legal issues about whether the court can use the inherent jurisdiction to direct scientific testing of the DNA of someone who has died, for the purpose of providing evidence of paternity. The DNA sample had been provided as part of the deceased’s medical treatment. No consent had been given for paternity testing and it was not clear that the deceased had ever known he might have a son.
Michael Mylonas QC and Amy Street represented the mother of the deceased, who opposed the testing sought by a man claiming to be her grandson. Jackson J decided that on the facts the court had no statutory power to order testing under Part III of the Family Law Reform Act 1969. However, he decided that an order could be made under the inherent jurisdiction of the High Court, despite this being unprecedented.
The case raises a wide point of general interest as to the circumstances in which the inherent jurisdiction may be used and developed where statute does not provide a remedy, and the extent to which use of the inherent jurisdiction is inconsistent with human rights because it is unpredictable, rather than clear and accessible.
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