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In the recent case of Nield-Moir v Freeman [2018] the High Court has been asked to consider the role in DNA evidence in the resolution of inherence dispute.
Background
This case concerns a dispute in respect of the Estate of Colin Wilson Birtles who died intestate (without having made a Will). Both Mrs Freeman and Mrs Nield-Moir were children of the Deceased, allegedly with the same biological parents. Under the Rules of Intestacy the sisters were entitled to share equally in the Deceased’s Estate.
Mrs Freeman was appointed as the Deceased’s personal representative and proceeded to administer the Estate, which included the sale of the Deceased’s property to herself.
Mrs Nield-Moir issued a claim asking the Court to set aside the sale of the house by reason of Mrs Freeman’s “self-dealing” as administrator of the Estate. Crucially, Mrs Nield-Moir also alleged that Mrs Freeman was not the Deceased’s biological daughter. She asked the Court to revoke her power to administer the Estate and dismiss Mrs Freeman’s entitlement to a share of the Deceased’s Estate.
Mrs Freeman refused to consent to a DNA test to assist with the resolution of these issues. She maintained that she was the Deceased’s daughter, relying on the fact that she was born while the Deceased was married to her mother and the common law presumption that children born into a marriage are the children of that marriage. The Deceased was also identified as her father on her birth certificate.
The Decision
Judge Paul Matthews considered three key questions in reaching his judgement:
Was a DNA test sufficiently accurate?
Although a DNA test could not provide a definitive scientific answer it would, to a high degree of probability, indicate whether Mrs Freeman and Mrs Nield-Moir were full or half-siblings. On that basis, a DNA test would be sufficiently accurate to assist with the issues before the Court.
Did the Court have the jurisdiction to order a DNA test?
The Court noted that there is no current case law authority which requires an individual to submit to physically invasive procedure, however slight, and was therefore cautious making an order to this effect. The Court, however, considered that a DNA sample provided by way of mouth swab would have a minimal physical impact to Mrs Freeman, with limited potential damage or risk.
Taking account of the factors above, the Court decided that it was able to grant an ‘unless’ order. Mrs Freeman was given the choice to take the DNA test. In the event she declined, the Court would be able to take this refusal in to consideration and draw an adverse inference against her.
The Court also observed that, where a DNA test was likely to offer a conclusion to a key issue in dispute, there was no reason in principle why a person could not be ordered to consent to a mouth swab DNA test.
Would a DNA test infringe Mrs Freeman’s Human Rights?
Judge Paul Matthews considered Article 8 of the Human Rights Act 1998 which affords individuals the right to respect for private and family life. It was unclear in the circumstances whether Article 8 was even engaged, given that Mrs Freeman was not being ordered to undergo the test by force.
In any event, it was submitted that even if the Court had given an unconditional direction to provide a sample, such an order could be justified by reference to protecting the public interest and would therefore not violate Article 8.
Implications
In this case the Court recognised the importance of encouraging litigation to “be brought to a conclusion one way or another, as soon as practicable”. If the context of the litigation requires the use of science to arrive at such a conclusion, it should be seriously considered and used as appropriate.
In cases where parentage is an issue, it is now likely to be more challenging to avoid reasonable and minimally invasive requests for the submission of DNA evidence to help resolve key issues in dispute.
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