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LG v DK [2011] EWHC 2453 (COP)

Judgment of the President, sitting in the Court of Protection, concerning the question of the approach to be applied in an application for DNA testing of an adult lacking capacity to establish paternity of a third party.

The subject of the proceedings, DK, was 84 and suffered from dementia. LG, a senior partner in a firm of solicitors and unrelated to DK, was Deputy for his property and affairs in the Court of Protection. In the course of her duties LG had come across a reference to a daughter, BJ, and invited the Court to consider whether it would be in DK's best interests to provide a bodily sample for DNA testing to establish whether or not BJ was his daughter. The Official Solicitor sought an adjournment to allow for a statutory will to be executed for DK, which application was not opposed by LG. BJ intervened in the proceedings but was unrepresented.

Correspondence from 2001 revealed that, prior to the onset of DK's dementia, he was unwilling to give a DNA sample. The question arose as to which circumstances would give rise to the court ordering that a bodily sample should be taken from an individual who lacked capacity to consent.

The President considered the statutory provisions of the Family Law Reform Act 1969 and the Mental Capacity Act 2005 and a number of authorities on the question of paternity testing of children. His Lordship took the view that the case raised an important issue which was being fully argued for the first time in this case. The court had to take a decision in accordance with DK's best interests, and consider whether the outcome sought could be achieved by a less restrictive method.

His Lordship agreed with the Official Solicitor that there were significant differences between cases involving children and those involving incapacitated adults on this issue, not least that the person whose interests were being considered was also the person who was to be tested. There was a question as to the jurisdictional basis for ordering a test pursuant to the provisions of the FLRA 1969; although this would be resolved beyond doubt by the application for a statutory will, His Lordship still considered stand alone jurisdiction existed under the 2005 Act. Whether the court would order this would depend on the facts of the case but would be strongly influenced by the need to ascertain the truth and serve the interests of justice. In this case, the court was more comfortable determining the issue in the context of the application for a statutory will.

It would also be possible for an application to be made under s.55A of the Family Law Act 1986, and although such an application could not be made in the Court of Protection, realistically speaking it would most likely be transferred to the High Court and heard by a Court of Protection judge. That approach was, however, not encouraged.

The outcome of the instant case would be determined in the context of the application for statutory wills following an adjournment.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


___________________

Case No: COP11562311

Neutral Citation Number: [2011] EWHC 2453 (COP)
IN THE HIGH COURT OF JUSTICE
COURT OF PROTECTION

Royal Courts of Justice
Strand, London, WC2A 2LL

 

Date: 05/10/2011

Before :

SIR NICHOLAS WALL, THE PRESIDENT OF THE FAMILY DIVISION
SITTING AS PRESIDENT OF THE COURT OF PROTECTION

LG
Applicant

-and-

DK
Respondent
  
Luke Harris (instructed by Thackray Williams LLP) for the Deputy Applicant
Alexander Ruck Keene (instructed by the Official Solicitor) for the Respondent

Hearing date: 23 August 2011
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

SIR NICHOLAS WALL, THE PRESIDENT OF THE FAMILY DIVISION

This judgment is being handed down in private on 5 October 2011. It consists of 15 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
 
Sir Nicholas Wall:
1. DK (as I shall call him) is 84. Unfortunately, he suffers from dementia, and this judgment is being written on the basis that DK is not able to manage his affairs. He lives in a Nursing Home. LG, who is unrelated to him, and who is the senior partner in a firm of solicitors, is his Deputy for his property and affairs in the Court of Protection (COP). She has acted in that capacity since 15 July 2008.

2. During the course of looking after his affairs, LG came across a reference to a daughter. She therefore asks the court to decide whether or not it would be in DK's best interests to provide a bodily sample for DNA purposes in order to decide whether or not BJ (as I shall call her) is his daughter. This is the only issue in the proceedings.

3. The Official Solicitor, who represents DK in these proceedings, has doubts about the appropriateness of such an order in the context of the current proceedings, and on 23 August 2011 invited me to adjourn the proceedings in order to enable LG to make an application that a statutory will be executed for DK. That application was not opposed by counsel for LG, and I acceded to it. This judgment explains my reasons for doing so.   

4. I wish to make it clear at the outset of this judgment that BJ, who is not a party to these proceedings, and who is a married woman in her early fifties with children of her own, is not motivated by any mercenary considerations. She contacted DK prior to the onset of his dementia, but lost touch with him when he became ill. I am entirely satisfied that she wishes to establish that DK is her father so that (1) the fact is established; and (2) so far as is possible, she can maintain a father / daughter relationship with him.  She is, of course, willing to provide a bodily sample for DNA purposes.

The facts
5. For present purposes, these have, in effect, already been stated. One or two matters can, however, be added.  DK is not named on BJ's birth certificate. Her evidence is that her mother and DK had a brief relationship in 1959, as a result of which she was conceived. Her mother is still alive, but does not wish to be involved, and BJ does not wish to upset her. BJ's evidence is that she was brought up to understand that DK was her absent father: indeed, her mother changed her surname by deed poll to K, and when BJ herself married, she gave DK's name as her father on her marriage certificate.  BJ's youngest son also bears the name K as one of his forenames.    

DK's mental state
6. DK has been seen by a consultant in old age psychiatry Dr. C, on a yearly basis since 2003. In October 2007, Dr. C's opinion was that, whilst DK had "significantly impaired intellectual function" and had required an emergency admission to hospital in November 2007,  he nonetheless at that date retained "testamentary capacity" since he was aware of his estate in broad terms and acknowledged that he would like his assets to pass to his family. On 9 February 2011, however, Dr. C assessed DK as unable to decide whether he could give fully informed consent to cooperating with a DNA test.

7. When Dr. C assessed DK again on 18 and 22 July 2011 she formed the view that he no longer had the capacity to make a will but considered that "he was able to understand the matters I raised with him in these proceedings" (these included the suggestion that he had a daughter and that he should undergo a DNA test). She added that DK was able furthermore to "retain their implications such that he spontaneously enquired of me how he could – as he put it – "make an association with this lady".

8. In these circumstances, the Official Solicitor proposes to invite Dr. C to attend the final hearing for cross-examination since it would appear that her latest conclusion (as set out in paragraph 7 above) is inconsistent with her earlier views.

The position to date
9. The case has been before the court on three occasions. BJ was initially made a party to the proceedings, but that part of the court's order was discharged on 11 July 2011. She was, however, given permission to intervene and give evidence.

10. BJ has given full disclosure of her correspondence with DK prior to the onset of his dementia. This reveals that they met on one occasion. The correspondence shows that DK was not willing to give a DNA sample. On 23 September 2001 he wrote to BJ: -

"So finally now you have put the DNA ball back in my court what will it achieve?

If I am right, sadly you will not have met your father. If I am wrong, it means I will regret a 40 year hole in my life of which I was not aware.

Either way, one of us is going to be hurt……"

11. The question of law which arises can best, I think, be formulated in the following way:  under what circumstances is it appropriate for the court to order the taking of a bodily sample from a person who lacks the capacity to consent to such a sample being taken?

The relevant statutory provisions
12. Before setting out the Official Solicitor's argument, it seems to me sensible to set out the relevant statutory provisions. I start with sections 20 and 21 of the Family Law Reform Act 1969 in its amended form (the 1969 Act): -

"20 Power of court to require use of scientific tests

(1)     In any civil proceedings in which the parentage of any person falls to be determined, the court may, either of its own motion or on an application by any party to the proceedings, give a direction –

(a) for the use of scientific tests to ascertain whether such tests show that a party to the proceedings is or is not the father or mother of that person; and

(b) for the taking, within a period specified in the direction, of bodily samples from all or any of the following, namely, that person, any party who is alleged to be the father or mother of that person and any other party to the proceedings;

and the court may at any time revoke or vary a direction previously given by it under this subsection.
 …

21  Consents, etc, required for taking of bodily samples

(1) Subject to the provisions of subsections (3) and (4) of this section, a bodily sample which is required to be taken from any person for the purpose of giving effect to a direction under section 20 of this Act shall not be taken from that person except with his consent.

(2)   The consent of a minor who has attained the age of sixteen years to the taking from himself of a bodily sample shall be as effective as it would be if he were of full age; and where a minor has by virtue of this subsection given an effective consent to the taking of a bodily sample it shall not be necessary to obtain any consent for it from any other person.

(3)    A bodily sample may be taken from a person under the age of sixteen years, not being such a person as is referred to in subsection (4) of this section,

(a)   if the person who has the care and control of him consents; or

(b)   where that person does not consent, if the court considers that it would be in his best interests for the sample to be taken.

(4)  A bodily sample may be taken from a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to give his consent, if consent is given by the court giving the direction under section 20 or by –

(a)     a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or

(b)   a deputy appointed, or any other person authorised, by the Court of Protection,

with power in that respect."

13. The relevant sections of the Mental Capacity Act 2005 (the 2005 Act) seem to me to be the following: -

"1. The principles

 ……….
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had   to whether the purpose for which it is needed can be as effectively   achieved in a way that is less restrictive of the person's rights and   freedom of action…….

4. Best interests

(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—

(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider—

(a)  whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.

(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6) He must consider, so far as is reasonably ascertainable—

(a)  the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b)  the beliefs and values that would be likely to influence his decision if he had capacity, and 
(c)  the other factors that he would be likely to consider if he were able to do so.

(7) He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)  anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).

(8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—

(a) are exercisable under a lasting power of attorney, or
(b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

(10) "Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11) "Relevant circumstances" are those—

(a)  which the person making the determination is aware, and
(b) which it would be reasonable to regard as relevant

15 Power to make declarations

(1)  The court may make declarations as to—

(a) whether a person has or lacks capacity to make a decision specified in the declaration;
(b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;
(c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.

(2) "Act" includes an omission and a course of conduct.

16 Powers to make decisions and appoint deputies: general

(1) This section applies if a person ("P") lacks capacity in relation to a matter or `matters concerning—

(a) P's personal welfare, or
(b) P's property and affairs.

(2) The court may—

(a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or
(b) appoint a person (a "deputy") to make decisions on P's behalf in relation to the matter or matters.

(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).

(4) When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that—

(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and
(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.

(5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).

(6) Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P's best interests, even though no application is before the court for an order, directions or an appointment on those terms.

(7) An order of the court may be varied or discharged by a subsequent order.

(8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy—

(a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P's best interests, or
(b) proposes to behave in a way that would contravene that authority or would not be in P's best interests……..

47 (1) The (COP) has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court……"

The Official Solicitor's argument
14. On behalf of the Official Solicitor, Mr. Alexander Ruck Keene began his argument by asserting that in COP proceedings, a scientific test to determine parentage could only be directed pursuant to sections 20 and 21 of the 1969 Act and that the court could not bring about a scientific test to determine parentage under the provisions of section 15 (the power to make declarations) and 16 (powers to make decisions and appoint deputies) of MCA 2005.

15. Mr. Ruck Keene relied on a decision of mine at first instance (Re O (A Minor) (Blood Tests: Constraint) In re J (A Minor) [2000] Fam 139 for the proposition that, so far as children were concerned, sections 20 and 21 of the 1969 Act provided the only route whereby scientific tests to establish parentage could be directed. The passage on which Mr Ruck Keene relied was at  [2000] Fam 139, 150G to 151B, where  I said: -

"Mr. Jackson [Leading Counsel for the Official Solicitor, acting as Amicus Curiae and now Jackson J] concluded by submitting that the unfortunate but clear consequence of the Family Law Reform Act 1969 is to restrict the power to direct the taking of blood from children for the purpose of establishing paternity to orders within the format of the Act. Any power under the inherent jurisdiction has been abrogated. Mr. Jackson accepted that the inherent jurisdiction remained available to fill lacunae in any statutory scheme, as made clear in the speech of Lord Wilberforce in A. v. Liverpool City Council [1982] A.C. 363, 373. In re C. (A Minor) (Adoption: Freeing Order) [1999] Fam. 240 was such a case. Here, however, the statutory scheme left no lacuna.

I find myself in complete, albeit reluctant, agreement with these submissions. In my judgment, unattractive as the proposition remains, both the inherent jurisdiction to direct the testing of a child's blood for the purposes of determining paternity and any consequential power to enforce that direction is entirely overridden by the statutory scheme under Part III of the Family Law Act 1969."

16. As it happens, section 21(3) (b) was added after my decision: - see the Child Support Pensions and Social Security Act 2000, section 82 with effect from 1 April 2001. However, Mr Ruck Keene made the point that when Parliament came to pass MCA 2005, it chose to amend the 1969 Act by adding sub-section (4) to section 21. This, he submitted, reinforced the point that the only gateway to the ordering of a bodily sample from a person who lacks capacity was through section 21(4) of the 1969 Act.

17. These considerations led the Official Solicitor to submit that the "protective jurisdiction" in relation to vulnerable adults  identified by the  Court of Appeal in Re F (Adult: Court's Jurisdiction) [2001] Fam 38 had also been abrogated, as regards the taking of bodily samples, as had any question of the use of any inherent jurisdiction in relation to adults without capacity. Since any application for a declaration under MCA 2005 plainly constituted "civil proceedings" for the purposes of section 20 of the 1969 Act,  sections 20 and 21 of the 1969 Act alone governed  the way in which bodily samples could be taken from persons lacking capacity. Importantly, they "trumped" MCA section 15 and 16. Mr. Ruck Keene also relied on Bennion on Statutory Interpretation at page 306.

18. On this basis Mr. Ruck Keene posed two questions: (1) does the 1969 Act grant a free-standing power to direct DNA samples to be taken? and (2) through what prism should the court view the application under section 21(4)?

19. If the answer to the first question was "no", then the COP had no power, absent an application, for example, to execute a statutory will, to direct a DNA test for the purposes of determining paternity. There is, of course, no other issue in the proceedings.

20. As to the first proposition, Mr Ruck Keene referred me to Re E (A Minor) (Parental Responsibility)  [1994] 2 FCR 709 (Re E), a decision of the Court of Appeal. A father made an application for contact with his daughter.  The child's mother than had another baby, a boy. The man then sought an order for blood tests designed to ascertain if he was the father of the boy. The judge refused to make such an order, and the Court of Appeal dismissed the man's appeal.

21. Mr. Ruck Keene relied on a passage from the leading judgment in the case (with which the other two members of the Court agreed) which was given by Balcombe LJ. At [1994] 2 FCR 709.  At 718, Balcombe LJ said: -

"There are at the moment no civil proceedings in which the child's paternity falls to be determined other than the application by the father himself for such blood tests to be taken, In my judgment (and this indeed is the effect of the case of Re F (A Minor) (Blood Tests) [1993] 1 FCR 932), the order directing a blood test to be taken can only be made in proceedings to which an ancillary matter, namely paternity, arises; for example if the father had applied for contact with H, or if the mother had (which she has not) applied for financial provision from the father in respect of H, then those would be proceedings in which the question of H's paternity would arise. But it seems to me clear from the decision of this court in Re F (above) that there is no jurisdiction to make a free standing order for directing blood tests to be taken to determine paternity."

22. As to the second proposition, which Mr. Ruck Keene described as "more fundamental", he drew a distinction between paternity proceedings relating to children and those relating to adults lacking capacity. In the former, it was nearly always in the best interests of the child to know the truth about his or her parentage, and the interests of justice were usually served by the truth being ascertained. There is abundant authority for these propositions.

23. Furthermore, Mr. Ruck Keene argued, there was another distinction between ordering bodily samples to determine paternity in relation to a child and ordering such samples in the case of adults who were incapable of managing their affairs. The COP was duty bound by MCA section 1(5) to take decisions in the best interests of the person who was incapable of managing his affairs: contrast the approach to children  set out by Ward LJ in Re L (Paternity Testing) [2009] EWCA Civ 1239, [2010] 2 FLR 188 at paragraphs 11 to 14.

24. There were other conceptual differences between the positions of children and incapacitated adults to which Mr. Ruck Keene referred, and which I need not set out. MCA 2005, section 4, which I have set out above, is plainly in play. The fact that DK previously expressed a capacitous wish not to undergo a DNA test in respect of his parentage of BJ was, Mr Ruck Keene accepted, not determinative of whether it is objectively in his best interests for such a test now to be undertaken: - see Re P [2009] EWHC 163 (Ch) [2010] Ch 33; Re G (TJ) [2010] EWHC 3005 (COP).  However, it was at a minimum, a highly relevant factor to which substantial weight must be given.

25. Mr Ruck Keene also pointed out that Parliament has provided a route for parentage applications to be determined as a single issue by way of the enactment of section 55A of the Family Law Act 1986 (the 1986 Act), which allowed any person to apply to the High Court, a county court or a magistrates' court (but not to the COP) for a declaration as to whether or not a person named in the application is or was the parent of another person so named.  Mr Ruck Keene invited me to give an indication as to whether, in future, applications which have as their sole purpose the determination of whether P is the parent of an individual should be brought under section 55A of the 1986 Act. I will return to this point at the end of the judgment.

26. In essence, the Official Solicitor's view was that  the Court would be assisted by consideration (under section 1(6) MCA 2005) whether the purpose for which the DNA test was said to be needed could be as effectively achieved in a way that was less restrictive of DK's rights and freedoms. The Official Solicitor further submitted that it made sense (and, indeed, tracked the language of MCA 2005 sections 1(5) and (6) for this question to be considered before a detailed consideration was undertaken as to whether it was in DK's best interests for the sample to be taken.

27. Mr Ruck Keene submitted that perhaps the more important reason why the application had been brought was so as to determine whether DK's assets should transfer to BJ as his biological daughter upon his death, as they would do if he were to die intestate.  However, the Official Solicitor had considerable reservations as to whether it could be said that was necessary that a DNA test be carried out for this purpose: DK, it was clear from Dr. C's evidence, now lacks testamentary capacity, such that it would be possible for a statutory will to be executed. Furthermore, upon an application by LG for the execution of such statutory will, it would be open to the Court to consider that it was in DK's best interests to leave his estate to BJ, whether or not she is his biological daughter.  The evidence suggested that DK did not have close relationships with any other individuals or family members. 

28. In the circumstances, Mr Ruck Keene argued, it may be that it would be in DK's best interests to leave his estate to BJ simply on the grounds that he would be likely to prefer that his estate go to someone he knew and cared about (to some limited extent), rather than to unknown distant relatives or, possibly, the Crown.  While the genetic information that a DNA test would provide would determine whether BJ was entitled to inherit DK's estate under the intestacy provisions, it was not the sole answer to whether it was in DK's best interests to leave his estate to her.

29. The Official Solicitor invited me to bear in mind, when it came to the determination of the weight to be placed upon DK's previously expressed wishes,  that some considerable assistance may be gleaned from the decision of Morgan J in Re G (TJ) [2010] EWHC 3005 (COP).  In this case, which was concerned with the making of maintenance payments in favour of a daughter, Morgan J concluded that:

"Having identified the factors as best I can, it emerges that the principal justification, so far as Mrs G is concerned, for making the order for maintenance payments in favour of C, is that those payments would be what Mrs G would have wanted if she had capacity to make the decision for herself. I recognise that this consideration is essentially a "substituted judgment" for Mrs G. I am also very aware that the test laid down by the 2005 Act is the test of best interests and not of substituted judgment. However, for the reasons which I have tried to set out earlier, the test of best interests does not exclude respect for what would have been the wishes of Mrs G. A substituted judgment can be subsumed into the consideration of best interests. Accordingly, in this case, respect for what would have been Mrs G's wishes will define what is in her best interests, in the absence of any countervailing factors. There are no such countervailing factors here. I therefore conclude that an order which provides for the continuation of maintenance payments to C is in the best interests of Mrs G."

30. In all the circumstances the Official Solicitor concluded that he had very considerable doubts as to whether (having regard to MCA 2005 section 1(6)) it was necessary for DK to give a sample for purposes of carrying out a DNA test for either of the purposes for which LG advanced it as necessary; and that in any event, he had grave doubts as to whether it could be said that it was in DK's best interests for the test to be carried out where such would represent so clear an overriding of a decision that he took with capacity in 2001.

31. Mr. Luke Harris, for LG, did not dissent from any part of Mr. Ruck Keene's argument, and invited me to adjourn the application to enable LG to make an application for the execution of a statutory will for DK.  He submitted that LG's application, together with the application for the execution of a statutory will, could then be determined by applying whatever principles I found applied.

32.  BJ was in person and did not seek to address the point of law raised.

Discussion
33. I have taken a good deal of time to think through the implications of the Official Solicitor's submissions. I am conscious that he represents a large number of people who are incapable of managing their affairs, and quite apart from the expertise which this gives him, I am anxious not to make his task more difficult by taking a different view on an important point of practice. At the same time, the COP has the same powers, rights and privileges and powers as the High Court (MCA 2005, section 47(1)) and   the decision which I make in this case is likely to govern the practice of the COP in such cases, although they are likely to be a minority. It is, on any view, an important issue.

34. It is clear that all the authorities on DNA testing in relation to paternity cited to me relate to the taking of blood or bodily samples from children, and so far as I am aware, this is the first time that the question of taking a DNA sample from a person who is incapable of managing his affairs has been fully tested in argument.

35. During the course of his argument, Mr. Ruck Keene advised me that the Official Solicitor was aware of one case  in January 2011 in which Senior District Judge Lush (in the context of an application for an order to execute a statutory will) made an order that, in the event that the medical evidence to the effect that P lacked capacity to give appropriate consent within the meaning of the Human Tissue Act 2004 to the taking of any sample for the purpose of DNA analysis, it was in P's best interests for a sample to be taken and subjected to analysis in order to establish whether or not a particular individual was P's son.  For the avoidance of doubt, the issues of law canvassed before me were not before Senior Judge Lush, albeit that the Official Solicitor submitted that the decision of Senior Judge Lush was one to which he was entirely entitled to come.

36. Two matters, however, are clear to me namely; (1) that all proceedings under MCA 2005 in the COP are "civil proceedings" to which the strict rules of evidence apply (in this respect, I find myself in full agreement with McFarlane J (as he then was) in Enfield London Borough Council v SA (by her Litigation Friend, the Official Solicitor) FA and KA [2010] EWHC 196 (Admin), [2010] 1 FLR 1836 at paragraph 2); and (2) that MCA 2005 sections 1(5) and (6) (which I have set out at paragraph 13 above)  are  unequivocal. The test of any act done or decision made on behalf of DK must be that of his best interests and the court is duty bound to have regard to whether "the purpose for which it is needed can be as effectively achieved in a way that is less restrictive" of his rights and freedom of action.

37. In my judgment, quite apart from the distinctions drawn by Mr. Ruck Keene, there is an additional and important difference between a decision made on behalf of a person lacking the capacity to agree to the taking of a bodily sample (or a declaration that such an action would be lawful) and a decision relating to the taking of a body sample from a child. In relation to the latter, the court is both; (a) giving a direction for the taking of a bodily sample; and (b) overriding the otherwise effective and competent consent of the person with care and control of the child. The test to be applied in the latter context is the court's view that the provision of the sample is in the child's best interests.

38. In the case of a person lacking the capacity to consent to a bodily sample being taken, the subject of the proposed test (and of the inherent jurisdiction – assuming it to exist) is not the child but the person lacking capacity: in other words, it is one and the same person. I very much doubt whether the court in fact had inherent jurisdiction pre MCA 2005 to require a personal lacking capacity to provide a bodily sample for DNA purposes, but am perfectly content to work on the premise that the taking of such samples is governed by section 21(4) of the 1960 Act.

39. The phrase "In any civil proceedings….. the court" must, in my judgment, include the COP. However, for the reasons which follow, I see no reason why the 1969 Act and MCA 2005 cannot work together.

40. The more difficult question seems to me to be the making of an order under section 21(4) of the 1969 Act in the proceedings as presently constituted. LG has been DK's Deputy since 2008. The only relief which she seeks in the proceedings is a decision whether or not it is DK's interests to submit to a DNA test and for the court to make "a Health and Welfare Order giving authority for (DK) to take a DNA test".  That, she believes, would be in DK's best interests. The question, accordingly, is whether or not these are "civil proceedings in which the parentage of any person falls to be determined" within section 20(1) of the 1969 Act. 

41. I see the force of Mr. Ruck Keene's argument that, as presently constituted, the proceedings in the COP do not fall properly within sections 20(1) and 21(4) of the 1969 Act. I also see the force of the argument that, as a matter of language, the person identified in section 21(4) would need to be appointed or authorised to give consent in the proceedings to which section 20 applies. In my judgment, therefore, the Official Solicitor was wise to seek an adjournment, and the Deputy wise to issued proceedings for the making of a statutory will. Such an application will, in my judgment, resolve the jurisdiction issue beyond any doubt. There will undoubtedly in these circumstances be "civil proceedings" and within those proceedings the parentage of BJ will fall to be determined.

42. Here, too, I see the force of the Re E  argument, despite the differences on the facts. As I have already stated, the only issue in the proceedings as presently constituted is the deputy's application for a decision whether or not it is DK's interests to submit to a DNA test and for the court to make "a Health and Welfare Order giving authority for (DK) to take a DNA test". I see, therefore, the force of the argument that there are, at present, "no civil proceedings" in which BJ's paternity falls to be determined other than LG's application for DK to provide a DNA sample.

43. At the same time, and whilst the application for the adjournment and the institution of proceedings for the execution of a statutory will put the matter beyond doubt, I find myself unable to accept the argument that, as a matter of jurisdiction, the COP lacks the jurisdiction to give a direction for, and to consent on DK's behalf to, the taking of a bodily sample as the proceedings are currently constituted. Having thought anxiously about the matter, I have come to the conclusion that, as a matter of jurisdiction, section 21(4) of the 1969 Act does give the court the power to consent to the taking of a bodily sample from a person lacking capacity notwithstanding the absence of a specific application within the COP proceedings putting the parentage of an individual in issue.

44. I reach that conclusion for a number of reasons. Firstly, of course, the court is not dealing with a child, but with an adult who is incapable of managing his affairs. The previous authorities are therefore distinguishable, as is Re E. Secondly, the words of section 21(4) are unqualified. If the court were to take the view, for any reason, that it was in the interests of the person lacking capacity to undergo a DNA test, it would be strange if the court did not have the jurisdiction to consent to such a sample being taken.

45. In addition, I am of the view that in dealing with the affairs of those unable to make their own decisions, the maximum flexibility is required, consistent with all necessary safeguards, to ensure that decisions can be taken in their best interests.  Thus I have come to the conclusion that there may be circumstances in which it in the interests of the person lacking capacity to undergo a DNA test to establish paternity even though there is no "peg" within the COP proceedings on which to hang the application for a direction

46. Whether the court would ever do so is another matter. Certainly, in the instant case, I feel more comfortable contemplating such an order in the context of an application which specifically puts the parentage of BJ in issue.  However, in my judgment, Re E and the other cases cited by Mr. Ruck Keene can be distinguished on the grounds that they involve children under the Children Act 1989, not persons lacking capacity under MCA 2005.

47. In any event, I am firmly of the view that it would be open to the COP on a properly constituted application to make an order under section 21(4) of the 1969 Act such as Senior District Judge Lush made in the case referred to in paragraph 35 above. Whether or not the court would do so would, of course. depend upon the evidence in the particular case.

48. This leaves the question whether or not people in the position of BJ in the instant case would be advised to take proceedings under section 55A of the 1986 Act in a court other than the COP. This in turn raises the question of the criteria which the court would apply in deciding whether or not to make a declaration under section 55A.

49. As material to the present case, section 55A of the 1986 reads as follows: -

"55A Declarations of parentage.
(1) Subject to the following provisions of this section, any person may apply to the High Court, a county court or a magistrates' court for a declaration as to whether or not a person named in the application is or was the parent of another person so named…….

(3) Except in a case falling within subsection (4) below, the court shall refuse to hear an application under subsection (1) above unless it considers that the applicant has a sufficient personal interest in the determination of the application

(4)The excepted cases are where the declaration sought is as to whether or not—
……..;

(b) a named person is the parent of the applicant; ……"

50. There is a dearth of authority on the court's approach to section 55A, and it thus remains to be decided on what criteria a court would decide an application under that section.

51. It is, however, difficult on any view to depart from the following propositions,  all of which seem to be established on the authorities: -

"it is generally in the interests of justice for the truth to be known;

it is preferable, where scientific evidence is available to establish a point beyond doubt that such evidence be provided rather than the court relying on presumptions or inferences;

that a refusal to undertake a DNA test gives rise to an overwhelming inference that the person refusing such a test is the father of the child in question": - see  the decision of the Court of Appeal in Re A (a Minor)(Paternity Refusal of Blood Test) [1994] 2 FLR 463.

52. An application under section 55A involving a person who is not capable of managing his affairs cannot be made to the COP. In practice, however the respondent to such an application would have to be represented by a third party, and the likelihood is; - (a) that the third party would be the Official Solicitor; and (b) that the application, if not issued in the High Court, would be transferred to it and heard by a judge who also had COP jurisdiction. In my judgment, such a judge is likely to determine that the correct test for deciding any such application on the facts of the instant case would be the best interests of DK.

53. My own view – as I have already stated – is that on any view it would be open to the COP to decide that it would be in DK's best interests to give a DNA sample, where the application for such a sample is ancillary to an issue within the COP's jurisdiction. In practice, I anticipate that where such a point arises, it will usually be in the context of financial provision for a child born out of wedlock or – as here – of a statutory will.

54. However, for the reasons I have given, I find that I do not agree with the Official Solicitor that absent an application which gives the COP jurisdiction (such as an application for a statutory will)   there is no power to exercise the jurisdiction provided by section 21(4) of the 1969 Act. Furthermore, it does not seem to me necessary to invoke section 55A of the 1986 Act in order to achieve the same objective, and I would not encourage litigants on the position of BJ to do so. 

55. Quite how I will proceed at the final hearing will depend on the evidence at that hearing. I will, of course, under MCA 2005 section 1(6)(a) consider DB's previous attitude to DNA testing, whilst at the same time considering that DB is unlikely, in the future  to regain capacity in relation to the issue: - MCA 2005 section 4(3).  BJ is prepared to "take the risk" and give a sample. It would, in my judgment, require unusual facts for DK's best interests to depart from the ascertainment of the truth or the interests of justice.