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President permits access to DNA profiles to determine paternity of children

Murderer of children’s mother refuses DNA test

In Re Z (Children) [2014] EWHC 1999 (Fam) the President has ordered copies of DNA profiles taken at a murder scene and at a post mortem of a mother to be provided to a local authority so that they might be compared with those of her children in order to determine the paternity of the children.
The application arose in care proceedings relating to two young children. X asserted that he was the father of the children. However, X, despite his assertion, refused to submit to DNA testing.

X had murdered the children's mother and is serving a sentence of life imprisonment, with a long minimum term. In the course of his attack he wounded her. Evidence at X's criminal trial referred to the mother's wound as "bleeding". There was also evidence that X had cut his wrists, which were also bleeding, with a knife. Various samples of blood were taken from the crime scene and submitted for analysis. A sample of blood from the knife was also analysed. A sample of the mother's blood was obtained during the post mortem examination of her body and analysed. A comparison of the various samples showed that two of the samples taken from the crime scene matched the mother's DNA profile. The remaining samples from the crime scene did not match the mother's DNA profile and were therefore each from a person other than the mother.

The children's guardian, supported by the local authority, but opposed by X, the Metropolitan Police and the Secretary of State for the Home Department, sought an order that:

"1  The Commissioner for the Metropolitan Police shall provide to the … Local Authority a photocopy/scanned copy of the DNA profiles for each and every individual whose blood was found at the crime scene of the murder of [the mother] and a photocopy/scanned copy of the DNA profile in respect of the blood taken at [her] post mortem … ("copies") provided that any copies in relation to an individual other than [the mother] shall remain anonymous.

2  The copies obtained by virtue of paragraph 1 above may be used for the purposes of (a) comparing the respective DNA profiles with one another and reaching any appropriate conclusions, (b) comparing the respective DNA profiles with the DNA profiles of each of the … children and reaching any appropriate conclusions and (c) reaching a conclusion as to whether any of the DNA profiles, and if so which, is of a person who is related to any of the … children and of demonstrating the nature of that relationship. Upon receipt by the Local Authority the copies shall only be used for these purposes and shall be returned to the Commissioner at the end of the appeal period from the substantive hearing, or if an appeal is instituted, at the date of determination of any appeal."

The President defined the issues as:

  1. Does what is proposed offend section 45 of the Human Tissue Act 2004? 
  2. Is what is proposed prohibited by Part V, specifically section 63T, of PACE? 
  3. If not, what order should he make?

It was common ground that the order sought did not offend section 45 of the 2004 Act. The President concluded that nothing in Part II of PACE or Part V of PACE prevented him making the order sought.

The President concluded:

"55.  ... In the first place there are the interests of the children, to which both the guardian and the local authority draw attention and which, they say, should be preferred in the circumstances. In addition to all the usual arguments based on a child's right to know their paternity, one cannot ignore the enormous implications for these children of what happened to their mother. Their futures will be indelibly marked by it. They need to know if the man who murdered their mother, the man who they believe to be their father, is in truth their father. As Mr Matthew Stott on behalf of the local authority points out, because X is not named on their birth certificates, the local authority has at present sole parental responsibility for the children. Moreover, as he also points out, Hogg J has already, in making orders under section 21 of the Family Law Reform Act 1969, determined that it is in the interests of the children that the truth, whatever it may be, should out. I agree with Mr Stott that the material being sought is vitally important for the ongoing care planning for the children. I agree with him that in light of the circumstances of their mother's death it is fundamentally important for the children to have the opportunity to understand their family history and ascertain their familial identity. It will, as he says, have an enormous impact on their emotional welfare, now and into the future. As Mr McCarthy asks rhetorically, how can the children's life story work start, how can therapy or counselling be arranged, how is the children's psychological integrity to be preserved, if the paternity issue is not resolved?

56. In these circumstances the balance, in my judgment, comes down in favour of the children. The criminal justice policy arguments are weighty, though in the circumstances of this case significantly less weighty than Ms Broadfoot would have me accept. The interests of the children are compelling. There are likely to be few other cases in which an order can sensibly be sought without having recourse – prohibited – to Part V material or material the use of which is prohibited by the Human Tissue Act 2004. The order I propose to make will be subject to stringent limitations and safeguards."

Roger McCarthy QC and Neil Shah both of Coram Chambers (instructed by T V Edwards) represented the children's guardian. Matthew Stott of Field Court Chambers (instructed by local authority solicitor) represented the local authority. Rebecca Mitchell of 1 Garden Court (instructed by Sternberg Reed) acted for the children's alleged father. Tina Cook QC and Martha Gray both of 42 Bedford Row (instructed by Directorate of Legal Services) represented the Metropolitan Police Service. Samantha Broadfoot of Landmark Chambers (instructed by the Treasury Solicitor) acted for the Secretary of State for the Home Department.