Nield-Moir v Freeman [2018] EWHC 299 (Ch)

WTLR Issue: Spring 2018 #171

In the matter of: COLIN WILSON BIRTLES DECEASED

JANICE ELIZABETH NIELD-MOIR

V

LORRAINE KAREN FREEMAN

Analysis

The deceased died intestate. The claimant (N) and the defendant (F) were both born to the deceased’s late wife (W) during her marriage to the deceased, such that a rebuttable presumption that they were both children of the deceased arose. Letters of administration were granted to F. F later sold the deceased’s house to herself.


N denied that F was the child of the deceased. N therefore sought revocation of the grant to F, as well as a grant to herself, a declaration as to her beneficial entitlement to the whole of the estate, and an order setting aside the sale of the house. 


N asked F to provide a DNA sample by way of saliva swab, to determine if they were full sisters or half-sisters, and if half-sisters whether either was related to the deceased (a niece of the deceased providing a further sample). F refused, and so N applied for an order that unless F submit to such testing, adverse inferences would be drawn. F resisted the application, arguing (1) that the result of the DNA test would not be definitive, (2) that the court lacked jurisdiction to order her, and (3) that even if the court had jurisdiction, the court ought not make the order.


Following the hearing, the court asked for further submissions on the human rights aspects of the case.


Held


Granting the application, ordering that unless F give a saliva sample by way of 
mouth swab to the expert within 28 days, the court will be at liberty to draw an adverse inference against her.


  1. 1)That although the DNA testing would not be definitive in the sense of being 100% reliable, it would determine whether F and N were full sisters to a high degree of probability, and the evidence of whether either was the deceased’s daughter would be sufficiently accurate to be worthwhile.

  2. 2)That the provisions under s20 the Family Law Reform Act 1969 applied only where the question was whether a party to the proceedings was a parent of another person, not where the question was whether the party to proceedings was the child or other relation of another person. 

  3. 3)Obiter, that although no authority had gone so far as to require a party to submit unconditionally to bodily testing, the High Court probably does have an inherent jurisdiction to order a party to submit to DNA testing by saliva swab: Anderson v Spencer considered.

  4. 4)However, the court could certainly make an order that unless a party submitted to such testing, a sanction would be applied, whether that be the drawing of an adverse inference, or a more draconian sanction such as staying a claim.

  5. 5)That it was not obvious that direction to give a saliva swab, such as that applied for, engaged Art 8 of the ECHR at all, given that it was non-compulsory: X v Austria and Peters v Netherlands considered. F’s right of privacy as to her parentage did however cause Art 8 to be engaged, but it could be justified under Art 8(2).

  6. 
6)Making the order, that the request that F submit to testing was not a mere fishing expedition on the part of N, as the evidence adduced by N as to doubts as to the deceased’s paternity of F raised a triable issue. Further, F had relied on her asserted parentage in taking a grant, and had failed to take steps to locate N.
JUDGMENT
 HHJ PAUL MATTHEWS:
 Introduction
 [1] On 8 February 2018 I heard an application by the claimant for an order that the defendant submit to DNA testing to establish whether she was the biological daughter of Colin Wilson Birtles (the deceased), in relation to whose estate this claim is brought. At the end of the …
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Counsel Details

Michael Clarke (St John’s Chambers, 101 Victoria Street, Bristol BS1 6PU, tel 0117 923 4700, e-mail: clerks@stjohnschambers.co.uk), instructed by Willans LLP (28 Imperial Square, Cheltenham GL50 1RH, tel 01242 514 000, e-mail law@willans.co.uk) for the claimant.


Julie Case (Exchange Chambers, One Derby Square, Liverpool L2 9XX, tel 0151 236 7747, e-mail info@exchangechambers.co.uk), instructed by Wrigley Claydon (31-33 Water Street, Todmorden OL14 5AB, tel 01706 815 712, e-mail info@wrigleyclaydon.com) 
for the defendant.

Legislation Referenced

  • Civil Procedure Rules rr25.1, 31.22
  • European Convention on Human Rights, Art 8

  • Family Law Reform Act 1969, ss20, 21, 23
  • Human Rights Act 1998