In a landmark court ruling the Court of appeal has ordered that a deceased persons DNA can be used to test for paternity for the very first time.
The Court heard that the facts in the case of Spencer –v- Anderson were described by the original trial judge Lord Justice Jackson as unusual.
Mr William Anderson died in July 2012, having had a brief relationship with a Mrs Carol Spencer, who it was claimed fell pregnant with Mr Anderson’s son, David Spencer now aged 31. There was no contact between Mr Spencer and Mr Anderson throughout his life and it was not until after the death of Mr Anderson, that contact arose between Mr Spencer, and the dead man’s Mother, a Mrs Valerie Anderson.
The Appeal Court heard that before Mr Anderson died he had been diagnosed with a rare form of bowel cancer known as Lynch Syndrome which carried a 50% risk of being passed on to any children. If Mr Spencer was his Son, then given the hereditary risks of Mr Spencer having the cancer, Mrs Anderson wrote a letter to her GP in February 2015 saying it was essential that DNA samples of Son stored by the Central Manchester University Hospital be tested to see if Mr Spencer was ` at risk of bowel cancer and to clarify paternity `.
Some three months later in April 2015, Mrs Anderson changed her mind and requested the DNA samples be destroyed, despite the fact by now Mr Spencer was having to undergo cancer screening with colonoscopies every two years.
Reluctantly, Mr Spencer issued proceedings originally in the High Court seeking a declaration that the DNA sample of the late Mr Anderson be tested so as to establish whether he was in fact his son given the cancer risks that existed. In April 2016, the High Court agreed, allowing DNA testing to be undertaken, concluding that the Court did have what is called an inherent jurisdiction to order such testing.
Mrs Anderson unhappy with the High Court’s Judgment appealed and in a landmark ruling the Court of Appeal, consisting of LJ king, LJ Simon and LJ Mcfarlane, reached the unanimous decision that in limited circumstances the Court does have the authority to allow DNA stored from a deceased person to be tested, the Appeal court concluding that the original trial Judge was right that ` the interests of the living in knowing their biological identity ` was a determinative factor, coupled with Mr Spencer establishing the potential cancer risks.
The published judgment can be viewed by clicking here.
Tim Murden who heads the contentious probate at TM Solicitors acted for Mr Spencer.