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The DNA of a deceased person may be tested to prove paternity

Spencer v Anderson (paternity testing) [2016] EWHC 851 (Fam)

On 15th April 2016 the High Court of England and Wales ruled that while there is no statutory power to order DNA testing to establish paternity, it possesses an inherent power to do so in cases where the absence of a remedy would lead to injustice.

The facts were that the applicant sought to determine whether the deceased was his father.  He could do so by testing a DNA sample retained by the hospital.  The deceased had died from bowel cancer and if the applicant was his son, there was a 50% chance that he too would develop the disease.  The risk could be reduced by regular bowel screening by colonoscopy every two years.

The Court ordered that the DNA test should be carried out in this case and qualified its decision on the basis that there was a real possibility that the deceased was the father, the testing would reveal that the applicant would require regular testing for bowel cancer, there was no reason to suppose that consent would have been withheld, the DNA sample was readily available, the hospital did not object and the rights of third parties carried little weight.

The High Court therefore retains an inherent power to make such rulings where there is a void in the legislation regarding these matters.

You can access the UK Human Rights Blog article here.

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Health, Medical Law