Court of Protection - Practice

LG v DK: Court of Protection (Sir Nicholas Wall): 5 October 2011

The Family Law Reform Act 1969, section 20 provides, so far as material: '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.'

The Family Law Reform Act 1969, section 21 provides, so far as material: '21. Consents, etc, required for taking of bodily samples (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.'

The applicant, LG, was a deputy for the property and affairs of DK in the Court of Protection (COP). DK was 84 and suffered from dementia. BJ believed that DK was her father. LG asked the court to decide whether or not it would be in DK's best interests to provide a bodily sample for DNA purposes to establish whether or not BJ was his daughter. The official solicitor, who represented DK, doubted the appropriateness of such an order in the context of the instant proceedings.

He invited the court to adjourn the proceedings in order to enable LG to make an application that a statutory will be executed for DK. The principal issue that fell to be determined was whether the Family Law Reform Act 1969 (the 1969 act) granted a free-standing power to direct DNA samples to be taken. DK submitted that, as presently constituted, the instant proceedings did not fall properly within sections 20(1) and 21(4) of the 1969 act, there being, at present, no 'civil proceedings' in which BJ's paternity fell to be determined other than LG's application for DK to provide a DNA sample.

A secondary issue arose as a result of a request for guidance from the court as to whether or not people in the position of BJ would be advised to take proceedings under section 55A of the Family Law Act 1986 (the 1986 act) in a court other than the COP.

The court held: (1) As a matter of jurisdiction, section 21(4) of the 1969 act gave 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 (see [43] of the judgment).

First, the court was not dealing with a child, but with an adult who was incapable of managing his affairs. The previous authorities in relation to minors were therefore distinguishable. Secondly, the words of section 21(4) were 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.

Further, in dealing with the affairs of those unable to make their own decisions, the maximum flexibility was required, consistent with all necessary safeguards, to ensure that decisions could be taken in their best interests. There might be circumstances in which it was in the interests of the person lacking capacity to undergo a DNA test to establish paternity even though there was no 'peg' within the COP proceedings on which to hang the application for a direction (see [44]-[45] of the judgment).

In the instant case, it would be open to the COP to decide that it would be in DK's best interests to give DNA sample, where the application for such a sample was ancillary to an issue within the COP's jurisdiction (see [53] of the judgment). E (a minor), Re [1994] 2 FCR 709 distinguished.

(2) An application under section 55A of the 1986 act involving a person who was not capable of managing his affairs could not 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 was: (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. The judge would be likely to determine that the correct test for deciding any such application on the facts would be in the best interests of the patient. Accordingly, it did not seem necessary to invoke section 55 in order to achieve the same objective as an application under section 21(4) of the 1969 act (see [52], [54] of the judgment).

Luke Harris (instructed by Thackray Williams LLP) for LG. Alexander Ruck Keene (instructed by the official solicitor) for DK.