Judge: Sir Nicholas Wall, President of the Family Division
Citation:  EWHC 2453
Summary: This case provides at least a partial answer to a question that will rarely arise but poses some acute dilemmas when it does: if a person lacks capacity to decide whether to consent to a test to determine whether they are another’s parent, what can (and should) the Court do?
LG was the Property and Affairs Deputy for an elderly man, DK. During the course of looking after his affairs, she came across a reference to a daughter. She therefore made an application to the Court of Protection for a decision whether or not it would be in DK’s best interests to provide a bodily sample for DNA purposes in order to decide whether or not the woman, BJ, was his daughter. Her reason for so doing was primarily because DK was intestate, such that the Deputy considered it important to determine whether BJ was DK’s biological daughter: if she was, his estate would go to her, but it would not do otherwise. DK in correspondence with BJ prior to his loss of capacity had made it clear that he did not wish to undergo a DNA test to establish whether he was her father.
The matter came before the President because it had become clear that it raised a number of difficult issues; by the time of the hearing before him, the most difficult of them had crystallised as being the jurisdictional basis for the Court. Ultimately, the parties were agreed, and the President endorsed the position that – unusually – the power of the Court of Protection to consent to a test being carried out on P’s behalf does not derive from ss.15-6 MCA 2005, but rather from the provisions of ss.20-1 Family Law Reform Act 1969. In exercising that power, however, the President held that the Court would approach the matter by reference to whether the course of action was in P’s best interests. Whilst, in the case of children, it is necessary that there be proceedings on foot in which the parentage of that child has to be determined for the Court to have any power under ss.20-1 of the 1969 Act the President considered that, as a matter of jurisdiction, the Court of Protection did have the power to give the requisite consent on a ‘freestanding’ basis (Paragraph 43).
As the matter had also been raised by the Official Solicitor, the President also (obiter) made it clear (Paragraph 53) that he considered that ‘standalone’ parentage decisions where the putative parent lacks the capacity to participate should be sought by way of an application to the Court of Protection, rather than (as is the case with the capacitous) by way of an application under s. 55A of the Family Law Act 1986, which allowed any person to apply to the High Court, a county court or a magistrates’ court (but not to the COP) for a declaration as to whether or not a person named in the application is or was the parent of another person so named.
As was common ground that the application was not to be pursued before the President in the form it had been issued, but was to be pursued in the context of an application (to be issued) for a statutory will, the President did not decide whether to authorise the taking of a sample, reserving the decision for a future occasion. He did comment, however, that it would “require unusual facts for DK’s best interests to depart from the ascertainment of the truth or the interests of justice.” (Paragraph 54)
Comment: This case is interesting at a number of levels, not least because of the ‘trumping’ of the apparently untrammelled powers of the Court under ss.15-6 MCA 2005 by the pre-existing provisions of s.20-1 of the 1969 Act. It also raises (albeit does not determine) the fascinating question of the extent to which pre-existing wishes as to parentage tests are to be honoured when there is no realistic prospect that P will regain capacity and there are clear and compelling grounds upon which to justify the carrying out of such a test by reference to the best interests of the putative child.
The case is also of note for providing confirmation (if such is needed) of a point which had never previously been determined squarely, namely that proceedings before the Court of Protection are civil proceedings (Paragraph 36).