F (Children) [2007] EWHC 3235 (Fam)

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

[2007] EWHC 3235 (Fam)

Case No MA06C01125

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Manchester Civil Justice Centre

Crown Square

Venue Manchester M60 9DJ

Date 20/12/2007

Before

MR ANTHONY HAYDEN QC

SITTING AS A DEPUTY HIGH COURT JUDGE

Between

Re: F (Children)Respondent

(DNA Evidence)Respondent

Re: F (Children)(DNA Evidence)

Miss Alison Woodward (instructed by Local Authority Legal Department) for Local Authority

Miss Elena Waddell (instructed by Messrs Glaisyers Solicitors) for First Respondent

Miss Samantha Birtles (instructed by Messrs Harry Boodhoo & Co Solicitors) for Second Respondent

Miss Kate Bramall (instructed by Lomax Geddes & Co Solicitors) for Third Respondent

Mr Nick Hodson (instructed by Messrs Stephensons Solicitors) for Fourth Respondent

Miss Kath Koral (instructed by Messrs Green & Co Solicitors) for Fifth Respondent

Mr Christopher Cook (instructed by William Holden Cooklin Gibbons LLP) for Fifth Respondent

Hearing Hearing date: 16 October 2007

Judgment

Mr Anthony Hayden QC :

Background:

[1]I have been concerned in this case with the welfare of 8 children. On 21st December 2006, following a 15 day fact finding hearing, in which evidence was taken in two different languages, I found that one of the children had been subjected to significant physical, sexual and emotional abuse. I was also able to identify the perpetrators of those assaults. A transcript of the judgment has been handed down to the parties. I address the background here, in summary format only, to give some context to the issues that fall to be considered and which have resonance beyond the facts of this case. At that earlier hearing it was necessary to investigate in some detail the dynamics of the family. There were a number of adults involved in the children’s care and the children moved readily between two separate households. One of the children, for rather complex reasons, gave an account of her early life and her country of origin which was inconsistent with the account given by the adults. Some of the older children were also uncertain about their parentage.

[2]At an early stage of the investigations in this case the court requested the Home Office files and confirmation of the parties’ immigration status. The response received was that the files had been lost and were unlikely to be recovered. Fortunately and largely due to the local authority’s perseverance, they were eventually located in a local Home Office Immigration Department. Those files enabled me to ascertain the nationality of each of the parties.

[3]The transcript of the court’s findings were disclosed to the Crown Court where there were concurrent criminal proceedings. On the day of the Crown Court trial each of the adults pleaded guilty to amended indictments. Those guilty pleas were followed by a broad acceptance by them of the findings of this court. The social services are satisfied that the perpetrator of the sexual abuse is permanently excluded from the family. He was not a family member. As the assessment of the family has progressed it has become clear that there is real prospect of reunification for most of the children to their parents’ care, the final decisions have yet to be taken.

[4]Having identified the parties’ nationality, a factual substratum as to what had occurred and clarified something of the family dynamics, a further important issue remained outstanding. It was not clear whether and to what extent, each of the children were related to each other or who their respective parents might be. Accordingly, I agreed with the unanimous applications by the advocates that DNA testing be ordered. I think it is fair to say that the confidence in, and reliance placed upon DNA testing in the family justice system, is such that there was an expectation that these issues could be speedily and vigilantly resolved. In the event, that proved not to be the case. The experience of this hearing has been to underscore the need for greater clarity in relation to the terms of instruction to DNA experts, particularly where inter-sibling relationships are being analysed, as opposed to relatively straightforward paternity testing. It has also served to be a timely reminder of the importance of identifying the jurisdictional route by which such tests are ordered (for reasons which I will identify below) and the need to ensure that suitably approved specialists are instructed. In the light of this, each of the parties has submitted that this is a judgment which should be delivered in open court in order to minimise the risk of future confusion or potential error in other cases and because it might well be of interest to the wider public. I agree with those submissions and endorse the reasoning upon which they are based. Perhaps predictably, however, there is resistance for differing reasons to any individual or individual company being named in the judgment. I am bound to say that I have found some of those objections to have been of varying cogency and weight. I have nonetheless looked at the arguments in turn and, as the judgment progresses, it will become obvious that I have declined to name either the children or the adult parties. Their identities have no relevance to the issues being explored. I have also declined to name the relevant local authority, for reasons which relate exclusively to the welfare of the children. I have, however, found it necessary to identify the DNA testing companies and, where relevant, the Directors of those companies. To fail to do so would, in the circumstances of this case, be both illogical and defeat the identified objectives of an open court judgment, which all parties agree is needed. I will return to the more detailed reasoning in forming these decisions later in the judgment. I turn now to the difficulties encountered with the DNA evidence.

[5]On the 6th September 2006 I made a direction facilitating the DNA testing of the adults and the children. The Order also provided for the cross-referencing of the children’s testing in order to identify the sibling relationships. The Order did not specify which company. The solicitor for the children was charged with the responsibility for making the arrangements and he identified a company called “DNA Diagnostics” to undertake the work. The Children’s solicitor, an experienced practitioner, whose assistance in this aspect of the case has been extremely helpful, selected the company because he had instructed them in previous cases and knew them to regularly undertake reports for the courts.

[6]I was told that DNA Diagnostics would usually accept instructions by way of completion of their own pro-forma document. The complications of this case properly led Mr Hodson to send a comprehensive letter of instruction which reflected my Order of the 6th September 2006. By the 25th October it was clear that the lawyers were having difficulties interpreting the results that DNA Diagnostics had by then provided. In an attempt to assist, I made a further Order clarifying the need for cross-referencing the children’s test results with the adults and any putative fathers. By November, two putative fathers had been identified and located and Orders were made to specifically facilitate their testing. It is unnecessary to recite the complex specifics of the DNA results, but it is sufficient to say that some of the results were challenged by the adult parties. It was agreed that the matter should proceed by way of Mr Hodson, the lead solicitor, making some enquiries of DNA Diagnostics and informing them of the challenge to their conclusions. One of the possibilities advanced by the adult parties was that the samples had been mixed up. In due course it was necessary for me to invite the Director of the company, Mr David Thomas, to attend and to be represented, if he wished. Wisely, he secured the services of Mr Cook, experienced Counsel specialising in Chancery and Commercial Litigation. Mr Cook has, if I may say so, represented his client with conspicuous skill and sound judgment. In a statement dated the 22nd May 2007, Mr Thomas gave his account of what unfolded when he began to respond to Mr Hodson’s enquiries:

“By the morning of the 19th March 07, our Customer Care Team had been made aware that the tests results were being challenged. They had become aware (as we all had at this time) that efforts to accurately cross-reference all the photographs to all the individuals sampled was proving impossible. As a result, Customer Care proactively began to make arrangements to conduct re-tests. Shortly after that we received a ‘phone call from Mr Hodson expressing considerable concern that we had made efforts to arrange re-testing. In light of this we immediately ceased all effects to arrange re-tests and confirmed this to Mr Hodson by way of email at 15.01 on the 19th March 06”

[7]I share Mr Hodson’s concern that on discovering the deficiencies in their system, Mr Thomas’s response, without any reference to the court, the Guardian or the local authority, was to instruct a member of his staff to travel to the children’s foster home and re-test them. One of the foster carers was bewildered to be faced with the request for re-test, having not been forewarned by Social services. She properly declined to let the children be tested and contacted the Social services immediately.

[8]In a later statement dated 29th June 2007, Mr Thomas re-visited this particular complaint against his firm:

“Our position is that we always believed that if we were instructed to perform a DNA test and are in possession of all the relevant paperwork, including consents etc, that we are still retained to collect samples until we are formally de-instructed on a case. …it was our view that we were best serving the solicitor, parties and court by ensuring that they received their test reports in the most efficient way and, furthermore, we did not feel we were breaching anybody’s privacy or consents etc ”

[9]I should record that later in the statement, though I am afraid to say in somewhat cautious terms, Mr Thomas acknowledged the seriousness of the errors in his company’s procedures, which he assured me have since been changed:

“We have now changed our procedures so as to ensure that a letter is written to the instructing solicitor to inform them that a recollection is necessary and we would not action that recollection until we had received their written affirmative response that we could do so. All staff had been made aware of this new procedure”

[10]Having read the statements, listened carefully to the evidence of Mr Thomas and scrutinised the development of the evidence I find that the bald reality of what happened is that on discovering that the link of the donor and the samples could not be confirmed, due to a breakdown in his system, Mr Thomas panicked. He realised that the confidence of the court and the parties in his company would be shaken. At para 48 of his statement of the 22nd May 2007, he stated:

“If we are excluded directly or otherwise from the court from undertaking work in this area, it will be ruinous to our business. We understand and accept that anxiety would have been caused by the loss of credibility to our advices but we ask that the court adopt a measured response to the unfettered explanation provided here and in the circumstances that present themselves”

[11]I have no doubt that Mr Thomas’s decision to re-test the children without recourse to the court or the professionals was motivated primarily by a desire to protect the reputation of his company. His asserted belief that permission to take DNA samples from children was somehow an elastic Order that permitted re-testing stretched out until “de instruction” reveals that he had become, in my judgment, ethically adrift. The explanation which he provided, and which I have set out above, certainly does not, to my mind, constitute what Mr Thomas has referred to as “an unfettered explanation”. These are attempts to justify unauthorised intrusion into these children’s privacy. To Mr Thomas’s credit, when this was put to him in evidence, he unreservedly accepted it.

[12]Why was it impossible for DNA Diagnostics to link donor and sample together? Miss Waddell, a solicitor acting for one of the adult parties, advised me that she was particularly concerned as she had been involved in a case recently where an identical problem had arisen with this same firm. On that occasion it transpired that Miss Waddell had received a bouquet of flowers from Mr Thomas by way of apology. Miss Woodward, Counsel acting on behalf of the Local authority, had plainly been reflecting on the implications of this development. She informed me that the Authority was concerned because investigations had revealed that DNA Diagnostics had been instructed in a significant number of public law cases in which their Authority had been involved.

[13]At that stage it looked as if the problems in this case might be part of a wider systemic failure on behalf of DNA Diagnostics and so, with the consent of the relevant parties, I made provision for the pertinent facts of Miss Waddell’s earlier case to be disclosed into these proceedings. That case has been referred to throughout as Re B. In Re B, the DNA issues were far less complicated. It concerned one child and disputed paternity. The objective of the test was to identify the biological father. On the 22nd November 2006, Miss Waddell wrote to DNA Diagnostics asking for the photographs of the father to be returned. All samples are accompanied by a photograph for the purposes of identification of samples. The photograph could not be located. On the 19th January 2007, the photographs of the mother and child were also requested but those too could not be located. The explanation given to Miss Waddell was that the problem arose as a result of the failings of one of its employees who had, it was said, failed to comply with company procedures. I am told that on the 7th February 2007, the company decided to instigate disciplinary proceedings with a view to dismissal. According to Mr Thomas, that employee failed to attend the disciplinary meeting which had been set up for the 13th February and telephoned later that day to tender her resignation.

[14]As a result of the court’s concern, DNA Diagnostics undertook a full audit of all their cases. The purpose of this was to identify whether any other photographs were missing from their case files. The mischief, of course, being that in the absence of a photograph, the link between donor and sample could not be assured. All the photographs were stored electronically. The audit revealed that there were 122 cases affected by the loss of data. Those cases straddled a period between 2nd August 2006 and the 8th December 2006. Mr Thomas told me that the loss of the information was likely to have been as a result of the installation of a new computer and the relocation of the company’s administrative team. Data had apparently been transferred from desktops to the new computer server shortly after the 8th December 2006 and the desktops, where the missing photographs were stored, were all re-formatted and transformed into workstations, now connected to a central company computer server. Perhaps anticipating the obvious question arising from that explanation, Mr Thomas contacted the IT Manager who had been responsible for overseeing the installation of the new server. He too was no longer with DNA Diagnostics, but it was possible to contact him. Mr Thomas told me that his IT Manager was “unable to recollect the data file transfers conducted at that time and is unable to shed any light on this”.

[15]Mr Thomas was asked the obvious question: in order to ensure the safety of the case files, was a backup made and saved prior to data transfer? He told me in clear terms that it was not. Mr Thomas has appended his curriculum vitae to one of his statements. He obtained a Batchelor of Science Degree from the John Moores University in Liverpool in 1997. In his “career profile” he describes himself as a “trained Manager with a background in business-to-business and business-to-consumer sales and promotions … with extensive administration and customer service experience”. He identifies his “key skills” as being “IT literacy, proficient in Microsoft Office, Office 2007 Excel, Access, Word, PowerPoint 2000, Internet Intranet and various companies’ own computer packages”. He asked me, despite this background, to accept that he had not taken measures to ensure that the company’s highly sensitive and important data was backed up and stored during transfer to a new computer server. Furthermore, I am asked to accept that the IT Manager overseeing the installation of the new server did not make any backup either.

[16]One might get the impression, looking at Mr Thomas’s promotional literature, that DNA Diagnostics is a large international company. There are photographs of offices throughout the United Kingdom and abroad. These I was told in evidence are, however, merely P.O. Box addresses. In fact, his company has no more than about 6-8 employees. I found myself wondering on more than one occasion, precisely what Mr Thomas’s role in this small business was. On his account it was a very “hands off” style of management. Even so, I find it difficult to accept that Mr Thomas did not even enquire, let alone ensure that there was appropriate backup provision in place when the data was transferred to the new system. The data did not merely contain administrative details, or records of work completed or in process, it contained, as I have said, highly sensitive material which went right to the core of the business’s function and upon which information hugely important decisions would be taken in relation to the lives of adults and children. In my judgment, these were serious administrative errors. The organisation within this company plainly fell below what the courts, the families involved and indeed the company’s clients, were entitled to expect. Again to Mr Thomas’s credit, he fully acknowledged, in evidence, the legitimacy of these criticisms and properly made no attempt to justify what to my mind is indefensible.

[17]It is self-evident that those involved in DNA analysis provide a highly specialised and important service. I can think of very few businesses where the need for clear regularly tested procedural accuracy is more important. The integrity of sample collection, safe database storage and guarantees of privacy are vital. Records which place priority on continuity of handling of samples from testing to recording of results, are similarly every bit as crucial as the quality of the science itself. It is intrinsic to the reliability of the conclusions. In plain terms, without rigorous procedural safeguards, the science is worthless. For that reason, this is an area which is closely regulated. I will consider that regulatory framework later in this judgment but it is perhaps important to consider first, the legal framework by which directions for DNA collection are made.

[18]Section 20 of the Family Law Reform Act 1969 provides that in civil proceedings (including family proceedings) a court may give a direction for the use of scientific tests to ascertain parentage. If the court makes a direction for a paternity test to be carried out under these provisions, it is required by law under Section 1A to direct the parties to the Ministry of Justice Accredited List and to use one of the laboratories on that list. A prerequisite for inclusion on the list is accreditation in compliance with ISO 17025. These criteria are set by I.S.O. (the International Organisation for Standardisation) in conjunction with I.E.C, (the International Electro-technical Commission). Together they constitute a specialised system for worldwide standardisation. This international standard has been produced as a result of extensive experience and contains the requirements that testing and calibration laboratories have to meet if they wish to demonstrate that they operate a quality system, are technically competent and are able to generate technically valid results. Clause 4 of the criteria specify the requirements for sound management. Clause 5 specifies the requirements for technical competence. Clause 4.1.5. has particular relevance within the context of this case. That provides that the laboratory shall:

“have policies and procedures to ensure the protection of its clients’ confidential information and proprietary rights including procedures for protecting the electronic storage and transmission of results (my emphasis)” 19. Further, it should: “appointment a member of staff as Quality Manager (however named) who, irrespective of other duties and responsibilities, shall have defined responsibility and authority for ensuring that the quality system is implemented and followed at all times; the Quality Manager shall have direct access to the highest level of management at which decisions are made on laboratory policy or resources”

[19]The procedural deficiencies in DNA Diagnostics’ management and organisation identified at this hearing show that these standards have not been complied with. In evidence, however, Mr Thomas told me that whilst he aspires for accreditation under I.S.O. 17025, he has not yet submitted an application and is certainly not yet accredited. How then did he come to be instructed in the first place in this case, or indeed in the others to which the advocates have referred? In the County Court the only mechanism for making a direction is through the regime of the FLRA 1969. Miss Woodward raised the suggestion that it might have been possible to make a direction under Section 38(6) of the Children Act 1989, a provision which is most usually associated with (though by no means confined to), residential assessment. I cannot see, however, that the obtaining of a sample from a child for the purposes of DNA testing can properly be said to constitute medical or psychiatric examination of a child or “assessment of a child” (even allowing for the broad and purposive interpretation given to this section). A medical examination connotes the physical assessment by a doctor or suitably qualified person to establish state of health or, for example, the extent of any injury. The taking of a genetic sample for the purposes of establishing family connections or indeed for other purposes has a wholly different objective, it is to establish, to the extent which it may be possible, a scientific fact. In my judgment, Section 38(6) is not apposite to such a direction.

[20]Another view expressed by the advocates was that where Directions had been made, as here, in the High Court, they may have been made under the court’s inherent jurisdiction. Parliament, however, may oust the exercise of the court’s inherent jurisdiction or it may specifically regulate or fetter the exercise of it. (Re C Detention: Medical Treatment [1997] 2 FLR). Wall J, as he then was, considered this point, though in a different context in Re O (Minor)(Blood Tests: Constraint); Re J (Minor) (Blood Tests: Constraint

[2000] 1 FLR 418

, he held that Part 3 of the 1969 Act entirely overrode both the inherent jurisdiction to direct the testing of a child to establish paternity and any consequential power to enforce that direction. Wall J was there dealing with a situation in which the person with care and control of the child refused to give permission for the taking of a sample. The landscape was changed shortly after by amendments to Section 21 of the Family Law Reform Act 1969. The Judge’s analysis of the inter-relationship of Part 3 and the court’s inherent jurisdiction, however, remains valid. I am clear that it would be a misuse of the court’s inherent jurisdiction to circumvent the provisions of the Family Law Reform Act and, accordingly, the requirement to identify DNA experts on the accredited Ministry of Justice List.

[21]I think it is far more likely, as Counsel have speculated, that given the fact that all who work in this area of law are very much aware that the court has power to order DNA testing, the practice has developed of casting directions in general terms without reference to the Family Law Reform Act 1969. It would I think be helpful to incorporate a careful formulation of the direction for DNA tests within the standard variable directions which were introduced accompanying the Public Law Protocol. It seems to me that the practice of drafting a direction in general terms has led to practitioners failing to appreciate the accompanying requirement to select companies on the Ministry of Justice List.

[22]Where, prior to the commencement of proceedings, the parties themselves have already investigated issues of paternity and have, at their own expense, obtained the report from a company which is not on the Ministry of Justice Accredited List, the Court will always have a general discretion to admit it (particularly where the conclusions are not in dispute). That, however, is a wholly different position to one in which the Court itself is being invited to make an Order. It follows from the above analysis that the only route by which to order DNA samples is the Family Law Reform Act 1969. Therefore, in my judgment, DNA Diagnostics ought not to have been instructed in this case, or in those others to which Miss Woodward has alerted me. As I have referred to above, during the course of evidence I was presented with DNA Diagnostics’ promotional literature. In the pamphlet produced to me there were a number of references to the Family Law Reform Act 1969. It is unnecessary to record my view of the impression they create, as Mr Thomas has wisely and properly conceded, through his Counsel, that they might give the impression that his firm is accredited. Mr Thomas was unable to identify who had drawn up the pamphlet, though he denied involvement with it himself. In my view the identity of the author hardly matters, the responsibility, as Director, lies with Mr Thomas. The admission that the promotional pamphlet might create a false impression of the company’s qualification to undertake court-directed work of this nature, is a serious one. The pamphlet I am told has now been withdrawn and the company’s website, which I was not able to see but was told had made similar references, has been suspended.

[23]It is only right that I should record that as the case has developed, it has not cast any doubt on the accuracy of the scientific results that DNA Diagnostics filed. I emphasise though that the procedural and professional deficiencies that have been identified and which are now largely accepted, would have made it quite impossible for any court to rely on those conclusions. Mr Thomas has, sensibly, waived any fee to the Legal Services Commission. I hope he will reflect on the experience of this case and on the contents of this judgment. I am told that his firm will not seek further instructions in court-related reports until they are accredited. I make no apologies for reiterating that in my analysis, no firm which is not on the Ministry of Justice Accredited List is qualified to undertake this kind of work for the court. If ever a case illustrated the need for strict regulation and accreditation of those companies who do undertake this work, it is this case.

[24]Following those concerns arising from DNA Diagnostics’ procedural deficiencies, a fresh company was instructed. That company, accredited on the then Department of Constitutional Affairs’ List, was a company called ‘Anglia DNA’. By this stage the putative father to a number of the children had been identified and had provided DNA samples. The tests revealed sufficient similarity of genetical markers for the scientists and the court to be satisfied that he was the father of 5 of the children. However, the tests also revealed on what was stated to be “a likelihood ratio”, that the parents of 2 other children shared one biological parent. In other words, their relationship (as half siblings) fell within the prohibited degrees of consanguinity. The report filed by Anglia DNA described their analysis as providing “good evidence” of such a relationship. This conclusion had potentially wide impact: the consequences for any future care plans on returning children to a parental relationship which would be regarded as incestuous; the impact on the adults’ immigration status (as it cast doubt on what had been said to the Home Office) and also, at least theoretically, any potential predisposition to genetic problems for the children concerned.

[25]The reaction of the adults to the conclusion was, in my assessment, of real shock and accompanying indignation. The strength of that reaction, coupled with the inherent forensic difficulties in challenging DNA evidence in the absence of a similarly qualified expert, led me to allow an application by the relevant parties for what was in effect a second expert opinion (though numerically a third). The company selected was Orchid Cellmark. Again, a company on the DCA accredited list. The results of those tests concluded that there was in fact no likely relationship between the two adults concerned. Put starkly, there appeared on the face of it to be two flatly contradictory sets of DNA results. I asked Mr Hodson, for the children, to arrange for the two experts to speak to discover how such a situation had arisen and to identify areas of agreement and disagreement between them. On the 27th June 2007, Anglia DNA confirmed that, faced with further more specific questions, their results were entirely consistent with those reached by Orchid Cellmark. In other words, and much to everybody’s relief, the parents of the two relevant children, did not share a common biological parent and were not therefore related.

[26]It is important for this case, and for others, to know how such confusion has arisen. The answer is not straightforward. When an expert witness in whatever discipline is jointly instructed, the solicitor for the children will usually take the lead in drafting the letter of instruction. He will then circulate it to the solicitors for the other parties for their amendment or approval. The public law protocol provides guidance but, as Ryder J has said in Oldham MBC-v-G.W., P.W.,K.P.W. (A Child) and W St C Forbes (Intervenor)

[2007] 2 FLR 597

that guidance requires to be updated. The observations of Ryder J in that case and those of Charles J in A County Council-v-K, D & L

[2005] 1 FLR 851

throw considerable light on the responsibilities that the profession has in ensuring that the court receives the best quality of evidence available from experts in whatever field.

[27]DNA evidence, however, has many unique intricacies. I hope that I am not being over simplistic by saying that it is a science in which both biochemistry (the actual analysis of DNA matter) and mathematics (the statistical calculation of likelihood) combine. In this case, both Orchid Cellmark and Anglia DNA used identical testing procedures known as “Short Tandem Repeat Profiles” (STR) on samples clearly identified as having been taken from specified individuals. The DNA profile for each individual comprises the results from a combination of STR tests. All the experts draw my attention to the fact that in distant relationships, in which category is included half siblings, it is not always possible for a relationship to be demonstrated, even where a biological relationship does in fact exist. The profiles from the samples are compared by contrasting the DNA matter that match between the respective DNA profiles. A statistical analysis is then undertaken to establish the most likely relationships from the DNA results obtained.

[28]Thirteen of the STR tests were used by both companies and it is agreed that there are no discrepancies in the results they obtained. Anglia DNA used a total of 15 STR tests, all 15 were included in Orchid Cellmark’s panel and, again, there were no discrepancies. In order to provide an estimate of the significance of any relationship, a factor known as a “likelihood ratio” is calculated. The importance here is that the “likelihood ratio” compares the probability of obtaining the DNA results under two alternative scenarios. The choice of the alternative scenarios is therefore critical and unless identified clearly and correctly for each, can lead to confusion as to what precisely is being asked and to potentially incorrect conclusions being drawn by the lay parties, as to the significance of the results. The request framed by the parties to Anglia DNA through the offices of the children’s solicitor was to “undertake DNA testing of the 3 adults and cross-reference between them for both full and half siblingship”.

[29]Anglia DNA following these instructions, tested the scenarios in the following way:-(a) that the individuals are related as full siblings; as against,

(b) the individuals are related as half-siblings (known as ‘sibling index’). For the half-sibling relationship, the alternative scenarios were:-

(d) the individuals are unrelated (known as the ‘half-sibling index’). The full sibling index realised a ratio of 53:51 and the half-sibling index a ratio of 6026:48. On the basis of that evidence (which was exactly replicated by Orchid Cellmark) it was clear that the adults concerned were significantly more likely to be related as half-siblings than as full siblings. As those figures appeared to address the terms of the questions they were asked, Anglia DNA advised in their report that there was “good evidence” of a half-sibling relationship. What they did not do, and were clearly not strictly asked to do, was to interpret their own “ratio” for unrelatedness. When they later spoke to Orchid Cellmark and consulted their own statistics in this respect, they confirmed that their results were in effect the same as those found by Orchid Cellmark, i.e. the likelihood ratio in respect of unrelatedness was dramatically greater and pointed very clearly to the adults sharing no common parent. The assumption of the lawyers (which seems to me to have been a reasonable one) was that if the three scenarios had, as here, been tested, the full panoply of tests would have been interpreted and the conclusions presented in full, irrespective of the limitation of the question asked.

[30]The duty of the expert to draw anything he considers to be of relevance to the court’s attention, irrespective of the framework of his instructions is, or ought to be, engraved in the practice of all those who work in the family justice system. In some cases, family lawyers have found themselves in recent years working in the vanguard of changes in medical science. Identifying and formulating the correct questions to, for example, ophthalmologists, neurologists, paediatricians, can be a considerable challenge to lawyers who are lay people in these areas of specialisim. That is why the expert, whose primary obligation is to the court, has a heavy burden placed upon him to identify issues which may not have been picked up by others. It may be necessary for him to hone, refine or even re-frame the questions asked. These precepts, which I believe will be self-evident to the vast majority of experts who make an invaluable contribution to the investigative process of family proceedings, apply with equal rigour to those who work in the field of DNA testing.

[31]In the case of DNA analysis and testing, however, the court is engaged with expertise of a rather different complexion. The experts involved will often not be alert to the wider issues in the case, it will rarely be necessary for them to see the case papers, they may not be as familiar with the investigative and essentially non-adversarial philosophy of the Family Courts as those in the other areas of expertise that I have mentioned. Dr Thomas Haizel, the Director of Anglia DNA, told me in evidence that:

“The results of tests are interpreted based on the questions asked by the client”

. He said:

“It is critical that the question reflects the most likely relationship of the individuals being tested ”

It is alien to lawyers in many disciplines to frame questions which suggests their answer, but what I believe Dr Haizel is saying, is that the instructions must clearly identify what the range of relatedness or unrelatedness might be and always to express in clear terms, what those being tested believe their relationship to be. This is familiar territory. The parties’ account of their family history should be provided to the DNA expert in just the same way as a carer’s account of an injury to a child should be provided to a paediatrician for him to consider whether injuries are likely to be accidental or non-accidental in origin.

[32]As Dr Haizel put it, “getting the question correct has an impact on the interpretation of tests results. This is reflected in the results of our validation work using cases where the outcome is known. The validation work demonstrated (in this case) that simply selecting the likelihood ratio of the highest value where the wrong hypothesis has been applied and the most likely relationship between the individuals are not therefore represented, resulted in an incorrect interpretation of the tests” I emphasise that the consequences for this family and these children of this breakdown of understanding could have been potentially very serious. For that reason and in the hope of being of assistance in the future, I have tried below to distil some of the points that have arisen throughout the course of this case in the hope that similar problems may be averted in the future:-(i) Any Order for DNA testing made by the Family Courts should be made pursuant to the Family Law Act 1969.

(ii) The Order should specify that it is being made pursuant to the Act and either the company who is to undertake the testing should be named or the Order should direct that the company identified to undertake the testing is selected in accordance with the Act, from the Ministry of Justice Accredited List. Only accredited companies may be instructed.

(iii) The taking of samples from children should only be undertaken pursuant to the express order of the court. If a need arises for further samples to be taken, that should be arranged only with the approval of the court. If all the parties agree on the need for further samples to be taken, the application may be made in writing to the Judge who has conduct of the matter. These requirements should be communicated to the identified DNA company in the letter of instruction.

(iv) Save in cases where the issue is solely confined to paternity testing, where the identified company may have its own standardised application form, all requests for DNA testing should be by letter of instruction.

(v) The letter of instruction should emphasise that the responsibilities on DNA experts are identical to those of any expert reporting in a family case and that their overriding obligation is to the court. Further, if any test carried out in pursuance of their instruction casts any doubt on, or appears relevant to the hypothesis set by their instructions, they should regard themselves as being under a duty to draw that to the attention of the court and the parties.

(vi) Any letter of instruction to a DNA company should set out in clear terms precisely what relationships are to be analysed and, where the information is available, the belief of the parties as to the extent of their relatedness. (In recent decades British society has become much more culturally diverse. Some cultures have different attitudes to consanguine relationships, others include children within the family for a variety of reasons (usually highly laudable) who may have remote or indeed no genetic connection to the adults. In these cases, separate statements from the parties setting out the family history and dynamics is likely to be helpful).

(vii) The letter of instruction should always make clear that if there appears to the DNA expert to be any lack of clarity or ambiguity in their written instructions, or if they require further guidance, they should revert to the solicitor instructing them. The solicitor should keep a note or memorandum of any such request.

(viii) The reports prepared for the court by the DNA experts should bear in mind that they are addressing lay people. The report should strive to interpret their analysis in clear language. Whilst it will usually be necessary to recite the tests undertaken and the likely ratios derived from them, care should be given to explain those results within the context of their identified conclusions.

(ix) Particular care should be taken in the use of phrases such as “this result provides good evidence”. That is a relative term (and was here overtaken by stronger contrary evidence). Such expressions should always be set within the parameters of current DNA knowledge and should identify in plain terms the limitations as to the reliability of any test carried out. A “likelihood ratio” by definition is a concept which has uncertainty inherent within it. The extent of uncertainty will vary from test to test and the author of the report must identify and explain those parameters (e.g. It is not always possible to demonstrate half sibling relationship by DNA testing, even where it is given that a biological relationship exists”.

(x) In this case, Orchid Cellmark conducted all the tests undertaken by Anglia DNA but also some further additional tests. Though it is not a feature of the evidence here, I would also add that where any particular test and subsequent ratio of likelihood is regarded as in any way controversial within the mainstream of DNA expertise, the use of the test and the reasons for its use should be signalled to the court within the report.

[33]I now turn to the question of why I have taken the decision to deliver this judgment in open court and to name some of the individuals and the individuals companies involved. Firstly, the need for an open court judgment was thought to be necessary by all the advocates in the care proceedings because they consider that the case involved issues that required the widest possible dissemination not only to family practitioners but those involved in other areas of law. They considered, as do I, that the need to ensure that only appropriately qualified and properly regulated companies undertake this kind of work is of such priority that the court should depart from its more usual practice of delivering judgment in Chambers. The need for forensic vigilance in relation to the terms of instruction and precision in framing questions to DNA experts is also important to the profession. I would add too, I regard both these factors as being of legitimate interest to the wider public, not least so that there is greater awareness of the efforts made by the Family Court system to ensure that the interest of children and families are properly safeguarded. The practice of delivering judgments in Chambers, particularly where care proceedings are not yet concluded, is usually necessary to protect the privacy of the children who are at a critical state in their lives and in respect of whom important decisions have to be taken about their future. The issues here, however, fall into a discrete category and I hope I have been able to address them whilst protecting and promoting the children’s interest.

[34]Mr Cook, on behalf of DNA Diagnostics, also agreed that this was a case for a judgment in open court.

[35]During the currency of care proceedings, the identity of the parties is protected by Section 97(2) of the Children Act 1989, though that can be varied if the welfare of the children require it and perhaps even when the rights of others require it (see Norfolk County Council-v-Webster and Others

[2006] FLR 2733

). Section 97(2) provides:

“(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely to identify: (a) Any child as being involved in any proceedings before the High Court, a County Court or a Magistrates’ Court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or (b) An address or school a being that of a child involved in any such proceedings”

. Nothing in this case indicates that it is in the children’s interests or indeed in the interests of the wider public to depart from the requirements of these provisions. To promote the protection of the children the court must be alert to routes by which the children’s identities may become known. Accordingly I have not identified the Local authority or the adult parties. Nobody has argued that I should.

[36]Mr Cook, however, contends that DNA Diagnostics should not be named. I have had regard to all of the submissions he has made and those set out in particular at paragraph 13 of his written Submissions. I have addressed many of the points he raises elsewhere in this judgment but I turn now to what I perceive to be his central argument.

(d) as follows:

“The purpose of a public statement should be to improve the system in the public interest; as there is a strong likelihood that parties and private clients know that DNA Diagnostics has undertaken testing in their cases and/or for them, should its name be made public in connection with its failings and the more general failings of the court practice (with the attendant risk of sensationalist reporting) the public interest would not be served as there would be an unnecessary risk of widespread alarm and distress caused by people (wrongly) believing that the results upon which they have placed reliance and their decisions (personal or of the court) on which they were based were incorrect and an attendant and huge escalation in costs should cases sought to be re-opened”

[37]As Munby J reminded us in Norfolk County Council (supra), Section 12 of the Administration of Justice Act 1960 does not prohibit the identification of witnesses and, accordingly, where there is a consensus that a judgment should be given in open court, the parties claiming anonymity should seek injunctive relief if they seek to avoid identification. That seems to me to illustrate that even in the Family Court system where assumptions of the need for privacy are readily made (perhaps too readily see Clayton-v-Clayton

[2006] 3 WLR 599

) there is a recognition within our statutory framework of the importance of balancing concepts of privacy against the public interest in the administration of justice. Here the law assumes transparency. In any event, I agreed to treat Mr Cook’s request for anonymity on behalf of his clients as if a formal application for injunctive relief had been made.

[38]Since the incorporation of Convention Rights into domestic legislation pursuant to the Human Rights Act 1998, the correct approach to applications concerning publicity in children cases, is for the court to identify the various rights which are engaged and then to conduct the balancing exercise between those competing rights and interests, weighing the proportionality of a potential interference with each right independently. Neither Article 8 nor

Article 10 of the ECHR

has precedence. There cannot be an expectation of confidentiality, see Re:Manda per Balcombe LJ 215 and Re X(Disclosure of Information)

[2001] 2 FLR 440

per Munby J at para 24. There will certainly be cases where the identity of experts needs to be withheld because there are concerns that identification may affect the administration of justice. In Re: B (A Child) (Disclosure)

[2004] 2 FLR 142

Munby J, as an experienced Judge of the Family Division, identified a “continuing and massive backlash in the UK against Child Protection, which uses as a strategy the promulgation of disinformation and vilification of certain doctors through sensational and convincing media campaigns” which had contributed to a “drain on the pool of doctors willing to do child protection work” (see para 88). Nonetheless, Munby J identified that there might be a “powerful public interest in the discredited expert being identified” or alternatively a “public vindication of an expert who had been unjustifiably and unjustly attacked”

[39]In this case I have not found the balancing exercise to be a delicate one. DNA Diagnostics undertook work that it was not accredited to undertake, I have found that it’s unauthorised decision to take further samples from the children concerned was at best unethical and the Company’s administrative procedures were seriously flawed. Though I emphasise again that whilst I make no criticisms of the DNA science employed by the Company, the fact remains that in 120 cases, it is impossible to make the crucial link between donor and sample. This is a Company that has been widely instructed by the legal profession in whom members of the public and those who have parental responsibility for children have reposted a high degree of trust and confidence.

[40]The arguments before me were not cast in Human Rights Act terms but it is within that framework that I undertake this discretionary exercise. There are here competing Article 8 rights. The rights of those potentially affected by the Company’s administrative failings to re-assure themselves of the reliability of the tests which inform their understanding of their genetic identity and upon which crucial decisions about their family life may have been made. Mr Thomas also wishes to repair and limit the damage sustained to his reputation and to the reputation of his Company in order to secure his livelihood and those of the people employed by him. The right to privacy protected by Article 8 is a broad term, not susceptible to exhaustive definition and may include the right to protect activities of a professional or business nature (see Peck-v-UK(Right to Privacy)

[2003] 36 EHRR 41

at para 57 and Niemietz-v-Germany

[1992] 60 EHRR 89

. I must also consider Article 10.

Article 10 of the Convention

provides that:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers… 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions, or penalties as are prescribed by law and are necessary in a democratic society… for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary”

As Ryder J said in BBC-v-Rochdale MBC

[2005] EWHC 286

2 (Fam):

“The exceptions to the Article 10 right of freedom of expression must be “narrowly interpreted and the necessity for any restrictions must be convincingly established”

. What is necessary “implies the existence of a pressing social need”. There must be proper evidence to justify any interference with the Article 10 right. The dangers inherent in restraint call for “the most careful scrutiny by the court”. The Observer and theGuardian v UK

(1991) 14 EHRR 153

at paragraphs [59] to [60] and Kelly v BBC 1 FLR 197 per Munby J. at 212 B and 299”.

[41]The unanimous view of each of the parties as expressed through their advocates in this case that a judgment should be delivered in open court is in effect a recognition that Article 10 rights are engaged. Mr Cook’s contention is that pursuant to Article 10 para 2 those rights should be restricted insofar as they extend to the actual identity of Mr Thomas and his Company. In order to make good that submission Mr Cook must establish convincing reasons supported by evidence of the cogency that is required to support the need for such a restriction. See Kelly v BBC

[2001] 1 FLR 197

per Munby J at 212B. “If those who seek to bring themselves with para 2 of Article 10 are to establish ‘convincingly’ that they are – and that is what they have to establish – they cannot do so by mere assertion, however eminent the person making the assertion, nor by simply inviting the court to make assumptions; what is required (and this even if the case involves national security) is proper evidence ” Later at 229:

“What it is vital to appreciate, however, is that it is for those seeking to obtain an injunction to establish their case and to do so convincingly;”

I do not consider the assertion (as distinct from evidence) that those who have instructed DNA Diagnostics, either privately or mistakenly in the course of litigation may be “alarmed” or “distressed” about the reliability of the Company’s test results to constitute evidence of the requisite cogency, or indeed evidence at all. It ought to be readily possible to check whether any individual concerned falls within the 120 cases affected. They or their advisors will decide how best to proceed from there. Nor do I consider it likely that a significant number of cases, if any, will have to be reopened. The experience of this case and of the B case to which I have referred gives me optimism that whilst the system of identifying donor and sample may have broken down in these limited number of cases, the fault is likely to be in the storage and retrieval of information rather than the process of collection and testing. It is this that has created uncertainty. Even if my optimism in this respect is misplaced I am clear that the individuals affected are entitled to know what has occurred here. Where retesting is thought to be necessary that will I suspect in most cases relate to the issue of paternity which can be resolved relatively easily. As far as expense is concerned, others may have to determine where the burden should fall, however if Mr Thomas is earnest in his desire for his Company to become accredited, as I believe him to be, I should expect that he would want to do all within his powers to assist. Contrary to the arguments advanced I consider that the Article 8 rights of those potentially affected by the breakdown in the administrative systems of DNA Diagnostics have a clear right to know both what has occurred and to take such steps as they consider appropriate to reassure themselves. Genetic relatedness is a fundamental aspect of individual identity. The entitlement of those potentially affected to achieve clarity in my view overwhelms the Article 8 rights of Mr Thomas.

[42]In conclusion I would like to reiterate what has been said here and on many occasions in the Family Courts. Those who give specialist evidence which is outwith the knowledge of the court and those professionals who work within it, have a heavy burden of responsibility to ensure that they appreciate the scope and the significance of their contribution. Where there is any lack of clarity as to the nature and extent of their role they share a duty to resolve the ambiguity. If an ambivalent question is asked of an expert within his written instructions, it is not remedied by an ambivalent answer within the body of his report, it is far better addressed by an insistence on a more focused question, that is the obligation placed on an expert in an investigative jurisdiction.

Postscript

[43]Shortly before this Judgment was due to be handed down, the following matters were brought to my attention by the parties:-(i) Despite their assurances to me that they would not undertake any further instructions from the Court until they had obtained the relevant accreditation, it has come to light that DNA Diagnostics have accepted instructions from a different office of the Guardian’s solicitors.

(ii) DNA Diagnostics have also replaced their website which continues to state: “DNA Diagnostics can perform all types of Court-directed work ”

(iii) The website now also contains the following assurance: “It is the intention of the Company to provide a quality assured service to our customers that complies at all times with the requirements of the ISO 17025 Standard”

(iv) Mr David Thomas has continued to operate a sister company called ‘The Paternity Company’ which, in its promotional literature, is referred to as a “Lord Chancellor approved facility” and makes repeated references to “Court admissible testing”.

[44]Mr Cook, who continues to act on behalf of DNA Diagnostics, accepted that the reference to the ISO 17025 accreditation was plainly misleading. He also assured me that whilst Mr Thomas had accepted instructions from a different office of the Guardian’s solicitors, his company had “outsourced” that work to an accredited firm.

[45]I again heard evidence from Mr Thomas. He accepted that the promotional literature for ‘The Paternity Company’ was misleading in precisely the same way that the publicity material for DNA Diagnostics was. He sought to mitigate his continued business activity in that company by assuring me (unsupported by evidence) that ‘The Paternity Company’ took the vast majority of its work from private clients and had very little to do with Court-directed work. I find Mr Thomas once again to be a deeply unimpressive witness. The facts set out above, taken in conjunction with his own acknowledgments, seem to me to speak for themselves and require no further comment. Accordingly, today, I have accepted undertakings in the terms set out below. For the avoidance of doubt, breach of these undertakings will, in the usual way, result in potential custodial sanction.

Cited in 1 later judgment

Bagguley v E 2019