Elliott v Ratcliffe [2013] EWHC 806 (Fam)

[2013] EWHC 806 (Fam)Case No NE12P01386NEWCASTLE COUNTY COURTThe QuaysideNewcastle upon TyneNE1 3LADate 1 st February 2013B E F O R E:MR JUSTICE HOLMAN
Between
ELLIOTTApplicantRATCLIFFERespondent
Compril LimitedTelephone: 01642 232324Facsimile: 01642 244001Denmark House169-173 Stockton StreetMiddlehavenMiddlesbroughTS2 1BY
Judgment
[1]This is an application by a gentleman called David Elliott for a declaration of parentage, pursuant to section 55A of the Family Law Act 1986.[2]Around 1988 Mr David Elliott did have some relationship, which included having sexual intercourse, with a lady called Victoria Lynn Ratcliffe. It appears that on 27th February 1989 Victoria Ratcliffe gave birth to a son. His birth certificate names him as David Thomas Ratcliffe. The informant on 9th March 1989of his birth was the mother, Vicki Lynn Ratcliffe. The birth certificate is entirely silent as to the name of, or any identifying information as to, the father of David Ratcliffe.[3]Today Mr Elliott has told me that he believes that Vicki Ratcliffe was already pregnant with this baby before he ever had sexual intercourse with her and that he has always believed, or even known, that he is not the genetic father of David Ratcliffe. Despite that fact, he appears to have been pursued by the Child Support Agency for payments in relation to David Thomas Ratcliffe, presumably because the mother, Vicki Ratcliffe, informed the Child Support Agency that David Elliott is the genetic father of David Ratcliffe. As I understand it, over ensuing years David Elliott has paid many thousands of pounds in child support to the Child Support Agency, which he is seeking now to recoup. David Ratcliffe himself is, of course, now fully adult, being aged almost 24.[4]That is the background to the application which David Elliott issued in the Newcastle County Court on 20th September 2012, by which he seeks a declaration pursuant to section 55A that he is not the father, or parent, of David Thomas Ratcliffe. Such an issue is, of course, now almost invariably conclusively determined by modern scientific DNA tests. So, on 6th November 2012, District Judge Loomba here in Newcastle gave directions for DNA tests, pursuant to section 20(1) of the Family Law Reform Act 1969.[5]The directions provided that the tests should be “carried out by Dadcheck” and that Dadcheck should later file a report “confirming the outcome of the DNA testing.” So far as the taking of samples was concerned, the directions simply provided that:
“DNA samples be taken from David Elliott and Vicki Lynn Ratcliffe and David Thomas Ratcliffe.”
The directions themselves were silent as to the place at which, or person by whom, the samples should be taken and as to verification or proof of the identity of each person who was giving a sample.[6]On 11th December 2012, Dadcheck.com sent to Ms Laura Croft, who is acting on behalf of Mr Elliott in this matter, a letter which may be pro forma in nature. The letter describes how Dadcheck have prepared sampling kits for each of the three people concerned. It then contains the following passage:
“Could you please ensure that at the time of sampling, all of the above named individuals take in two passport photographs of themselves, in order for the GP, solicitor or health practitioner to warrant their identities. These photographs will then be attached to the donor’s respective consent forms and sent back to Dadcheck, along with their swabs.”
[7]As I have said, that letter may well be a standard form letter, but it is nevertheless the letter that was sent specifically by Dadcheck.com to the solicitor for Mr Elliott, with specific reference to this case, and indeed the three parties to these proceedings are each specifically named within the letter. The passage which I have just quoted clearly contemplates that the samples from each of the individuals are going to be taken by someone other than Dadcheck, for it refers to “the GP, solicitor or health practitioner”.[8]The passage then makes reference to photographs being attached to consent forms and “sent back to Dadcheck along with their swabs”. In other words, the procedure that that letter contemplates, does not involve attendance by any of the people concerned at Dadcheck, or the taking of the samples by Dadcheck.[9]Mr Elliott, the applicant, is personally present today and has told me that in his case he attended the premises of Dadcheck and showed them his photo driving licence, so that the person taking the sample could compare the likeness of the person attending, namely Mr Elliott, with the photograph on the driving licence. However he was not present when either Vicki Ratcliffe or David Ratcliffe gave samples and he is, therefore, entirely unable to give any evidence as to the circumstances in which their samples were given.[10]There is a formal “DNA test report” from Dadcheck.com to Ms Laura Croft dated 17th December 2012. That begins with the words, “Your supplied samples have been analysed ...”. Again, that form of words appears to imply that some samples have been “supplied” by, or via, the solicitor. The letter then makes reference to the three parties to these proceedings, and records that the result of analysis of DNA markers in the three samples excludes Mr David Elliott from being the biological father of David Thomas Ratcliffe. I wish to stress that I do not, for the purposes of these proceedings, or this judgment, in any way doubt the reliability of the scientific testing or analysis performed by Dadcheck.com.[11]The difficulty arises in proof of the chain between the actual people, who are the subject of these proceedings, and the samples which were subjected to scientific testing or analysis. The letter from Dadcheck simply says:
“All of the above individuals donated cheek samples for analysis and had their identities warranted at the time of sampling by an independent third party.”
[12]That tells us absolutely nothing at all as to where, when or to whom each person actually donated a cell sample. There is absolutely nothing to indicate whether the swab of any given person was taken at premises of Dadcheck.com by staff of Dadcheck.com, or merely sent in from some other source. The words “had their identities warranted at the time of sampling by an independent third party”, make curious use of the passive tense. They give no indication as to who “the independent third party” was in each case, nor as to the means by which the independent third party “warranted” the identity.[13]It may be that the services of Dadcheck.com are often employed on a relatively private basis by couples or families who wish to resolve some uncertainty as to parentage. Just to take an example, it could arise, within a marriage or relationship, that the male doubts for some reason whether he is actually the father of a child; for instance, if he knows or suspects that the mother was having some sexual relationship with a third party around the time of likely conception. In such a situation, those people might, relatively privately, submit samples to Dadcheck.com, pay the fee and feel confident about whatever results are reported.[14]That, however, is a world of difference from a court being asked to make a formal declaration of parentage, under the statutory provisions of section 55A of the Family Law Act 1986. Such a declaration is no doubt based on a balance of probability. Nevertheless, before making such a declaration a court has to be judicially satisfied as to the accuracy and reliability of that which it is declaring. A declaration of parentage under section 55A of the 1986 Act is a solemn legal act, which remains binding and operative for all time and all purposes on the issue declared as to the parentage of the person concerned.[15]I have to say that it simply is not good enough for the purposes of such a declaration for Dadcheck simply to make a vague assertion in the language of the sentence that I have quoted above. I am very sympathetic to the situation of the applicant, Mr David Elliott, who I am sure arrived here today confident that long ago he would have left court with the required declaration, so as to enable him to start recouping from the CSA some part of the payments which he made. That said, he must have made the payments an appreciable time ago, since the child concerned ceased to be a child five or six years ago, and I am afraid that Mr Elliott will simply have to wait a little longer.[16]For those reasons I am not prepared to make a formal declaration as to parentage today. I repeat, and stress, that I am not in any way doubting or seeking further details as to the actual scientific testing and analysis; but there is not currently sufficient material before the court for me to be satisfied to the standard required that the samples that were actually tested by Dadcheck are samples from each of the respective named people.[17]I propose, therefore, to adjourn this application. It will have to be relisted in due course, in front of another judge as I will not be sitting here again in the foreseeable future, and Dadcheck.com must provide further and more specific information in the terms that I have already drafted in paragraph 2 of the Order.

Cited in 2 later judgments