About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Thursday, 7 November 2013

DNA testing - directions & letters of instruction

Extract from the Judgment of Mr Anthony Hayden QC, sitting as a Deputy High Court Judge in Re F (Children) DNA Evidence [2007] EWHC 3235 Fam

(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.

Click for full draft letter of instruction in word.

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