Family Lore Focus

RE F (CHILDREN) (DNA EVIDENCE) REVISITED

While arranging some advertising for them recently, I got into a discussion with
Paul West, Marketing Manager of Cellmark, about the company and DNA
relationship testing generally. During that discussion, we touched upon the case of
Re F (Children) (DNA Evidence) [2007] EWHC 3235 (Fam), and I thought it
would be a good idea to look at the case again.

The Facts:

The case concerned the welfare of 8 children. During the course of the
proceedings the question arose as to whether, and to what extent, each of the
children were related to each other, or who their respective parents might be.
Accordingly, DNA tests were ordered, on the 6th September 2006. The Order also
provided for the cross-referencing of the children's testing in order to identify the
sibling relationships, but did not specify which company were to be instructed to
carry out the tests. The Children's solicitor chose a company then called "DNA
Diagnostics". However, their results were challenged by the adult parties, and one
of the possibilities advanced by them was that the samples had been mixed up.
DNA Diagnostics then admitted that “efforts to accurately cross-reference all the
photographs to all the individuals sampled was proving impossible”. The Director of
the company therefore instructed a member of his staff to travel to the children's
foster home and re-test them, without any reference to the court, the Guardian or
the local authority. Needless to say, the court took an extremely dim view of this
and, after investigating the procedures of DNA Diagnostics and finding them to be
wanting, a fresh company was instructed.

That new company were “Anglia DNA” who, unlike DNA Diagnostics, were on the
then Department of Constitutional Affairs' List of accredited testers. Their tests
identified the father of 5 of the children, but also revealed that the parents of 2
other children shared one biological parent, whose relationship (as half siblings)
therefore fell within the prohibited degrees of consanguinity. Obviously, this
conclusion had potentially huge consequences, including for any future care plans
on returning children to a parental relationship which would be regarded as
incestuous and also, at least theoretically, any potential predisposition to genetic
problems for the children concerned. The adults reacted to this conclusion with
“real shock and accompanying indignation”. The strength of this reaction led the
judge to allow an application for a third company to be instructed.

The third company selected was Orchid Cellmark, who were also on the DCA
accredited list. The results of their tests concluded that there was in fact no likely
relationship between the two adults concerned, completely contradicting the
findings of Anglia DNA. The judge therefore asked the Children’s solicitor to arrange
for the two experts to speak to one another, to discover how this situation had
arisen, and to identify areas of agreement and disagreement between them. After
this, Anglia DNA reviewed their results and confirmed that they were in fact entirely
consistent with those reached by Orchid Cellmark, i.e. they indicated that the
parents of the two relevant children were not, after all, related.

The Judgment:

Mr Anthony Hayden QC, sitting as a Deputy High Court Judge, delivered his
judgment 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”. Firstly, he dealt with how the confusion had arisen. I won’t go into the
technicalities here, but a significant factor had been the inadequacies of the
instructions to Anglia DNA. He then went on “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”, as follows (paragraph 32):-

(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.

Commentary:

My discussion with Paul indicated that since the judgment was given in December
2007 there has still been some confusion amongst solicitors. A number of solicitors
have simply cut and pasted chunks of Judge Hayden’s guidelines into their letters
of instruction – irrespective of the specifics of the individual case.

Judge Hayden stressed the importance of choosing a company on the MoJ
accredited list when selecting a provider of DNA testing. This status is achieved by
producing evidence of current ISO/IEC 17025 accreditation, which is a quality check
on their laboratory processes, by giving an undertaking to comply with the Dept. of
Health´s voluntary Code of Practice and Guidance on Genetic Paternity Testing
Services and by agreeing, in writing, to market their services in a fashion which
meets the standards set down by the MoJ. The MoJ says it will review compliance
on an annual basis.

It is interesting to note that DNA Diagnostics, which was heavily criticised by the
good Judge in December 2007, was awarded MoJ accreditation in July 2008. The
company is currently in the process of changing its name to ‘Alpha Biolaboratories’.

As the Human Tissue Act says “the issue of paternity testing is a sensitive one”,
one that can dramatically impact on several individuals lives and one that most
solicitors will only face infrequently, so the industry is duty bound to provide
solicitors with assistance and advice on how best to handle the non-legal aspects
of the case. Paul hopes that the long awaited update to the DoH Code of Practice
– provisionally titled “the Good Practice Guide” will be a step in the right direction.
This combined with access to assistance and information such as that offered by
Cellmark and where possible taking the time to familiarise themselves with the
realities of DNA testing by arranging to visit the labs and talking to the scientists
should eliminate the problems that occurred in this case.

I’ll leave the final word though to Judge Hayden:

“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 … and the need to ensure that
suitably approved specialists are instructed.”