T versus S - Court of Appeal New Zealand
1 of 2 DOCUMENTS: New Zealand Family Law Reports
Pages: 15
T v S [Guardianship] - [2005] NZFLR 466
Court of Appeal
CA 249/02
23 June, 6 December, 17 December 2004
Anderson P, Hammond and William Young JJ
Guardianship -- DNA testing -- Appeal against order placing child under the guardianship of the Court for the purpose of obtaining DNA sample -- Paternity of child at issue -- Jurisdiction of Court to make orders for DNA testing -- Competing authorities -- Whether order in the best interests of the child -- Guardianship Act 1968, ss 10A, 10B, 10C, 10D, 10E, 33 -- Family Proceedings Act 1980, ss 54, 55, 56, 57, 58, 59 -- Status of Children Act 1969 -- Care of Children Act 2004.
The appellant, Ms T, was the mother of a child, E, born in October 1997. At first Ms T told the first respondent, Mr S, that he was the father of the child. Later she maintained that another man, Mr W, was the father of the child.
Held (dismissing the appeal)
(1) The High Court's conclusion that the proposed testing would be in the best interests of the child was correct and open to it on the evidence (see para [60]).
(2) Sections 10A-E of the Guardianship Act 1968 provided jurisdiction for the orders sought by Mr S. Articles 7 and possibly 8 of the United Nations Convention on the Rights of the Child was important, and to interpret ss 54-59 of the Family Proceedings Act 1980 a code in regard to scientific tests where paternity was in issue, as Ms T had argued, would be inconsistent with New Zealand's obligations under the Convention (see para [64]).
Cases referred to in judgment
An Unborn Child, Re [2003] 1 NZLR 115
Asomua v Thompson (Family Court, Blenheim FP 006/220/97, 10 December 1998, Judge Grace)
Atkins v Jones (High Court, Auckland M 474-SD02, 19 August 2002, Temm J)
Cairns v James [1992] NZFLR 353
F v M (1998) 17 FRNZ 471
H v G (1999) 18 FRNZ 572
H v G (High Court, Auckland M 1868/98, 14 May 1999)
[2005] NZFLR 466 page 467
O (A Minor) (Blood Tests: Constraint), Re [2000] 2 WLR 1284
R (A Minor) (Blood Tests: Constraint), Re [1998] 2 WLR 796
R v T (CA 174/99) (Court of Appeal, CA 174/99, 11 June 1999)
Summerton v Winborne (1992) 9 FRNZ 241
Swanwick v Peterson (High Court, Christchurch M 536/98, 8 March 1999, Master Venning)
Appeal
This was an appeal from orders of the High Court placing a child under the guardianship of the Court and giving directions for the taking of a buccal swab for DNA testing.
M K Headifen for the appellant
P M Molloy for the first respondent
J M Irving for the child
The judgment of the Court was delivered by
WILLIAM YOUNG J.
Table of Contents
Para No
Introduction
[1]
Background facts
[7]
The legal landscape
The Guardianship Act
[15]
The United Nation Convention on the Rights of the Child ("UNCROC")
[17]
The Family Proceedings Act
[20]
The corresponding legislation in the United Kingdom
[29]
Other evidential techniques for determining paternity scientifically
[33]
The High Court judgments
The November 2002 judgment
[35]
The September 2004 judgment
[41]
Ms T's arguments
[42]
The arguments advanced by counsel for E
[48]
The argument for Mr S
[54]
Evaluation
[60]
Result
[66]
Introduction
[1] On 7 November 2002, O'Regan J, sitting in the High Court at Auckland, gave leave to Mr S to apply for an order that E be placed under the guardianship of the Court for the purpose of obtaining a sample for DNA testing to determine paternity. The terms of his judgment made it clear that he proposed to grant the order sought but he withheld making
[2005] NZFLR 466 page 468
formal orders in the hope, in vain as it turned out, that the parties would be able to agree on testing.
[2] Ms T (the mother of E) appealed to this Court against that decision.
[3] In the course of the hearing of the appeal, it was recognised that there was a jurisidictional difficulty with the appeal in that O'Regan J had, in his 7 November 2002 judgment, stopped short of making formal orders other than the grant of leave for the application for the guardianship order to be made. The appeal could not sensibly be determined by reference to that issue and accordingly we stood the appeal over to allow time for final orders to be made in the High Court.
[4] O'Regan J issued a further judgment on 15 September 2004 in which he made formal orders placing E under the guardianship of the High Court and giving directions for the taking of a buccal swab for DNA testing.
[5] We heard the parties again, briefly, on 6 December 2004.
[6] With the agreement of the parties, we are treating the present appeal as a challenge to the September judgment, albeit that the reasons for the approach taken by the Judge appear in his November 2002 judgment.
Background facts
[7] The appellant, Ms T, is the mother of E, who was born on 18 October 1997. Ms T had been in a sexual relationship with Mr S when E was conceived, and she told him that he was the father. Mr S was present when E was born. The relationship between Ms T and Mr S continued for some time after the birth and he had some involvement with E's early upbringing.
[8] No father was identified on E's birth certificate until two years after the birth, at which time Mr W was recorded as her father. Mr W has taken no part in these proceedings. Ms T now maintains that Mr W is the father of E.
[9] On the material which we have seen, there is a genuine factual issue whether Mr S or Mr W is E's father.
[10] Mr S applied for a declaration under s 10 of the Status of Children Act 1969 that he was E's father.
[11] On 26 June 2000 Paterson J made an order under s 54 of the Family Proceedings Act 1980 recommending that blood tests be carried out on Mr S, Ms T and E. Ms T declined to undergo the tests, and did not allow E to be tested.
[12] On 28 February 2001 Mr S applied for the leave of the High Court to make an application that E be placed under the guardianship of the Court so that a buccal swab could be obtained and submitted for DNA testing. Such testing would in all probability determine whether Mr S is E's father.
[13] On 30 March Ms T obtained from the Auckland District Health Board, E's "Guthrie card". This card contained a blood sample taken from E shortly after her birth and would have enabled DNA matching tests to be carried out which would be likely to have determined the issue of paternity. Presumably Ms T has destroyed this card.
[2005] NZFLR 466 page 469
[14] The application for leave and the associated substantive application were dealt with at the same time and gave rise to the judgment of O'Regan J of 7 November 2002.
The legal landscape
The Guardianship Act
[15] The Guardianship Act 1968 relevantly provides:
10A.
Concurrent jurisdiction under section 10B -- (1) The following courts have jurisdiction under section 10B:
(a)
The High Court:
(b)
Each Family Court.
. . .
10B.
Application to Court -- (1) An application may be made to a Court with jurisdiction under this section for an order --
(a)
Placing an unmarried child under the guardianship of the Court:
(b)
Appointing a named person to be the agent of the Court either generally or for any particular purpose.
(2)
An application for an order may be made --
. . .
(d)
By any other person, with the leave of the Court.
10D.
Orders of Court -- (1) ) A Court to which an application is made under section 10B may --
(a)
Make an order under section 10B(1)(a); or
(b)
Make orders under section 10B(1)(a) and (b); or
(c)
Make --
(i)
An order under section 10B(1)(a); and
(ii)
An order appointing any person whom the Court thinks fit to be the agent of the Court either generally or for any particular purpose.
(2)
An order ceases to have effect when the first of the following events occurs:
(a)
The Court orders that the order ceases to have effect; or
(b)
The child to whom it relates turns 20 years; or
(c)
The child to whom it relates marries before turning 20 years.
10E.
Powers of Court -- (1) A Court to which an application is made under section 10B has the rights and powers described in subsection (2) --
(a)
Between the making of the application for an order and its disposal; and
(b)
While an order is in force.
(2)
The Court has the same rights and powers in respect of the person and property of the child as the High Court had in relation to wards of Court immediately before the commencement of this Act
[16] These sections of the Guardianship Act would appear to provide jurisdiction for the orders sought and obtained by Mr S. Whether those orders were appropriately made turns on whether the legislation applicable to genetic testing in paternity disputes excludes such jurisdiction.
[2005] NZFLR 466 page 470
The United Nation Convention on the Rights of the Child ("UNCROC")
[17] The New Zealand Government ratified UNCROC in December 1995. Article 7 of UNCROC provides:
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field
[18] Article 8 is also relevant:
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
[19] For the sake of completeness we should also refer to arts 9(1) and (3):
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
. . .
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
The Family Proceedings Act
[20] Sections 54-59 of the Family Proceedings Act provide:
54.
Blood tests -- (1) In any civil proceedings (whether under this Act or not) in which the parentage of a child is in issue --
(a)
The Court may, of its own motion or on the application of a party to the proceedings, recommend that blood tests be carried out on --
(i)
The child; and
(ii)
Any person who may be a natural parent of the child -- and that a report of the results be compiled, by a person who is qualified to compile such a report, and submitted to the Court; and
(b)
Whether or not the Court has made a recommendation under paragraph (a) of this subsection, the Court may, of its own motion or on the application of a party to the proceedings, adjourn the proceedings in order to allow time for such blood tests to be carried out and for such a report to be compiled and submitted to the Court.
(2)
For the purposes of this section --
(a)
Blood tests may be carried out by any person or persons who are qualified to do so, whether or not any of them is the person by whom the report is compiled; and
(b)
The consent of a minor who has attained the age of 16 years to submit to blood tests shall have the same effect as the consent of a person of full age.
[2005] NZFLR 466 page 471
55.
Contents of report -- (1) A report on blood tests --
(a)
Shall state the qualifications of the person making the report; and
(b)
Shall include or be accompanied by a statement showing the circumstances in which a blood sample was taken from each person to whom the report relates, and the manner in which that person was separately identified from each other person to whom the tests relate; and
(c)
Shall state whether blood tests were made in any of the following systems, namely, ABO, Rh, MNSs, Duffy, Kidd, Kell, Haptoglobins, Gc's, and phosphoglucomutase; and
(d)
Shall state whether blood tests in any other systems were made and, if so, which of those systems; and
(e)
Shall state the results of the blood tests; and
(f)
Shall state, in relation to each person to whom the report relates (other than the child), whether the results of the blood tests show that the person is not a natural parent of the child.
(2)
Where blood tests carried out on a person do not show that the person is not a natural parent of the child, the report may contain an evaluation of the significance of the results of the blood tests in determining whether that person is a natural parent of the child.
(3)
Where a report on blood tests has been submitted to a Court under this section the Court may, of its own motion or on the application of a party, obtain from the person by whom the report was compiled a written statement explaining or amplifying any matter in the report.
(4)
A written statement so obtained shall be deemed to form part of the report.
56.
Right of examination -- Where a report on blood tests is submitted to a Court, the Court may on the application of any party summon as a witness in the proceedings --
(a)
The person who has compiled the report; and
(b)
Any other person who has done anything necessary for the carrying out of the blood tests or for the preparation of the report.
57.
Refusal of blood tests -- (1) In any civil proceedings in which the natural parentage of a child is in issue, whether or not the Court has recommended under section 54 of this Act that blood tests should be carried out on a person, evidence may be given to the Court as to the refusal of that person to consent (or, where the person is under 16 years of age, as to the refusal to consent to such blood tests of the person who is competent to do so on that person's behalf).
(2)
Subject to the right of the person who refuses to consent to the blood tests to explain the reasons for that person's refusal, and to cross-examine witnesses and call evidence, the Court may draw such inferences (if any) from the fact of refusal as appear to it to be proper in the circumstances.
58.
Costs of blood tests -- Where costs are incurred in the taking and testing of blood samples under section 54(1) of this Act, each party shall, unless the Court otherwise directs, be primarily liable to meet his own costs and the costs of any witness called by him; but the costs so incurred shall be costs in the proceedings.
59.
Offences relating to blood tests -- Every person commits an offence and is liable on summary conviction to a fine not exceeding $1,000 who, for the purpose of the providing of a blood sample for a blood test, the
[2005] NZFLR 466 page 472
results of which that person knows are intended to be used in any civil proceedings in which the natural parentage of a child is in issue,--
(a)
Personates any other person; or
(b)
With intent to deceive, proffers a child that is not the child whose natural parentage is in issue in the proceedings.
[21] Similar provisions appeared in the Domestic Proceedings Act 1968, see s 50.
[22] These provisions are not a good fit for the current technology. They permit recommendations only as to blood tests rather than DNA analysis, see the decision of Judge Inglis QC in F v M (1998) 17 FRNZ 471, albeit that there is nothing in the sections to prevent DNA analysis of blood samples taken pursuant to such a recommendation, cf the judgments of Judge Kendall in Summerton v Winborne (1992) 9 FRNZ 241 and Master Venning in Swanwick v Peterson (High Court, Christchurch M 536/98 8 March 1999.
[23] With effect from 1 July 2005, the Care of Children Act 2004 has amended s 54 of the Family Proceedings Act so as to make provision for the current genetic testing technology.
[24] There are conflicting authorities as to whether the Court can (or ought to) exercise a jurisdiction to give consent on behalf of a child to the taking of blood samples.
[25] In Cairns v James [1992] NZFLR 353 there was an application for an order appointing the Director-General of Social Welfare as guardian of the child with a view to the Director-General consenting to the taking of a blood sample. Temm J dealt with the application in this way:
The plaintiff asks the Court to make the child in this case a ward of Court, appointing the Director-General of Social Welfare as the guardian. The theory is that if that were done the Director-General could then consent to the taking of a blood sample from the child on behalf of the child.
Whether the Director-General chose to do so, even if he were appointed as guardian under this section, is a matter entirely within the discretion of that official but it would be perverting the purpose of s 9 Guardianship Act for the Court to use the powers of that section in this case.
There is absolutely no justification for ousting the mother's right to custody over her child and her right to decide whether there is to be a blood sample taken from that child or not. Apart from that fundamental objection to what would be a misuse of the power in this section, it is, of course, clear that at present there is no application before the Court as provided for in s 9(2). That subsection empowers an application under s 9 to be made by a parent, guardian, near relative of the child, the Director-General of Social Welfare, by the child itself, and by any other person with the leave of the Court.
Ignoring the procedural difficulty, the substantial question raised by this application I have already answered. I am not prepared to use this power to oust the mother's right to decide for herself whether her child gives a blood sample or not.
I fully understand the plaintiff's argument, that it is desirable to resolve as conclusively as may be the parentage of this particular child. 1 understand the importance of the parental bond. I understand the disadvantage for a child of discovering in her late teenage years that he whom she has regarded as her father turns out to be her stepfather.
[2005] NZFLR 466 page 473
But putting all those emotional matters to one side, the sole question is what power does the Court have to make the order which the plaintiff seeks. My answer is that there is no such power and the application is refused (at 357).
[26] Perhaps material to the Judge's approach was his view (which we are not endorsing) that the Courts should take a cautious approach to the exercise of the s 54 jurisdiction. As to this, he said:
The power so to recommend is something to be used sparingly, and only when the evidence before the Court has reached a point at which there is, at the very least, a prima facie case established. The affidavits filed in this case make various allegations and counter-allegations, none of which has been tested by cross-examination. They are not sufficient for the purpose of making an order under this section and I decline to do so (at 357).
[27] On the other hand, in Asomua v Thompson (Family Court, Blenheim FP006/220/97, 10 December 1998, Judge Grace held that there was jurisdiction to appoint a guardian for the purpose of consenting to blood testing and made orders accordingly. Cairns v James was not cited to that Judge.
[28] In a different context where the proposal was to take a sample from the body of a deceased person, Priestley J has expressed a view which is perhaps supportive of the approach taken by Temm J, see Atkins v Jones (High Court, Auckland M474-SD02 19 August 2002):
Having regard to the provisions of s 54 of the Family Proceedings Act 1980 it is highly doubtful whether this Court could make such an order. The Court's power in respect of a living putative father is merely to make a recommendation that blood tests be carried out. I doubt whether any greater power could be exercised in respect of the remaining body parts or blood samples of a deceased person. Given that Parliament has legislated in this field, an argument that the Court retains some inherent jurisdiction is at best tenuous (at [3]).
The corresponding legislation in the United Kingdom
[29] In the United Kingdom, s 21(3) of the Family Law Reform Act 1969 (which forms part of a cluster of sections corresponding to ss 54-59 of the Family Proceedings Act) originally permitted the taking of a bodily sample with the consent of "the person who has the care and control" of the child.
[30] In Re R (A Minor) (Blood Tests: Constraint) [1998] 2 WLR 796 Hale J had to decide whether it was open to the Court to require that a child give a bodily sample where the person having care and control of the child would not consent. She found that there was jurisdiction to do so and concluded her judgment in this way:
Being satisfied that there is nothing, in principle, against obliging the child to provide a blood sample, there are two possible approaches. One is to make a direction under the Family Law Reform Act 1969 but to deal with the question of the child under the inherent jurisdiction. But a mechanism which is consistent, both with the legislation and with the principles accepted elsewhere, is to make a direction under the Family Law Reform Act 1969 but
[2005] NZFLR 466 page 474
to order the delivery of the child into the care and control of the Official Solicitor at a particular time and place for that purpose and to make it plain that the Official Solicitor is permitted to consent on the child's behalf (at 799),
[31] The issue was reconsidered in Re O (A Minor) (Blood Tests: Constraint) [2000] 2 WLR 1284. There, Wall J declined to follow the approach taken by Hale J. In his judgment he said:
In my judgment, the direction given by Hale J . . . was either a direction deriving from the court's powers under the statute to facilitate the enforcement of the direction given under [the equivalent of our s 54], the judge's view, or it was an exercise of the court's inherent jurisdiction. Either way it was, in my judgment, a device designed to circumvent the plain provisions of section 21(3) of the Act of 1969 and thus impermissible (at 1296).
[32] Since that decision, s 21(3) of the Family Law Reform Act has been amended so that it permits the taking of a bodily sample from a child either with the consent of the person who has "care and control" of the child, or if the Court considers that it would be in the best interests of the child for the sample to be taken.
Other evidential techniques for determining paternity scientifically
[33] It is well known that DNA analysis can be carried out without the cooperation of the person whose DNA is to be analysed. DNA samples can be obtained from (say) a toothbrush, a shaver, a comb or hairbrush, clothing, a cigarette or glass, a used handkerchief and so on, see for instance R v T (CA 174/99) (CA 174/99, 11 June 1999).
[34] In the context of paternity issues, the Guthrie card (except in cases such as the present where it has been destroyed) provides an accessible source of DNA for analysis, see for instance H v G (High Court, Auckland M 1868/98, 14 May 1999) where an order was made under R 322 of the High Court Rules permitting DNA analysis using a Guthrie card. We note that at the substantive hearing of that case, Morris J held that the result of the DNA analysis was admissible, see H v G (1999) 18 FRNZ 572.
The High Court judgments
The November 2002 judgment
[35] O'Regan J was satisfied that it was appropriate to grant leave for the application, given the possibility that Mr S was E's father.
[36] He took a cautious approach to the exercise of the Court's guardianship jurisdiction:
[13] It is clear from the cases cited to me that the use of the guardianship power to override a refusal of consent by a parent is something which calls for great caution on the part of the Court. To use the words of Cooke J in Pallin v DSW [1983] NZLR 266 at 272, the power should be "sparingly exercised". It is clear, therefore, that before the power is exercised the Court must be satisfied that it is required in order to deal with an important matter
[2005] NZFLR 466 page 475
relating to the welfare of the child. As McGechan J said in Berghan v Lambourn (High Court Wellington, M67/9l, 25 February 1991):
The guardianship or so-called wardship jurisdiction is a matter of last resort, to be used with care, and only where the interests of the child and in that sense any aspects of wider public interest so require.
[37] He regarded UNCROC as being of significance:
[16] Both counsel for the plaintiff and counsel for the child pointed to the need to consider the provisions of the United Nations Convention on the Rights of the Child when interpreting legislation such as the Act. I accept that approach is required, as the Court of Appeal found in the context of an adoption case in B v G [2002] 3 NZLR 233 at paragraph [43] per Glazebrook J. That is significant because the United Nations Convention contains a number of provisions which are relevant, namely:
[a] Article 7(1), which refers to the right of the child to know and be cared for by his or her parents;
[b] Article 8(2) which refers to the obligation of the state to provide assistance and protection to a child to re-establish his or her identity, if the child has been illegally deprived of some or all of the elements of his/her identity;
[c] Article 9(3), which says that the state should respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
[38] The Judge referred to the argument of counsel for the child as to UNCROC in this way:
[18] Counsel for the child argued that the only way a Court could determine the paternity of the child with certainty, to enable it to have the potential of a relationship with her biological father, was to make the order sought. She said to do otherwise would be to allow the first defendant to have the right to elect which of the men should be the father during the period of his daughter's minority, which is not a right enshrined in any law, is inconsistent with the United Nations' Convention and also with the general thrust of the Act which permits the Court to provide for access to the child of the non-custodial parent in the face of opposition from the custodial parent. The mother's stance is a frustration of the rights of the child to be properly informed during her childhood and having the opportunity of forming a relationship with a man who may be her biological father.
[39] He discussed the conflicting approaches taken in Cairns v James and Asomua v Thompson, and went on:
The present case differs from Cairns v James in a number of respects, namely:
(a)
In that case the Court considered that there was insufficient evidence to justify the making of a recommendation under s 54, whereas in this case there appears to be a real prospect that the plaintiff is the child's father. In addition, the child had a relationship with the plaintiff in the first months of her life, in contrast to the situation in Cairns where the relationship between the mother and the putative father had finished before the child was born;
[2005] NZFLR 466 page 476
(b)
No substantive reason, other than the mother's preference, has been stated for withholding consent in this case;
(c)
What is sought is a buccal swab, which is less interventionist than a blood sample and is outside the scope of s 54;
(d)
There is a basis for inferring the first defendant is seeking to frustrate the proper consideration by the Court of the plaintiff's application, as illustrated by her recovery of the Guthrie card so that it could not be tested, her failure to act in accordance with the recommendation made under s 54, as well as her failure to disclose the existence of the Guthrie card when making discovery.
[40] He then expressed his conclusions:
[31] Having considered all of these arguments, I am satisfied it is appropriate to grant the plaintiff's application. The uncertainty about the paternity of the child is not in the child's interests, and the child's welfare would be enhanced by having the issue resolved conclusively. The actions of the first defendant in withholding consent to the taking of blood samples in accordance with the recommendation made by Paterson J, and her efforts to frustrate the plaintiff's attempts to obtain a determinative ruling on the issue are not in the interests of the child.
[32] The first defendant may believe that it is preferable for the child to have no contact with the plaintiff, but if there were any substance in her concerns they could dealt with in the context of any custody or access proceedings which the plaintiff could commence if a declaration of paternity is made in his favour.
[33] I am conscious that this decision is inconsistent with that of Temm J in Cairns v James, but this case is different for the reasons referred to in paragraph 24 above. I realise Temm J said in Cairns that there was no power to make an order of the kind which I propose to make, and to that extent I respectfully disagree. However, the Judge's decision to decline to make an order in Cairns was made in circumstances where a number of the factors which have influenced me to make an order in this case, were not present, and the absence of those factors may well have been decisive in the Judge's mind.
The September 2004 judgment
[41] The orders made by O'Regan J in his September 2004 judgment were as proposed by the parties and no issue arises as to the appropriateness of their detail.
Ms T's arguments
[42] Mr Headifen maintained that ss 54-59 of the Family Proceedings Act are a code in relation to scientific tests where a child's paternity is at issue. He relied particularly on F v M and Atkins v Jones (above).
[43] Counsel also maintained that the Court should not use its guardianship jurisdiction to override Ms T's decision not to consent in circumstances where the "only purpose of the wardship is for the collection of the evidence for a party".
[44] He relied on the judgment of Heath J in Re an Unborn Child [2003] 1 NZLR 115, where that Judge said:
[2005] NZFLR 466 page 477
I am satisfied that something more than the fact that a parent intends to act in a manner which many members of the community would regard as in bad taste, or even morally reprehensible, is required before the Court will intervene by making an order under s 10B of the Act. Parental decisions are not lightly to be overridden; especially in the case of an unborn child over whom nobody but the mother has any real control. There must be, in my view, some harm likely to be caused to the child which is the subject of the application before the Court will intervene (at [88]).
[45] In this case, it is submitted that the only harm that can be said to have occurred resulted from Ms T's exercise of an option not to consent to the blood test, and that was a choice she was perfectly entitled to make pursuant to ss 54 and 57 of the Act. The threshold test identified by Heath J has not been satisfied.
[46] On this aspect of the case Mr Headifen invited us to follow Cairns v James and the judgment of Wall J in Re O.
[47] At the resumed hearing on 6 December, Mr Headifcn referred to the amendments to the Family Proceedings Act which were effected by the Care of Children Act and noted that the legislature did not take the opportunity to make direct provision for the Court to compel genetic testing of children. He also invited us to take the view that the Court should exercise its jurisdiction under the Guardianship Act by analogy with the statutory scheme.
The arguments advanced by counsel for E
[48] Ms Irving, for E, supported the approach taken by O'Regan J.
[49] There were no health or religious grounds advanced to support Ms T's refusal to allow the DNA tests. If the appeal is allowed, the decision as to paternity will need to be made by the High Court on the basis of unsatisfactory evidence that does not reflect biological reality.
[50] Ms T's position that the test is merely intended to be an evidence gathering exercise does not adequately recognise the importance of the result of any such test to E. As Heath J noted in Re an Unborn Child (above):
. . . I take the view that the guardianship jurisdiction (whether under the Act or under residual powers), while one which must be invoked cautiously and after proper inquiry, should be regarded as a flexible and resourceful remedy which can be used to protect vulnerable children who cannot speak or act for themselves (at [43]).
[51] The potential loss to E of the lasting benefits resulting from a direct link with a parent is of such significance as to require the intervention of the Court.
[52] Counsel further argued that buccal swab testing falls outside the ambit of ss 54-57 of the Family Proceedings Act, which relate to blood testing. No other form of testing is provided for in the Act, but neither is any other form of evidence specifically excluded. The buccal swab procedure is relatively new and was not contemplated at the time the Act was passed in 1980.
[2005] NZFLR 466 page 478
[53] At the resumed hearing in December, Ms Irving emphasised the differences between the legislative scheme under consideration in the English cases to which we have referred and the New Zealand legislation. In this case, the power to grant or withhold consent on behalf of E, which is vested in Ms T, arises under the Guardianship Act and is itself subject to review under that Act. Proceedings under that Act must be determined by reference to the best interests of the child.
The argument for Mr S
[54] Mr Molloy, for Mr S, submitted that the wardship jurisdiction of the Court is broad and discrctionary, and the kinds of harm against which it can be used to give protection cannot be exhaustively categorised because it continues to be invoked for novel purposes. While the Court will endeavour to intrude to the least possible extent upon the family circle, the welfare of the child is the first and paramount consideration. O'Regan J correctly applied these principles in the present case.
[55] Mr Molloy argued that ss 54-59 of the Family Proceedings Act are not a code because they do not provide an exclusive procedure or an exclusive remedy. Sections 54-57 are facilitative only -- for example, "the Court may recommend that blood tests be carried out". Sections 55 and 56 only apply to blood test reports completed on the recommendation of the Court, not to the results of tests conducted by consent.
[56] The correct interpretation of the decision in F v M (above) is that Judge Inglis could not make a recommendation for DNA analysis because that was outside the scope of s 54, which only applies to blood tests. However, a blood sample taken pursuant to a recommendation may be subjected to DNA analysis. It is common practice for DNA test results to be admitted in paternity applications, if DNA testing is not a blood test then such evidence must be being admitted outside ss 54-55 of the Family Proceedings Act.
[57] As well, he noted that ss 54-59 do not address the question of who may consent on behalf of a child. Section 57(1) does not limit the Court's authority pursuant to s 33 of the Guardianship Act to appoint a guardian to consent on behalf of a child to blood tests. On his approach, which he emphasised at the resumed hearing, there is no inconsistency between the two statutory schemes; rather they are complementary.
[58] Cairns v James should not be followed because it was decided before New Zealand ratified UNCROC, and before the recent expansion by the High Court of its guardianship powers.
[59] Without establishing paternity, Mr S has no right to seek access to E, and his rights to apply for appointment as a guardian or to seek custody as of right will also be challenged. Ms T has provided no reasons relating to E's interests or welfare that would justify the refusal of the testing. DNA testing would be less expensive than proceeding to a defended paternity hearing. The Court has an obligation to adopt procedures that are just and inexpensive, and in any event the Court would be greatly assisted by having DNA tests available to it at hearing.
Evaluation
[60] There can be no serious challenge to the evaluative assessment made by O'Regan J that the proposed testing would be in the best interests
[2005] NZFLR 466 page 479
of E. This conclusion was well-open to him and would appear to be plainly right.
[61] So, as Mr Headifen candidly recognised, the case comes down to what is in essence a jurisdictional question.
[62] As the cases which we have cited show, the problem presented by this case is not new and there is scope for two views. Cairns v James and Re O are undoubtedly in favour of Ms T's arguments whereas Asomua v Thompson and the judgment of Hale J in Re R support Mr S's arguments.
[63] It seems to us that O'Regan J's approach was correct.
[64] Our reasons for this view are as follows:
1.
We are uneasy about any approach to jurisdiction which prevents the High Court (or Family Court) determining issues associated with guardianship otherwise than in accordance with the best interests of the child.
2.
We see arts 7 and possibly 8 of UNCROC as important. Given the open-textured nature of the underlying legal issues we are reluctant to adopt an interpretation of ss 54-59 of the Family Proceedings Act which is inconsistent with New Zealand's obligations under UNCROC.
3.
The view taken by Wall J in Re O was closely based on the language of the United Kingdom statute as it was prior to the most recent amendments. The Family Law Reform Act 1969 proceeded on the basis that consent in a case such as this could only be given by whoever had "the care and control" of the child. In contradistinction, section 57(1) of the Family Proceedings Act refers to consent to blood tests given by a "person who is competent to do so on" the child's behalf. Under the New Zealand statute, there is no designation of any particular person in terms of who must give consent. If the Court appoints someone to give consent, the result of the appointment is that such person is necessarily "competent to do so" and there is thus no inconsistency between the Court order and the statutory scheme provided for by the Family Proceedings Act.
4.
In any event, if it is assumed that ss 54-59 of the Family Proceedings Act are a code and exclude the power of the Court to compel blood tests from a child, it is difficult to see any legitimate interpretative approach to the words actually used which would apply to buccal swabs. On a purely practical approach, the buccal swab test is much less invasive than blood testing. Further, there are many other ways in which samples for DNA analysis can be obtained and there is no reason why the existence of a blood testing "code" should exclude evidence derived from such analysis. H v G illustrates this in a context closely related to the facts of the present case. In this regard the approach taken in R v T (CA 174/99) is of interest, at least by analogy. In that case, it was not open to the police to invoke the compulsory processes available in criminal cases to obtain blood samples from the
[2005] NZFLR 466 page 480
accused so they instead seized, under search warrant, personal items associated with the accused from which DNA material was able to be obtained. The results of the DNA analysis were held to be admissible.
[65] The last of the points just mentioned loses some of its force in light of the amendments made to the Family Proceedings Act, by the Care of Children Act. But this Act, which in effect does no more than update the technology references in the Family Proceedings Act was passed after O'Regan J's November 2002 judgment and was presumably based on the assumption that in appropriate cases, where consent on behalf of a child to genetic testing is in the best interests of that child, the Courts will ensure that a person prepared to give that consent is authorised to do so.
Result
[66] The appeal is dismissed. Costs are reserved.
Pages: 15
T v S [Guardianship] - [2005] NZFLR 466
Court of Appeal
CA 249/02
23 June, 6 December, 17 December 2004
Anderson P, Hammond and William Young JJ
Guardianship -- DNA testing -- Appeal against order placing child under the guardianship of the Court for the purpose of obtaining DNA sample -- Paternity of child at issue -- Jurisdiction of Court to make orders for DNA testing -- Competing authorities -- Whether order in the best interests of the child -- Guardianship Act 1968, ss 10A, 10B, 10C, 10D, 10E, 33 -- Family Proceedings Act 1980, ss 54, 55, 56, 57, 58, 59 -- Status of Children Act 1969 -- Care of Children Act 2004.
The appellant, Ms T, was the mother of a child, E, born in October 1997. At first Ms T told the first respondent, Mr S, that he was the father of the child. Later she maintained that another man, Mr W, was the father of the child.
Held (dismissing the appeal)
(1) The High Court's conclusion that the proposed testing would be in the best interests of the child was correct and open to it on the evidence (see para [60]).
(2) Sections 10A-E of the Guardianship Act 1968 provided jurisdiction for the orders sought by Mr S. Articles 7 and possibly 8 of the United Nations Convention on the Rights of the Child was important, and to interpret ss 54-59 of the Family Proceedings Act 1980 a code in regard to scientific tests where paternity was in issue, as Ms T had argued, would be inconsistent with New Zealand's obligations under the Convention (see para [64]).
Cases referred to in judgment
An Unborn Child, Re [2003] 1 NZLR 115
Asomua v Thompson (Family Court, Blenheim FP 006/220/97, 10 December 1998, Judge Grace)
Atkins v Jones (High Court, Auckland M 474-SD02, 19 August 2002, Temm J)
Cairns v James [1992] NZFLR 353
F v M (1998) 17 FRNZ 471
H v G (1999) 18 FRNZ 572
H v G (High Court, Auckland M 1868/98, 14 May 1999)
[2005] NZFLR 466 page 467
O (A Minor) (Blood Tests: Constraint), Re [2000] 2 WLR 1284
R (A Minor) (Blood Tests: Constraint), Re [1998] 2 WLR 796
R v T (CA 174/99) (Court of Appeal, CA 174/99, 11 June 1999)
Summerton v Winborne (1992) 9 FRNZ 241
Swanwick v Peterson (High Court, Christchurch M 536/98, 8 March 1999, Master Venning)
Appeal
This was an appeal from orders of the High Court placing a child under the guardianship of the Court and giving directions for the taking of a buccal swab for DNA testing.
M K Headifen for the appellant
P M Molloy for the first respondent
J M Irving for the child
The judgment of the Court was delivered by
WILLIAM YOUNG J.
Table of Contents
Para No
Introduction
[1]
Background facts
[7]
The legal landscape
The Guardianship Act
[15]
The United Nation Convention on the Rights of the Child ("UNCROC")
[17]
The Family Proceedings Act
[20]
The corresponding legislation in the United Kingdom
[29]
Other evidential techniques for determining paternity scientifically
[33]
The High Court judgments
The November 2002 judgment
[35]
The September 2004 judgment
[41]
Ms T's arguments
[42]
The arguments advanced by counsel for E
[48]
The argument for Mr S
[54]
Evaluation
[60]
Result
[66]
Introduction
[1] On 7 November 2002, O'Regan J, sitting in the High Court at Auckland, gave leave to Mr S to apply for an order that E be placed under the guardianship of the Court for the purpose of obtaining a sample for DNA testing to determine paternity. The terms of his judgment made it clear that he proposed to grant the order sought but he withheld making
[2005] NZFLR 466 page 468
formal orders in the hope, in vain as it turned out, that the parties would be able to agree on testing.
[2] Ms T (the mother of E) appealed to this Court against that decision.
[3] In the course of the hearing of the appeal, it was recognised that there was a jurisidictional difficulty with the appeal in that O'Regan J had, in his 7 November 2002 judgment, stopped short of making formal orders other than the grant of leave for the application for the guardianship order to be made. The appeal could not sensibly be determined by reference to that issue and accordingly we stood the appeal over to allow time for final orders to be made in the High Court.
[4] O'Regan J issued a further judgment on 15 September 2004 in which he made formal orders placing E under the guardianship of the High Court and giving directions for the taking of a buccal swab for DNA testing.
[5] We heard the parties again, briefly, on 6 December 2004.
[6] With the agreement of the parties, we are treating the present appeal as a challenge to the September judgment, albeit that the reasons for the approach taken by the Judge appear in his November 2002 judgment.
Background facts
[7] The appellant, Ms T, is the mother of E, who was born on 18 October 1997. Ms T had been in a sexual relationship with Mr S when E was conceived, and she told him that he was the father. Mr S was present when E was born. The relationship between Ms T and Mr S continued for some time after the birth and he had some involvement with E's early upbringing.
[8] No father was identified on E's birth certificate until two years after the birth, at which time Mr W was recorded as her father. Mr W has taken no part in these proceedings. Ms T now maintains that Mr W is the father of E.
[9] On the material which we have seen, there is a genuine factual issue whether Mr S or Mr W is E's father.
[10] Mr S applied for a declaration under s 10 of the Status of Children Act 1969 that he was E's father.
[11] On 26 June 2000 Paterson J made an order under s 54 of the Family Proceedings Act 1980 recommending that blood tests be carried out on Mr S, Ms T and E. Ms T declined to undergo the tests, and did not allow E to be tested.
[12] On 28 February 2001 Mr S applied for the leave of the High Court to make an application that E be placed under the guardianship of the Court so that a buccal swab could be obtained and submitted for DNA testing. Such testing would in all probability determine whether Mr S is E's father.
[13] On 30 March Ms T obtained from the Auckland District Health Board, E's "Guthrie card". This card contained a blood sample taken from E shortly after her birth and would have enabled DNA matching tests to be carried out which would be likely to have determined the issue of paternity. Presumably Ms T has destroyed this card.
[2005] NZFLR 466 page 469
[14] The application for leave and the associated substantive application were dealt with at the same time and gave rise to the judgment of O'Regan J of 7 November 2002.
The legal landscape
The Guardianship Act
[15] The Guardianship Act 1968 relevantly provides:
10A.
Concurrent jurisdiction under section 10B -- (1) The following courts have jurisdiction under section 10B:
(a)
The High Court:
(b)
Each Family Court.
. . .
10B.
Application to Court -- (1) An application may be made to a Court with jurisdiction under this section for an order --
(a)
Placing an unmarried child under the guardianship of the Court:
(b)
Appointing a named person to be the agent of the Court either generally or for any particular purpose.
(2)
An application for an order may be made --
. . .
(d)
By any other person, with the leave of the Court.
10D.
Orders of Court -- (1) ) A Court to which an application is made under section 10B may --
(a)
Make an order under section 10B(1)(a); or
(b)
Make orders under section 10B(1)(a) and (b); or
(c)
Make --
(i)
An order under section 10B(1)(a); and
(ii)
An order appointing any person whom the Court thinks fit to be the agent of the Court either generally or for any particular purpose.
(2)
An order ceases to have effect when the first of the following events occurs:
(a)
The Court orders that the order ceases to have effect; or
(b)
The child to whom it relates turns 20 years; or
(c)
The child to whom it relates marries before turning 20 years.
10E.
Powers of Court -- (1) A Court to which an application is made under section 10B has the rights and powers described in subsection (2) --
(a)
Between the making of the application for an order and its disposal; and
(b)
While an order is in force.
(2)
The Court has the same rights and powers in respect of the person and property of the child as the High Court had in relation to wards of Court immediately before the commencement of this Act
[16] These sections of the Guardianship Act would appear to provide jurisdiction for the orders sought and obtained by Mr S. Whether those orders were appropriately made turns on whether the legislation applicable to genetic testing in paternity disputes excludes such jurisdiction.
[2005] NZFLR 466 page 470
The United Nation Convention on the Rights of the Child ("UNCROC")
[17] The New Zealand Government ratified UNCROC in December 1995. Article 7 of UNCROC provides:
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field
[18] Article 8 is also relevant:
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
[19] For the sake of completeness we should also refer to arts 9(1) and (3):
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
. . .
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
The Family Proceedings Act
[20] Sections 54-59 of the Family Proceedings Act provide:
54.
Blood tests -- (1) In any civil proceedings (whether under this Act or not) in which the parentage of a child is in issue --
(a)
The Court may, of its own motion or on the application of a party to the proceedings, recommend that blood tests be carried out on --
(i)
The child; and
(ii)
Any person who may be a natural parent of the child -- and that a report of the results be compiled, by a person who is qualified to compile such a report, and submitted to the Court; and
(b)
Whether or not the Court has made a recommendation under paragraph (a) of this subsection, the Court may, of its own motion or on the application of a party to the proceedings, adjourn the proceedings in order to allow time for such blood tests to be carried out and for such a report to be compiled and submitted to the Court.
(2)
For the purposes of this section --
(a)
Blood tests may be carried out by any person or persons who are qualified to do so, whether or not any of them is the person by whom the report is compiled; and
(b)
The consent of a minor who has attained the age of 16 years to submit to blood tests shall have the same effect as the consent of a person of full age.
[2005] NZFLR 466 page 471
55.
Contents of report -- (1) A report on blood tests --
(a)
Shall state the qualifications of the person making the report; and
(b)
Shall include or be accompanied by a statement showing the circumstances in which a blood sample was taken from each person to whom the report relates, and the manner in which that person was separately identified from each other person to whom the tests relate; and
(c)
Shall state whether blood tests were made in any of the following systems, namely, ABO, Rh, MNSs, Duffy, Kidd, Kell, Haptoglobins, Gc's, and phosphoglucomutase; and
(d)
Shall state whether blood tests in any other systems were made and, if so, which of those systems; and
(e)
Shall state the results of the blood tests; and
(f)
Shall state, in relation to each person to whom the report relates (other than the child), whether the results of the blood tests show that the person is not a natural parent of the child.
(2)
Where blood tests carried out on a person do not show that the person is not a natural parent of the child, the report may contain an evaluation of the significance of the results of the blood tests in determining whether that person is a natural parent of the child.
(3)
Where a report on blood tests has been submitted to a Court under this section the Court may, of its own motion or on the application of a party, obtain from the person by whom the report was compiled a written statement explaining or amplifying any matter in the report.
(4)
A written statement so obtained shall be deemed to form part of the report.
56.
Right of examination -- Where a report on blood tests is submitted to a Court, the Court may on the application of any party summon as a witness in the proceedings --
(a)
The person who has compiled the report; and
(b)
Any other person who has done anything necessary for the carrying out of the blood tests or for the preparation of the report.
57.
Refusal of blood tests -- (1) In any civil proceedings in which the natural parentage of a child is in issue, whether or not the Court has recommended under section 54 of this Act that blood tests should be carried out on a person, evidence may be given to the Court as to the refusal of that person to consent (or, where the person is under 16 years of age, as to the refusal to consent to such blood tests of the person who is competent to do so on that person's behalf).
(2)
Subject to the right of the person who refuses to consent to the blood tests to explain the reasons for that person's refusal, and to cross-examine witnesses and call evidence, the Court may draw such inferences (if any) from the fact of refusal as appear to it to be proper in the circumstances.
58.
Costs of blood tests -- Where costs are incurred in the taking and testing of blood samples under section 54(1) of this Act, each party shall, unless the Court otherwise directs, be primarily liable to meet his own costs and the costs of any witness called by him; but the costs so incurred shall be costs in the proceedings.
59.
Offences relating to blood tests -- Every person commits an offence and is liable on summary conviction to a fine not exceeding $1,000 who, for the purpose of the providing of a blood sample for a blood test, the
[2005] NZFLR 466 page 472
results of which that person knows are intended to be used in any civil proceedings in which the natural parentage of a child is in issue,--
(a)
Personates any other person; or
(b)
With intent to deceive, proffers a child that is not the child whose natural parentage is in issue in the proceedings.
[21] Similar provisions appeared in the Domestic Proceedings Act 1968, see s 50.
[22] These provisions are not a good fit for the current technology. They permit recommendations only as to blood tests rather than DNA analysis, see the decision of Judge Inglis QC in F v M (1998) 17 FRNZ 471, albeit that there is nothing in the sections to prevent DNA analysis of blood samples taken pursuant to such a recommendation, cf the judgments of Judge Kendall in Summerton v Winborne (1992) 9 FRNZ 241 and Master Venning in Swanwick v Peterson (High Court, Christchurch M 536/98 8 March 1999.
[23] With effect from 1 July 2005, the Care of Children Act 2004 has amended s 54 of the Family Proceedings Act so as to make provision for the current genetic testing technology.
[24] There are conflicting authorities as to whether the Court can (or ought to) exercise a jurisdiction to give consent on behalf of a child to the taking of blood samples.
[25] In Cairns v James [1992] NZFLR 353 there was an application for an order appointing the Director-General of Social Welfare as guardian of the child with a view to the Director-General consenting to the taking of a blood sample. Temm J dealt with the application in this way:
The plaintiff asks the Court to make the child in this case a ward of Court, appointing the Director-General of Social Welfare as the guardian. The theory is that if that were done the Director-General could then consent to the taking of a blood sample from the child on behalf of the child.
Whether the Director-General chose to do so, even if he were appointed as guardian under this section, is a matter entirely within the discretion of that official but it would be perverting the purpose of s 9 Guardianship Act for the Court to use the powers of that section in this case.
There is absolutely no justification for ousting the mother's right to custody over her child and her right to decide whether there is to be a blood sample taken from that child or not. Apart from that fundamental objection to what would be a misuse of the power in this section, it is, of course, clear that at present there is no application before the Court as provided for in s 9(2). That subsection empowers an application under s 9 to be made by a parent, guardian, near relative of the child, the Director-General of Social Welfare, by the child itself, and by any other person with the leave of the Court.
Ignoring the procedural difficulty, the substantial question raised by this application I have already answered. I am not prepared to use this power to oust the mother's right to decide for herself whether her child gives a blood sample or not.
I fully understand the plaintiff's argument, that it is desirable to resolve as conclusively as may be the parentage of this particular child. 1 understand the importance of the parental bond. I understand the disadvantage for a child of discovering in her late teenage years that he whom she has regarded as her father turns out to be her stepfather.
[2005] NZFLR 466 page 473
But putting all those emotional matters to one side, the sole question is what power does the Court have to make the order which the plaintiff seeks. My answer is that there is no such power and the application is refused (at 357).
[26] Perhaps material to the Judge's approach was his view (which we are not endorsing) that the Courts should take a cautious approach to the exercise of the s 54 jurisdiction. As to this, he said:
The power so to recommend is something to be used sparingly, and only when the evidence before the Court has reached a point at which there is, at the very least, a prima facie case established. The affidavits filed in this case make various allegations and counter-allegations, none of which has been tested by cross-examination. They are not sufficient for the purpose of making an order under this section and I decline to do so (at 357).
[27] On the other hand, in Asomua v Thompson (Family Court, Blenheim FP006/220/97, 10 December 1998, Judge Grace held that there was jurisdiction to appoint a guardian for the purpose of consenting to blood testing and made orders accordingly. Cairns v James was not cited to that Judge.
[28] In a different context where the proposal was to take a sample from the body of a deceased person, Priestley J has expressed a view which is perhaps supportive of the approach taken by Temm J, see Atkins v Jones (High Court, Auckland M474-SD02 19 August 2002):
Having regard to the provisions of s 54 of the Family Proceedings Act 1980 it is highly doubtful whether this Court could make such an order. The Court's power in respect of a living putative father is merely to make a recommendation that blood tests be carried out. I doubt whether any greater power could be exercised in respect of the remaining body parts or blood samples of a deceased person. Given that Parliament has legislated in this field, an argument that the Court retains some inherent jurisdiction is at best tenuous (at [3]).
The corresponding legislation in the United Kingdom
[29] In the United Kingdom, s 21(3) of the Family Law Reform Act 1969 (which forms part of a cluster of sections corresponding to ss 54-59 of the Family Proceedings Act) originally permitted the taking of a bodily sample with the consent of "the person who has the care and control" of the child.
[30] In Re R (A Minor) (Blood Tests: Constraint) [1998] 2 WLR 796 Hale J had to decide whether it was open to the Court to require that a child give a bodily sample where the person having care and control of the child would not consent. She found that there was jurisdiction to do so and concluded her judgment in this way:
Being satisfied that there is nothing, in principle, against obliging the child to provide a blood sample, there are two possible approaches. One is to make a direction under the Family Law Reform Act 1969 but to deal with the question of the child under the inherent jurisdiction. But a mechanism which is consistent, both with the legislation and with the principles accepted elsewhere, is to make a direction under the Family Law Reform Act 1969 but
[2005] NZFLR 466 page 474
to order the delivery of the child into the care and control of the Official Solicitor at a particular time and place for that purpose and to make it plain that the Official Solicitor is permitted to consent on the child's behalf (at 799),
[31] The issue was reconsidered in Re O (A Minor) (Blood Tests: Constraint) [2000] 2 WLR 1284. There, Wall J declined to follow the approach taken by Hale J. In his judgment he said:
In my judgment, the direction given by Hale J . . . was either a direction deriving from the court's powers under the statute to facilitate the enforcement of the direction given under [the equivalent of our s 54], the judge's view, or it was an exercise of the court's inherent jurisdiction. Either way it was, in my judgment, a device designed to circumvent the plain provisions of section 21(3) of the Act of 1969 and thus impermissible (at 1296).
[32] Since that decision, s 21(3) of the Family Law Reform Act has been amended so that it permits the taking of a bodily sample from a child either with the consent of the person who has "care and control" of the child, or if the Court considers that it would be in the best interests of the child for the sample to be taken.
Other evidential techniques for determining paternity scientifically
[33] It is well known that DNA analysis can be carried out without the cooperation of the person whose DNA is to be analysed. DNA samples can be obtained from (say) a toothbrush, a shaver, a comb or hairbrush, clothing, a cigarette or glass, a used handkerchief and so on, see for instance R v T (CA 174/99) (CA 174/99, 11 June 1999).
[34] In the context of paternity issues, the Guthrie card (except in cases such as the present where it has been destroyed) provides an accessible source of DNA for analysis, see for instance H v G (High Court, Auckland M 1868/98, 14 May 1999) where an order was made under R 322 of the High Court Rules permitting DNA analysis using a Guthrie card. We note that at the substantive hearing of that case, Morris J held that the result of the DNA analysis was admissible, see H v G (1999) 18 FRNZ 572.
The High Court judgments
The November 2002 judgment
[35] O'Regan J was satisfied that it was appropriate to grant leave for the application, given the possibility that Mr S was E's father.
[36] He took a cautious approach to the exercise of the Court's guardianship jurisdiction:
[13] It is clear from the cases cited to me that the use of the guardianship power to override a refusal of consent by a parent is something which calls for great caution on the part of the Court. To use the words of Cooke J in Pallin v DSW [1983] NZLR 266 at 272, the power should be "sparingly exercised". It is clear, therefore, that before the power is exercised the Court must be satisfied that it is required in order to deal with an important matter
[2005] NZFLR 466 page 475
relating to the welfare of the child. As McGechan J said in Berghan v Lambourn (High Court Wellington, M67/9l, 25 February 1991):
The guardianship or so-called wardship jurisdiction is a matter of last resort, to be used with care, and only where the interests of the child and in that sense any aspects of wider public interest so require.
[37] He regarded UNCROC as being of significance:
[16] Both counsel for the plaintiff and counsel for the child pointed to the need to consider the provisions of the United Nations Convention on the Rights of the Child when interpreting legislation such as the Act. I accept that approach is required, as the Court of Appeal found in the context of an adoption case in B v G [2002] 3 NZLR 233 at paragraph [43] per Glazebrook J. That is significant because the United Nations Convention contains a number of provisions which are relevant, namely:
[a] Article 7(1), which refers to the right of the child to know and be cared for by his or her parents;
[b] Article 8(2) which refers to the obligation of the state to provide assistance and protection to a child to re-establish his or her identity, if the child has been illegally deprived of some or all of the elements of his/her identity;
[c] Article 9(3), which says that the state should respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
[38] The Judge referred to the argument of counsel for the child as to UNCROC in this way:
[18] Counsel for the child argued that the only way a Court could determine the paternity of the child with certainty, to enable it to have the potential of a relationship with her biological father, was to make the order sought. She said to do otherwise would be to allow the first defendant to have the right to elect which of the men should be the father during the period of his daughter's minority, which is not a right enshrined in any law, is inconsistent with the United Nations' Convention and also with the general thrust of the Act which permits the Court to provide for access to the child of the non-custodial parent in the face of opposition from the custodial parent. The mother's stance is a frustration of the rights of the child to be properly informed during her childhood and having the opportunity of forming a relationship with a man who may be her biological father.
[39] He discussed the conflicting approaches taken in Cairns v James and Asomua v Thompson, and went on:
The present case differs from Cairns v James in a number of respects, namely:
(a)
In that case the Court considered that there was insufficient evidence to justify the making of a recommendation under s 54, whereas in this case there appears to be a real prospect that the plaintiff is the child's father. In addition, the child had a relationship with the plaintiff in the first months of her life, in contrast to the situation in Cairns where the relationship between the mother and the putative father had finished before the child was born;
[2005] NZFLR 466 page 476
(b)
No substantive reason, other than the mother's preference, has been stated for withholding consent in this case;
(c)
What is sought is a buccal swab, which is less interventionist than a blood sample and is outside the scope of s 54;
(d)
There is a basis for inferring the first defendant is seeking to frustrate the proper consideration by the Court of the plaintiff's application, as illustrated by her recovery of the Guthrie card so that it could not be tested, her failure to act in accordance with the recommendation made under s 54, as well as her failure to disclose the existence of the Guthrie card when making discovery.
[40] He then expressed his conclusions:
[31] Having considered all of these arguments, I am satisfied it is appropriate to grant the plaintiff's application. The uncertainty about the paternity of the child is not in the child's interests, and the child's welfare would be enhanced by having the issue resolved conclusively. The actions of the first defendant in withholding consent to the taking of blood samples in accordance with the recommendation made by Paterson J, and her efforts to frustrate the plaintiff's attempts to obtain a determinative ruling on the issue are not in the interests of the child.
[32] The first defendant may believe that it is preferable for the child to have no contact with the plaintiff, but if there were any substance in her concerns they could dealt with in the context of any custody or access proceedings which the plaintiff could commence if a declaration of paternity is made in his favour.
[33] I am conscious that this decision is inconsistent with that of Temm J in Cairns v James, but this case is different for the reasons referred to in paragraph 24 above. I realise Temm J said in Cairns that there was no power to make an order of the kind which I propose to make, and to that extent I respectfully disagree. However, the Judge's decision to decline to make an order in Cairns was made in circumstances where a number of the factors which have influenced me to make an order in this case, were not present, and the absence of those factors may well have been decisive in the Judge's mind.
The September 2004 judgment
[41] The orders made by O'Regan J in his September 2004 judgment were as proposed by the parties and no issue arises as to the appropriateness of their detail.
Ms T's arguments
[42] Mr Headifen maintained that ss 54-59 of the Family Proceedings Act are a code in relation to scientific tests where a child's paternity is at issue. He relied particularly on F v M and Atkins v Jones (above).
[43] Counsel also maintained that the Court should not use its guardianship jurisdiction to override Ms T's decision not to consent in circumstances where the "only purpose of the wardship is for the collection of the evidence for a party".
[44] He relied on the judgment of Heath J in Re an Unborn Child [2003] 1 NZLR 115, where that Judge said:
[2005] NZFLR 466 page 477
I am satisfied that something more than the fact that a parent intends to act in a manner which many members of the community would regard as in bad taste, or even morally reprehensible, is required before the Court will intervene by making an order under s 10B of the Act. Parental decisions are not lightly to be overridden; especially in the case of an unborn child over whom nobody but the mother has any real control. There must be, in my view, some harm likely to be caused to the child which is the subject of the application before the Court will intervene (at [88]).
[45] In this case, it is submitted that the only harm that can be said to have occurred resulted from Ms T's exercise of an option not to consent to the blood test, and that was a choice she was perfectly entitled to make pursuant to ss 54 and 57 of the Act. The threshold test identified by Heath J has not been satisfied.
[46] On this aspect of the case Mr Headifen invited us to follow Cairns v James and the judgment of Wall J in Re O.
[47] At the resumed hearing on 6 December, Mr Headifcn referred to the amendments to the Family Proceedings Act which were effected by the Care of Children Act and noted that the legislature did not take the opportunity to make direct provision for the Court to compel genetic testing of children. He also invited us to take the view that the Court should exercise its jurisdiction under the Guardianship Act by analogy with the statutory scheme.
The arguments advanced by counsel for E
[48] Ms Irving, for E, supported the approach taken by O'Regan J.
[49] There were no health or religious grounds advanced to support Ms T's refusal to allow the DNA tests. If the appeal is allowed, the decision as to paternity will need to be made by the High Court on the basis of unsatisfactory evidence that does not reflect biological reality.
[50] Ms T's position that the test is merely intended to be an evidence gathering exercise does not adequately recognise the importance of the result of any such test to E. As Heath J noted in Re an Unborn Child (above):
. . . I take the view that the guardianship jurisdiction (whether under the Act or under residual powers), while one which must be invoked cautiously and after proper inquiry, should be regarded as a flexible and resourceful remedy which can be used to protect vulnerable children who cannot speak or act for themselves (at [43]).
[51] The potential loss to E of the lasting benefits resulting from a direct link with a parent is of such significance as to require the intervention of the Court.
[52] Counsel further argued that buccal swab testing falls outside the ambit of ss 54-57 of the Family Proceedings Act, which relate to blood testing. No other form of testing is provided for in the Act, but neither is any other form of evidence specifically excluded. The buccal swab procedure is relatively new and was not contemplated at the time the Act was passed in 1980.
[2005] NZFLR 466 page 478
[53] At the resumed hearing in December, Ms Irving emphasised the differences between the legislative scheme under consideration in the English cases to which we have referred and the New Zealand legislation. In this case, the power to grant or withhold consent on behalf of E, which is vested in Ms T, arises under the Guardianship Act and is itself subject to review under that Act. Proceedings under that Act must be determined by reference to the best interests of the child.
The argument for Mr S
[54] Mr Molloy, for Mr S, submitted that the wardship jurisdiction of the Court is broad and discrctionary, and the kinds of harm against which it can be used to give protection cannot be exhaustively categorised because it continues to be invoked for novel purposes. While the Court will endeavour to intrude to the least possible extent upon the family circle, the welfare of the child is the first and paramount consideration. O'Regan J correctly applied these principles in the present case.
[55] Mr Molloy argued that ss 54-59 of the Family Proceedings Act are not a code because they do not provide an exclusive procedure or an exclusive remedy. Sections 54-57 are facilitative only -- for example, "the Court may recommend that blood tests be carried out". Sections 55 and 56 only apply to blood test reports completed on the recommendation of the Court, not to the results of tests conducted by consent.
[56] The correct interpretation of the decision in F v M (above) is that Judge Inglis could not make a recommendation for DNA analysis because that was outside the scope of s 54, which only applies to blood tests. However, a blood sample taken pursuant to a recommendation may be subjected to DNA analysis. It is common practice for DNA test results to be admitted in paternity applications, if DNA testing is not a blood test then such evidence must be being admitted outside ss 54-55 of the Family Proceedings Act.
[57] As well, he noted that ss 54-59 do not address the question of who may consent on behalf of a child. Section 57(1) does not limit the Court's authority pursuant to s 33 of the Guardianship Act to appoint a guardian to consent on behalf of a child to blood tests. On his approach, which he emphasised at the resumed hearing, there is no inconsistency between the two statutory schemes; rather they are complementary.
[58] Cairns v James should not be followed because it was decided before New Zealand ratified UNCROC, and before the recent expansion by the High Court of its guardianship powers.
[59] Without establishing paternity, Mr S has no right to seek access to E, and his rights to apply for appointment as a guardian or to seek custody as of right will also be challenged. Ms T has provided no reasons relating to E's interests or welfare that would justify the refusal of the testing. DNA testing would be less expensive than proceeding to a defended paternity hearing. The Court has an obligation to adopt procedures that are just and inexpensive, and in any event the Court would be greatly assisted by having DNA tests available to it at hearing.
Evaluation
[60] There can be no serious challenge to the evaluative assessment made by O'Regan J that the proposed testing would be in the best interests
[2005] NZFLR 466 page 479
of E. This conclusion was well-open to him and would appear to be plainly right.
[61] So, as Mr Headifen candidly recognised, the case comes down to what is in essence a jurisdictional question.
[62] As the cases which we have cited show, the problem presented by this case is not new and there is scope for two views. Cairns v James and Re O are undoubtedly in favour of Ms T's arguments whereas Asomua v Thompson and the judgment of Hale J in Re R support Mr S's arguments.
[63] It seems to us that O'Regan J's approach was correct.
[64] Our reasons for this view are as follows:
1.
We are uneasy about any approach to jurisdiction which prevents the High Court (or Family Court) determining issues associated with guardianship otherwise than in accordance with the best interests of the child.
2.
We see arts 7 and possibly 8 of UNCROC as important. Given the open-textured nature of the underlying legal issues we are reluctant to adopt an interpretation of ss 54-59 of the Family Proceedings Act which is inconsistent with New Zealand's obligations under UNCROC.
3.
The view taken by Wall J in Re O was closely based on the language of the United Kingdom statute as it was prior to the most recent amendments. The Family Law Reform Act 1969 proceeded on the basis that consent in a case such as this could only be given by whoever had "the care and control" of the child. In contradistinction, section 57(1) of the Family Proceedings Act refers to consent to blood tests given by a "person who is competent to do so on" the child's behalf. Under the New Zealand statute, there is no designation of any particular person in terms of who must give consent. If the Court appoints someone to give consent, the result of the appointment is that such person is necessarily "competent to do so" and there is thus no inconsistency between the Court order and the statutory scheme provided for by the Family Proceedings Act.
4.
In any event, if it is assumed that ss 54-59 of the Family Proceedings Act are a code and exclude the power of the Court to compel blood tests from a child, it is difficult to see any legitimate interpretative approach to the words actually used which would apply to buccal swabs. On a purely practical approach, the buccal swab test is much less invasive than blood testing. Further, there are many other ways in which samples for DNA analysis can be obtained and there is no reason why the existence of a blood testing "code" should exclude evidence derived from such analysis. H v G illustrates this in a context closely related to the facts of the present case. In this regard the approach taken in R v T (CA 174/99) is of interest, at least by analogy. In that case, it was not open to the police to invoke the compulsory processes available in criminal cases to obtain blood samples from the
[2005] NZFLR 466 page 480
accused so they instead seized, under search warrant, personal items associated with the accused from which DNA material was able to be obtained. The results of the DNA analysis were held to be admissible.
[65] The last of the points just mentioned loses some of its force in light of the amendments made to the Family Proceedings Act, by the Care of Children Act. But this Act, which in effect does no more than update the technology references in the Family Proceedings Act was passed after O'Regan J's November 2002 judgment and was presumably based on the assumption that in appropriate cases, where consent on behalf of a child to genetic testing is in the best interests of that child, the Courts will ensure that a person prepared to give that consent is authorised to do so.
Result
[66] The appeal is dismissed. Costs are reserved.
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