Re: "M"

HIS HONOUR: This matter was before me on 12 February 2002. On that occasion I was not satisfied that the evidence before me justified the making of a declaration of paternity.

Today, the matter is back before me. On this occasion the plaintiff does not rely solely upon the tender of a report to establish paternity. Some, but not all, of the evidentiary gaps which I identified on the last occasion have been filled. For example, I am now satisfied that the person who took the sample from the child is a qualified person. Most importantly, on this occasion the plaintiff reads an affidavit from the Manager of the relevant testing laboratory. The Manager has appropriate scientific qualifications, and has reviewed the entire testing procedure which was conducted in the present case, and then expressed an opinion about the paternity of the child.

That testing procedure contained some departures from the procedure laid down under the Status of Children Act 1996 . The most serious departure is that the Court Registrar sent a notice to the testing laboratory, naming the sampler as being a particular person; in fact, someone else took the sample.

When reg 9(2)(b) has a mandatory requirement that a Registrar’s notice must contain, amongst other things, “the name ... of the sampler”, and reg 10 goes on to state what the person in charge of the laboratory must inform the “sampler” of, it seems to me that the person who takes the sample must be the person who was named in the Registrar’s notice, if the procedure under the regulations is to be complied with.

In my earlier judgment I quoted reg 7, which says that a parentage testing procedure is taken to be carried out in accordance with the regulation “only if” it is carried out in compliance with Divisions 2 and 3 of the regulation.

There could be some ways in which it could be said that a testing procedure had been “carried out in compliance with Divisions 2 and 3 ”, if there were some slight departures from what was there set out. To take an easy example, a few typographical errors in reproducing the prescribed forms, which did not create any real doubt about what was being said, would not prevent the procedure being “carried out in compliance with Divisions 2 and 3” . However I have difficulty in seeing how a testing procedure which failed to comply with something which a provision of Divisions 2 or 3 says “must” be done, could count as a procedure “carried out in compliance with Divisions 2 and 3” .

However, if there is a departure from the strict requirements of the regulation, but there is other evidence which satisfies me that a declaration can be made, I am free to act on that other evidence. In the present case, the affidavit of the Manager of the testing laboratory so satisfies me. The legal representative of the child supports the making of the order.

I make a declaration in accordance with the draft order provided to me which I have signed and dated today’s date.

I note that s 25 of the Status of Children Act 1996 prohibits a person from publishing the name or particulars relating to the identity of any person by or in relation to whom an application for a declaration of parentage is brought. That provision will apply to the order which I have made. For greater certainty, however, I also order that the name of the child, and the name of the father, referred to in my order, not be disclosed, save to the parties of these proceedings, and to the Registrar of Births Deaths and Marriages and the Children’s Court and legal representatives appearing in proceedings relating to the child in the Children’s Court. 8 March 2002

In accordance with the requirements of the Status of Children Act 1996 this matter was heard, and judgment delivered, in closed court. I am satisfied that publication of my reasons for judgment in this case will not result in contravention of s 25 of the Act. I authorise the publication of the reasons for judgment, but of no other document relating to the proceedings.

Division 3 of the Regulation contains a set of procedures, also carefully thought out, to control the collection, storage and testing of samples. It includes: “11 Provision of information by donor Forms 1 and 2 (1) A sampler must not take a bodily sample from a donor unless the donor has: (a) completed an affidavit in accordance with Form 1, and (b) either: (i) provided to the sampler a recent photograph of the donor, measuring approximately 45 millimetres, by 35 millimetres, that shows a full face view of the donor’s head and the donor’s shoulders against a plain background, or (ii) made a written arrangement with the sampler for a photograph of that kind to be taken (2) Immediately before the sampler takes a bodily sample from the donor, the donor must complete a declaration in accordance with Form 2. (3) The affidavit, declaration or written arrangement referred to in this clause: (a) If the donor is under the age of 18 years --- may be completed by the persons’ representative, or (b) If the donor is a person who is suffering from a disability --- must be completed by the person’s representative.”

Division 3 of the Regulation also includes other regulations designed to ensure integrity in the sample collecting procedure and that samples are carefully labelled, tracked, and stored before being tested.

Division 4 of the Regulation says: “19. Reports --- Form 4 (1) A report must be prepared in accordance with this clause relating to the information obtained as a result of carrying out a parentage testing procedure. (2) The report must be in accordance with Form 4. (3) Part 1 of the report must be completed by the nominated reporter identified in the report. (4) Part 2 of the report must be completed by: (a) the person who carried out the parentage testing procedure, or (b) the person under whose supervision the parentage testing procedure was carried out. (5) A report completed otherwise that in accordance with this clause has no effect. (6) A nominated reporter must send the report to the court registrar, together with the documents referred to in clause 17(2).”

It is to be observed that Regulation 19(1) says that the report which is provided for by this Clause has to be one “relating to the information obtained as a result of carrying out a parentage testing procedure” . Because of the terms of Regulation 7, a report can be prepared in accordance with Clause 19 only if the requirements of Division 2 and Division 3 of the Regulations have also been carried out. Regulation 19(5) makes clear the fundamental importance of compliance with the regime laid down by the Regulation.

In the present case, the evidence which I have seen does not satisfy me that the requirements of Regulation 10(1) have been carried out. There is no evidence of any communication from the person in charge of the laboratory to the sampler about the various matters set out in Clause 10(1). Nor is there any evidence to show that the person in charge of the laboratory has carried out the procedures required by Clause 10(2), (3) and (4) – which can be broadly be summarised as requiring the person in charge of the laboratory to inform the sampler about the proper ways of taking and storing samples, and supply the sampler with all necessary equipment, or else be satisfied that the person who takes the samples already has the information and skill and facilities needed to be able to properly take samples and store them.

Regulation 11 is directed to the sampler. It requires, it seems to me, the sampler to know that the donor has completed an affidavit in accordance with Form 1, at the time the bodily sample is taken. I am not at present satisfied that the sampler had this knowledge in this case.

Section 33 of the Act limits the people who are able to take bodily samples. Regulation 22 has widened the class of prescribed persons. Regulation 22 says: “22. Persons prescribed as “qualified persons” under section 33 of the Act For the purposes of section 33 (2) of the Act, persons employed by a hospital, pathology practice, parentage testing practice or a medical practitioner for the purpose of taking a bodily sample from a donor are prescribed as qualified persons.”

In the present case, the notice which was sent by the registrar, under Regulation 9, identified the sampler who was to take a sample from the child as being a particular named woman (whom I will call ‘A’). In fact, ‘A’ did not take the sample from the child. The Form 3 which was completed, says that the sample was taken by another named woman, ‘B’, who works for the same organisation as ‘A’. ‘B’ gives her occupation in the Form 3 as “Admin”.

While I would be prepared to infer that “B” was a person employed by a parentage testing practice, when she gives her occupation as “Admin” I am not prepared to infer that she is employed by the parentage testing practice “for the purpose of taking a bodily sample from a donor”; thus, I am not, at least on the evidence presently before me, satisfied that the sample has been taken by a qualified person.

While it is open to the court to make declarations of parentage under s 21 on the basis of whatever evidence seems to the court to be appropriate, when the court is asked to act on the basis of evidence of DNA testing procedures, proved by tender of a report under s 31 of the Act, the Court has no power to act on the results of parentage testing procedures which did not follow the strict regime which has been laid down by the Act and the Regulation. Indeed, once it is clear that the procedures laid down by the Act and Regulation have not been followed, s 31 does not enable the report to be received in evidence.

The way that DNA testing is conducted is such that the results are often extraordinarily highly probative of the matter at issue. In the present case, the report which was tendered before me, said that the probability that the man who was tested was the genetic father of the child had been calculated at 99.9998 percent. Given the highly persuasive nature of the evidence, it is all the more important that meticulous care be taken in following the procedures Parliament has laid down, if the mere tender of a report is to be accepted as proof of parenthood.

On the evidence before me I would not be prepared to make the declaration of paternity which is sought. However, it may be that the gaps in the evidence will be able to be filled.