LG v DK [2011] EWCOP 2453 (05 October 2011)

LG v DK [2011] EWCOP 2453 (05 October 2011)

The Court of Protection has jurisdiction under section 21(4) of the Family Law Reform Act 1969 to authorise DNA testing of an adult lacking capacity, even if parentage is not the central issue in the proceedings, but the jurisdiction is more clearly established where such an issue is directly before the court (e.g., in statutory will proceedings). The best interests of the person lacking capacity are the paramount consideration, and the court must consider whether the objective can be achieved in a less restrictive manner.

Citation
[2011] EWCOP 2453
Parties
Applicant: LG; Respondent: DK
Jurisdiction
England and Wales
Judgment Date
05 October 2011
Procedural Posture
Court of Protection Application / Interlocutory Judgment on Adjournment and Jurisdiction
Outcome
Application adjourned to allow Deputy to apply for execution of a statutory will for DK.
Legal Topics
DNA Testing, Best Interests, Deputy Powers, Parentage Determination, Statutory Will, Jurisdiction of Court of Protection
Mental Capacity Law Family Law DNA Testing Best Interests Deputy Powers Parentage Determination Statutory Will Jurisdiction of Court of Protection

Case Brief

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Parties

LG

Applicant

DK

Respondent

Procedural Posture

Court of Protection Application / Interlocutory Judgment on Adjournment and Jurisdiction

Legal Issues

  1. 1 Whether the Court of Protection has jurisdiction to order DNA testing of an adult lacking capacity for the purpose of determining parentage
  2. 2 Whether such an order is in the best interests of the person lacking capacity
  3. 3 Whether proceedings as constituted fall within the statutory framework for ordering DNA tests

Ratio Decidendi

The Court of Protection has jurisdiction under section 21(4) of the Family Law Reform Act 1969 to authorise DNA testing of an adult lacking capacity, even if parentage is not the central issue in the proceedings, but the jurisdiction is more clearly established where such an issue is directly before the court (e.g., in statutory will proceedings). The best interests of the person lacking capacity are the paramount consideration, and the court must consider whether the objective can be achieved in a less restrictive manner.

Court Disposition

Application adjourned to allow Deputy to apply for execution of a statutory will for DK.

Orders

  • Proceedings adjourned to enable application for statutory will.