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(Family Division; Anthony Hayden QC (sitting as a deputy High Court judge); 20 December 2007)
Any order for DNA testing made by the family courts should be made, and specify that it was being made, pursuant to the Family Law Act 1989. The order should either identify the company undertaking the testing, or direct that the company be selected in accordance with the Act; only accredited companies could be instructed. Taking samples from children should only be undertaken pursuant to the express order of the court; further samples might be taken only with court approval, following a written application to the judge. These requirements should be communicated to the identified DNA company in the letter of instruction. Save in cases where the issue was solely confined to paternity testing, all requests for DNA testing should be by letter of instruction, which should: emphasise that the DNA experts responsibilities were identical to those of any expert reporting in a family case and that their overriding obligation was to the court; set out in clear terms precisely what relationships were to be analysed and, where available, the belief of the parties as to the extent of their relatedness; and make it clear that if the DNA experts considered there was any lack of clarity, or any ambiguity in their written instructions, or required further guidance, they should revert to the solicitor instructing them, who should keep a note or memo of any such request. If any test carried out cast any doubt on or appeared relevant to the hypothesis set by their instructions, the DNA experts had to regard themselves as being under a duty to draw that to the attention of the court and the parties. Reports prepared by the DNA experts should bear in mind that they were addressing lay people; such reports should strive to interpret their analysis in clear language. Care should be taken to explain results within the context of identified conclusions, and particular care should be taken in the use of phrases such as this result provides good evidence; such expressions should always be set within the parameters of current DNA knowledge and identify in plain terms the limitations as to the reliability of any test carried out. Where any particular test and subsequent ratio of likelihood was regarded as in any way controversial within the mainstream of DNA expertise, the use of the test and the reasons for its use should be signalled to the court within the report.
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