(Court of Appeal; Ward, Waller and Stanley Burnton LJJ; 20 August 2009)
A fact-finding hearing was due to take place in care proceedings concerning two children, aged 9 and 13, who were being raised as siblings, to decide how certain head wounds to the 9-year-old boy had been caused. An issue arose as to the boy's paternity; the court ordered samples to be taken, but the supposed father refused to undergo testing. The judge then made an order for the girl to be tested, so that any sibling link could be used to determine paternity, on the basis that this would be in the best interests of both children.
The judge had asked himself the wrong question in relation to testing the girl; the question was not whether the test would be in the girl's best interest, but rather whether the test would be against her interest. Although the judge had concluded that an even higher standard than the true one had been met, the Court of Appeal allowed the appeal against the testing, because there had been no evidence before the judge to enable him to deal with this peculiarly difficult question. The application for testing was to be adjourned to await the outcome of the fact-finding hearing, for directions then to be given as to the filing of the necessary expert evidence or such other evidence as would be appropriate to determine whether the girl's interests precluded the taking of the test