High Court Examines Procedural and Evidentiary Challenges in Posthumous Paternity Declaration Case

Citation: [2024] EWHC 306 (Fam)
Judgment on


In the case of ZS v The Estate of NJ [2024] EWHC 306 (Fam), the High Court examined an application under section 55A of the Family Law Act 1986 for a declaration of paternity posthumously. This analysis will dissect the relevant legal principles and procedural nuances applied in the case, particularly focusing on the matters concerning evidence sufficiency, the role of parties in such proceedings, and the transparency of the family court.

Key Facts

The applicant, ZS, sought a declaration that NJ, who died intestate in England in 2019, was her father. An initial application had prompted a direction for DNA testing of NJ’s blood samples, but the subsequent evidence submitted was deemed insufficient for the grant of a final declaration by Deputy High Court Judge Simon Colton KC. Significant concerns arose regarding the accuracy and sufficiency of the DNA report, absence of evidence from the mother, and unexhibited crucial documents like NJ’s passport and ZS’s birth certificate. Additionally, ZS’s mother had not been joined as a respondent and JK’s standing to represent the estate post-EM’s death was called into question.

Several legal principles underpin the case at hand:

Evidence Sufficiency

Underlying the decision was the principle that applicants must meet the ordinary civil standard of proof, which is the balance of probabilities, as stated in Aylward-Davies v Chesterman [2022] EWFC 4 (Mostyn J) at [55]. The report from AlphaBiolabs indicated a 99.9% probability of paternity, but ambiguities concerning the testing procedure and provenance of samples involved rendered the evidence insufficient, necessitating an adjournment for the collection of additional evidence.

Representation of Parties

The Family Procedure Rules (FPR) 8.20 outline who should be a respondent in a declaration of parentage case, including litigants’ parents, except where the parent is the applicant or a child. Based on this, ZS’s mother should have been included as a respondent, an omission that the court sought to remedy. Moreover, following the death of the estate’s previous representative, EM, a new adminisrator, JK, was appointed under section 116 of the Senior Courts Act 1981. This provision allows the court discretion in appointing an individual other than the one with the default entitlement to administer the estate in extraordinary circumstances, as explored in Otitoju v Onwordi [2023] EWHC 2665 (Ch).

Transparency of Proceedings

Judgments resulting from private family court proceedings can be fully reported, according to the precedents set by Mostyn J. Notably, the reporting restrictions in this case were preliminarily adjudged necessary to protect the Article 8 privacy rights of the individuals involved against the public’s Article 10 rights, resulting in the anonymization of the judgment. This approach demonstrated the inherent jurisdiction the court has in balancing openness with privacy concerns.


The court addressed several key issues:

  1. The need for ZS’s mother to be added and served as a respondent to ensure procedural correctness and her possible contribution to the evidentiary requirements.
  2. The re-appointment of JK as a limited administrator for NJ’s estate to lawfully represent it in these proceedings.
  3. The adjournment of the substantive application for a declaration of paternity under section 55A of the 1986 Act, pending the provision of further evidence.
  4. The temporary anonymization of the judgment publication until the court decides on the necessity of a reporting restrictions order, considering the privacy rights and potential risks to the parties involved.


In ZS v The Estate of NJ, the High Court has not only underscored the importance of adequate evidence in paternity declaration cases but also addressed procedural considerations concerning respondent inclusion and representation of the deceased’s estate. The case further highlighted the judicial discretion available under section 116 of the Senior Courts Act 1981 to facilitate the representation of an estate in litigation. Regarding transparency, the court acknowledged the tension between open justice and individual privacy rights, postponing a final decision on reporting restrictions after considering further submissions. The outcome signals the judiciary’s careful navigation of procedural and evidentiary complexity alongside fundamental rights.

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