Paternity Law

 

Introduction

While it is easy to identify a child’s mother, this is not always the case for the father. Only scientific testing can confirm paternity. 

In most stable relationships, paternity is rarely at issue. However, some commentators have estimated that between 5% and 20% of children have the wrong man identified as their father. In some cases, the real father’s identity has not been disclosed by the mother, despite her knowing his identity or at least having a strong idea. In other cases, the mother may genuinely not know who the father is out of a succession of partners.   


Establishing a child’s biological origin is recognised by psychologists (and judges) as highly important for a child’s sense of identity.  However, before anyone pursues this route, they should fully consider the ramifications for everybody concerned, particularly for the child, of both a positive and a negative result.   You may be able to handle it, but there may be a whole range of people affected – siblings too.  The truth as to biological parentage may be comforting but on the other hand, could be devastating.   You may wish to arrange for counselling either before or after the test.

DNA Testing for Paternity

‘COURT-DIRECTED’ AND ‘UNOFFICAL’ TESTS

 

DNA tests can be undertaken using home testing kits which are posted out to you and returned direct to the company for laboratory analysis, or alternatively, by having samples taken by a doctor who posts them to the laboratory.  Having returned the samples, the results are usually ready within a week.


Paternity tests which are required to stand as evidence in court will have to be carried out following specific court directions,  which will name a specific accredited company to carry out the tests and to provide a report.  Samples will be taken by healthcare professionals who will send them to the testing company.

The ‘unofficial’ (non-court-directed) tests, even with samples taken by doctors, will be cheaper but do not stand as evidence unless the court agrees to allow them.


Some of these accredited companies provide for both court-ordered tests and home paternity tests.  At least one offers home tests with samples taken just from the alleged father and child – with no DNA sample provided by the mother.  You will need the written authority of any adult whose samples you provide for DNA testing, since it is a criminal offence to take such a sample without consent.  Only those who have parental responsibility for the child are able to give permission for the child’s DNA to be used in the test (Human Tissue Act 2004 s2(3)). 

Each company accredited by the MOJ has its own website where further information on paternity testing is available including the cost – typically £150 for a home test and £400 for a court-ordered one.

 

The Legal Presumption of Paternity


Until officially declared otherwise, a man is deemed to be a child’s legal father if he is married to the mother at the time of the child’s birth, or if his name is registered on the child’s birth certificate.  Additionally, for child maintenance purposes, if the mother has named a man as father but he has disputed paternity, the CSA is allowed to presume that he is the father if he chose not to provide DNA samples to prove his contention.

 

Disputed Paternity and the CSA

Even if a man disputes paternity, if he has been named by the mother as the father of her child, he will have to pay child maintenance until DNA tests prove otherwise.  The person named as the father will initially have to pay for a DNA test (arranged by the CSA) and continue to pay maintenance,  which will likely be refunded if the paternity test comes back negative (though payments made through the statutory service before paternity was challenged will not be repayed).  The ‘parents’ can arrange for a private test themselves (possibly more costly), from the court-approved list of companies, but in many instances a lack of trust and co-operation will mean that this may be difficult.  The CSA’s page on disputed parentage gives further information.

 

The Legal Basis for Paternity Testing


The various pieces of key legislation involved are:  


Family Law Reform Act 1969 [FLRA 1969] ss20, 21 and 23

Family Law Act 1986 [FLA 1986] s55A

Births & Deaths Registration Act 1953 [BDRA 1953] s14A

Human Tissue Act 2004

 

Please click here to view the relevant sections of these statues

Anyone with a “sufficient personal interest” can apply to the High Court, a county court or a magistrates for a declaration of parentage [FLA 1986 s55A].  The CSA can also apply (s27 Child Support Act 1991). The court then may, under FLRA 1969 S20, issue a direction that DNA tests to determine parentage are carried out.  There is a distinction between making of a ‘direction’ and making of an ‘order’ under s20 since the court cannot order the taking of samples against a person’s consent (s21).   The consent of a child under 16 years old is not required, only the consent of the person having ‘care and control’ of him.  If that person does not consent then the court may arrange for the sample to be taken if it considers to do so would be in the child’s best interests (s21(3)(b).  The terminology ‘care and control’ relates to pre-Children Act 1989 days and essentially equates to ‘residence’, referring to the parent/person with whom the child lives.

Summary


It is generally accepted within the family justice system that, unless there are exceptional circumstances, it is always best that a child’s true identity is made known and the sooner this is established, the less potential there will be for damaging emotional trauma.  The quotes below, taken from reported judgments provide a good perspective on this.


LJ Ward: Court of Appeal: Re G (Parentage: Blood Sample) 1997 with reference to a 7-year-old girl.


“It is essential for the ultimate well-being of this child, both that she knows the truth about who her father is, and that she knows it sooner rather than later.”


Mr Justice Bodey: Family Division: Re T  (Paternity: Ordering Blood Tests) 2001


“I am entirely satisfied that in evaluating and balancing the various rights of the adult parties and of T under Article 8, the weightiest emerges clearly as being that of T, namely that he should have the possibility of knowing, perhaps with certainty, his true roots and identity.”

 

PATERNITY CASE LAW

 

 

 

Where no links are provided this means that no freely available copies of the judgment appear on the Internet.  The Charity does subscribe to Family Law Reports and it may be possible in certain circumstances to assist you with other case authorities.

P (A Child)

 

Court of Appeal 16 April 2008

 

[2008] EWCA Civ 499

 

 

In her appeal, the mother opposed this direction for DNA tests to establish paternity primarily on the basis of the distress and upset that it would cause her daughter. In this judgment Wilson LJ agreed with the trial judge's analysis that this case was different from a previous case (Re D) where the distress of the child was sufficient to refuse a test
“For all those reasons I am of the view that there is no basis for concluding that the mother has a real prospect of persuading us that, in making his direction, the deputy judge exceeded the ambit of the discretion conferred upon him by s.20 of the Act of 1969; and I would refuse her permission to appeal.”

 

Re F (Paternity: Jurisdiction)

 

Court of Appeal 25 July 2007

 

[2007] EWCA Civ 873

 

[2008] 1 FLR 225

 

 

The family justice system was entitled to take responsibility for deciding whether a child should or should not be told of his paternity, in the event of adult dispute.
” … it is likely that mental health professionals will need to be involved to help the children through the process and indeed the whole family, including the parents.”
“Assuming a parent who, out of obstinacy or emotional disturbance, was challenging the judicial discretionary decision by a threat to ignore the order, it is manifest that such a parent only magnifies the difficulty and with it the need for professional intervention. So, in a case such as that it would be quite pointless to order the reluctant parent to do the job. Such a parent is the worst possible person to carry out the delicate task and in reality the court would meet the challenge by simply putting in place alternative mechanisms for the imparting of the sensitive information.”

 

Re F (Children) (DNA Evidence)

 

Family Division 16 October 2007

 

 

[2008] 1 FLR 348

 

“It was not clear whether, and to what extent, each of the children were related to each other or who their respective parents might be. Accordingly, I agreed with the unanimous applications by the advocates that DNA testing be ordered.”

 

Poor procedures in specific ‘non –accredited’ DNA testing firm.  With distant /complex relationships more rigorous scientific examination required and to be in a letter of instruction.

 

Re P (Surrogacy: Residence)

 

Family Division 10 July 2007

 

[2008] FLR (forthcoming)

 

A surrogacy agreement was entered into between the mother and the father, whose wife was unable to have children. Within a few months the surrogate mother falsely asserted that she had miscarried, yet a child, now 18 months old, was born.

 

Both the guardian and the child psychiatrist gave evidence that the child’s welfare would be best served by being placed in the home of the father and his wife.

 

Re D (Paternity)

 

Family Division 20 October 2006

 

[2006] EWHC 3545 (Fam)

 

[2007] 2 FLR 26

 

 

Child living with paternal grandmother but having little contact with the father and none with the mother. Father had ‘told’ the child recently that someone else was his father.  Child was an angry young person with behavioural problems.

 

Scientific testing to establish paternity ordered, but staying the order in relation to the child without limit of time but with liberty to restore. Although the child was not competent in the Gillick sense, he did understand the essence of the issue between the adults.

 

Re J (Paternity: Welfare of Child)

 

Family Division 10 Nov 2006

 

EWHC 2837 (Fam)

 

[2007] 1 FLR 1064

 

 

The undoubted advantage to the child of learning the truth was outweighed in this case by the impact that process would be likely to have on the mother and the family upon whom the child was so dependent.
An important factor was that the father, whose paternity had been established by DNA tests, began proceedings seeking contact with the child, but subsequently disappeared having apparently abandoned the proceedings.

 

Re T (Paternity: Ordering Blood Tests)

 

Family Division 10 May 2001

 

 

[2001] 2 FLR 1190

 

The child’s best interests were to be weighed against the competing interests of the adults affected (with reference to the European Convention on Human Rights). In most cases it was likely to be in the child’s best interests that the truth about paternity was known. In a case such as this, in which (a) doubts about the child’s paternity were already in the public domain, giving rise to a significant risk that the child would be informed about them sooner rather than later, (b) the relationship between the mother and her husband was a stable one, and both were already aware of the paternity doubts, and (c) blood tests (depending on how they turned out) might actually determine the applications for contact and parental responsibility, DNA testing would be in the child’s best interests. Balancing the child’s best interests against the interests of the mother and husband, blood tests, including DNA tests, ought to take place.

 

Re G (Parentage: Blood Sample)

 

Court of Appeal 29 July 1996

 

 

[1997] 1 FLR 360

 

Father refused to give sample for testing since he felt that if it was shown he was not the father the mother would use this as a reason to stop all contact between him and the child he still believed to be his and to whom he had acted as a father. Also that the child would be upset.  Since the mother was willing for her belief to be put to the test whilst the father was not, the inference the Court of Appeal decided it had to draw was that the ‘fathers’ contention was false – that he was not the child’s father.

 

 

 

Updated May 2013