Paternity Testing – Relevant
Case Law and Legislation
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The mother, and it
was reported the child, opposed the father’s application for a DNA test (via
saliva swabs). The trial judge granted the father’s application and the mother
sought an appeal against that decision. Appeal was refused.
“The deputy judge therefore proceeded to hold
that, in that questions had arisen about P's paternity and that, as my Lord has
stressed in the course of today's argument, P already knew that they had
arisen, it was undoubtedly consistent with her welfare and in her interests
that the matter should be put beyond doubt by the taking of DNA tests.”
F (Children) [2007] EWCA Civ
873 – download - <Back to Top>
Re D (Paternity) [2006] EWHC 3545 – <Back to Top>
In Re D Hedley J was confronted with
an application for DNA testing in order to establish the paternity of a boy,
D…. The judge described D as a troubled and angry person who had had a
chequered life and, in particular, following exclusion from primary school, was
in a specialist unit in secondary school and was subject to statementing
procedures. The fact was that his mother had largely disappeared from his life.
D had been brought up to consider X as his father and, although his contact
with X had been sporadic, a crucial feature, so it seems to me, was that D had
been brought up, almost throughout the ten years of his life, by X's mother,
thus by a woman whom D understood to be his paternal grandmother. Doubts about
his paternity had, as in the present case, been communicated to D in a most unfortunate
manner, namely in that case by a visit to him by Y, who was introduced to him
by Z as being his father. Y was thus the applicant for DNA testing. The
decision of Hedley J was to direct DNA testing in order to establish D's
paternity; to direct that Y should provide his sample forthwith and that it
should be stored; but to stay the direction insofar as it related to the taking
of a sample from D himself. The basis of the decision was that the boy was
strongly opposed to testing and that, while in the long term it was in his
interest for the issue of paternity to be resolved, D was presently at a highly
emotive stage of his life, at which he should not be further troubled by the
imposition of a test to which he was so opposed. Nevertheless Hedley J said, at
[22], as follows:
"I immediately acknowledge … that
the general approach is that it is best for everyone for the truth about a
disputed paternity to be known. The classic statement of that is to be found in
the judgment of the Court of Appeal in Re H and A (Children) [2002] EWCA
Civ 383, [2002] 1 FLR 1145. I acknowledge at once
that that should be the guiding principle in all the cases with which the court
deals. It has obvious merit, not least the general proposition that truth, at
the end of the day, is easier to handle than fiction and also it is designed to
avoid information coming to a young person's attention in a haphazard,
unorganised and indeed sometimes malicious context and a court should not
depart from that approach unless the best interests of the child compel it so
to do."
Taken
from the judgment in P (A
Child) [2008] EWCA Civ 499 at paragraph 9.
C
(Children) [2006] EWCA Civ 1765 – download - <Back to Top>
Appeal granted. The success of the appeal concerned
the need in this particular case for professional assistance in imparting the
results of the paternity test.
Re H & A (Children) [2002] EWCA Civ 383 – download - <Back to Top>
At paragraph 30:
“The [trial] judge made it plain that in the
absence of scientific evidence then the issue was to be decided on the
application of ‘a very important, well established principle .... that is, the presumption of the legitimacy of children born
during the currency of the marriage’. He went on to refer to the case of Serio v Serio
[1983] FLR 756. Twenty years on I question the relevance of the presumption or
the justification for its application. In the nineteenth century, when science
had nothing to offer and illegitimacy was a social stigma as well as a depriver
of rights, the presumption was a necessary tool, the use of which required no
justification. That common law presumption, only rebuttable by proof beyond
reasonable doubt, was modified by section 26 of the Family Law Reform Act 1969
by enabling the presumption to be rebutted on the balance of probabilities. But
as science has hastened on and as more and more children are born out of marriage
it seems to me that the paternity of any child is to be established by science
and not by legal presumption or inference. Were the judge’s order to stand in
the present case the consequence would be a long and acrimonious trial of the
paternity issue when, in the absence of the only decisive evidence, each side
would resort to evidence of marginal or doubtful worth in the determination to
prevail. Such a development would be wasteful of both legal costs and judicial
time.”
Re T [2001] EWHC Fam 10 – download - <Back to Top>
In the judgment, the Honourable Mr Justice Brody considers the matter of competing rights
between the parties in consideration of the Human Rights Act and right to
family life. The child was conceived as a result of an extra-marital affair. At
paragraph 61:
“For the reasons set out above, under the heading
'Domestic Law' (which are equally apposite here) 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.”
Child Support, Pensions and Social Security Act 2000 – <Back to Top>
At section 82:
“A blood sample may be taken from a child (under 16) if:
(a) the person who has care and
control of him consents; or
(b) where that person does not consent, if the court considers
that it would be in his best interests for the sample to be taken.”
The Family Law Reform Act 1987 – <Back to Top>
At Section 23 –
Provisions as to Scientific Tests:
(1) For
subsections (1) and (2) of section 20 of the M13Family Law Reform Act 1969
(power of court to require use of blood tests) there shall be substituted the
following subsections—
(1) In any
civil proceedings in which the parentage of any person fails to be determined,
the court may, either of its own motion or on an application by any party to
the proceedings, give a direction—
(a) for the use of scientific tests to ascertain whether such
tests show that a party to the proceedings is or is not the father or mother of
that person; and
(b) for the taking, within a period specified in the direction,
of bodily samples from all or any of the following, namely, that person, any
party who is alleged to be the father or mother of that person and any other
party to the proceedings;
and the
court may at any time revoke or vary a direction previously given by it under
this subsection.`
(2) The
individual carrying out scientific tests in pursuance of a direction under
subsection (1) above shall make to the court a report in which he shall state—
(a) the results of the tests;
(b) whether any
party to whom the report relates is or is not excluded by the results from
being the father or mother of the person whose parentage is to be determined;
and
(c) in relation to any party who is not so excluded, the value,
if any, of the results in determining whether that party is the father or
mother of that person;
and the
report shall be received by the court as evidence in the proceedings of the
matters stated in it.
(2A) Where the
proceedings in which the parentage of any person fails to be determined are
proceedings on an application under section [F2255A or 56] of the Family Law
Act 1986, any reference in subsection (1) or (2) of this section to any party
to the proceedings shall include a reference to any person named in the
application.”
(2) In section 25
of that Act (interpretation of Part III)—
(a) for the definitions of “blood samples” and “blood tests”
there shall be substituted the following definition—
““bodily sample” means a sample
of bodily fluid or bodily tissue taken for the purpose of scientific tests;”’;
and(b)after the definition of “excluded” there shall be inserted the following
definition—
““scientific tests” means scientific tests carried out under
this Part of this Act and made with the object of ascertaining the inheritable
characteristics of bodily fluids or bodily tissue.”
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