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."
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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."
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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.
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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.
At paragraph 18: "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."
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."
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Family law information for parents whose children are resident in England and Wales
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