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Family law expert Sam Bushell comments on a recent case for a declaration of non-paternity

05th Jun 2020

The applicant sought declaration that he is in fact not the father of the children, based on evidence he presented to the court, including the results of a commercial 'off the shelf' DNA test.

An interesting judgement was given in a case we were involved in recently at Family Court - one in which the interests of two young children were placed firmly at the forefront of the outcome.

 

The court was presented with an application for a declaration of non-paternity in respect of two children, aged 15 and 13 (both cannot be identified for legal reasons). The applicant was the father, who under section 55A of the Family Law Act 1986, sought declaration that he is in fact not the father of the children, based on evidence he presented to the court, including the results of a commercial 'off the shelf' DNA test he administered to both children without their knowledge. The father also accused our client, known as 'the putative father', of being the biological father, and who therefore should be paying child maintenance.

 

Passing judgement, the judge said it was a difficult case to decide, adding there were problems with every aspect of the evidence presented to the court. With this in mind, they decided that it was not in the children's best interests to determine the father's application at this time - but ordered the mother, father and putative father to give DNA samples for testings under section 20 of the Family Law Reform Act 1969, the results to be held in a sealed envelope in the children's Cafcass file until the children are ready to view them.

 

The putative father maintained that it was "highly unlikely" that he was the father of the two children, yet refused to submit voluntarily to a DNA test in order to settle the question, citing his concerns about data privacy and the impact of the results on his mental health.

 

The mother of the children, now the ex wife of the father, representing herself, contended that the children should not be subject to further forensic DNA testing, and that the father's application should be dismissed. Like the putative father, the mother asserted that she now has "no reason to believe" that the father is not the biological father of the children - however evidence that came to light during the case could make this questionable.

 

Lying at the heart of the case were the two children, represented by the Children's Guardian. The court heard how both felt great distress, deep anger and betrayal by the secret DNA test carried out on them by the father.

 

Both children were considered by the Children's Guardian as able to consent to further forensic DNA testing - and within this context, will refuse to undergo any such testing and do not wish to know who their father is. This position was supported by the Children's Guardian, who submitted that, pursuant to section 55A(5) of the Family Law Act 1986, it is not in the childrens’ best interests for the father's application to be determined.

 

On reaching their decision, the judge focussed on the photographic evidence that was said by the father to demonstrate a clear facial likeness between the putative father and the children, and the absence of a facial likeness between the children and the father. The judge ruled that while it is clear that there is a degree of likeness between the putative father and the children, they were satisfied that this evidence must be approached with considerable caution, citing such evidence as necessarily subjective and subject to significant risk of unconscious bias on the part of the person viewing the pictures, including the judge.

 

Importantly, regarding the DNA paternity test carried out by the father, the judge said they could not ignore the fact that in this case the person who seeks to rely on the DNA test results to make good his application, namely the father, is the very same person who undertook the sampling for those tests. The judge added that it would set an unfortunate and undesirable precedent if it relied on DNA tests that had not been carried out by an approved sampler. 

 

The judge also questioned the evidence presented surrounding the conception of the children, adding that the relationship between the mother and putative father was unsatisfactory in many respects and presented a confusing picture. 

 

The judge went on to invite the Children's Guardian to explain their view that the question of paternity, now it is out there, cannot be put off forever and that the judge considers that, ultimately, it would be better for the children to know the answer than not to know.

 

In conclusion, the judge said: "It is my hope that, notwithstanding his inevitable disappointment at this outcome, the father, who went to great pains to express to me his desire to protect the emotional wellbeing of the children within the context of determining the question of paternity, will see the sense in this approach and the benefits that will, ultimately, flow from it."