In what is believed to be the first ruling of its kind, Mr Justice Scott Baker, sitting in London, upheld a decision by magistrates to declare a 55-year-old man the father of a child on the basis of hearsay evidence from the mother, his former lover, after he declined to give a blood sample for testing.
The judge said: "People in the shoes of the appellant in the present case who decline to comply with orders to provide blood samples... must expect an adverse inference to be drawn against them."
The judge said Mr F, who cannot be named for legal reasons, was brought before the Birmingham family proceedings court after the Child Support Agency applied for a declaration that he was the father of a boy, now aged 11, for a maintenance assessment.
The boy's mother recalled having unprotected sex with Mr F in December 1986, after an office Christmas party when they were both drunk. She was married to another man at the time.
The judge said the mother had given evidence to the family proceedings court last April that the only two possible candidates for paternity were her husband and Mr F. She said her husband, who had discovered her affair after finding a ring and a letter from Mr F, had taken DNA tests in 1995 and the results excluded him from being the father.
Mr Justice Scott Baker said the family court ruled that Mr F was the father on the strength of the mother's hearsay evidence. The magistrates had not read any report about the DNA investigation. They had seen no evidence of a technical nature to confirm that her husband, from whom she was now divorced, could not be the father.
The judge ruled that the family court could rely on the mother's evidence under the 1993 Children (Admissibility of Hearsay Evidence) Order. It was also entitled to regard Mr F's refusal to provide a sample as adding weight to the presumption that he was the father.
Rosalind Bush, appearing for Mr F, had argued that in cases where a woman was married, there was a presumption that her child was legitimate and clear evidence was required to rebut that presumption.
Rejecting Mr F's appeal, the judge said: "Even where there is a presumption of legitimacy, a putative father who still declines to give a blood test does so at his peril when ordered to do so by a court."Reuse content