Advances in DNA-testing techniques to establish paternity, and easier access for the general public to such tests, are fast producing a number of new legal situations. There have been several recent significant changes in legislation affecting the family, including the European Convention on Human Rights and the UN Convention on the Rights of the Child (which states that a child, where possible, has a right to know his or her parents), producing a potentially explosive cocktail.
In a recent case (17 October, 2001), a 39-year-old Welsh man, Gerard Bradbury, is to receive a refund of £30,000 in maintenance, plus interest, from the Child Support Agency (CSA). For seven years he had paid maintenance for a child he had never met, but thought was his. He then underwent a DNA paternity test through the court, and found he was not the father. The parties had only had a brief affair.
This seems to be a straightforward matter, as there was no relationship between the child and the alleged father to be damaged either by the results of the blood testing, or by the subsequent demand for reimbursement. He said he had not undertaken the test earlier as he had not been able to afford it. The CSA cancelled the maintenance assessment and paid for the DNA test.
In certain circumstances, the CSA is allowed to presume parentage and make an assessment against the presumed father, even if he does not accept that the child is his. A "parent" is defined in child-support legislation as a person who is, in law, the mother or father of the child, which includes adoptive parents but, importantly, excludes step-parents.
The circumstances allowing such a presumption have just been extended. This could lead to more assessments being made, and to more "mistakes", which the alleged fathers will undoubtedly dispute. If a man is named on the birth certificate or refuses to undergo a DNA test, it can now be automatically presumed that he is the father.
So, how can a putative father obtain a DNA test? The correct approach is to seek a court order for sampling. An important recent change in the law now allows the courts to override the objection of the parent with care and control (usually the mother), provided that a DNA test is in the best interests of the child.
Perhaps more fathers will be tempted to obtain DNA tests without making a court application, but by trying a little self-help instead. This is frowned on by the courts, but it is alreadysimple to buy home kits or obtain DNA sampling services via the internet. Testing is now quicker and easier, as DNA can be examined from not only blood, but also from hair follicles and body fluids. Surreptitious tests are being made from perhaps a few hairs taken from a child's jumper. This testing relies on samples only from the child and the alleged father. Formal testing usually requires all three individuals, including the mother, to be tested. Such a DIY test is often the precursor to an application to the court, although evidence obtained by the use of a kit, undertaken without a medical practitioner or the approval of the parent with care and control, is unlikely to carry any weight with the court.
But DNA testing is not just being sought by men hoping to escape the CSA. There are increasing numbers of others who wish to be publicly recognised as a child's true father. They may seek a DNA test as a precursor to applying for a contact order, probably coupled with an order for parental responsibility for the child.
Whatever the motive, it seems likely that we will see a rise in applications for DNA testing. And besides demand from "fathers", there may also be demand from children – or adults – who want to discover their true parents, in the same way that an adopted child wishes to know his or her roots.
Ann Northover is a solicitor with the Mayfair law firm Gordon DaddsReuse content