Law Report: Paternity tests would be detrimental to child: Re F (a minor) - Court of Appeal (Lord Justice Balcombe, Lord Justice Nolan and Lord Justice Kennedy), 5 February 1993

Where a child's welfare depended on the stability of the family unit in which the child lived and an order for blood tests to determine the child's paternity might disturb the stability of that family unit and was opposed by the parent who had, since birth, the sole parental responsibility for the child, such tests would be detrimental to the child's welfare and the court would refuse to order them.

The Court of Appeal gave reasons for dismissing on 18 December 1992 an appeal by the appellant, Mr B, from Judge Callman's dismissal of Mr B's application for blood tests to be taken of a child, E, to determine whether he was or was not the father of the child.

Mrs F gave birth to E in 1991. At the time of E's conception Mrs F was having sexual relationships with both her husband, Mr F, and the appellant, Mr B. The relationship between Mrs F and Mr B ended before the birth of E. Since E's birth she has been brought up as a child of the family of Mr and Mrs F and has had no contact with Mr B.

Mr B applied for a parental responsibility order under section 4(1)(a) of the Children Act 1989 and for a contact order under section 10, stating that he believes himself to be the natural father of E.

Mr B's application for a direction for DNA tests was opposed by Mrs F who maintains that the child is her husband's.

The matter was referred to the High Court. Judge Callman dismissed Mr B's application.

Mr B appeared in person; Michael Sternberg (Argyles & Court, Maidstone) for Mrs F.

LORD JUSTICE BALCOMBE, giving the judgment of the court, said that the power of the court to require the use of blood tests was conferred by section 20(1) of the Family Law Reform Act 1969. The court had a judicial discretion whether or not to order that blood tests be taken to seek to determine paternity.

The following principles could be derived from S v McC; W v W (1972) AC 24. Public policy no longer required that special protection should be given by the law to the status of legitimacy. The interests of justice would normally require that available evidence be not suppressed and that the truth be ascertained whenever possible. In many cases the interests of the child were also best served if the truth was ascertained.

The interests of justice might conflict with the interests of the child. In general the court ought to permit a blood test of a young child to be taken unless satisfied that that would be against the child's interests; it did not need first to be satisfied that the outcome of the test would be for the benefit of the child. Without the consent of a person having care and control of a person under 16, it might not be proper for the court to order that a blood test of the child be taken.

Mr B's submission that the judge was wrong to base his decision on the probable outcome of Mr B's applications for parental responsibility and the interests of justice and E's own welfare required that her true paternity be established was misconceived. The power under section 20(1) to direct the use of blood tests to determine parentage only arose 'in civil proceedings in which the paternity of any person falls to be determined'.

If the probable outcome of those proceedings would be the same whoever might be the natural father of E, then there could be no point in exposing E to the possible disadvantages of a blood test. There was no realistic prospect of Mr B succeeding at the present time in his applications for parental responsibility and contact since such order could not benefit E.

E was born into, and had remained in, the family unit of Mr and Mrs F, and Mr F was the only man whom E had looked upon as her father, whether or not he was her biological father.

Although it might well be true that it must inevitably be in E's interests to know the truth about her parentage, now and for the first few years of her life, E's physical and emotional welfare were inextricably bound up with the welfare of the family unit of which she formed part: any harm to the welfare of that unit, as might be caused by an order for the taking of blood tests, would inevitably be damaging to E.

There were undoubtedly possible risks, such as that she might marry someone within the prohibited degrees of relationship or the possibility that she could develop some medical condition, such as glaucoma, for which a knowledge of her genetic makeup might be relevant.

But the chance that those risks might operate so as to harm E's interests were infinitesimal when brought into balance against the harm that might be caused to her if Mr B were able to proceed with his applications.

The court would not order a blood test to be carried out against the will of the parent who had since birth had sole parental responsibility for the child.

E's welfare depended for the forseeable future primarily on her relationship with her mother: Mr B expressly conceded that he did not dispute the right of Mrs F to have E living with her.

Anything that might disturb that relationship or the stability of the family unit within which she had lived since her birth was likely to be detrimental to E's welfare, and unless that detriment was shown to be counter-balanced by the other positive advantages to her which an order for the taking of blood tests could confer, then the judge's refusal to order blood tests was not merely an exercise of his discretion with which the Court of Appeal could not interfere, but one with which in the circumstances of the case the court agreed.

Where it would be against E's interests to order blood tests to be taken, then it was both the judge's duty and his right to refuse the application.

Ying Hui Tan, Barrister