family - legal parenthood 2

court proceedings to determine the parentage of a child

Who can apply to the court for the parentage of a child to be determined?

the child

the child’s mother

the putative father

the Child Maintenance and Enforcement Commission

or any other sufficiently interested person

(s 55A of the FLA 1986)

Which statutory provision controls the use of scientific tests in disputes over parentage?

ss 20-25 of the Family Law Reform Act 1969 (FLRA 1969)

What does the court need to consider when deciding whether to make a direction for testing?

S 20 FLRA gives the court discretion over whether/ when tests are made. These factors will influence the court’s decision:

• the rights of the child to know

• the rights of the putative father

• the child’s best interests

• the public interest in the smooth administration of justice

What are the leading authorities on when it is appropriate for a court to give a direction for testing?

Re H (Blood Tests: Parental Rights) (1997) - states that the child has a right to know - and that this does not undermine the social father’s role in the child’s life (where the genetic and social father are different people). Ward LJ

The introduction of the HRA 1998 does not give the putative father leverage to make an argument based on Art.8 - Re T (A Child) (DNA Tests: Paternity)

Can a child give consent to the taking of bodily samples?

A minor who is 16 years or over can give consent - s 21(2) of FLRA 1969

For people under 16 years, the consent of a person with ‘care and control’ is required - s 21(3)(3).

If denied, the court can override this if satisfied that taking the sample would be in the child’s best interests - s 21(3)(b)

What has Fortin (2009) said about the use of scientific testing, especially in light of Re D (Paternity) where the 11 y.o child opposed the taking of samples?

Does not support the decision in Re D to order scientific testing anyway, disrupting the already- existing relationship surrounding the child.

Argues that putative fathers doesn’t just want to establish paternity and leave it there… they want to ‘[attempt] to establish a social relationship between father and child based on assumptions about biological connectedness’ p.338 - 54

What can the court do if one of the adults refuses to consent to the taking of bodily samples for scientific testing?

Although the court cannot claim contempt of court or override the putative father’s refusal, it can draw adverse inferences where the refusal to cooperate has not been justified.

- Re (A Minor) (Paternity: Refusal of Blood Test)

What can the court do if the mother refuses to tell the child the ‘truth’ about parentage after the testing produces results?

Whether a child should be told the truth relates to the exercise of parental responsibility, so the court can control this by issuing a specific issue order, or by using their wardship jurisdiction - Re F (Paternity Jurisdiction).