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A DNA test is directed by a court to determine whether or not a putative father is the biological parent of the child subject to proceedings. Depending on the nature of the proceedings the mother may be trying to prove either that the putative father is the biological father or that he is not.

DNA tests

The law

Under Section 20 of the Family Law Reform Act 1969 the court has discretion to direct a test of blood or other bodily samples on its own motion or on application by a party. The child’s welfare is not the paramount principle (because orders are not made under the Children Act); the principle is provided by S v S; W v Official Solicitor [1970] 3 ALL ER 107,

The court in ordering a blood test in the case of an infant has, of course, a discretion and may make or refuse an order for a test in the exercise of its discretion, but the interests of other persons other than the infant are involved in ordinary litigation. The infant needs protection but that is no jurisdiction for making his rights superior to those of others.

The court cannot order a DNA test other than in the context of other proceedings, so if you want the court to order a test you will either need to make a Section 8 application for contact or residence or request it through the CSA. The issue of paternity will then have to be settled before proceeding.

The court is able to make an order for a DNA test involving samples other than blood (cheek cells are the usual samples taken) by the Blood Tests (Evidence of Paternity) Amendment Regulations 2001, but again it cannot force you to take the test, and the case of Mikulic v Croatia [2002] FCR 720 established that it may be a violation of one person’s rights to compel him to undergo a paternity test simply so that another person can establish his identity.

Consent must be given by all parties aged 16 and over, and if your child is under 16 consent must be given by someone who ‘has the care and control’ of the child, i.e. with Parental Responsibility. If consent is withheld then under Section 20 of the Family Law Reform Act 1969 amended by the Child Support, Pensions & Social Security Act 2000 the court can order that the test take place if it considers that to be in the child’s best interests.

In the UK it is almost always considered to be in the interests of justice to know the truth and not to suppress evidence, and in the child’s best interests to know who his father is. However, in L v P (Paternity Test: Child's Objection) [2011] EWHC 3399 (FAM) the court chose not to order testing of a 15-year-old girl who had refused a test when her putative father requested it following a CSA claim by the mother. The girl had understood him to be her father throughout her life and the evidence that he was not was very slight.

Taking the test

Ensure that the test is carried out by a reputable company such as Cellmark and not one with a name like WhozTheDaddy? Only the results from an approved company will be accepted by the courts; they guarantee that your data is secure and will not be passed to third parties, and that they will destroy your DNA sample after three months. A list of accredited testers is available from the Ministry of Justice website.

The court-approved process is simple: you first arrange an appointment for the test with your doctor or practice nurse; the testing company will send your doctor a sampling kit, and at the appointment your doctor will take a swab of cells from inside your mouth which he will then transfer to a test card and send off to the company. When the company has received all the samples they will analyse them and send the results out to you or to your solicitor.

You will have to take a passport type photograph with you to the doctor and complete and sign a form which will then go off to the company with the photograph and sample. This is to ensure that the sample really comes from you.

The test is extremely accurate (inclusive tests quote a 99% accuracy, exclusive tests quote 100%) and is probably impossible to cheat. If the child is not the father’s and the father wants to prove that he is he obviously can’t. If the child is the father’s and the father wants to prove he isn’t he could send a friend to the test, but the photo would give him away when the mother receives her copy. If the mother wants to prove a man is not the father she could take someone else’s child, but then her DNA would not match the child’s, and even if her doctor were complicit, the testing company would reject the result.

What if the result is positive?

If the result of the test is positive and shows that you are the father your responsibility is to the child, not merely financially to pay child support, but also to be an involved and committed parent. If the mother wishes to obstruct that you must resist; it is not for her to deny her child a father.

If you are not on the Birth Certificate, you can apply for a Declaration of Parentage under the Family Law Act 1986, and the court can order the Birth Certificate to be amended. The criterion is that this must be in the best interests of the child. For child support cases you can apply for a Declaration of Parentage under Section 27 of the Child Support Act 1991.

What if the result is negative?

You should be aware that a negative result is delivered in the bluntest manner possible: you will simply receive a letter with the two words ‘Paternity Excluded’, plus a brief page of notes and a technical printout. No one can prepare you for the shock, the dismay, and the grief. Nor can they prepare you for the catastrophic consequences. We strongly advise you to have counselling lined up for this eventuality.

If the test shows you not to be the father and if a subsequent test shows that another man is, he then becomes the child’s legal father, regardless of whether he wishes to be, and of your involvement up to that point. You will then need to apply to the court for a contested Shared Residence Order which is the only way you can re-acquire Parental Responsibility: you cannot apply for a Parental Responsibility Order. If the court orders shared residence you will gain PR; if it makes an order for contact, the court has discretion to decide according to the child’s best interests. You can only apply for a Shared Residence Order, however, if the child has lived with you for a period of at least 3 years or if you were married and the child was regarded as a child of the family.

Recent decisions in shared residence cases such as Re A (A Child: Joint Residence/Parental Responsibility) [2008] EWCA Civ 867 – cited below – show that the courts can be sympathetic towards a father who has been the victim of paternity fraud:

The fact is, Mr A is not H’s father or parent either in common parlance or under any definition contained in the Children Act or other legislation. He is not a father by biological paternity or adoption, nor a stepfather by marriage. He is a person entitled, by reason of the role he has played and should continue to play in H’s life, to an order conferring Parental Responsibility upon him. He is thus a person who, jointly with the mother, enjoys the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to that child (see s.3 (1) of the Children Act 1989) but he does not thereby become the father of that child.

Refusing a DNA test

DNA testing has let the genie out of the bottle and he cannot be returned. Although the court cannot force you to be tested we would recommend that you consent to the test.

If it is alleged in the context of a marriage that you are the father of a child this is the most natural thing in the world and it is highly unlikely you will have any reason to doubt that you are, indeed, the father. If you are in any doubt, because there has been a history of adultery, for example, we would strongly advise that you have a DNA test done as soon as possible, before you bond fully with your child, in order to avoid grief and devastation later.

If you are not in a relationship with the mother and are being pursued for child support and you doubt you are the father you are also advised to seek a test: there is no reason why you should pay for the upkeep of a child who is not yours, particularly if you have no contact with the child; one in five men named in child support cases turns out not to be the biological father. It is important to establish who is the child’s father, so that he can meet his responsibilities, have the option to be involved in the child’s life, and so that the child can have the chance of knowing his or her father.

The issue will also arise in the context of a contact dispute where, in order finally to prevent contact, your ex will allege that you are not the biological father. This is very much a last-ditch endeavour to scupper your chances of contact, since it will mean your ex will lose any child support you are paying. You could argue that the result is immaterial; the child is a ‘child of the family’ and will be no less loved and valued if the result is negative. This is naïve: most fathers report that in these circumstances, even with the best will in the world, their relationship with their child changes.

Either your ex knows you are not the father or she is employing a delaying tactic. If the latter, then you could refuse, but it is almost certain that the court will not proceed until the matter is resolved. Alternatively it will interpret your refusal to mean that you are not the father (or that you are if it is a child support case) and proceed accordingly. Is ignorance bliss? We doubt it, but neither is the knowledge that your child whom you have believed, perhaps for many years, to be biologically yours is in fact not.

There are various arguments against testing – that it will destroy the family, distress the child, etc. – but in the end the decision is not really yours to take; your ex has effectively already taken it, and you will have to comply with the court process. What we do advise is that counselling is lined up for you and for your child in the event that the result is negative. Such a revelation can be devastating.

Paternity fraud

What is it?

Paternity fraud occurs when a mother fraudulently names a particular man as the father of her child despite knowing that biologically he is not. It can also be referred to, non-judgementally, as surprise paternity.

Paternity fraud can occur in two contexts. When it happens within marriage the motive is often to hide adultery and to hold the marriage together. The husband will bring the child up as his own, providing a home for the mother and paying for the upkeep of her child, until such time as she wishes to change partners. At that point the man, and more damagingly, the child, will discover that they have been deceived. If the mother is determined, the relationship established between father and child will end, and the father will lose PR, though not, at least in theory, the right to make a Section 8 application.

The second context is that of child support, where a mother will identify a man as the father in order fraudulently to collect maintenance from him. Sometimes celebrities are named; in some cases the alleged children are even fictitious.

The fraud can be proved by means of a DNA test, but it is not considered a crime, and there will be no consequence to the mother. Giving fraudulent information to the CSA is a crime, but no mother has been prosecuted as a result.

How the law responds to paternity fraud goes to the heart of how society values fatherhood. Legislators can either revise legislation to take the new certainties provided by DNA testing into account, or bury their heads and pretend this influential technological revolution has not happened.

In some jurisdictions – such as California – men are denied the right to challenge a mother’s claim of paternity, yet will still be held liable for child support for a child to whom they are not biologically related.

As the law stands in the UK [1] the consent of only one adult with PR is required to take a DNA sample from a child, and you are able to perform a do-it-yourself DNA test with a cheap kit available for as little as £90 (note that although some kits, such as those sold by Boots, are advertised for only £15 this price does not include laboratory fees which are an additional £129). The British Medical Association (BMA) advises [2] that ‘motherless testing’ (in which only the putative father and the child are tested) should only take place where the mother agrees to it, and that such testing must be demonstrated to be in the best interests of the child; in practice this requires a Court Order to establish and because such tests are not ordered under the Children Act 1989 the child’s welfare is not actually paramount. They add, without evidence or explanation,

The BMA believes that [motherless testing] could be very harmful to the child, as well as to the family unit as a whole, and would prefer to see a situation in which the consent of the mother and putative father (and the child if sufficiently mature) is required for paternity testing.

Motherless testing is presumed to infringe the rights of the mother, but no ‘right’ is involved.

The industry code of practice [3] – which only applies to the UK – is that motherless tests should nevertheless not be undertaken without the mother’s consent, unless the putative father has ‘care and control’ (by which pre-1989 term they presumably mean PR), which should be confirmed by a solicitor. This guidance has no legal basis, and a solicitor’s letter is legally worthless: he will simply write whatever he is paid to by his client.

The Labour Government proposed to outlaw motherless paternity tests by making it a criminal offence to take DNA material from a child without the consent of all those with Parental Responsibility, though that would certainly have discriminated against fathers. Some jurisdictions, such as Germany, already prohibit motherless testing. Unsurprisingly, testing companies report that motherless tests are the most popular they provide.

The presumption of the UK courts that it is generally in the child’s best interests to have the truth determined is not compatible with the failure of the courts to consider the consequences of a negative result, or with the failure of the law to provide the courts with guidance on this issue. There are no specific provisions for mistaken paternity or for paternity fraud in the Children Act, and the definition of a father based on the pater est rule changes after a negative DNA test, leading to the loss of Parental Responsibility.

Mothers generally know (with few exceptions) if a child is genetically theirs; fathers do not, and in the interests of equality have the right to find out in situations where there is a degree of doubt. A paternity test gives a man information – without the mother’s knowledge – which the mother has previously held without the man’s knowledge. A brief search of the internet will show that large numbers of companies are offering DNA testing services, indicating the growing demand for these tests from fathers. The opposition to paternity testing is further evidence of the scale of the problem. To ban these tests would be counter-productive and force fathers to seek them from foreign agencies not subject to UK legislation. The issue is really about knowledge: who has the right to that knowledge, and who has the right to control that knowledge.

There are several arguments behind the desire to prevent testing:

1. The first is to ensure that someone – the nearest man with a wallet – continues to pay child support for the child. This is the consequence of society’s reduction of fatherhood to a financial exchange, and is indefensible: no one should have to pay to raise someone else’s child. Fathers who use paternity testing to challenge child support claims are not, as some protest, evading their responsibilities: they never had responsibilities towards these children in the first place.

2. Some believe that the revelation of a child’s true paternity should only be made in the context of a court so that they can ensure the parties have access to appropriate counselling and support. This is a misapprehension: the courts are concerned only with the legal dimension of a case, they have no interest in the emotional impact of revelations about paternity or any of the other traumatic consequence of family justice.

3. The final motive is the belief that the exposure of paternity fraud – especially after several years – is damaging to the child and to the father. This argument is also flawed: it is not the knowledge afforded by the test which is damaging, but the adultery it exposes. The test doesn’t alter the reality, it merely widens the availability of the knowledge; suppressing the knowledge attempts to hide the consequences of infidelity.

Typically the man is already aware of the infidelity; the purpose of the test is rather to determine who is (or is not) the father. The better way to limit the fallout from what is quaintly called ‘surprising paternity’ is to establish the truth as early as possible, before the relationship between father and child is established. This would also give the biological father a greater chance to become involved. The better way to protect against unregulated cowboy DNA testing is to make official testing freely and easily available.

The scale of ‘surprising paternity’ is not insignificant. Testing agencies report that where paternity is tested – and therefore already in doubt – between 14% [4] and 30% prove negative; amongst the general population the figure is usually put at around 10% for the first child, and as high as 25% for the fourth child [5].

If a man really is the genetic father, confirmation of that will set his mind at rest, potentially strengthen the marriage and remind him of his financial responsibilities should the marriage fail. The mother does not need to know about the father’s baseless suspicions. Most tests confirm paternity, and are therefore alternatively referred to as ‘peace of mind’ tests.

If he is not the father then the marriage has already failed: his wife has committed adultery and a child has been born; she has lied to her husband and to her child, possibly for years. The DNA test is not the problem and will not make matters worse. If the mother has not confessed her adultery she is unlikely to act in the child’s best interests by giving her consent to a test which will lose her the security of the marriage and the right to claim child support. It is important in that circumstance that the father be able to arrange a test without her consent.

Pressure should be placed on the courts to deal with such cases appropriately, for example by according defrauded fathers the same rights as genetic fathers (such as they are), and to balance the right to know the truth against the likely devastation caused the child. One US family policy think-tank concluded that once a child has passed the age of two, the harm caused by the loss of a father outweighs other considerations.

It might be appropriate to set a maximum age (of one or two years) after which a negative DNA test does not remove a father’s Parental Responsibility, and a father’s right to make applications for contactis not affected. Up to that age it would be permissible for either parent to challenge paternity. Some campaigners, such as Fathers for Life, have even called for mandatory DNA testing of children at birth; it’s not a foolish proposition. It is terrible that children are often losing loved and loving fathers because of a deception perpetrated years before

Seeking compensation

Some men falsely identified as the father subsequently seek compensation from the mother, both for the costs incurred bringing up the child and for the emotional trauma caused. The legal route is to seek damages under the tort of ‘deceit’. Tort law involves seeking remedies for civil wrongs incurred under obligations not covered by a contract. In the tort of deceit the claimant must prove on the balance of probability that the intention was fraudulent (Deek v Peek [1889]). He must demonstrate:

· That the defendant made a representation (i.e. that a particular man was the father of a particular child);

· That the defendant intended the claimant to act on that representation in such a way that damage resulted (i.e. the claimant paid for the child’s upkeep, child support or school fees, or that a bond was established between father and child);

· That the claimant acted on the falsehood and relied on it, and would have acted differently had the falsehood not been made;

· That the claimant has suffered loss as a result of the falsehood.

Financial loss is easy to quantify, while putting a financial value (the Court’s only recourse) on emotional distress is down to the judge’s discretion.

In P v B (Paternity: Damages for Deceit) [2001] 1 FLR 1041 judge Stanley Burnton ruled that a man was legally entitled to recover damages of £90,000 from the mother of a child both for pecuniary loss and for the ‘indignity, mental suffering/distress, humiliation’ caused by the false allegation of paternity.

In A v B (Damages: Paternity) [2007] 2 FLR 1051 a stockbroker claimed £100,000 for emotional hurt, and for the cost of bringing up a child and paying school fees. Judge Sir John Blofeld awarded him £22,400 in damages for the emotional distress, but would not order compensation for the costs of raising the child; Blofeld said ‘Mr A fell in love with his son as he believed. He loved him, he wanted him, he treasured him’ [6].

In the same year, in a widely reported and discussed case, Mark Webb sought compensation from his wife and her lover after a DNA test revealed he was not the biological father of his 17-year-old daughter. The case was dismissed by the Bournemouth Family Court. Mr Webb appealed, but unsuccessfully. Lord Justice Thorpe admitted the case raised ‘interesting socio-legal arguments’, but believed it would ‘visit upon the litigants huge burdens, both financial and emotional, which are disproportionate to any prospects of success… This whole case can be categorised as a misfortune to all those engaged in it. I would not wish to be the one to extend their misfortunes further’ [7].

In August 2009, a millionaire issued a writ against his ex-wife for conspiring with her lover to deceive him over a 14-year period. Without his knowledge the mother arranged to have the children DNA tested, and it emerged that his two youngest children, aged 16 and 13, had been fathered by the lover. He claimed over £300,000 to compensate for the cost of raising the children and for deceit [8].

Fathers who sue for compensation or damages are often condemned by the press for suing their children’s mothers as if doing so meant they were rejecting their children. This is not the case, a fraud has been committed, often for the purpose of financial gain, and there is no reason why a man should not respond to that. For many men this will be their only chance at fatherhood. By the time the fraud is discovered it may be too late for them to have another family, and yet the consequence of finding out may be the breakdown of the family, the exclusion of the father and a lonely future.

[1] The Human Tissue Act 2004

[2] Paternity testing: guidelines for health professionals, BMA, October 2007

[3] Code of practice and guidance on genetic paternity testing services, Department of Health, 23 March 2001

[4] Quoted by spokesman for Cellmark, Sunday Times, 23 January 2000

[5] Quoted by Max Planck Institute in Munich, Germany, The REPORT Newsmagazine 24 April 2000

[6] Karen McVeigh, Stockbroker wins £22,000 damages for paternity deceit, The Guardian, 4th April 2007

[7] Martin Beckford, Husband in court bid to claim damages from ex-wife and her lover ‘for raising their child’, Daily Telegraph, 22 January 2009

[8] Frances Gibb, Tycoon sues his ex-wife after discovering children were not his, The Times, 27 August 2009