Paternity testing and issues over paternity often arise very early on in a child’s life, usually upon separation when applications are made for contact, parental responsibility or financial support. Due to medical advancements, it is no longer necessary for the mother to provide a sample to obtain a meaningful result when carrying out paternity tests to determine who the father is. This means that such paternity tests could be undertaken without the knowledge of the mother, however, the legal position is not as simple.
Legal position on paternity testing
Under the Human Tissue Act 2004, consent is required before a sample of blood, saliva or hair is taken for the use and storage of a sample to obtain scientific or medical information about an individual which relates to another person, which includes paternity testing. It is also a criminal offence to have material that has come from the human body with the intention of analysing its DNA for paternity testing without consent.
Who needs to give their consent?
The default position is that a child’s birth mother will have automatic parental. A man is deemed to be the child’s legal father and have parental responsibility if he is married to the mother at the time of the child’s birth or if he is named on the child’s birth certificate. Anyone with parental responsibility will be able to give consent on behalf of children and young people and will be able to either give or refuse consent to medical decisions, such as carrying out a paternity test.
If the child is a mature minor who is capable of understanding the test and the issues, the child may be able to give valid consent for testing if they are competent enough to make such a medical decision.
If a person with parental responsibility does not consent to paternity testing, it is possible to apply for a declaration of parentage under s.55A(1) Family Law Act 1987 in which the court may order a paternity DNA test to be carried out. This application costs £365. The directions made by the Court will allow a sample to be taken from the child if the Court considers that it would be in the best interests of the child for the sample to be taken.
If the Court orders that a DNA test be carried out, this does not override the consent of those with parental responsibility and allow the test to be carried out without consent, but inferences can be drawn if a person refuses to provide blood for the testing. For example, if a man has disputed paternity but has refused to offer a blood sample for the purpose of carrying out a paternity test, the law shall presume that he is the father if he chose not to provide DNA samples to prove his contention.
Usually, it is generally accepted within family law that it is always best that a child’s true identity and parentage is made known, unless there are exceptional circumstances.
It is worth noting that the birth certificate will always be the first step in discovering who has parental responsibility, and therefore who can provide consent. A paternity test also does not end the matter, since if a person believed they were the parent of a child and it is proven that they are not, if the child has grown up believing that person is their parent, in some circumstances, the Court may find it in the child’s best interests for this relationship to be maintained.
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