MS v RS and BT (Paternity)

Every child shall have, as far as possible, the right to know and be cared for by his or her parents.[1]

But what if that child is a Gillick competent teenager who does not wish to know who their father is?

That was one of the issues determined by Macdonald J in the case of MS v RS & BT (Paternity) [2020] EWFC 30 in which I represented the children.

It is well established case law that every child has the right to know the truth about their paternity unless there are cogent reasons for denying the child that knowledge. The importance of the child knowing the truth lies not just in the fact of the child having that knowledge, but in order that the adults can organize their lives accordingly. There may be health implications where there is a genetic disorder for example. There is of course also a public interest in the ‘status of an individual being spelled out accurately and in clear terms and recorded in properly maintained records.’2 Therefore it goes without saying that the issue of paternity, if it is to be resolved, must be done so on the best evidence available.

The issues that were ultimately determined by Macdonald J were:

• Whether the court should decline to determine the father’s application on the basis that it would not be in the best interests of the children. (This issue was not considered as a separate preliminary issue but as part of the court’s overall consideration at the final hearing once all of the evidence had been heard)
• Whether the court should take into account the results of a ‘peace of mind’ paternity kit, and where the samples were taken without the informed consent of the children
• Whether photographic evidence demonstrating apparent likeness between the putative father and the children could be taken into account
• Whether inferences could and should be drawn from the putative father’s refusal to engage in testing.
• Whether inferences could and should be drawn from the children’s refusal to engage in testing.

Best interests

Section 55A of the Family Law Act 1986 states:

“(1) Subject to the following provisions of this section any person may apply to the High Court or family court for a declaration as to whether or not a person named in the application is or was the parent of another person so named

(5) Where an application under subsection (1) is made and one of the persons named in it for the purposes of that subsection is a child, the court may refuse to hear the application if it considers that the determination of the application would not be in the best interests of the child.

(6) Where a court refuses to hear an application under subsection (1) above it may order that the applicant may not apply again for the same declaration without leave of the court.”

Black LJ (as she then was) in Re S (2012)3 provided some guidance in determining when it may not be in a child’s best interests to hear the application:

“31. Returning to the sphere of declarations of parentage, it may be helpful, in order to examine how section 55A and section 58 interrelate, to take the example of a teenage child who is aware of the application for a declaration of parentage by a man who claims to be his or her father and who threatens that he or she will commit suicide if the man’s application is permitted to proceed. A psychiatrist gives evidence that he considers the threat to be genuine and that, should the proceedings continue, the child is at serious risk of emotional harm at the very least. Section 55A(5) would enable the court to refuse to entertain the father’s claim for a declaration on the basis that the determination of the application would not be in the best interests of the child.

32. I have deliberately chosen an example in which the application of section 55A(5) is obvious but there may well be cases in which the facts were less radical but the court would still exercise its power under section 55A(5). I would have thought that the examples in Professor Cretney’s book of the child conceived in a rape or the child who is settled with adopters would potentially give rise to a power under section 55A(5) to refuse to hear the application…”

Presumption of legitimacy

If the court determines that it will deal with the application for a declaration, then where the applicant proves the truth of his proposition, the court shall make the declaration, unless to do so would be contrary to public policy (section 58(1) of the Family Law Act 1986).

When a child is born to a married woman then there is a presumption at common law that her husband is the father of the child. This presumption is rebuttable by evidence, and the burden of proof is on the person seeking to rebut the presumption. The standard of proof is the civil standard, namely on a balance of probabilities.

Rebuttal of presumption of legitimacy

The evidence required to rebut the presumption of legitimacy must be cogent and the court should not rely on potentially unreliable evidence given the significance of the declaration of parentage.4

The courts have determined that the best evidence available is scientific evidence as opposed to a reliance on presumptions or inferences. However, section 20(1) of the Family Law Reform Act 1969 makes it clear that a person cannot be compelled to provide a sample for the purposes of scientific testing and a sample cannot be taken without their consent. Section 21(3) states that a sample can be taken from a child notwithstanding the carers refusal to consent , but if a child is considered to be Gillick competent, they may refuse to submit to medical examination.

‘Peace of Mind’ DNA testing

The formal procedure to be applied to DNA testing is set out in the Blood Tests (Evidence of Paternity) Regulations 1971 (SI 1971/1861). These regulations stipulate how samples taken for DNA testing are to be taken from the subject and processed for testing. The chain of custody is key to the court being able to safely place reliance on the results of the DNA test results.5

In the present case, the father had purchased a home-testing DNA kit, taken samples from the children under a false pretence, and had then sent the samples off to Anglia DNA to be tested. It is important to point out that Anglia DNA themselves distinguish between a ‘peace of mind’ DNA test and a ‘legal’ DNA test. The latter provides the safeguards of a qualified person obtaining the sample, ensuring the chain of custody of the sample through to the testing and reporting stage, and accordingly such tests can be used for legal purposes. The former however does not provide these safeguards and accordingly are for information only.

In the present case the court declined to place any weight on the ‘peace of mind’ DNA test undertaken, on the basis that the link between the donor and sample could not be assured. The testing undertaken was not the subject of any of the safeguards stipulated by Parliament, the father who sought the paternity declaration was the one who had obtained the sample, the court had only his account of how the samples were taken and the chain of custody could not be guaranteed. In those circumstances the court agreed with Anthony Hayden QC (as he then was) in Re F that any procedural or professional deficiencies identified will make it impossible for the court to rely on the conclusions of that testing. The court was mindful that if it relied on the results of a peace of mind test, either wholly or in part, thereby circumventing the statutory safeguards, it would set an unfortunate and undesirable precedent.

Photographic evidence

Photographic evidence of alleged facial resemblance is admissible on the issue of paternity6. However caution is to be exercised given the difficulties inherent in this approach, not least the subjective element to it, and in light of the gravity and consequences of the decision to be determined.

Inferences from the putative father’s refusal

Pursuant to section 23(1) of the Family Law Reform Act 1969, if a person refuses to give a sample for testing then, in the absence of a cogent and reasonable explanation for that refusal, the court is entitled to draw any inference from that refusal as appears proper in the circumstances of the case, including an inference of the child’s actual paternity7. Thorpe LJ stated in Re G (Parentage: Blood Sample)8:

“The court must be astute to discern what are the real motivations behind the refusal. It should look critically at any proffered explanation or justification. It should only uphold an explanation that is objectively valid, demonstrating rationality, logicality, and consistency. Anything else will usually lead to an adverse inference.”

Inferences of the children’s refusal

The court is able to draw adverse inferences from a child’s refusal to engage in DNA testing. In Re P (Identity of Mother)9 a 15 year old girl refused to engage in DNA testing to establish whether a woman was the girl’s mother, as the immigration authorities had understood, or her aunt. A sample could not be taken from the girl without her consent. However Wall P did not consider that to be an end of the matter:

“But that of course, does not leave the court powerless, or reliant on findings of fact based on the balance of probabilities. The statute is very clear that it is open to the court to draw an inference based on [the child’s] refusals to provide a sample….”

Discussion

In the present case Macdonald J determined that it was not in the best interests of the children to determine the father’s application at this time pursuant to section 55A(5) of the Family Law Act 1986.

The court considered that the gravity and lifelong consequences of a decision as to paternity meant that it must be decided on evidence that is sufficiently cogent. The court found that there were “manifest problems with each of the strands of evidence” that was put before the court. It placed no reliance on the ‘peace of mind’ DNA test results, the photographic evidence before the court had to be approached with caution and the court did not consider it appropriate to draw inferences from the putative father’s refusal to engage in paternity testing in the circumstances of this case.

Furthermore the court refused to draw any adverse inferences from the children’s refusal to engage in paternity testing. In circumstances where the children considered that the father had fundamentally betrayed their trust in obtaining the samples in the manner he did, their refusal to engage in any further testing was considered to be objectively valid, rational and logical.

The court was not prepared to remedy the evidential deficiencies by making a direction that the children engage in DNA testing to enable the best available scientific evidence to be before the court. It found that the children were struggling emotionally to a significant degree, and in accepting the evidence of the children’s guardian, it concluded that to order DNA testing at this stage would simply add pressure to the children. It would also be wrong in principle to impose forensic testing on Gillick competent children who objected to it.

However the matter was not simply left there. The court acknowledged that this left the father in a position of being the legal father of the children, with all the legal and financial obligations that flowed from this. It would not be fair for the court to simply leave the father as the legal father indefinitely if this did not reflect the biological reality. It was arguably a breach of his Article 8 rights. Furthermore, the wider public interest in determining a child’s paternity was also engaged.

An alternative approach

In Re D10, Hedley J, when faced with a troubled and angry child strongly opposed to an application for testing, considered that it was contrary to the child’s interests to pursue the issue of testing. Instead he determined the matter by directing the adults to supply DNA samples to be stored so that the testing could take place when the child was ready to engage.

In adopting an approach similar to that in Re D, Macdonald J directed that the mother, father and putative father provide DNA samples for testing and that the results be delivered to CAFCASS in sealed envelopes on retained on the children’s CAFCASS file. The children were also directed to provide samples but that order was stayed without limit of time and with liberty to restore to the court. The father’s application for a declaration was adjourned generally with liberty to restore.

Whilst the court therefore determined that it was not in the best interests of the children to determine the application based on the evidence before the court at this stage, it left the door open to cogent evidence being provided in the future. The court invited the children’s guardian to explain to the children that the court understood their feelings of violation, it understood why they did not wish to engage in DNA testing at this stage and that they will not be asked to engage in testing until they are ready to do so. However, it was also important for the children to understand that the issue of paternity cannot be put off forever and that the judge considers it would be better for them to know the truth about their paternity, than not to know.

1 Article 7 of the UN Convention on the rights of the Child

2 Black LJ in Re S (A Child) (Declaration of Parentage) [2012] All ER

3 Ibid

4 M and T (Twins: Relinquished Babies: Parentage) [2018] 1 FLR 293, per Cobb J

5Re F (Children) (DNA evidence) [2008] 1 FLR 348

6 C v C (Legitimacy: Photographic Evidence) [1972] 2 All ER 577

7 Re A (A Minor)(Paternity: Refusal of Blood Test) [1994] 2 FLR 463

8 [1997] 1 FLR 360

9 [2011] EWCA Civ 795

10 Re D (Paternity) [2007] 2 FLR