From Double Helix to the Courtroom – A Look Down The Microscope into DNA Testing in Family Law

National DNA Day, celebrated on 25 April, commemorates the discovery of DNA’s double helix structure in 1953 as well as the completion of the Human Genome Project in 2003. This scientific discovery was a catalyst for significant advancements in bio-medical sciences and healthcare.

Improvements to the accuracy and ease of DNA testing has had a profound impact on the world of family law by providing a reliable method for determining parentage.

Celebrity paternity tests are no stranger to the pages of British tabloids. Just recently, singer Conor Maynard and ‘The Traitors’ Star, Charlotte Chilton, underwent a legally supervised paternity test, which confirmed that Conor Maynard is not the father of Charlotte Chilton’s child.

Legal Framework

In England and Wales, the legal basis for seeking a DNA test to determine parentage is primarily governed by Part III of the Family Law Reform Act 1969 (“FLRA 1969”). Section 20 of this Act allows the court to direct the use of scientific testing to ascertain parentage in any civil proceedings where the parentage of a person is in question.

The court can make such a direction either of its own motion, where it deems such a test to be in the best interest of the parties, or on the application of any party to the proceedings. The testing of deoxyribonucleic acid samples (DNA) as a means for determining parentage is governed by the Blood Tests (Evidence of Paternity) (Amendment) Regulations 1989. Prior to these Regulations, only blood sample testing was permissible

DNA testing is the most advanced and accurate means of determining parentage (approximately 99.9% accuracy) and can be used to assess a range of familial relationships, such as maternity, paternity, siblings or grand-parentage and can be used to:

• Prove that two people definitely are not related; or
• Show the probability that two people are related.

Considerations by the court

When deciding whether to make a direction for DNA testing, the court must consider the interests of the child relative to those of the parents. In most cases, it is considered to be in a child’s best interest to have their parentage determined as soon as possible, as this is a fundamental tenet of a child’s identity.

In certain unique cases, determining parentage has been deemed not to be in the child’s best interest, such as in Re F (a minor: paternity test) [1993]. In this case, the father’s application was refused as he had never met the child and his relationship with the mother had ended before the child was born. The child’s mother was married at the time, and the child had always been raised as part of her and her husband’s family and it was held not to be in the child’s best interest for the presumption of a legitimate family to be unsettled.

It may not be considered to be in the best interests of a child where determining their parentage, risks exposing them to further conflict between parents, such that it would outweigh the benefit of knowing, as was the case in Re K (specific issue order) [1999] and Re CB (A Minor) (Blood Tests) [1994].

Consent

Adults

The court is only able to make directions for DNA testing and not an order, as the court cannot order the taking of DNA samples from an adult who has not provided their consent. Such was the case in RE CB above, where the mother refused to provide bodily samples.

When an adult refuses to comply with the court’s direction for DNA testing, the court is entitled to draw adverse inferences from such refusal under section 23 of the FLRA 1969. Due to the efficacy and convenience of DNA testing, a refusing parent must have compelling reasons for refusing.

Children over 16

A child who has attained the age of 16 can consent to being tested as if they were an adult.

Children under age 16

Where a child is under the age of 16, a bodily sample can be obtained from them for the purposes of testing if the person who has care and control of the child consents. In the absence of such consent, a bodily sample can be obtained from the child if the court considers it to be in their best interest for the sample to be taken.

A child who is deemed to be ‘Gillick’ competent, meaning they have the sufficient understanding and intelligence to fully comprehend the proposed medical procedure, does not acquire the express right to refuse providing consent. However, in such cases, their refusal is often respected and taken into account by the court unless it is in their best interests to proceed with testing. In practice, where a bodily sample is to be obtained directly from a child, a welfare report under Section 7 of the Children Act 1989 will usually need to be obtained.

Procedure

The court can only make a direction for DNA testing in proceedings where the parentage of a person is in question. As such, applications will typically be made within existing proceedings for a Child Arrangement Order or Specific Issue Order under section 8 of the Children Act 1989, or where a declaration of parentage / non-parentage is being sought pursuant to section 55A of the Family Law Act 1986. The court will be required to specify the time period for which any bodily samples are to be taken, and from whom. Court-directed scientific testing must be carried out by a selected provider from a list of accredited bodies. Where DNA testing is directed, the party on whose application the direction is made is required to pay the costs of obtaining the samples and for the making of a report to the court, but these costs are to be treated as costs incurred by them in the proceedings. Experts conducting DNA testing in court proceedings must adhere to the same duties and obligations as those of any expert in family law cases, and their overriding obligation will be to the court.

Since 2015, for cases involving children resident in England and Wales, in defined circumstances, the Children and Family Court Advisory and Support Service (Cafcass) can facilitate and fund the provision of DNA testing directed under section 20 of the FLRA 1969.

Summary

The ability to accurately determine parentage through DNA testing has radically changed the family law landscape over the years and can help remedy uncertainty by providing clarity to those affected. Such proceedings can also be a difficult and conflicting time for all involved as perceived realities and individuals’ identities can all be called into question. The family team at Charles Russell Speechlys LLP are well versed in dealing with cases where questions as to parentage are a major factor.