HM Insights

When should a DNA test be ordered when there is a dispute over paternity?

Last week, Sheriff Stirling at Edinburgh Sheriff Court allowed an appeal by a party who claimed he was the father of a three-year-old girl first referred to the children's hearing system at the age of three months. It was held that the children's hearing applied the wrong tests in refusing to add a requirement to a compulsory supervision order that a local authority organise a DNA test to establish the paternity of that child.

When the child was three months old, both JS, the appellant, and the child's mother accepted that JS was the child's father. Significantly later, the mother claimed that he was not the father.

When JS sought contact with the child the matter was deferred until paternity was established. The children's hearing then refused to order a DNA test to be carried out on the basis that it was not competent to order the child to undergo a test and, even if it was competent, that it was not necessary as it was not in the child's best interests that contact take place.

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Does enforceability matter?

On appeal, Sheriff Stirling stated that it was clearly competent to include a requirement that a DNA sample be taken for paternity testing as part of a supervision order. Competence did not depend on enforceability, it having been argued on behalf of the Reporter that the children's hearing could not require a test to be carried out as a practitioner may take the view that the mother's consent was required.

The Sheriff pointed out the children's hearing had failed to consider the benefits to the child of knowing who her father was as early as possible and the fact that JS may be excluded from future hearings whilst paternity remained in dispute. It was accordingly in the child's best interests to make the order. The Sheriff stated that the balance between the child's and JS's rights to a paternity determination and the mother's right to withhold consent "falls inevitably in favour of the child and the appellant".

What does this mean for those trying to establish paternity?

This is an interesting and helpful judgment because there have been numerous examples in the past where DNA paternity tests have not been ordered on the basis of lack of enforceability when a mother's consent has not been provided. There may still be a practical issue regarding enforcement of such orders if a practitioner takes the view that he or she is not willing to conduct such a test without the mother's consent. However, this judgment clearly makes the possibility of establishing paternity in many cases more likely.

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Our family law team is made up of experienced family law solicitors around the country. Many of our team are trained in various methods of dispute resolution, including mediation and collaborative practice, and are Accredited by the Law Society of Scotland as specialists in their field. 

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