Proving paternity

Sadly, when a relationship breaks down, one or other parent may demand a DNA test to prove or disprove paternity and as with so many tests these are now available to buy on the internet so you can "do it yourself".

Importantly, both parties must give their written consent for a test. Whilst the "need to know" is very important, equally both parties should consider the impact of the result on themselves and, crucially, for the child. Counselling or family therapy should always be considered as a way of working out how and when to inform a child if the test comes back negative.

If there are court proceedings (to determine contact or residence for example) it is important for test results to have evidential weight. It would be sensible for a GP or a nurse to take the DNA sample in that circumstance (as happens currently and is also offered by the supplier of the DIY tests). Otherwise, there is a risk of a DIY test having to be repeated at considerable expense. If in doubt, ask the court first.

A man may be left wondering what happens to his relationship with a child if the worst does happen. A recent case offers some comfort. Mr A helped raise a child as his own until his relationship with the mother ended when the child was two years old. On applying for residence, contact and Parental Responsibility (PR - which means having rights, duties, power and responsibilities for and towards a child) it emerged that Mr A was not the genetic father. 

The mother appealed against an order granting joint residence to her and Mr A, and PR to Mr A. The only way the Court could grant PR to Mr A was via a residence order as he was not the biological parent of the child nor a step-parent. The mother argued that using a joint residence order in this manner should only be used in exceptional circumstances, and that the court had failed to give proper weight to her position as the child's natural and legal parent.

The court ordered that it was legitimate to recognise Mr A's position in this way - he had after all assumed the position of father to this two year old child. Importantly, a joint residence order does not mean both parents spending equal time with a child. In this case the intention was that the mother should remain the primary carer albeit with generous time between the child and Mr A.  

The court referred to a previous judgment and listed three ways in which a person may be a parent:

1. genetic parenthood;
2. gestational parenthood (so a mother who carries a child where the egg was donated, for example); and
3. social and psychological parenthood (the case for Mr A).

Whilst not down-playing the devastating affect of learning that you are not the biological parent of a child, the case of Re A is a clear indication of the family courts "moving with the times" and giving proper weight to non-conventional parents.

To contact Katharine Vigus, please email: Katharine.vigus@mills-reeve.com or telephone: +44(0)1223 222215