Paternity tests

Who wants a test, and why?

A common situation is one where the father has genuine doubts that the baby may be his. Sometimes doubts that have never been suggested previously, will be triggered by other events. For example, when a couple separates on bad terms, one parent may suggest child is not biologically theirs. Even if these claims are unfounded, they may sow seeds of doubt that cannot be ignored. It is also common for doubts over paternity to be triggered by a contact application some considerable time after separation despite contact with, and financial support for, the child over several years.

Given that child support contributions amount to 15% of your disposable income - as well as additional expenses of maintaining a face-to-face relationship with a child - many fathers may want to be sure they are the child’s father biological parent before investing their emotions into a child that might not be theirs. 

It is generally accepted within the family justice system that, unless there are exceptional circumstances, it is always best that a child’s true identity is made known and the sooner this is established, the less potential there will be for damaging emotional trauma.  

DNA testing for paternity

‘Court directed’ and ‘unofficial' tests

DNA tests can be undertaken using home testing kits which are posted out to you and returned direct to the company for laboratory analysis, or alternatively, by having samples taken by a doctor who posts them to the laboratory.  Having returned the samples, the results are usually ready within a week.

Paternity tests which are required to stand as evidence in court will have to be carried out following specific court directions, which will name a specific accredited company to carry out the tests and to provide a report.  Samples will be taken by healthcare professionals who will send them to the testing company.

The ‘unofficial’ (non-court-directed) tests, even with samples taken by doctors, will be cheaper but do not stand as evidence unless the court agrees to allow them. This is likely to become a more difficult route since the Ministry of Justice (MOJ) has reduced the number of accredited bodies able to carry out court-directed tests for paternity in July 2010.

Some of these accredited companies provide for both court-ordered tests and home paternity tests.  At least one offers home tests with samples taken just from the alleged father and child – with no DNA sample provided by the mother.  You will need the written authority of any adult whose samples you provide for DNA testing, since it is a criminal offence to take such a sample without consent.  Only those who have parental responsibility for the child are able to give permission for the child’s DNA to be used in the test (Human Tissue Act 2004 s2(3)).  

Each company accredited by the MOJ has its own website where further information on paternity testing is available including the cost – typically £150 for a home test and £400 for a court-ordered one.

Although the public would most likely empathise with a ‘potential father’ carrying out a DNA test to ascertain a biological link with ‘his’ child, the courts may not take the same view.  You may be regarded by the judge as having acted in an underhand and selfish way if you have gone behind the mother’s back.  And, if you don’t have parental responsibility for the child, you may be threatened with a criminal charge.

Disputed paternity and child maintenance

Even if a man disputes paternity, if he has been named by the mother as the father of her child, he will have to pay child maintenance until DNA tests prove otherwise. The alleged father will initially have to pay for a DNA test and continue to pay maintenance, all of which will be refunded if the paternity test comes back negative.  The parents can arrange for a private test themselves from the court-approved list of companies, but in many instances a lack of trust and co-operation will mean that this may be difficult. Find out more from the Child Maintenance website about paternity tests.

The legal basis for paternity testing

The various pieces of key legislation involved are:  

• Family Law Reform Act 1969 [FLRA 1969] ss20, 21 and 23
• Family Law Act 1986 [FLA 1986] s55A
• Births & Deaths Registration Act 1953 [BDRA 1953] s14A
• Human Tissue Act 2004

Anyone with a “sufficient personal interest” can apply for a declaration of parentage [FLA 1986 s55A] but the application must be made as part of / alongside / during existing proceedings, not as an isolated ‘freestanding’ application. The CMS can also apply (s27 Child Support Act 1991).

The court then may, under FLRA 1969 S20, issue a direction that DNA tests to determine parentage are carried out.  There is a distinction between making of a ‘direction’ and making of an ‘order’ under s20 since the court cannot order the taking of samples against a person’s consent (s21).   The consent of a child under 16 years old is not required, only the consent of the person having ‘care and control’ of him.  If that person does not consent then the court may arrange for the sample to be taken if it considers to do so would be in the child’s best interests (s21(3)(b).  The terminology ‘care and control’ relates to pre-Children Act 1989 days and essentially equates to ‘residence’, referring to the parent/person with whom the child lives.