Family Law: A Conundrum Over Paternity

Who exactly is Dad?  Sometimes this is a question which is not altogether clear.  Suppose a man has been in a relationship for a period of years, a relationship that was interspersed with periods of separation.  A child is then born after the final separation. The man is named on the birth certificate as the child’s father, but is aware that the mother had another relationship.  He now contends that he is not the father.

These facts raise a number of interesting legal issues.  A male named on the birth certificate is presumed to be the father of the child. He is liable to maintain the child financially.  That being the case, if he does not believe he is the biological father he may well wish to have his name removed from the birth certificate.  He could do this by having a Court declare he is not the father by way of a declarator of non-parentage.  As part of this he could seek DNA testing to prove that he is not the father. The Law Reform (Miscellaneous Provisions) (Scotland Act) 1990 provides that a party can apply to the Court to request another party to provide a sample for DNA testing. The Court has a discretion to grant such a request, but even when the Court grants such a request there is no mechanism for forcing a party to comply. What the 1990 Act says is that if a party refuses, the Court may draw from the refusal such adverse inference as seems to it to be appropriate.

An important issue also is that of consent. Often the child is too young under the Age of Legal Capacity (Scotland) Act 1991 to give consent. This situation is dealt with under the 1990 Act by a provision which, together with the Law Reform (Parent and Child) (Scotland) Act 1986, says that a person having parental rights and responsibilities or care and control of the child may give consent. But what if the mother of the child refuses to give consent when requested to do so by a Court?  For the court, the best interests of the child will be paramount. The argument is that such a request should be made because it is in the best interests of the child for the true position on paternity to be ascertained. One rather interesting conundrum is – can the presumptive father, who holds parental rights and responsibilities, give the necessary consent when what he is seeking is to disprove that he is the father?