DNA Testing and Disputes About Parentage

Questions about a child's biological Parentage can arise during child arrangements, child maintenance, inheritance and other family proceedings. Where Parentage is relevant to the case and cannot be agreed, the Family Court may direct scientific testing to help determine the facts.

A DNA test does not decide what arrangements are best for a child. It establishes biological Parentage. The court must still consider parental responsibility, the child's welfare and any orders that may be required.

When May a DNA Test Be Required?

The court may consider DNA testing where a person's Parentage must be determined as part of existing proceedings.

This may arise in cases involving:

• Child arrangements
• Parental responsibility
• Child maintenance
• Birth registration
• Inheritance and probate
• Nationality or immigration
• Care proceedings
• A formal declaration of Parentage

The court will not normally direct a test merely to satisfy curiosity. Parentage must be relevant to an issue the court must determine.

Can the Family Court Direct DNA Testing?

Under the Family Law Reform Act 1969, a court dealing with proceedings in which Parentage must be determined can direct the use of scientific tests.

The court can specify:

• Who must provide a sample
• The type of sample required
• How and when the samples are to be collected
• Which accredited laboratory will carry out the testing
• Who will initially pay the cost
• When the results must be provided

In children proceedings, expert evidence must generally be necessary to assist the court in resolving the case. A privately obtained home-testing kit may not provide suitable evidence because the court must be confident that the correct people were tested and that the samples were handled securely.

How Is a Court-Approved DNA Test Carried Out?

A DNA test usually involves taking cells from the inside of the mouth with a cheek swab. The procedure is quick and should not be painful.

The testing provider will normally:

• Confirm each person's identity
• Check the court order or testing instructions
• Photograph or identify the people being tested where required
• Collect the samples
• Seal and label each sample
• Maintain a documented chain of custody
• Send the samples to an accredited laboratory

The chain-of-custody procedure is important because it shows that the samples came from the named people and were not substituted, contaminated or interfered with.

Who Needs to Be Tested?

A parentage test will commonly involve samples from:

• The child
• The person believed to be the biological father
• The child's mother

It may sometimes be possible to carry out testing without a sample from the mother. However, including her sample can assist the laboratory's analysis.

Where the alleged parent is unavailable or has died, testing another relative may sometimes provide useful evidence. This is more complex and may require specific directions from the court.

Who Can Consent to a DNA Sample?

An adult must normally consent to a sample being taken from them.

For a child under 16, consent can normally be given by a person who has care and control of the child. The child's own wishes and understanding should also be considered, particularly where the child is older.

A young person aged 16 or over will generally provide their own consent.

The court must consider the child's welfare when deciding whether testing should take place. Testing should not be used in a way that unnecessarily harms or distresses the child.

What Happens If Someone Refuses a DNA Test?

A court direction does not generally allow a sample to be taken forcibly from a competent adult. However, refusing to cooperate can have serious consequences.

If a person refuses a directed test, fails to attend the appointment or prevents the child from being tested, the court may:

• Ask for an explanation
• Draw an adverse inference from the refusal
• Decide Parentage using the remaining evidence
• Make directions or costs orders
• Consider whether the refusal affects the person's credibility

An adverse inference means that the court may conclude the person refused because the result was unlikely to support their case. Refusal does not automatically prove or disprove Parentage, but the court is entitled to take it into account.

A person with a genuine medical, practical or safeguarding reason for not attending should inform the court and testing provider immediately rather than simply ignoring the direction.

How Accurate Are DNA Tests?

A properly conducted DNA test can provide extremely strong evidence about biological Parentage.

A positive result will usually express the probability of Parentage at 99.9% or higher. An exclusion result can normally establish that the tested person is not the biological parent.

The court will usually treat a properly obtained laboratory result as powerful evidence. However, it may still need to consider questions about identity, consent, sample handling or the scope of the test.

How Long Does the Process Take?

The timetable depends on the testing provider, the availability of the participants and the court's directions.

Where testing is arranged through the court-supported Cafcass service, the report will usually be sent directly to the court after the laboratory process has been completed. The court will then provide the report to the parties or explain the result at a hearing.

Delays may arise if:

• A person does not attend
• Identity documents are unavailable
• A sample is unsuitable
• Additional relatives need to be tested
• A participant lives overseas
• The court must resolve a consent dispute

Who Pays for a Court-Ordered DNA Test?

The court may decide who should pay for the testing. It may order one party to pay, divide the cost between the parties or make another arrangement according to the circumstances.

In some private children cases, publicly funded DNA testing may be arranged through Cafcass where the judge considers that testing is necessary and the relevant scheme applies.

Parties should not assume that every court-directed test will be free. The position should be confirmed in the court order.

Applying for a Declaration of Parentage

Where there are no existing proceedings in which the issue can be decided, a person may apply to the Family Court for a declaration of Parentage.

A declaration formally determines whether a named person is or is not the parent of another named person.

The applicant will normally need to:

• Complete the appropriate court application
• Explain why the declaration is necessary
• Identify the people whose Parentage is in issue
• Pay the court fee or apply for help with fees
• Serve the application on the relevant parties
• Provide supporting evidence

The court may direct DNA testing before making its decision.

Changing a Birth Certificate

A DNA result does not automatically amend a birth certificate.

If the wrong father is recorded, an application may need to be made to correct the birth registration. Supporting evidence could include:

• A court declaration of Parentage
• A court-approved DNA report
• Statutory declarations
• Other evidence accepted by the General Register Office

The appropriate procedure depends on how the original registration was made and whether all relevant people agree.

Does Biological Parentage Create Parental Responsibility?

Being established as a child's biological father does not always mean that parental responsibility is acquired automatically.

A father will commonly have parental responsibility where:

• He was married to or in a civil partnership with the mother when the child was born
• He later married or formed a civil partnership with the mother
• He is registered on the birth certificate in circumstances where registration gives parental responsibility
• He has entered into a parental responsibility agreement
• The court has made a parental responsibility order
• A relevant child arrangements order has been made

The rules depend partly on when and where the birth was registered. A person whose biological Parentage has been established should obtain advice about whether any further legal step is required.

Does a Positive Test Guarantee Contact?

No. Biological Parentage and child arrangements are separate issues.

Once Parentage is established, the court may still need to decide:

• Whether the parent should have contact
• How contact should begin
• Whether contact should be supervised
• Whether there are safeguarding concerns
• What information should be given to the child
• Whether an order is necessary

The child's welfare remains the court's paramount consideration. A biological connection is important, but it does not override evidence of abuse, neglect or another serious risk.

What If a Child Has Believed Someone Else Is Their Parent?

Parentage disputes can be emotionally difficult, particularly where a child has regarded another person as their parent for many years.

The court may consider:

• The child's age and understanding
• The child's existing family relationships
• The likely emotional effect of disclosure
• How and when information should be explained
• Whether professional support is needed
• The importance of the child knowing their identity

Adults should avoid discussing allegations with the child before considering how the information can be handled appropriately. The child should not be asked to take sides or made responsible for resolving the dispute.

Child Maintenance and Disputed Parentage

A person who disputes being a child's parent should raise the issue promptly with the Child Maintenance Service.

The Child Maintenance Service may:

• Ask for existing evidence
• Arrange DNA testing
• Apply legal presumptions of Parentage
• Ask the court to determine the issue

A person may be presumed to be the parent in circumstances including where they were married to the child's mother at the relevant time or are named on the birth certificate.

If testing establishes that the person is the parent, they may be required to pay the test cost and child maintenance. If the test excludes them, amounts already paid may need to be considered under the applicable Child Maintenance Service rules.

DNA Testing and Inheritance

Parentage may affect whether someone is entitled to inherit under a will, the intestacy rules or a trust.

A dispute may arise where:

• A person claims to be a child of the deceased
• A beneficiary's relationship to the deceased is questioned
• The deceased died without a will
• A will refers generally to children or descendants
• A claim is made for financial provision from the estate

Testing a living relative or using an existing lawful sample may be considered, but testing after death can raise complex questions about consent, medical material and the court's powers.

Can You Use a Home DNA Testing Kit?

A home DNA test may give personal information, but it may not be accepted as evidence in court.

For legal proceedings, the laboratory and sampling arrangements should normally satisfy the required accreditation, identification and chain-of-custody standards.

Do not secretly collect another person's hair, toothbrush or other biological material. This may create legal, privacy and evidential problems, and the result may be unusable.

Confidentiality and Use of DNA Information

DNA information is highly sensitive personal data. Testing providers and parties should handle samples and reports securely and use them only for the authorised purpose.

Family proceedings involving children are usually private. A party should not publish the test results, court documents or information identifying the child without legal advice or the court's permission.

Speak to a Family Law Solicitor

Seek advice where:

• Parentage is disputed
• You have been asked to take a DNA test
• Someone refuses to cooperate
• You need a declaration of Parentage
• A birth certificate may need correcting
• The result may affect child arrangements or maintenance
• Testing may affect an inheritance

A family law solicitor can explain whether testing is necessary, apply for appropriate court directions and advise on the consequences of the result.

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