The Paternity DNA Test and the Legal Position

A DNA paternity test is used to determine whether a man is the biological father of a child. In family law cases, paternity testing can help resolve disputes about parentage and may affect issues such as parental responsibility, child arrangements and child maintenance. This article explains how DNA paternity tests work, the rules on consent, when the court can order testing, and what a positive result means for your legal rights.

Paternity DNA Test

Sensitive issues over paternity often arise in family law where the status of someone as a biological parent needs to be confirmed. These usually stem from disputes over child arrangements, parental responsibility or financial obligations to a child. That said, it doesn’t always have to be contentious. One may simply wish to confirm the position for personal and identity reasons. The Paternity DNA Test provides an obvious solution here where there is any doubt about a child’s biological parent. However, people are often unclear about the legal framework surrounding Paternity DNA Tests.

In this article, our skilled and compassionate family team at Tyrer Roxburgh Solicitors clarify the legal position about Paternity DNA testing. We help you understand issues surrounding consent, as well as the implications on your legal rights if you have received a positive DNA test.

Are DNA Paternity Tests Legal to Use?

It is perfectly legal to use DNA testing to establish paternity. Where all parties are in agreement, DNA Paternity tests provide a simple solution to queries or doubts about whether someone is the biological parent of a child. However, the need for DNA Paternity Tests are often predicated by parental disputes and the legal landscape surrounding consent is not as straightforward. By way of example, you may be a mother wishing to confirm / document that a man is the biological father of your child so that he can meet his financial obligations. If the alleged father denies this, can he be forced to undergo a DNA Paternity Test to confirm the position? On the other hand, you may be a father who believes you are the biological parent of a child exclusively in the care and control of the mother. If she refuses to arrange the child to undergo DNA Paternity Testing, can this be organised? To answer these questions, we need to explore the legal position surrounding consent and the involvement of the court.

DNA Paternity Tests: Obtaining Samples

For the DNA Paternity Test to work, samples need to be obtained and analysed. The law makes it very clear that an individual’s consent is required in order to remove, use and store samples from the human body for scientific or medical information that involves another person (including for DNA Paternity Tests). The non-consensual possession of DNA for analysis (or the misuse of such consent) is a criminal offence, and can lead to both imprisonment of up to three years and/or a fine.

Consent for DNA Paternity Testing

The legal position therefore is that consent is required by all participants to perform DNA Paternity Tests:

– Adults (including mothers and fathers) being tested must provide their written consent
– For minor children under the age of 16, written consent must be provided by someone with parental responsibility for the child
– Mature minors (aged 16-17) may be able to give valid consent if they are competent and understand what the test involves

Can the DNA Paternity Test Proceed Without the Mother?

It is worth noting at this stage that in order to perform the DNA Paternity Test, the father and the child must always participate. It is no longer necessary for a mother to provide samples to get meaningful results (although it is generally recommended to include a mother’s sample for complete accuracy). This technically means that DNA Paternity Tests can be performed without the agreement of the mother. This might happen for example where fathers have parental responsibility for minor children or a mature minor consents. However, what is known as ‘motherless testing’ is generally frowned upon in the medical and legal world. In addition, the circumstances in which a father is requesting a DNA Paternity Test often involve a child who is in the care and control of the mother (i.e. she has parental responsibility and must therefore give her consent). We explore this issue in more detail below.

Issues Over Consent to DNA Paternity Testing for Children

Given that a lot of DNA Paternity Tests are predicated by paternity disputes, relying on another parent with parental responsibility to give their consent on behalf of a child can be a tricky area.

It is important to remember that just because you are or claim to be a child’s biological parent, this does not mean you automatically have parental responsibility. This primarily tends to be an issue that fathers come across, as birth mothers are automatically granted parental responsibility, which can only be removed in limited circumstances (namely, the making of an adoption order or parental order by the court). Fathers who are not married to the mother at the time of birth and did not jointly register the birth certificate in their name can only obtain parental responsibility with the mother’s agreement or by way of a court order.

For father’s without parental responsibility faced with a mother who doesn’t consent to the Paternity DNA Test in respect of a child, all hope is not lost. You can apply for a Declaration of Parentage, during which the court may order the child to participate in the DNA Paternity Test if they believe it is in his or her best interests. It is generally agreed that children are best served with knowing who their parents are – however each case is determined on its own merits.
Mothers can also apply for a Declaration of Parentage in respect of a father she believes to be the biological parent of a child. The Child Maintenance Service (CMS) also has the legal right to apply for such a declaration in order to determine parental status and therefore financial obligations. In both scenarios, the court may order a DNA Paternity Test.

So Can Someone be Forced to Undergo a Paternity DNA Test?

In short – no. A person is free to choose not to participate in DNA Paternity Tests and cannot be forced to give consent. When it comes to minor children, the court can order the test is carried out if they believe it is in the child’s best interests.

What Happens If You Refuse a DNA Paternity Test?

If someone refuses to participate in a court-ordered DNA Paternity Test, the reality is that they don’t just get away with it. There can be serious legal consequences, including:

– The court can draw inferences from the refusal
– The court may declare the father the biological father without evidence
– The CMS may make assumptions about paternity

What are My Legal Rights if the DNA Paternity Test is Positive?

If you are confirmed to be the biological parent of a child after a DNA Paternity Test, what happens next very much depends on the context.

If, for example, you have applied for a Declaration of Parentage, this can provide conclusive evidence for the court to grant the Order in your favour. Following this, birth certificates can be amended, legally recognising you as the child’s parent.

For fathers, it can open the doors for child contact and visitation rights. For mothers, ascertaining the biological father of a child can be the next step in obtaining financial support for the child.

However, it is important to note that a positive DNA Paternity Test does not automatically grant you parental responsibility. Unless married to the mother or registered on the birth certificate, unmarried fathers need to enter into parental responsibility agreement with the person in the care and control of the child.

Alternatively, you will need to obtain an order from the Court. The good news is, a positive DNA Paternity Test (and declaration of parentage) can help pave the way for access to and involvement with the child. It’s also important to remember that even if you have proven your biological parentage, a child might have been raised thinking of someone else as their parent. In such cases, the court may decide that it’s in the child’s best interests to preserve that relationship.

Summary

DNA Paternity Tests can be a sensitive but crucial tool when it comes to paternity and parenting disputes. Where all participants consent, including the person with parental responsibility for a child, these can be fairly straightforward. However, the bottom line is that consent is needed and cannot be forced. That said, if the court orders a DNA Paternity Test and someone refuses, inferences can be drawn and conclusions reached anyway.

If you are facing a paternity dispute potentially involving a DNA Paternity Test, or have any questions / concerns about consent, our friendly and approachable family law team at Tyrer Roxburgh Solicitors are on hand to help. Contact us on 0208 899 3319 or via one of the options below for help and assistance.

Frequently Asked Questions

What is a DNA paternity test?

A DNA paternity test is a scientific test that compares the DNA of a child and an alleged father to determine whether they are biologically related. The results are highly accurate and can usually confirm or exclude paternity with a very high degree of certainty. Paternity testing is often used in family law disputes involving parental responsibility, child arrangements, birth registration and child maintenance.

How much is a DNA paternity test?

The cost of a DNA paternity test varies depending on the type of test required and whether it is being used for personal information or legal proceedings. Private peace of mind tests can cost from around £100, while court-approved legal DNA tests are typically more expensive. If paternity is disputed within family court proceedings, the court may direct that a DNA test is carried out by an approved testing provider and may decide who should pay the cost.

How do you do a DNA paternity test?

A DNA paternity test usually involves collecting a simple cheek swab sample from the child and the alleged father. The samples are then analysed in a laboratory to determine whether there is a biological relationship. For tests intended to be used in court proceedings, strict procedures must be followed to verify the identity of those providing samples and to ensure the results are legally admissible.

How do you get a DNA paternity test?

You can obtain a DNA paternity test through a private testing company or, where parentage is disputed in family court proceedings, by applying for a court-approved test. The testing provider will explain the sampling process and any identification requirements. If the results may be needed for legal purposes, it is important to choose a provider that offers legally recognised DNA testing rather than a home testing kit.