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Thanks to Butterworths.co.uk
06/2/03
Paternity DNA testing - a Coronation Street dilemma
In most cases, the truth about paternity is likely to be judged in a child's
best interests but it has to be balanced against other significant risks to
family relations. Ann Northover, a partner in the family department of Mayfair
law firm Gordon Dadds solicitors, talks to Jon Robins...
Should Ashley Peak take a DNA test
to prove beyond any doubt that Joshua is in fact his son? For Coronation Street
fans, this is one of the programmes more heart-wrenching dilemmas which also has
an interesting legal dimension. For those who aren�t fans, heartbroken Ashley
is still grieving for murdered wife Maxine and - in true Soap-style � he is
also agonising over whether to establish once and for all that Joshua is his son
with a paternity test.
It is possible for Ashley to apply for a court order that would allow a DNA test
to be conducted. "Any person may apply for a paternity test and the court
must the decide what is the best interests of the child," says Ann
Northover, a partner in the family department of Mayfair law firm Gordon Dadds
solicitors. This would be a freestanding application under the Family Law Act
1986 and can occur despite the opposition of the mother or the parent with care
and control of the child.
"The court needs to go through a number of legal hoops to establish if it
is in the child�s best interests to have a test carried out," she
continues. The solicitor points to the leading case of Re T (BLD
0907012276) [2001] which was the first case since the Family Law Reform Act 1969
had been amended (by the Child Support, Pensions and Social Security Act 2000)
giving the court jurisdiction to order that a sample be taken from a person
under the age of sixteen years for the purpose of DNA testing.
The case concerned an application for paternity testing by a man who claimed to
have fathered a child during a sexual relationship with the wife of a friend.
While he failed in his first attempt, he made a second application for blood
tests for DNA sampling as a preliminary to an application for parental
responsibility and contact orders.
"In most cases, the truth about paternity is likely to be judged in a
child�s best interests but it has to be balanced against other significant
risks to family relations," Ann Northover explains. She points out that in
Re T the rights of the mother and the applicant to family life under the
European Convention on Human Rights were seen to be conflicting. While these
rights were weighed against the child�s right to know his true identity, she
says that in the end it was the child�s right that emerged as the weightiest
consideration.
In the case, the applicant had been busy parading his claim to paternity
throughout the neighbourhood and life had become difficult for the child at
school as more people found out about his claims. The court decided to settle
the matter once in order to protect the child�s welfare.
Ann Northover has recently advised a client who was an orthodox Jew and whose
wife had an affair with a rabbi. In that case the wife wanted a test to
establish if her boyfriend was the father of the child. "My client said
that we had to get an injunction to stop it," she recounts. His concern was
that in their community being born out of marriage would have meant the children
would have been forced out of their school, prevented from attending their
synagogue, and not allowed to marry other orthodox Jews. "In that case the
judge agreed with us that it was in the child�s best interests not to find out
who their real father was but to continue assuming, through the presumption in
law, if you are born when parents are married they are both your biological
parents."
It is of course possible to conduct a surreptitious test without recourse to the
courts by, for example, taking a few hairs from a child�s jumper. "I
always advise not to do it because there is always the chance of ending up with
the wrong material," she says. She also points out the courts offer a far
more controlled environment with, for example, access to a child psychologist.(06/02/03)
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