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DNA testing – a right to know?

The majority of us take it for granted that we know who our parents are. The press sometimes cover heart-warming, or sometimes heart breaking, stories of people who have been searching for their biological parents after adoption or being raised in care. There is something within many of us that craves to know about our biological heritage. The current popularity of ancestral and family tree research, and the websites which help to do that, are testament to our interest in where we have come from.

As far as children are concerned, biological parentage is of great importance legally, as it can give rise to specific rights and responsibilities. Collectively that package of rights and responsibilities is known as parental responsibility (PR). The term covers the legal rights, duties, powers, responsibilities and authority a parent has for a child and their property. Someone who has PR for a child has the right to make decisions about their care and upbringing. Important decisions in the child’s life must be agreed by all those who have PR.

While biological mothers automatically have PR, not all biological fathers do. Those who are married to the mother at the time the child was born have it, as do unmarried fathers who are named on the birth certificate of children born after 1 December 2003. Otherwise PR has to be obtained by agreement or court order.

Returning to the issue of paternity, the importance of establishing it has been acknowledged at Government level, with the Justice Minister Simon Hughes announcing recently that free DNA testing to establish the paternity of children is being offered in two pilot areas in Bristol and Taunton. This is part of an initiative aimed at tackling some of the problems in family courts, which have been inundated with unrepresented litigants following cuts to legal aid.

The issue of the use of DNA to establish paternity came up in a recent case called Re Z. Sadly, the facts of the case were horrific: the “father” (referred to as X in the judgment) had murdered the children’s mother and was serving a life sentence. The children were under the care of the Local Authority. X claimed to be the father of the children (giving him a right to apply for parental responsibility) but refused to undergo a DNA test to prove paternity.

Courts cannot compel an adult to give a DNA sample to establish paternity. So, to answer the paternity question, the children’s Guardian applied to the court for an order. Blood samples had been taken from the crime scene as part of the criminal investigation at the time and were stored by the Metropolitan Police Force. The Guardian sought an order that the Metropolitan Police disclose copies of the DNA profiles of the crime scene blood samples, so a comparison could be made with the DNA profiles of the children, to deduce whether X, who was present at the crime scene, was the father of any of the children.

The issue for the court to decide was whether the Family Court could order that the DNA profiles, held by the police, could be used to establish or disprove paternity, even when X objected.

The case was determined by the President of the Family Division. He had to balance the competing rights and interests of the children (who had a right to know the truth about their paternity), of X (who wanted to keep his genetic and medical data confidential), the Local Authority and the Police.

In addition, the family and criminal legal frameworks are at odds with one another. Neither the family court nor the High Court can use DNA samples collected as part of a criminal investigation for purposes other than those permitted by criminal law (the Police and Criminal Evidence Act 1984 prohibits the use of such DNA samples for the purpose of establishing family relationships). However the family court can ask the police to provide details of the DNA found in the blood present at the crime scene. As X was convicted of the murder, it was clear that the DNA samples from the scene which were not the victim’s would be his.

The law is rather complicated in this area and the President steered a creative path to make the order sought. At the risk of over-simplifying it the President decided that the samples collected from the crime scene were not subject to the particular parts of the criminal legislation that contained prohibitions on the subsequent use of the material.

Having done that, and decided there was no insuperable obstacle to making an order for disclosure of the DNA profile, the judge went on to balance the competing interests. He came down in favour of the children’s right to know their parentage, and the importance of the truth about their family history being known in order to assist the psychological recovery work being done with them.

This case is (thankfully) very unusual and it is not likely to lead to a flood of similar ones, but it is interesting to see the creative use of a loophole to prioritise the need of the children to know and understand their biological family framework over strictures of the criminal law.

UPDATE 5/2/15: This case has been successfully appealed, and the Court of Appeal has decided that DNA samples can not be made available for any purpose other than related to crime.  What a shame for these children…

As always, if you would like to make an appointment to talk to us about any aspect of family law, please give us a ring on 01223 443333.

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