Family Law Week Email SubscriptionAlpha BiolabsBerkeley Lifford Hall Accountancy Services

Home > Judgments

MS v RS and BT (Paternity) [2020] EWFC 30

Application by a father for a declaration of non-paternity and latterly, for a declaration that BT, the putative father, was the father of AS and BS pursuant to section s 55A of the Family Law Act 1986

Aside from authoring 4 versions of the Remote Access Family Court, MacDonald J has delivered a lengthy judgment in what was described as a 'minefield' [both evidentially and legally], responsibility for which lay 'entirely' at the door of the adults in the case. The application was made by MS, the registered father of 2 children AS, and BS, both now teenagers, for a declaration that he was not their father, a case which evolved during the hearing into an application for a further declaration that BT, the putative father of AS and BS, was their father. Both the mother's and BT's cases evolved during the hearing to the point where both left open the possibility that BT was their father.

On behalf of the children, the guardian submitted that the court should first consider whether it was in the best interests of the children to determine the application, or alternatively, conclude that there was insufficient evidence to determine the application or make any finding in respect of the putative father, BT, and hence decline to hear the application. That position was due to the children:-

1) feeling distressed/angry/betrayed at a DNA test carried out on them by MS, via surreptitious means;

2) being 'Gillick competent' and indicating that would refuse to undergo any further DNA testing, and refusing to permit any further analysis/use of the DNA surreptitiously obtained.

3) not wanting to know who their father was and wanting to be left alone.

Given the children's position and that MS strenuously pressed for a determination, all parties agreed the court should hear evidence to determine whether it was in the best interests of the children to determine the application.

The court then sets out the unhappy factual background, in particular the details of the DNA testing conducted by Alpha Biolabs of DNA swabs taken by MS from the children under the pretext that the swabs were to check 'dental hygiene'. This act by their father had greatly angered the children, and the application had given rise to emotional damage with which they did and were likely to continue to wrestle. There was also evidence of self-harm [and suicidal ideation on the part of the children, which the court could not ignore.

Against that, as the guardian accepted, there is the general view that children need to know their paternity as a fundamental aspect of their identity.

As the court reflected, it is normally wrong to leave paternity unresolved and justice is best served by ascertaining the truth. There is also a public interest in the status of an individual to be recorded properly. However, s 55A(5) of the Act permits the court to refuse to hear the application on the grounds it wold not be in the child's best interest, and prohibit any further application, save with the permission of the court. In that regard, the court considered the example provided by Black LJ, as she then was, in Re S

"of a teenage child who is aware of the application for a declaration of parentage by a man who claims to be his or her father and who threatens that he or she will commit suicide if the man's application is permitted to proceed. A psychiatrist gives evidence that he considers the threat to be genuine and that, should the proceedings continue, the child is at serious risk of emotional harm at the very least.",

as an example where an application would be refused to be heard as not being in the child's best interests.

The court also noted MS's countervailing right to private life under Art 8 [ECHR], a refusal by the court to determine his application being an interference with his rights unless in accordance with the law, pursues an aim or aims that are legitimate and can be regarded as necessary in a democratic society. If the court determined it would hear the application, and the proposition contended for is proved, the court was required to make the declaration unless to do so would be manifestly contrary to public policy. The court considered the presumption of legitimacy of children born in wedlock, which could be rebutted. The court, having reviewed Re H and others (minors) (sexual abuse: standard of proof) [1996] AC 563 and Re B (Care Proceedings: Standard of Proof) [2009] 1 AC 11, declined to follow Re JS or Serio v Serio, which had concluded that a higher standard of proof commensurate with the seriousness of the question involved was required, notwithstanding that the analysis was accepted in the House of Lords in Re Moynihan, and concluded that the standard was the balance of probabilities.

The court clearly took a great deal of time and was at pains to carefully consider its judgment, dealing with the evidence and the law on evidence in detail, in particular the Blood Tests (Evidence of Paternity) Regulations 1971, the court being concerned that the tests undertaken surreptitiously would allow MS to circumvent entirely the statutory safeguards put in place to ensure the integrity of DNA evidence used in legal proceedings and to cut across the statutory safeguards put in place by Parliament. The court also refused to draw inferences from either the children's or putative father's refusal to undergo what, at the time, would have been voluntary DNA testing, and hence infer paternity. There was also the question of the cogency of photographic evidence of purported resemblance between the children and BT, which the court considered was 'very unsafe and conjectural', and other circumstantial evidence which the court treated as potentially being contaminated by retrospective 'confirmation bias'.

Finally the court considered the approach of Hedley J in Re D (Paternity) [2007] 2 FLR 26, and balancing the competing interests of the children and the father, and the public interest, decided to stay the application, without time, 'coupled with the children being told that the court understands and sympathises with their position, believes that it would be best to determine the question of paternity scientifically as soon as possible but that it will not force the children to do so…', 'leaving the door open to the provision of evidence of sufficient cogency to determine that application.', sometime in the future. The court also directed, pursuant to the Family Law Reform Act 1969 s 20 that the father, the mother and the putative father shall provide DNA samples for testing, the results of that testing to be delivered to Cafcass and held in a sealed envelope on the children's Cafcass file' and 'that the children shall provide samples for DNA testing, …stay[ed] … without limit of time and with liberty to restore to the court' on notice.

Summary by Barry McAlinden, barrister, Field Court Chambers.

You can read the full judgment of MS v RS and BT (Paternity) [2020] EWFC 30 on BAILII