Mothers' veto on DNA testing upheld

Fathers battling for paternity rights face a new hurdle as a judge backs the mothers' right to refuse tests, says Roger Pearson.

Men seeking DNA testing to prove they are fathers in paternity battles could face a major stumbling block after a High Court ruling.

The latest Family Division ruling by Mr Justice Wall paves the way for mothers who are caring for children to thwart DNA testing court orders by refusing to allow blood samples to be taken from their children.

In a case involving two separate fathers the judge upheld the rights of the mothers to refuse consent for blood to be taken.

Representing one of the mothers, Pauline Matherson of London-based firm Wilson & Co says the decision has "far reaching consequences", but adds that there could well be appeal moves against it.

In upholding the rights of the mothers to refuse consent the judge said: "The question which arises is simply: what, if any, order or orders may the court make to enforce the direction that a sample of blood be taken from a child?"

He said the power of the courts to require the use of blood tests to determine paternity were contained in Part III of the Family Law Reform 1969 Act (FLRA) under the heading of 'Provisions for use of blood tests in determining paternity'.

The act, however, also stipulates that a blood sample can be taken from a child under the age of 16 "if the person who has the care and control of it consents".

The legal question was whether this provision gave mothers an absolute right to refuse blood samples to be taken. The judge said that, although he found the proposition "unattractive", he was satisfied that mothers in this position were, under the law, entitled to block blood tests.

Judge Wall said: "I am of the view that the court has no jurisdiction to compel either of the mothers in the instant case to give their consent to samples being taken of their respective children's blood."

He said whether the situation was changed was a matter for Parliament.

"If Parliament does not implement reform, the law in this area will continue not to serve the best interests of children," he added.

Matherson says: "At the moment we don't know whether the decision is going to be appealed. The judge made it clear that unless Parliament changes the law, he is compelled at present to follow the statutory framework.

"It is an important case and it has extreme ramifications. You may get more mothers who say 'no, I am not having my child tested and no you are not going to force me', and as the law stands they are entitled to say that.

"We have conducted other DNA cases in which directions have been given and the mothers in question have complied.

"This case was a first, in that the mother refused to comply. We examined the FLRA provisions closely. The view was formed that once a direction was given and was not complied with, then according to the FLRA, an 'adverse inference' should be drawn.

"There was nothing within the statutory framework that suggested that courts could 'force' testing. The argument that the inherent jurisdiction could apply was rejected by the judge."