publication date: Sep 7, 2009
|
author/source: Katharine Vigus
Sadly, when a relationship
breaks down, one or other parent may demand a
DNA test to prove or disprove
paternity and as with so many
tests these are now
available to buy on the internet so you can "
do it yourself".
Importantly,
both parties must give their
written consent for a test. Whilst the "
need to know" is very important, equally both parties
should
consider the impact of the result on themselves and, crucially,
for the
child. Counselling or
family therapy should always be
considered as a way of working out
how and when to inform a child if
the test comes back
negative.
If there are
court proceedings (to determine
contact or residence for example) it is important for test
results to have
evidential weight. It would be sensible for a
GP or a
nurse to take the
DNA sample in that circumstance (as happens currently and is also offered by the
supplier of the DIY tests). Otherwise, there is a risk of a
DIY test having to be repeated at
considerable expense. If in doubt,
ask the court first.
A man may be left
wondering what happens to his
relationship with a child if the
worst does happen. A
recent case offers some comfort. Mr A
helped raise a child as his
own until his relationship with the
mother ended when the child was
two years old. On applying for
residence, contact and
Parental Responsibility (PR - which means having rights,
duties, power and
responsibilities for and towards a child) it emerged that Mr A was not the
genetic father.
The
mother appealed against an order
granting joint residence to her and Mr A, and PR to Mr A. The
only way the Court could grant
PR to Mr A was via a
residence order as he was not the
biological parent of the child nor a
step-parent. The mother
argued that using a
joint residence order in this manner should only be used in
exceptional circumstances, and that the court
had failed to give proper weight to her position as the
child's natural and legal parent.
The
court ordered that it was
legitimate to recognise
Mr A's position in this way - he had after all
assumed the position of
father to this two year old child. Importantly, a
joint residence order does not mean
both parents spending
equal time with a child. In this case the
intention was that the
mother should remain the
primary carer albeit with
generous time between the child and Mr A.
The court referred to a
previous judgment and listed three ways in which a person may be a
parent:
- genetic parenthood;
- gestational parenthood (so a mother who carries a child where the egg was donated, for example); and
- social and psychological parenthood (the case for Mr A).
Whilst not down-playing the
devastating affect of learning that you are not the
biological parent of a child, the case of Re A is a
clear indication of the family courts "moving with the times" and giving
proper weight to non-conventional parents.
To contact Katharine Vigus, please email: Katharine.vigus@mills-reeve.com or telephone: +44(0)1223 222215
