Is it legal to refuse a paternity test?

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Is it legal to refuse a paternity test?

When it comes to raising a child in the UK, the financial responsibilities lay on both of the parents. With relationships ending and divorces taking place, it is increasingly common for a single parent to raise the child, with the other parent paying child maintenance and getting regular custody. This is a typical scenario, but, what happens when the father denies paternity and refuses to take a paternity test? This is what we will explore in this article.

Who’s the daddy?

In the UK, the named mother and father on a birth certificate are legally responsible for bringing up their child. After a split, the parent who takes day-to-day care of the child can apply for maintenance from the other parent. It is at this stage where some cases get a bit sticky, as the father may deny paternity. 

At this point,  it is legal for the ‘father’ to deny paternity, but upon being contacted by Child Maintenance Services (CMS) they will have to provide significant evidence.

As long as the following circumstances are met, a man will be considered the father of the child if:

  • The children are a resident in the UK, and
  • They have not been adopted since the separation, and
  • The father was married to the mother of the children at any time between the date of conception and the date of birth of the children, or
  • He is named as the father on the birth certificate.

There are other circumstances that will result in the man being listed as the father:

  • Donor insemination and fertility treatment
  • Conception through a surrogate parent in an agreement that lists the man as the father
  • The courts have declared the man as the legal parent in a previous case
  • The man legally adopted the child

What if the man continues to deny paternity?

The next step in the process is for the mother and father to be interviewed separately by the CMS. They will ask the man about his knowledge and relationship of the mother, sexual relations and contraception behaviour, why the man denies paternity, and if any DNA testing has been done in the past. Finally, they will ask if the man is willing to take a DNA test.

The mother’s interview will ask about her relationship with the man, any sexual activity with men other than him in a three-month window either side of the conception, and whether she too is willing to take a DNA test.

Is it legal to refuse a paternity test?

In the UK, yes, it is legal for the man to refuse the paternity or DNA test that comes next in the process listed above. However, refusal to take the DNA test will, in most cases, end with the man being legally declared the father of the children. Legally, the courts cannot force the man to take the DNA test, but with undergoing such a test, he stands to lose nothing and it will help the case to progress.

If he refuses the DNA test on financial grounds, for example, an inability to pay for the DNA testing, the CMS will pay for it. If he is the father, he must pay this fee back, but if he is not the father as he claims, he will not pay for it. 

In some cases, this entire process of disputing paternity does not occur until after the maintenance calculation fee has been made.

What is the legal position on taking a DNA sample?

There are three facets to this answer.

  1. Consent is always required of the individual before a sample of blood, saliva, or hair is taken for analysis. A parent can provide the consent for their child.
  2. The Human Tissue Act of 2004 states explicitly that in England, Wales, and Northern Ireland, the use and storage of a sample of DNA to gain scientific or medical information requires their full consent. This is the current law for DNA obtained after the 1st of September 2006, however, material held before that is declared as ‘existing holding’ and does not apply to this law.
  3. It is a criminal offence in the UK to obtain genetic material containing human cells from another individual, with the intention of analysing it for paternity reasons.

If one of the parents refuses for the genetic sample to be taken from the child, the courts can enact the power to get this sample for the benefit of the case. A mature young person can also have the right to refuse to provide a genetic sample, however, the UK courts take the view that the truth is preferential in most cases.

What happens if the man is proved to NOT be the father?

Backdated since the day of the paternity dispute, the mother should pay back any maintenance that she has received, however, she will not have to pay back any maintenance from before that date. The court will decide this ultimate repayment fee. The CMS will also refund any DNA testing costs to the man if he is not the father. 

What happens if the man is the father?

Whilst a DNA test cannot be forced on the man, if refusing the test results in the responsibility of parenthood, most will choose to take the DNA test and get definite proof. If that test comes back and the man is the father, he must pay the court costs, the DNA testing costs, and any arrears in maintenance. Having denied paternity and been proven wrong can also cause major complications in the proceeding contact and custody discussions.

Have we answered your questions?

If your circumstances do not fit into the situations described above, please contact us directly and seek professional legal advice.

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