H & A (Children), Re

When consent to take a DNA sample from a child under 16 is withheld, the court must decide whether testing would serve the child’s best interests under section 21(3)(b) of the Family Law Act 1969. The court must balance the benefits of scientific certainty against any probable harm to the child.

The interests of justice generally favour ascertaining biological truth. Paternity should ordinarily be determined by the best available scientific evidence rather than presumptions or uncertain inferences. Possible family disruption remains relevant, but predictions of future harm require a sound assessment of the existing circumstances. The court must also consider whether continued uncertainty could expose the child to rumours, later disclosure or an acrimonious factual inquiry.

The appellant claimed to be the biological father of twin girls born during the respondent mother’s marriage. He sought DNA testing, a declaration of parentage under section 55A of the Family Law Act 1986, parental responsibility and contact. The twins’ mother withheld consent to testing.

Judge Elystan Morgan refused testing under section 21(3)(b) of the Family Law Act 1969. Although scientific certainty would ordinarily benefit the children, he considered that proof of the appellant’s paternity would probably cause the mother’s husband, the twins’ psychological father and primary carer, to leave the family.

The appellant challenged the judge’s assessment of the likelihood of paternity, the risk of wider disclosure and the predicted disintegration of the family. The central issue was whether the statutory best-interests balance had been conducted correctly.

1. Appeal allowed unanimously. Thorpe LJ delivered the leading judgment. Kay LJ and the President agreed. The judge’s orders were set aside because substantial flaws affected the balancing exercise required by section 21(3)(b) of the Family Law Act 1969.

2. The prospect of disputed paternity remaining secret had been understated. The matter had already generated workplace gossip, had been disclosed among the appellant’s family and friends, and had been litigated locally for three years. Scientific certainty permitted planned management of the result. Continued uncertainty created a risk that the twins would later learn of the dispute through a malicious taunt or unintended disclosure.

3. The judge had also erred by treating the appellant’s chance of paternity as remote or about 1 per cent. His findings established that the mother had maintained sexual relations with both men throughout the probable period of conception. In the absence of other evidence, those findings required the appellant’s prospect of paternity to be treated as substantial.

4. A prediction that testing would destroy the family was not equivalent to a finding about a past event. It required a sound evaluation of present circumstances. The husband was still discovering the extent of the mother’s deception, and the marriage required substantial adjustment whether or not testing occurred. Certainty could assist that process because an unpalatable truth might be easier to accommodate than continuing doubt.

5. The principles in S v McC; W v W [1972] AC 24, Re H [1996] WLR 506 and Re T [2001] 3 FCR 577 required greater weight to be given to truth and the best available science. The factual differences identified by the judge did not displace those principles. Advances in DNA testing and the abandonment of the legal concept of legitimacy strengthened the case for scientific proof. Paternity should be established by science rather than by the presumption attaching to birth during marriage or by marginal evidence and inference.

6. The evidence nevertheless did not permit the possible loss of the twins’ psychological father and primary carer to be dismissed. The application was therefore remitted rather than granted outright. All outstanding applications were transferred to the High Court for priority directions and hearing by a judge of the Family Division. The twins were to be joined and separately represented through CAFCASS.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The orders below were set aside, and all outstanding applications were transferred to the High Court for directions and hearing by a judge of the Family Division.

2. Caernarfon County Court: Judge Elystan Morgan refused the appellant’s application for DNA samples to be taken from the twins under section 21(3)(b) of the Family Law Act 1969.