P (A Child)

A direction for DNA testing under section 20 of the Family Law Reform Act 1969 may be made where paternity is disputed and testing is in the child’s interests. The child’s welfare is relevant at that stage, but the statutory best-interests test in section 21(3)(b) applies later, when consent to taking the child’s sample is withheld. The court should also consider whether testing is better for the child than making no order under section 1(5) of the Children Act 1989. A child’s opposition is important but is not determinative. Resolving paternity may be necessary to provide a settled basis for related contact proceedings. The court will not interfere where the judge has properly exercised the section 20 discretion and there is no real prospect of showing that it exceeded its ambit.

The mother sought permission to appeal against a direction made by a deputy circuit judge in the Milton Keynes County Court under section 20 of the Family Law Reform Act 1969. The direction required saliva samples from the mother, P, and Mr W, who had long been treated as P’s father, to establish whether he was excluded from fatherhood.

P, aged ten, opposed testing after learning from improperly served court documents that Mr W doubted his paternity. The mother relied on P’s distress and on Re D (Paternity), where testing was directed but the taking of the child’s sample was stayed. The central issue was whether the deputy judge had exceeded the statutory discretion in directing testing, having regard to P’s wishes, welfare, and the possible effect on contact proceedings.

1. Permission refused. Lord Justice Wilson held, with Lord Justice Rix agreeing, that there was no real prospect of showing that the deputy judge had exceeded the ambit of the discretion under section 20 of the Family Law Reform Act 1969.
2. P’s clear opposition was a consideration which the deputy judge was required to take into account, but it was not determinative. The distinction drawn from Re D (Paternity) was valid: D’s emotional, educational and behavioural vulnerabilities, and his upbringing by the woman he believed to be his paternal grandmother, gave the paternity inquiry a depth absent here.
3. Wilson LJ identified a distinction between the initial direction under section 20 and the later stage under section 21(3)(b), when a person with care and control may withhold consent to taking the child’s sample. The latter provision permits compulsory sampling only where it is in the child’s best interests. At the section 20 stage, welfare remains relevant on a different basis. The approach in Re H (Paternity: Blood test) was that testing should be permitted unless shown to be against the child’s interests, with welfare relevant but not otherwise paramount.
4. The court was prepared to apply the section 1(5) no-order principle in the Children Act 1989 to a testing direction made under the 1969 Act. Testing should not be directed unless it was better for the child than making no order. On the facts, definitive testing was in P’s interests because continued uncertainty threatened to prevent a settled resolution of contact. If Mr W was excluded, his contact application would end; if he was confirmed as father, contact could be considered on a settled foundation.
5. Wilson LJ endorsed the general approach expressed in Re D and drawn from Re H and A (Children) that disputed paternity should generally be resolved by the best available evidence, because truth is ordinarily easier to handle than continuing uncertainty. Lord Justice Rix agreed with the disposal and reasons.

• Court of Appeal (Civil Division): Permission to appeal was refused, leaving the section 20 testing direction undisturbed. [2008] EWCA Civ 499
• Milton Keynes County Court: His Honour Roger Connor DL directed saliva sampling under section 20 of the Family Law Reform Act 1969 on 5 February 2008.