M (A Child)

In Hague Convention proceedings, DNA testing to establish paternity is not a routine case-management step. It is a serious measure engaging privacy and welfare concerns and should be ordered only where necessary before the court can reach its conclusion. The court should first obtain expert evidence on the relevant foreign law and decide whether the person has rights of custody under that law or under the true construction of the Convention. Testing falls away if such rights exist. It may be reconsidered only if the absence of custody rights is established unless the person is the biological father.

The appellant, a Latvian national named as the child’s father on her birth certificate, had acted as her father and had obtained a Latvian court order regulating contact. After the mother brought the child to England, she asserted that the appellant was not the biological father and that he therefore had no custody rights for the purposes of the Hague Convention. Wood J ordered DNA testing of the child, the appellant and the mother in parallel with expert evidence on Latvian law. The appeal concerned whether that testing was premature and whether it was necessary to determine the Convention application.

Appeal allowed. Paragraph 6 of Wood J’s order, requiring DNA samples to be taken, was discharged.

1. An order for DNA testing to establish paternity was not merely a case-management decision. It was a serious step engaging privacy and welfare considerations. Such testing should be ordered only where it was necessary before the court could reach its conclusion, and should be treated as a last resort.
2. The court should first obtain expert evidence on Latvian law. It should then determine whether the appellant had rights of custody under that law or under the true construction of the Convention, including the concepts in Articles 3 and 5. If custody rights existed, the question of DNA testing would fall away. Testing could be revisited only if the court concluded that the appellant had no custody right on which he could rely unless he was the biological father.
3. Underhill LJ agreed and added that paternity was ordinarily best determined in a welfare context by the court of the child’s habitual residence. In Convention proceedings, such a determination should be made only where clearly necessary for a decision the court had to make. The appellant’s being named on the birth certificate, acting as a de facto father and being the subject of a court order made on that basis supported the view that the respondent bore the burden of showing, by specific Latvian-law evidence, that he was not entitled to be treated as having custody rights at the material time.
4. Macur LJ agreed with Longmore LJ’s reasons and Underhill LJ’s additional comments. The court also expressed dismay at the parties’ failure to comply with directions for obtaining expert evidence on Latvian law, which frustrated the intended speedy resolution of the Convention proceedings.

• Court of Appeal (Civil Division): appeal allowed and paragraph 6 of the order discharged: [2013] EWCA Civ 1131.
• Principal Registry of the Family Division: Wood J, on 18 July 2013, ordered DNA testing in parallel with expert evidence on Latvian law in Hague Convention proceedings.