L (Adoption: Identification of Possible Father)

Where a mother seeks adoption without notifying a man who may be the father, uncertainty about paternity is a relevant factor in deciding whether notification and investigation are required. The greater the possibility that he is the father, the stronger the case for investigation.

A court should be extremely cautious before approving covert DNA testing of possible siblings. Such testing is likely to be justified only in compelling circumstances where clarification of parentage is necessary and standard paternity testing is not acceptable. The interests and rights of all affected children and adults must be considered and balanced.

A mother sought to place her baby, K, for adoption without informing Mr C, whom she first identified as the father and later said was not the father. The local authority applied for DNA testing of Mr C. The mother proposed testing her two older children instead, without informing him.

HHJ Marston rejected sibling testing, ordered the mother to provide Mr C’s contact details, and authorised steps to contact him and arrange standard paternity testing. The mother appealed, alleging procedural unfairness and an unnecessary interference with her privacy rights. The central issues were whether the approach in A, B and C applied where paternity was uncertain, and whether sibling testing was a lawful and proportionate alternative.

1. Appeal dismissed. The procedural complaint was not pursued. Although the judge had failed to provide the further hearing he had indicated, the mother’s case had been fully stated and understood, and the omission did not cause injustice.
2. The approach in A, B and C applies where the father is only a possible father. Uncertainty about paternity is a relevant matter under sub-paragraph 6(9) of the summary at paragraph 89 of that decision. Where the available information shows a substantial possibility that a person is the father, that possibility must be weighed with the other factors bearing on notification.
3. A court should be extremely cautious before approving covert DNA testing of possible siblings. Such testing is likely to be justified only in compelling circumstances where clarification of parentage is necessary and standard paternity testing is not an acceptable option. The interests of the possible siblings must be thoroughly analysed.
4. The power under the Family Law Reform Act 1969 to order scientific testing applies only to parties to the proceedings. The court cited sections 5 and 45 and Schedule 4 of the Human Tissue Act 2004 in explaining the consent requirements and potential criminal consequences of taking DNA from an incompetent child. Legal consent alone does not resolve the ethical and Article 8 issues.
5. Sibling testing was disproportionate in this case because it would involve the older children in the requested secrecy and interfere with their rights and those of Mr C. The possibility that Mr C was K’s father was substantial, while the reasons for withholding notification were insufficiently strong. Standard paternity testing was therefore properly pursued.
6. The court emphasised the need for local authorities to apply promptly where court intervention is required, so that decisions about notification and paternity can be made during the child’s earliest months.

• Court of Appeal (Civil Division): appeal from the decision of HHJ Marston, sitting as a Deputy High Court Judge in the Family Division, dismissed. The judge’s orders rejecting sibling testing and requiring steps to establish paternity were upheld.