D (Parentage: Local Authority Application), Re

A local authority’s public law involvement does not by itself confer a sufficient personal interest to pursue a declaration of parentage. A personal interest requires a genuine stake in the determination, rather than a desire to uphold the public interest in accurate records.

DNA testing under Family Law Reform Act 1969 s 20 is available only where parentage falls to be determined in existing civil proceedings. That gateway is not satisfied merely because parentage may bear on a child’s welfare. The issue must be necessary to resolve the outstanding questions in the proceedings. Welfare may be assessed by reference to known uncertainties and risks without compelling testing.

The local authority brought public law proceedings concerning two children. One child, D, lived with PQ, whom he regarded as his father. It emerged that D had been conceived by injecting a mixture of sperm from PQ and his father, RS, into JK, D’s mother. The adults had agreed that PQ would be treated as D’s father and RS as his grandfather.

The local authority sought DNA testing under Family Law Reform Act 1969 s 20 and a declaration of parentage under Family Law Act 1986 s 55A. The applications were opposed by the adults and the Children’s Guardian. The central questions were whether the local authority had sufficient personal interest, whether D’s parentage fell to be determined in the public law proceedings, and whether testing would be contrary to D’s best interests.

1. The applications were dismissed. The local authority lacked sufficient personal interest in its s 55A application, and D’s parentage did not fall to be determined in the public law proceedings. Consequently, the statutory gateway for a direction under s 20 was absent.
2. Under Family Law Act 1986 s 55A(3), “personal interest” means a personal stake in the determination of the declaration application. A public body may be a legal person capable of applying, but an interest confined to maintaining accurate public records or advancing the public interest is insufficient. The local authority’s supervision and child arrangements orders did not confer such a stake, particularly because it had no parental responsibility and did not need to know D’s biological parentage to discharge its functions.
3. The phrase “falls to be determined” in Family Law Reform Act 1969 s 20 requires a decision that parentage should be determined, or a decision that it is necessary to determine parentage in the proceedings. The court must identify the outstanding issues and ask whether parentage is needed to resolve them. In this case, threshold, supervision and child arrangements questions could be decided without determining biological paternity.
4. The welfare checklist under Children Act 1989 s 1 did not require certainty about genetic parentage. The court could assess D’s needs, background, relationships and risks arising from the family secret on the evidence already available. Compelling testing would change the factual context, but changing that context was unnecessary to complete the welfare analysis.
5. By way of alternative reasoning, if the gateway had been satisfied, the judge considered himself bound by S v S; W v Official Solicitor and Re L (Paternity Testing) to permit testing unless satisfied that it would be contrary to D’s best interests. The importance of truth and identity was substantial, but the exceptional circumstances required careful consideration of possible disclosure and a communication plan. On that assumed basis, testing would not have been contrary to D’s best interests.