Disputes following DNA Revelations

Disputes on biological ties are common in both everyday life and family law proceedings. For instance, often individuals seek confirmation of parentage to address issues such as child maintenance or inheritance. DNA testing has become a widely used method for determining biological relationships, but there are nuances that may affect its admissibility and use in legal proceedings.

You may think that the best solution to establish whether someone is indeed the mother or father of a particular child is to go on to a show. Instead, you could purchase a DNA home test kit, also known as a “peace of mind” test. The issue with such tests is that they will not be admissible in Court proceedings as evidence – they are for your “peace of mind”. This is not to say that the results cannot be used; peace of mind tests can be as accurate as those that are Court-accredited and can help confirm biological relationships between family members for your own personal reasons.

However, the Courts want their own peace of mind. Therefore, they require samples to be collected from an accredited testing laboratory, in accordance with UKAS ISO 17025. This assures the Court that a sample is collected by a professional under Chain of Custody conditions, that it is indeed collected from the individual in question, and that the risk of sample tampering has been reduced to a minimum. The Ministry of Justice keep a list of accredited labs to use, available on the gov.uk website. Results obtained from such labs can then be submitted as evidence in Court proceedings.

Now, you will inevitably ask: what can be done if someone refuses to take a test? Well, legislation offers some support with section 20 of the Family Law Reform Act 1969, which states that the Court can order for a test to be taken by a party to the proceedings, either on their own or on an application by one of the parties. Of course, there is another but because, as per the Human Tissue Act 2004, the individual must give informed “qualifying” consent before providing the sample. This means the test must be done voluntarily and without coercion. In other words, they can refuse to be tested. Otherwise, it is a criminal offence to obtain DNA without qualifying consent.

If the dispute revolves around whether someone is the parent, a potential route is to seek a Declaration of Parentage in accordance with section 55A of the Family Law Act 1986. This is declaration from the High Court or Family Court that a named individual is the legal or biological parent of an individual in question. The declaration, if made, does not confer Parental Responsibility; it only acts as confirmation that an individual is the parent. A Declaration of Non-Parentage could also be made. If the parentage is disputed, the Court can order the test as per the above. There are however occasions when the DNA testing will not give a clear answer. This is the problem the court countered in the case Re J, Re J, Re M and Re P (Loss of Parental Responsibility) in which Judge & Priestley LLP represent the Appellant in the case of Re P. As it can be seen from the judgement, a DNA testing was unable to determine in this case who the father of this child is, so the court had to go through a Fact Finding hearing to determine the facts. Despite this, the court was still unable to determine the biological father of the child, and as a consequence, the court refused to make a declaration of parentage in favour of TP2 (as referred in the judgement), or a declaration of non Parentage in respect of the father TP1 (as referred in the judgement), and so he remains in the birth certificate.

And what happens if a party refuses to undergo the testing, despite a court order? In those cases, section 23 of the 1969 Act softens the blow by allowing the Court to draw such inferences (assumptions) “as appear proper”. Assumptions could be, for example, a man who refuses to test the DNA test is more likely to be the father, or a mother who refuses to consent her child to be tested may not be entitled to the Child Maintenance that she is seeking from the potential father.

In cases in which child maintenance is sought, the CMS (Child Maintenance Service) can direct someone to obtain and provide a DNA test if there is a belief that they are the parent. This can involve a fee, but on occasions can be refunded if the test shows the opposite. The CMS may also pay the fee on their behalf, if they cannot afford it, although, this will have to be paid back if results come back positive. The CMS will make assumptions that someone is a child’s parent if:

• They were married to, or the civil partner of, the child’s mother at any time between conception and birth of the child (unless the child is adopted).

• They are named on the child’s birth certificate (unless the child is adopted).

• A DNA test shows that they are the parent.

• They legally adopted the child.

• A Court Order has been made that they are the parent when the child was born to a surrogate mother.

In disputes involving biological relationships, it is important to understand the legal frameworks surrounding DNA testing to ensure legality, validity, and admissibility in proceedings. A TV show is not the solution.

The case referred above, Re J, M & P [2026], is the prime example of the court finding these issues. On that case, the father of the child in question is an identical twin. Both of the twin brothers were a possibility since they had a relationship with the mother within a very short period of time, and at the time of conception. DNA testing could not conclude which of the identical twin brothers was the father – so there was an equal probability, that they would be the father, and an equal chance that they would not be the father. Therefore, since it was not possible to determine which twin was the biological father, the Court of Appeal held that neither twin could, in law, be the child’s father.

Written by Maria Conesa Gonzalez (Partner-Head of Complex Children and Cross Border Disputes) and Faris Raiy (Trainee Solicitor)

If you would like some advice on disputes regarding biological ties and would like more information about the issues raised in this article or any aspect of Family Law, please contact us on 020 8290 0333 or email info@judge-priestley.co.uk

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