Review of Children (Scotland) Act 1995 consultation: analysis

7 Parentage

7.1.1 Part 6 of the consultation sought views on parentage.  Specifically, sections 5(1)(a) and 5(1)(b) of the Law Reform (Parent and Child)(Scotland) Act 1986 currently set out that a husband of a woman is presumed to be the father of her child if they were married at any time between conception and birth or, where this does not apply, the child’s parentage has been registered as such under either section 13 or section 44 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965.

7.2 Husband of a Mother is the Father of her Child

7.2.1 While not having caused any substantive problems historically, the presumption that the husband of a mother is the father of her child has been questioned by some as being old-fashioned in the context of changing family structures and relationships.  Statistics show that most children in Scotland are now born outside of marriage.  Views were sought, therefore, on whether this presumption should be retained.

Q14. Should the presumption that the husband of a mother is the father of her child be retained in Scots law?

	Number	Percentage
Yes	83	33%
No	80	31%
No response	91	36%
Total	254	100%

7.2.2 This question attracted an equal split between those who agreed that it should be retained, those who disagreed and those who provided no response (around a third of respondents in all cases).

Support for the Presumption

7.2.3 The main reasons given in support (by both individuals and organisations) were that the existing provision was unproblematic, that it would continue to protect fathers in gaining PRRs (thus avoiding disputes which may occur otherwise), and that the presumption is rebuttable, meaning there was always scope for decisions to be contested if necessary:

“There does not appear to be any pressing need to change this. It is a fair presumption that if the mother of a child was married, that the husband is the father. There is legislation in place which allows this to be rebutted should another party believe they are the father.”  (Individual)

7.2.4 Some indicated that more problems/disputes may be triggered by its removal than by its continued operation.  Several also stressed that removing the presumption may further reduce the responsibilities and rights of a father and that this should be avoided.  Indeed, some wanted to see greater safeguarding of responsibilities and rights for unmarried fathers.

7.2.5 Others supported retention on the basis that it afforded clarity around inheritance and some offered support on the basis that alternatives, such as DNA testing, were less appealing, too intrusive and often an unnecessary means of attributing parentage.  Some considered that the assumption, at present, was accepted as being reasonable:

“It would be perverse if it were necessary to establish parentage via a DNA test before a husband was presumed to be a child's father.”  (Individual)

7.2.6 Some who agreed with retaining the presumption did make suggestions that it could be altered to reflect civil partnerships (although it was recognised that this may be covered by other legislation), long-term non-married partners, and to better reflect how modern families are constituted.

7.2.7 Some also highlighted that, although one of the justifications for dropping the presumption may be that most children are now born to unmarried mothers, there was still a large and almost equal number born within marriage:

“A substantial number of children are born to married parents. The presumption that the mother's husband is the father is generally helpful. We are not aware of any major problems arising as a result of the presumption and would favour retaining it.”  (Legal Profession)

7.2.8 Removing it for being ‘old fashioned’, therefore, was not seen as a compelling enough argument and one individual highlighted that they were not aware of any other jurisdictions who had changed similar presumptions as a result of changing familial structures over time.

7.2.9 Indeed, some stressed that retaining the presumption was important for ensuring that the strongest family units were in place:

“The present consequence of the presumption is that married fathers will automatically have parental rights and responsibilities.  This is appropriate given that it serves to encourage fathers to have active and possibly equal roles in the child’s life alongside the mother. We also feel that removing the presumption would undermine marriage and potentially create division and disharmony, while serving no real purpose. If the wife, or husband, believed that the husband was not the father, steps could be taken to confirm parentage, and, if it was established that the husband was not the father, appropriate steps could be taken. As this would happen in relatively few cases, removing the presumption would be a disproportionate solution as it would affect all children born into marriage, rather than the relevant few.”  (Legal Profession)

7.2.10 Despite this, some also stressed that they felt children had a right to know who their biological father was, regardless of any formal parentage decisions.  This need not influence daily living arrangements but would be in the child’s best interests in the long term, it was felt.

Removal of the Presumption

7.2.11 Indeed, among those who felt that the presumption should be removed, one of the main reasons given (mainly by individuals) was that DNA testing was a more reliable and fool proof way to determine parentage.  It was felt that this should win over any other parentage definition mechanisms, i.e. “the father should be the biological parent.”  (Individual).  Others (both individuals and organisations) agreed that children had a right to know who their biological father was and vice versa:

“Ultimately children have the right to know if a person is or not their birth father and fathers have the right to know if a child is their biological child or not.”  (Individual)

“Children deserve to know who their father actually is, not just who is presumed to be.”  (Legal Profession)

7.2.12 Some commented that married parents have the option of joint registration of the birth under section 5(1)b and that this, therefore, seemed to negate the need for the presumption based on marriage.  Removing the presumption was also important, it was felt, in cases of rape and domestic abuse in marriage, and, in such cases, the joint registration of birth may be a more reliable indicator of parental wishes:

“The presumption that the husband of a mother is the father of her child should not be retained in Scots law. This is no longer in-keeping with social realities that the majority of children are now born out of marriage. The presumption also does not take account of rape and domestic abuse in marriage, nor does it take into consideration separation. Parentage should be acknowledged when registering the birth and not through a presumption in law.”  (Domestic Abuse Support Service)

7.2.13 That being said, several individuals felt that the ability of mothers to cite current partners on birth certificates, instead of the known biological father, was used inappropriately by some to prevent contact with the child or input to their lives by the biological father.

7.2.14 The other main reason given for removing the presumption was that it no longer reflected the diversity and complexity of different family arrangements, and so was indeed seen as ‘old-fashioned’:

“Society has changed drastically since the original law was introduced, and families are far more complex these days. The law should reflect this.” (Individual)

“For consistency and present reflection of family dynamics today, need to use more gender-neutral terms to ensure the same parental rights and responsibilities are understood in the statement and afforded to same-sex couples with children…Whoever attended the registration of a child's birth as first and second parent should be given full parental rights and responsibilities and seen as the registered parents.”  (LGBT Organisation)

7.2.15 One organisation specifically highlighted that the presumption currently presents particular challenges for unmarried same-sex couples, or those looking to conceive through surrogacy:

“For unmarried female couples to be jointly recognised as parents, their child must be conceived through a licensed UK fertility clinic with both parents named on the paperwork, and they must then jointly register the birth. If the child is conceived through an informal surrogacy arrangement, or in a previous relationship, then the second female parent needs to apply for a parental order to be considered a legal parent. This can only take place after the birth of the child, and therefore means the second parent will not be named on the birth certificate.  The complexity of these processes can be difficult to follow, and can be distressing for expectant parents, particularly where couples are unaware of the law prior to conception.”  (LGBT Organisation)

7.2.16 The same organisation suggested that all parents should have the same access to parental rights, regardless of their gender or marital status.

7.2.17 Another organisation also expressed that they were in favour of a single system for the registration of all births, based on that currently in operation for unmarried heterosexual parents.  They felt that this would be practically beneficial for professionals working to support children and families:

“This would remove potential discrimination against children depending on the relationships status or sexuality of their parents.  Whilst any change would only apply to children registered from the time of introduction, it would ultimately result in it being much easier for service providers such as schools and the health service to understand who has PRRs, which at present can cause some confusion.”  (Children’s Organisation)

7.2.18 Relying more on the registration of births as a system of determining parentage would also help to remove or reduce barriers faced by some professionals around things such as information sharing and who should/should not be notified of matters relating to the child:

“We question the fairness of the current law which results in the potential sharing of information with men who are not the father of the child, along with all potential personal information pertaining to their previous partner.”  (Local Authority)

7.2.19 Several individuals said that they disagreed on the basis that nothing should ever be ‘presumed’ in the light of current social diversity in family life (and took exception to the use of the notion of ‘presumption’).  One children’s organisation stressed that they felt the core consideration in any presumption about ‘fatherhood’ must be the relationship the father has with the child, and with the mother of the child, and whether he is fulfilling his parental responsibilities.  A similar sentiment was also expressed by some individuals, i.e. “Being a father has nothing to do with marriage.”  (Individual)

7.2.20 Finally, on a practical note, one public body noted that there may be a need for the Scottish Government to consider any increase in caseloads that may result from removing the presumption, and which may impact on public bodies, in particular SCTS.

7.3 Compulsory DNA Testing in Parentage Disputes

7.3.1 At present, a person may apply to either the Court of Session or the Sheriff Court for a declarator of parentage or non-parentage which, in turn, may be used to seek PRRs.

7.3.2 The consultation sought views on whether DNA testing should be compulsory in parentage disputes if the court deemed it was in the best interests of the child.

Q15. Should DNA testing be compulsory in parentage disputes?

	Number	Percentage
Yes	117	46%
No	47	19%
No response	90	35%
Total	254	100%

7.3.3 Nearly half (46%) of all respondents agreed that DNA testing should be compulsory in parentage disputes. A fifth (19%) disagreed and just over a third (35%) did not answer the question.

Support for Compulsory DNA Testing

7.3.4 For those who supported the proposal, most simply stressed that this form of testing was necessary for ensuring there was no doubt about parentage, that this was the quickest, simplest and most cost-effective way of proving parentage, and that children deserved to know conclusively who their parents were:

“DNA testing is a quick and relatively inexpensive way to resolve parentage disputes.  Separate to litigating parents, a child has a right to know who its parents are.”  (Legal Profession)

7.3.5 In addition to providing certainty to children around their family history, several respondents commented that knowing one’s genetic history was important for understanding or predicting ill-health in the future, or being able to seek family support where organ donation may be required, etc.

7.3.6 Views were expressed by individuals that compulsory testing could lead to a reduction in dispute cases remaining in court (which can waste time) and that it could reduce the burden placed on some men who unwittingly pay child support benefits for a child who is not their own.  It may also prevent some men from making emotional investments into relationships with a child who was proven in the long term not to be their own (recognising that some fathers may still wish to have that relationship, regardless of biological parentage being proved/disproved).

7.3.7 Two individuals specifically expressed that testing should occur automatically at birth and the results recorded on birth certificates, to remove any ambiguity in future disputes.  Several respondents commented that DNA testing to inform what was recorded on birth certificates may also reduce what they perceived to be an inequity or imbalance of power currently available to mothers in registering births:

“It would also remove this idea in society that the mother has the power to determine paternity simply by failing to register the father on the birth certificate.” (Individual)

“Creating a route for DNA testing without the consent of the mother would help to rebalance the current situation which results in mothers holding significant control over the ability of a purported father to gain acknowledgement of parentage both through the registration process and DNA testing.”  (Legal Profession)

7.3.8 While some who disagreed (discussed below) suggested that the proposal was invasive and contrary to human rights, some who supported it indicated that providing certainty of the child should supersede any such contentions:

“Keeping the child at the centre, we believe every child has a right to know about their parentage. Family background is crucial to the emotional and mental wellbeing of children and informs an important part of their life story work.”  (Local Authority)

7.3.9 Indeed, several highlighted that they believed mandatory testing served a much wider remit than practically determining PRRs, and was important at an emotional and social level:

“Parentage doesn't equal PRRs, it is only the biological affirmation of a bond. Just as much as this is undeniable for a mother, it should be undeniable (through DNA testing) for a father, as it is in the best interest of the child to know his or her biological roots (for emotional reasons, but also for, for example, medical reasons). I still would like to hear from a child that simply did not wish to know where he came from, rather than a child that knows but simply doesn't want to act upon that information. I doubt they exist.”  (Individual)

7.3.10 Other comments (made by just one or two respondents each) included that mandatory testing of all children (not only those involved in disputes) would remove the need for discretion on the part of Sheriffs, that mandatory testing was already in force in other EU jurisdictions, and that parents should meet the costs of testing.

7.3.11 It is important to note that, among those who supported mandatory testing some caveats were put forward.  These included concerns that adequate provisions must be in place for children with additional support needs to help them understand the implications of consent/non-consent, that children and young people would need to be supported throughout the process, including support after parentage has been proven to support those who previously understood another man to be their father, and that consideration would need to be given to cases where children were born from abuse/non-consensual sexual interactions.  In such cases, careful consideration would need to be given to use of compulsion:

“Making DNA testing would, on the one hand, be desirable in establishing parentage. On the other hand, there would need to be some caveats around why it might, on occasion, not be desirable, and should not be granted.  The consent of children and young people should continue to be necessary.”  (Family Support Organisation)

7.3.12 One individual also urged that it was always important to consider the child’s views if they were of sufficient age and maturity to provide a view.  It was felt that, if a child deemed by a Sheriff to be able to express a view refused to undergo a DNA test, the child should not be forced to do so.

No Compulsory DNA Testing

7.3.13 Among those who did not agree with mandatory testing in parentage disputes, the main views expressed (by both individuals and organisations) were that no child should be forced to give a sample (as it was an infringement of civil liberties and human rights), that children should always be able to give truly informed consent, that it could be traumatic for children, and that it would be difficult to implement in practice.  Another main concern was that parenting/parentage should not be defined in biological terms only.

7.3.14 Mandatory DNA testing would do nothing to enhance relationships, it was felt, and could simply add to or complicate disputes further.  Similarly, some who did not answer the closed component of this question suggested that the assumed parent of a child may be the person who has the child’s best interests at heart, and the requirement to conduct DNA testing which may disprove their parentage could unnecessarily undermine that relationship.

7.3.15 Some particular concerns were raised (mainly by organisations) around the impact of testing on children’s emotional, psychological and mental health and the need for appropriate support to be in place for children made subject to tests.  The question and proposition, as worded, did not sufficiently consider cases where a child may have different wishes from their parent around taking/not-taking a test, or set out how child consent would be factored into decisions:

“We believe that the consent of a capable child should be sought in the event of potential DNA testing…  We understand that at present, the written authority of any adult being tested is a strict pre-requisite and that it is a criminal offence to take samples without consent.  As such, we would question why a child with capacity and support to make that decision, should not be offered the same protections.”  (Children’s Organisation)

“We also cannot safely assume the child would always be a baby and need to be mindful of the potential trauma. If the mother refuses, then there should be a mechanism by which the child is able (if they so wish), when they are of sufficient ability, to make an informed decision with support as to whether they would want to undertake DNA testing. Even with the less invasive techniques, the implications of such testing are significant and potentially traumatic.”  (Local Authority)

7.3.16 Many felt that DNA testing should be available, on application, rather than routinely and should only be used in such cases where it was felt it was truly in the child’s best interests:

“DNA testing should be an option that can be used in certain circumstances rather than compulsory, using professional judgement as to whether the best interests of the child require such a test.”  (Local Authority)

“The court should be able to order DNA testing in suitable cases, but testing should not be automatically mandatory in all cases.”  (Individual)

7.3.17 Indeed, several respondents commented that any decisions around DNA testing should be informed predominantly by the best interests of the child in each case^[5].  A few were concerned that forcing children to take DNA tests could breach their rights under Article 8 of the ECHR:

“Regardless of which approach is taken, the child’s best interests must be the paramount consideration in the court’s decision, so it is concerning that the consultation suggests that a child could be subject to forced DNA testing and that children be forced to provide “non-invasive mouth swab” samples. To do so cannot be considered to be looking after the welfare of the child and their best interests.”  (Domestic Abuse Support Service)

7.3.18 Several organisations and individuals felt that Sheriffs were best placed to decide when testing was required in the case of disputing parents.  As such, they felt that the current system was more satisfactory than mandatory testing.  Several others commented that they agreed with the fundamental principle of civil procedure (where the case is won or lost in any event on the balance of probabilities) that a party should not: (a) be compelled to produce evidence that benefits their opponent; and (b) be subject to the physical intrusion of having a DNA sample taken against their wishes:

“Where one party is refusing to allow consent for DNA testing and that test is required in order for further decisions to be made in the child’s best interest then it should be open to the Court to require the test... However, this should be a case-by-case decision for the Court, not a compulsory decision in every case.”  (Public Body)

“Compulsory DNA testing… would be a highly damaging step to take. The existence of the presumption in s.70 of the 1990 Act provides appropriate protection where consent for DNA testing is not given, without giving the state the power to override an individual's refusal (either personally or on behalf of a child).”  (Individual)

7.3.19 Leaving open the option for courts to reject a request for DNA testing was seen as being particularly important by some, especially in cases where children had been born from violence or abuse:

“…the court should use the welfare test to support its discretion to refuse to order a DNA test on the child, on the grounds that it would not be in the child’s best interests for a particular man to be permitted to establish paternity (and gain the responsibilities and rights that would follow if he could re-register the birth).”  (Domestic Abuse Support Service)

7.3.20 More generally, some comments were again made regarding a perceived imbalance of power between mothers and fathers in respect of recording parentage.  It was suggested that unmarried fathers require the consent, cooperation and support of mothers to be named on birth certificates, while the mother can have the father registered (and thereby conferring parental responsibilities and rights) without their knowledge or consent.  They noted that this had far reaching implications, particularly in adoption cases “where the threshold test to dispense with consent applies only to a parent with parental rights”.  (Legal Profession)

7.3.21 Overall, there was support that, in deciding whether to require a DNA test, the court should weigh up the potential risks to children, children’s rights to information and wishes about their parenting, and parents’ rights around parentage.  Making DNA testing mandatory in all dispute cases was, however, seen as disproportionate and unnecessary by several respondents.  Among those who agreed and disagreed with compulsory DNA testing there was a shared view that any decisions around testing always needed to be made in the best interests of the child.