Part 1 of the Children (Scotland) Act 1995: review

Part 6: Parentage

Introduction

6.01 In this part of the consultation, we are seeking your views on the:

• The presumption that the husband of a woman is the father of her child; and
• DNA testing in parentage disputes.

6.02 Part 2 of the Human Fertilisation and Embryology Act 2008 (the 2008 Act) makes some provision on parentage. The 2008 Act is a reserved matter and this consultation is proposing no changes.

6.03 Surrogacy is also reserved and, again, this consultation is proposing no changes. As mentioned in paragraph 1.04 the SLC intends to carry out a joint project on surrogacy, working with the Law Commission of England and Wales.

Presumption that the husband of a woman is the father of her child

Background

6.04 Section 5(1)(a) of the Law Reform (Parent and Child) (Scotland) Act 1986 provides that the husband of a woman is presumed to be the father of her child:

“A man shall be presumed to be the father of a child – (a) if he was married to the mother of the child at any time in the period beginning with the conception and ending with the birth of the child”.

6.05 Section 5(1)(b) of the Law Reform (Parent and Child) (Scotland) Act 1986 provides that in other cases, a man is presumed to be the father if he and the mother have both acknowledged that and registration has taken place accordingly:

“A man shall be presumed to be the father of a child—

(b) where paragraph (a) above does not apply, if both he and the mother of the child have acknowledged that he is the father and he has been registered as such in any register kept under section 13 (register of births and still-births) or section 44 (register of corrections, etc.) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 or in any corresponding register kept under statutory authority in any part of the United Kingdom other than Scotland.”

6.06 These presumptions are rebuttable by proof on a balance of probabilities.These provisions in the Law Reform (Parent and Child) (Scotland) Act 1986 have their origins in a report by the SLC ^[51] .

6.07 This consultation is seeking views on whether the presumption that the husband of a woman is the father of her child should be retained in Scots law.

Pros/Cons

6.08 There are number of reasons why the presumption should be retained including:

• We are not aware of any major problems arising as a result of the presumption;
• One of the ways in which a father gains PRRs is through being married to the mother. Without this presumption, there could be more disputes on whether a particular married father should have PRRs; and
• It may add clarity to rights children have under succession law to a deceased person’s estate and property.

6.09 A reason for removing the presumption is that it may seem old-fashioned given that most children in Scotland now are born outwith marriage.

Question 14): Should the presumption that the husband of a mother is the father of her child be retained in Scots law?
Yes
No
Why did you select your answer above?

DNA testing in parentage disputes

Background

6.10 Currently, a person may apply to either the Court of Session or the Sheriff Court for a declarator of parentage or non-parentage. A person with a declarator of parentage may then use that to seek PRRs.

6.11 Declarators of parentage and non-parentage are based around biological relationships rather than wider tests of welfare. The fact that a person is the parent of a child may provide useful genetic information for the child and social information for the child on their background. The fact that a person is the parent of a child does not necessarily mean, of course, that they are the best person to bring the child up as this depends on the precise circumstances.

6.12 If a person (such as the mother) does not consent to DNA testing of the child in relation to any action for declarator of parentage or non-parentage, there is relevant provision in section 70 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Under this, the court may draw from a refusal or failure to consent to the taking of a DNA sample from a child such adverse conclusion as it seems to it to be appropriate. DNA samples can now be taken by way of a non-invasive mouth swab.

6.13 Data from SLAB suggest there have been 21 applications over the two years 2015/16 and 2016/17 combined for legal aid against a mother who may have refused to allow their child to be tested to establish parentage.

6.14 The proposal in this consultation is that if the mother refused to consent to DNA testing of the child in a parentage or non-parentage case, the court would be empowered to require DNA tests if in line with the best interests of the child.

6.15 Before legislating in this way, we would need to consider the ECHR implications carefully. We would also need to ensure that the rights of children and young people with capacity to take decisions and express views were fully protected.

Pros/Cons

6.16 There are a number of reasons in favour of giving the court such a power in relation to DNA testing such as:

• DNA evidence differs from other evidence because of the very high level of certainty it provides, so long as testing is of a rigorous nature;
• Taking DNA evidence could make a court case over parentage quicker and could reduce uncertainty which may be in the best interests of the child involved; and
• The child has a right to information about the child’s own identity.

6.17 Arguments against making DNA testing compulsory are:

• It is a fundamental principle of civil procedure that a party should not be compelled to produce evidence that benefits their opponent;
• Obtaining a DNA sample without consent could be deemed a physical intrusion;
• Enforcing mandatory DNA testing would not be straightforward; and
• The current provisions of section 70 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 may be sufficient.

Question 15): Should DNA testing be compulsory in parentage disputes?
Yes
No
Why did you select your answer above?