In the name of the father… or maybe not

Year Published: 2012

A legal case is currently proceeding in the courts in France in respect of the paternity of a child. The French MEP involved in the case is suing the man she says is the father, however, he denies that he is. The case is likely to be resolved by the use of witness evidence.

Under English law, the mother could pursue a declaration of paternity under section 55A of the Family Law Act, and then pursue claims on behalf of the child or even for herself in certain circumstances.

Even if the mother does not wish to claim, there can be circumstances where she needs confirmation of the father’s identity, and of course there are many cases where the father applies to court himself for a declaration of paternity in order to seek contact with the child.

Unfortunately, from next year, legal aid will very rarely be available to either pursue these claims or to pay for the DNA testing which is usually required at a cost of several hundred pounds. So if the mother or father cannot afford the testing, there may be no certainty for the child.

Looking ahead to the end of legal aid, it could therefore be the case that we have to revert to a system similar to France – a system which we had in England many years ago where a paternity claim had to be proved by other evidence such as witness statements – and on the balance of probabilities, the civil burden of proof.

Mothers who can’t afford DNA testing could potentially go to Court and represent themselves in pursuit of absent fathers that are shirking their responsibilities. They would themselves have to prove paternity as set out above, a very onerous task.

If this was to happen, there is huge potential for mistakes to be made and this could impact upon the lives of many children, who may not be able to confirm for certain, the identity of their father.

For further information, please contact a member of our Family team on 01625 442100.

 

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