DNA testing in a family law dispute

A proposal for DNA testing of family members can arise in a number of circumstances, most commonly where there are questions over paternity (although occasionally maternity is tested too), when establishing contact and residence, or when determining a biological father who is liable to pay maintenance for a child.  The question may also arise if changes are to be made to a child’s birth certificate or surname, or if one parent is seeking to move overseas with a child or have their child settle in the UK with them.  

‘It is important for the child to have certainty over paternity as this has an impact on their welfare’ explains Robert Bellhouse family law expert at Ware & Kay in York & Wetherby. ‘Emotional wellbeing may suffer from not knowing one side of their family, and there are implications for their physical health if they are unaware of genetic conditions.’ 

DNA testing is typically used in family law if you require clarity on the identity of the biological father of a child.  In rare circumstances it can also be used to determine the mother of a child, such as if the mother is moving to the UK with her child a test maybe required to confirm the biological link between mother and child to ensure no immigration issue arises.

Test results are 99.99% accurate in establishing that a person is the father, and 100% accurate in proving that a person is not the biological father. 

If the father knows or suspects the mother has had more than one partner around the time of conception then he may have doubts if he is the father.  Similarly, if the mother has had more than one partner, she too may be in doubt about the biological father.

Obtaining consent

If you are seeking a DNA test you should firstly try and obtain consent from the other person involved.  If they do not agree, then your solicitor can apply to court to seek a DNA test.  This is known as applying for a declaration of parentage. 

If there are already ongoing court proceedings, such as for a dispute over contact, then the court can order DNA testing if either party raises doubt over paternity.

Funding a DNA test

Whatever the circumstances, it is important that an accredited laboratory is used in order that the results will be accurate - even if you agree to testing privately.

Since 2015, if certain criteria are met, the cost of DNA testing through the courts can be covered by CAFCASS, the Children and Family Court Advisory and Support Service.   The criteria are normally that:

• there is an application regarding contact or residence;
• the question of paternity needs to be answered before that application can be decided; and
• you both cooperate to partake in DNA testing.

If you have been named as the father in a dispute over child maintenance and the mother has requested the DNA test, then you will normally be responsible for paying a fee to Child Maintenance Services for a DNA test.  If you cannot afford to pay the fee, it may be initially covered by Child Maintenance Services.  However, if you are proven to be the father, you will need to repay the costs to them. 

Your solicitor will advise you on which DNA option is best for your circumstances, the likely costs and whether you will be entitled to have the test funded by CAFCASS.

What happens in a DNA test?

You may be anxious as to the nature of the DNA test.  It involves giving either a cell swab or blood test.  Most commonly it is done by way of a cell cheek swab which is quick and painless for the father and child.  It involves rubbing a swab inside your cheek for around 45 seconds before placing that swap into the testing specimen container. 

Depending on who is analysing the results, the sample swab may be taken at your GP practice, at a test centre or by a CAFCASS official.  The parent and child will attend separate appointments. 

There are strict conditions in obtaining the sample that must be adhered to, including that the parent must bring photographic ID when they are giving the sample.  A photograph of you may also be taken at the test. 

Any attempt to defraud the court will be treated as contempt and could face criminal consequences. 

An accredited laboratory will then analyse the samples and provide a short report of their results which will confirm if there is a biological connection.  This can take around 30 working days. 

DNA testing can be a very emotional time for all parties involved and the results may be life changing.  Our family law team can assist you throughout this journey and advise you on the implications of the test results.

For further information, please contact Robert Bellhouse in the family law team on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email Robert.Bellhouse@warekay.co.uk.