160.Most fathers who are non-resident parents acknowledge their children and accept their responsibility to them. In these cases, child support liability can be worked out without any further investigation as to paternity. However, occasionally a man may have good reason to doubt the parent with care’s statement that he is the father of the child in question. And, in some cases, men have contested paternity in order to slow down the process of collecting child maintenance.
161.To allow child support to be worked out without unnecessary delay, the Secretary of State can, in specific circumstances, assume that a man is the father of a child even if he denies it. In these cases, child support liability can only be stopped if the non-resident parent proves in court that he is not in fact the child’s father.
162.In England and Wales, the circumstances in which paternity can be assumed include those where a child was adopted by the man in question and also where there is a court declaration that the man is the child’s father. However, in Scotland, there is also a presumption that a man is the father of a child if he was married to the child’s mother at any time between the date of conception and the child’s birth. This section makes clear that the presumption of paternity arising from marriage, already recognised by the courts in England and Wales, can be applied for child support purposes.
163.A person who is treated as a non-resident parent as a result of these presumptions can challenge his child support liability by applying to court. The provision for such applications is in secondary legislation made under section 45 of the 1991 Act. Section 83 of this Act introduces a new, simplified route specifically for the courts to determine whether or not one person is the parent of another. This will be of general application.
164.This section amends section 26 of the 1991 Act to add four new cases in which child support liability can be worked out on the basis that a person who denies he or she is a parent is in fact the parent of the qualifying child.
Case A1 allows the Secretary of State to presume that a man is the father of a child living in England and Wales if the man was married to the child’s mother at any time between the date of conception and the child’s birth. This follows the existing presumption in Scottish law.
Case A2 provides a presumption that a man who is named on the child’s birth certificate is the child’s father even if he was not married to the mother. This will apply also to children registered in Northern Ireland or in Scotland.
Case A3 enables the Secretary of State to presume parentage if either:
the alleged parent has refused to take a DNA test; or
the result of a DNA test shows that he is a parent of the child but he refuses to accept it.
Case B1 provides that the alleged parent may be presumed to be the parent of the child where section 27 or 28 of the Human Fertilisation and Embryology Act 1990 applies. These sections relate to children born as a result of fertility treatment or artificial insemination. Section 27 provides that a woman who gives birth as a result of such treatment will be treated as the child’s mother unless the child is adopted. Section 28 provides that a man who is married to a woman who has received such treatment (or a man who is himself taking part in the treatment) will normally be the father of the child in law. This provision does not apply if the man did not consent to the treatment, or where the child is adopted.
The following two sections appear in the Act in Part V: Miscellaneous and Supplemental.
165.Part III of the Family Law Reform Act 1969 enables the court to direct the use of blood tests in order to resolve a dispute about paternity which has arisen in the course of civil proceedings.
166.Regulations under the Act provide that samples may only be taken by a registered medical practitioner, or someone who has been appointed as a tester under the Act. They also prescribe the procedure for the taking of samples, set conditions for the secure despatch of samples to a tester, and prescribe the fees payable to samplers.
167.Blood testing under the Act is carried out by authorised testers who are appointed by the Lord Chancellor. There is no regulation of the laboratory conditions and standards under which testers work, or the frequency with which they undertake the work. Once a person is appointed as a tester, there is no mechanism to review his or her suitability.
168.This section replaces the present system of approving individual paternity testers by one based on the accreditation of laboratories. This will allow the Lord Chancellor to regulate laboratory conditions and set minimum qualifications for the individual testers.
169.This section also amends the legislation to address the issue raised by a High Court judgment (re O and re J(Minors)(Blood Tests: Constraint) [2000] 2 W.L.R. 1284). Section 21(3) of the 1969 Act provides that a blood sample may be taken from a person under the age of 16 if the person who has care and control of the child consents. In the judgement, it was held that the effect of this provision is that the court has no power to enforce a direction for the taking from a child under 16 of a blood sample to establish paternity, if the person with care of the child refuses to consent to the sample being taken.
170.Subsection (2) amends section 20 of the 1969 Act to provide for tests to be carried out by a body which has been accredited either by the Lord Chancellor or by a body appointed by him for that purpose.
171.Subsection (3) amends section 21(3) of the 1969 Act to provide that, where the person with care and control of a child under 16 does not consent to the taking of a blood sample, the sample may be taken if the court considers that it would be in the best interests of the child to do so.
172.Subsection (4) amends section 22 of the 1969 Act, which sets out procedural matters on which the Lord Chancellor may make regulations, in two respects. First, an amendment replaces the current requirement that samples be taken by appointed individual medical practitioners with a provision enabling samples to be taken by registered medical practitioners or members of such professional bodies as may be prescribed by the regulations. Secondly, an amendment enables the Lord Chancellor to prescribe conditions which a body must meet to be eligible for accreditation.
173.Subsection (5) provides that neither this section nor anything else in the Act will affect proceedings to determine declarations of parentage which are pending when these provisions take effect.
174.The Government also intends to bring section 23 of the Family Law Reform Act 1987 into force by commencement order in conjunction with these new provisions. Section 23 amended the 1969 Act to allow for other bodily samples as well as blood to be taken from the categories of people specified in the 1969 Act (the child, the mother and the putative father) and from any other party to the proceedings, to resolve a dispute about parentage.
175.Anyone who is living in England or Wales (or who has been habitually resident there for at least a year) can seek a declaration from the High Court or a county court that:
a named person is or was his parent; or
he is legitimate; or
he has or has not become a legitimated person (that is, in the same position as being born legitimate).
176.Declarations may be sought, for example, to acquire nationality or citizenship, to establish rights of inheritance or to amend a birth certification. Only the “child” in question (who may in fact be an adult) is entitled to apply for such a declaration. Both the child’s parents, if they are still alive, must be joined as respondents to the proceedings.
177.Section 56 of the Family Law Reform Act 1986 (as substituted by section 22 of the Family Law Reform Act 1987) provides for the declaration. The Family Proceedings Rules provide that both parents must be respondents.
178.A “section 56” declaration is binding on the Crown and on all other persons. The declaration is without limit in time in the UK whether for the purpose of legal proceedings or for any other purpose. The legislation makes no provision for a declaration from the court that a named person is not the child’s parent.
179.This section replaces part of the existing section 56 of the Family Law Act 1986, and also amends sections 58 and 60 of that Act. The section provides for any person to apply to a civil court for a declaration as to whether or not a person named in the application is or was the parent of another person so named. The intention of the new section is to provide a single procedure for obtaining a declaration of parentage to replace the two free-standing provisions contained in the 1986 Act and in section 27 of the Child Support Act 1991 (which is modified to take account of the new procedure), and to widen the power to make such declarations.
180.Subsection (2) inserts a new section 55A in the 1986 Act which allows for an application for a declaration that a person is or is not the parent of another person.
181.New section 55A(1) provides that any person may apply for a declaration as to whether or not a person named in the application is or was the parent of another person named in the application. The application may be made to the High Court, a county court or a magistrates’ court.
182.New section 55A(2) provides that the court can consider such an application only if either of the persons named in the application is domiciled in England and Wales on the date of the application, or has been habitually resident in England and Wales throughout the period of one year ending with that date; or if either of the persons named in the application died before the period of one year ended and was at death domiciled in England and Wales, or had been habitually resident in England and Wales for one year preceding their death.
183.New section 55A(3) and (4) will enable any person to apply for a declaration of parentage, subject to the requirement that if the applicant is not the child or one of the alleged parents concerned, then he or she will have to show a sufficient personal interest in the determination of the application. If the court is not satisfied that this is the case, it must refuse to hear the application. A person with care must automatically be treated as having a sufficient personal interest. This requirement does not apply when the application is made by the Secretary of State.
184.New section 55A(5) provides that the court may refuse to determine an application where one of the persons named in it is a child, and it considers that to determine the matter would not be in the best interests of the child.
185.New section 55A(6) provides that where the court has refused to hear an application, it may order that the applicant requires the leave of the court to apply again for the same declaration.
186.New section 55A(7) provides for notification of a declaration of parentage to the Registrar General.
187.Subsection (3) of section 83 removes the provision of section 58 of the 1986 Act that no declaration may be made by any court that any person is or was illegitimate. This is because the effect of a declaration of parentage could be that a child is or was illegitimate, which is inconsistent with the existing provision of section 58(5)(b).
188.Subsection (4) provides for a right of appeal from the magistrates’ court to the High Court. This is in addition to the right of appeal to the High Court by way of case stated, that is, on the basis that the decision is wrong in law or magistrates have acted in excess of jurisdiction; or to apply to the High Court for leave to apply for judicial review. This right of appeal must be conferred expressly. Appeals to the Court of Appeal from the High Court and the county courts are governed by existing provisions in the Supreme Court Act 1981 and the County Courts Act 1984.
189.Subsection (5) introduces Schedule 8 which provides for consequential amendments.
190.Subsection (6) provides that neither this section nor anything else in the Act will affect proceedings about declarations of parentage which are pending when these provisions take effect.
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