Parentage and the Right Not To Know
Who is my father? That seemingly simple and fundamental question has vexed many individuals, families and courts throughout history. Technological, medical and legal innovations over the latter part of the twentieth century, far from simplifying the issue, have added further complexity. Indeed, the courts can – and do - now also find themselves being asked to resolve the question “who is my mother?”.
A fascinating English case reported last week, MS v RS and BT (Paternity) 2020 EWFC 30, grapples with the role of the subjective and child centred welfare principle, when determining the seemingly objective “black and white” question of parentage. It’s well worth a read for Scottish family lawyers.
A father raised an action seeking a declaration that he was not the father of the two children born to his wife during their marriage. The children were by then aged 15 and 13. The mother and the putative father were convened as parties to the action (although the father did not ask the court to declare the putative father to be the children’s father, it was clear that this was the almost inevitable conclusion of the order he did seek). The father had brought the children up as his own, harbouring no doubts about their paternity until his marriage failed, when he started to wonder. Such were his concerns that while exercising contact with the children, and without their understanding or consent, he took mouth swabs from them and used a home sampling kit to obtain DNA tests. The tests indicated that he was not their father.
None of the adults involved come out of the case well – it would take far too long here to summarise the whole sorry saga – but the issue which the court ultimately grappled with was whether, having been asked to rule on the question of parentage, it had to do so. The court ultimately declined to rule on the question (at least for the time being) on the basis that it would not be in the children’s best interests to do so. Both children expressed the clear view that they did not want to find out who their “real” father was and would not agree to provide samples for DNA testing to be carried out again to a higher forensic standard and with a proper chain of custody of the samples. Additionally, the evidence before the court from all parties was of such questionable quality that the court was concerned that if it did make a ruling on the basis of the evidence as it stood, it might find itself having to revisit the question and overturn that ruling at a later date.
In reaching this conclusion the court relied upon s55A of the Family Law Act 1986 which empowers the English courts, when hearing an application for declarator of parentage, to refuse to hear the application if it considers that the determination of the application would not be in the best interests of the child.
We have no sec55A in Scotland. A Scottish court, faced with the same question would, I think, have found it harder to decline to make a finding. Dr Gillian Black, recently appointed as a commissioner at the Scottish Law Commission, has previously written on this point* comparing Scotland’s position to those of other jurisdictions. In addition to domestic law, there are fundamental rights issues at play here too, in terms of the European Convention on Human Rights and the UN Convention on the Rights of the Child.
What role then, if any, should welfare and best interests play if such a situation arose in our jurisdicition? Every parental relationship has profound legal consequences for at least two, and possibly more than two, people. Should the best interests of one of those be prioritised, to the potential exclusion of the interests of others (some of whom may also be children)? Should a court be left with no alternative but to overturn a child’s entire understanding and sense of her own identity if asked to do so, regardless of the impact that might have upon the child’s welfare? And what about adult children? Unlike issues of parental rights and responsibilities, parentage is of legal significance throughout one’s life (most obviously in relation to succession). Should a court take a different approach to an application made in relation to the parentage of a 15 year old than it would to the parentage of a 17 year old?
I think we’re overdue a conversation in Scotland about these issues – not least because, as I mentioned at the outset, the world in which we live means issues of parentage are likely to vex the courts now more than ever. I’d love to hear the views and experiences of other practitioners.
* “When is a parent not a parent? CS v KS and JS and the question of genetic parentage or social parenting” Edin. L.R. 2015, 19(2), 263-268