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Free DNA Testing In Family Courts

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About The Author

Manprabh Basi (Writer)

Manprabh (Mani) is a recent Bar Professional Training Course Graduate from Nottingham Law School and is currently on the hunt for pupillage. In 2012 he successfully achieved a First Class LLB and also went on to undertake a Joint LLM in Sports and Employment Law in which he achieved a First Class Distinction.

The vast amount of legal aid cuts introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO"), which came into force in April 2013, have significantly affected family law in the United Kingdom. For example, Schedule 1 Part 1 of the Act highlights that legal aid funding is not available for disputes involving the divorce process or matters in relation to child contact arrangements, unless certain exceptions apply such as there being evidence of domestic violence. This article will examine the possible advantages of introducing free DNA tests in family law disputes, particularly in the aftermath of the legal aid cuts.

A major consequence of these cuts is that people can be left with no option other than to represent themselves in cases that have huge personal and family significance. It was to be expected that such changes would cause delays in resolving disputes as people who are not legally trained are required to engage in the complex legal process without help, save for charities who assist litigants in person such as Personal Support Unit. As a result, countless academics, lawyers and judges have expressed concerns. For example, Lord Neuberger, the President of the Supreme Court delivered a speech at the Institute for Government think-tank on the 16th of June 2013 and stated that:

[A]ny changes... to reduce legal aid... are likely to have a knock-on effect on the cost of the courts.  Less legal aid means more unrepresented litigants and worse lawyers, which will lead to longer hearings and more judge time. 

Equally, Jamie Doward writing for the Guardian in March 2014, reported that there was ‘chaos in the family courts’ and that the delays were ‘having a serious impact on the children of warring parents’. This is because, as reported by the All Party Justice Group, cases involving the arrangements of children were taking an average of six months to be resolved and accordingly, children and parents were facing uncertainty about important family matters involving their future. Since the introduction of the legal aid cuts, the government has made no attempt to scale them back and the problems that currently exist may continue to get worse. 

Given the impact of these changes, it became desirable for the government to formulate initiatives to speed up the process; the introduction of DNA testing being one. On the 17 February 2015, the then Justice Minister Simon Hughes announced that there would be free DNA tests in family courts throughout the UK from September 2015 . This was decided in the wake of a successful pilot scheme offered in Bristol and Taunton as a result of anecdotal evidence highlighting that disputes involving arguments about parentage was causing delays within court. The hope is that with the introduction of free DNA testing, disputes about paternity will be solved with speed and convenience to the benefit of litigants, children and the courts alike.

A Problem Solved?

The aim of free DNA testing is to ensure that cases involving children are resolved promptly. Hughes stated that he was ‘determined that all cases involving children should be resolved quickly and wherever possible’.

Liz Cowell, a lawyer at Slater and Gordon highlighted a number of benefits that the initiative would have, namely that DNA testing would be useful in disputes involving child contact arrangements, particularly when a mother may state that an individual is not the biological parent and as such, has no right to contact. Peter Morris, the Head of the Family Law Team at Irvin Mitchell, stated that DNA testing is particularly important as it ‘will provide key clarity in instances when parties look to avoid their responsibilities by alleging they are not a parent’. In these situations, it is apparent that DNA testing would provide clarity promptly.

Furthermore, David Nicholson the Director of DNA Legal emphasised that during DNA testing generally, ‘nearly all individuals were very willing to participate’. It would appear that in family law cases, which can often be extremely distressful and emotional for all parties involved, the offer of a free DNA test in order to solve issues surrounding parentage could go some way in  shortening proceedings and answering some very important questions. Further, with no cost involved, the parties may be more willing to undertake a DNA test.

Equally, the evidence from the pilot schemes in Taunton and Bristol highlighted that free DNA testing would ensure that judges are able to feel more confident when making decisions about children, given that the issues surrounding parentage would be certain and fixed before judgment is delivered. Further, the pilot also suggested the conclusive nature of a DNA test makes the parties more likely to follow court orders.

Potential Problems

There are no major criticisms surrounding the need to end delays within the family courts, but some concerns have been raised about using DNA testing specifically. Jane Robey, the Chief Executive of National Family Mediation (“NFM”) questioned the possible timing of the DNA tests that would now be offered. Robey was reported in the BBC to have said that:

[T]he government's decision to fund a court-based DNA testing regime was ‘puzzling’ as paternity should be determined before reaching the courtroom... [I]t makes no sense to wait until a case reaches court - at the very end of a long and costly process - when it is possible to establish paternity... much, much sooner.

Therefore, it can be questioned whether the timing of the DNA test in cases is logical and consistent with the Ministry of Justice’s aims, because once a case has been commenced significant costs will have already been incurred.

Robey further added that ‘NFM has been working in partnership with DNA Legal to provide this out-of-court service since 2012 – the only mediation provider to do this. The service can be paid for privately at discounted rates, or accessed through legal aid for those eligible’. Accordingly, Robey has offered a solution and an alternative way in which DNA tests could be utilised, before the commencement of proceedings.

In my opinion, although an out-of-court service would be extremely advantageous in answering paternity questions at a much earlier stage, I still feel the current proposals are a step in the right direction. Once a case has been commenced within court, there is the possibility of arguments materialising such as ‘X is not the father of my child’ or after a divorce for a father to perhaps argue ‘I should not have to pay any money as the child is not mine’. At this stage, free DNA testing has a useful role to play in settling the specific dispute about paternity.

In light of the announcement to introduce free DNA testing, another key issue that needs to be explored are the possible consequences that may arise when a parent refuses to undertake a DNA test. Currently as it stands, the court can only give a direction that a DNA test is to be carried out, pursuant to  Section 20 (1) and (21) of the Family Law Reform Act 1969. However, the court cannot compel a parent to provide a DNA sample as illustrated in  Re Z (Children) [2014] EWHC 1999 (Fam) which involved a father refusing to provide a DNA sample in order to clarify paternity. It was recognised in this case that a father has the right to keep his medical and genetic data confidential and that there is no power domestically within the family courts to compel a father to provide a DNA sample, without his consent. Therefore, a refusal to undertake a DNA test is not a contempt of court. If this legal position remains unchallenged, refusals to undertake a DNA test would cause further delays.

However, fathers need to be aware of the consequences of refusing to undertake a DNA test. As noted in Re A (Paternity: Refusal of Blood Test) [1994] 2 FLR 463, CA: ‘he who obstructs the truth will have the inferences drawn against him’. Accordingly, a father who refuses to follow a direction from the court to undertake a DNA test will have adverse inferences drawn against him, that his refusal to undertake a DNA test is to hide the truth. Equally, the court has the flexibility in such circumstances to draw whatever inferences that are appropriate, including an inference to the paternity of a child and for such reasons, it has been argued by academics Sonia Harris-Short and Joanna Mills that to withhold consent is to ‘play a dangerous game’.

Currently, there are many private organisations that offer DNA tests for a fee. The pricing structure of the Child Support Agency, who deals with child maintenance arrangements, indicates that tests can be up to £258.60. However, when the new free DNA testing scheme is formally in force, the Children and Family Court Advisory and Support Service (“CAFCASS”) would be responsible for administrating the process. CAFCASS is a non-departmental public body created to safeguard the welfare of children within family law cases and they will have an annual budget of £500,000 - £1 million. I would like to see this amount of money invested back into legal aid, but unfortunately this is unlikely to happen and I doubt these figures would make much of a difference even if invested back into legal aid, given the volume of cuts that have taken place. Nonetheless, given the amount of cuts that family law has experienced since 2013, at least money is being invested into tackling some of the problems the courts are currently faced with.

Conclusion

It was clear that in the aftermath of the legal aid cuts and as a result of the compelling evidence highlighting that many cases were severely delayed, something had to be done. This is all the more important in cases involving children, particularly given the underlying principle that the ‘child’s welfare shall be the court’s paramount consideration’ pursuant to Section 1 (1) of the Children Act 1989. Clearly, lengthy delays involving child arrangements do not support this principle and makes the legal process even more uncertain and distressing than it already is.

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Tagged: Family Law, Legal Aid

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