Written by Susie Mountain

Senior Solicitor at Brodies LLP

Susie began her career in Family Law in 2009. Susie is experienced in complex high-value financial cases and child relocations

The birth of a new baby is usually something to be celebrated. Emotional attachments are formed quickly for both the new parents and their respective extended families. However, on occasion, there can be some doubt as to a new baby’s paternity and in those circumstances this can be a time of great emotional strain.

The easiest way to establish paternity is to ask the child’s mother to cooperate with a DNA test.

As well as the emotional side of things, which cannot be underestimated, there are of course legal implications arising from being the father of a child. Children have automatic rights of succession against a parent’s estate.   Parents have various responsibilities to their children, as well as having the right to maintain direct personal contact with them. Children are also entitled to be financially maintained by their parents. For all of these reasons, it is best that any doubts are cleared up as soon as possible following the arrival of a new baby to avoid ongoing distress to either parent or, in the longer term, to the child.

I don’t want to find out. What are the possible implications?

In some circumstances, an individual may prefer not to find out for certain whether or not they are the father of a child. This would not prevent the child, or the other parent, from trying to establish the child’s paternity and the would-be father can still be called upon to undergo DNA testing.

Under Scots Law, in the absence of evidence to the contrary, it is presumed that a man is father to a child:

If he was married to the mother of the child at any time in the period beginning with the conception and ending with the birth of the child; and/or

For children born from 4th May 2006 onwards, if he is registered on the child’s birth certificate.

If a person is automatically presumed to be a child’s father, but considers that that is not factually correct, it is best that DNA testing is carried out so as to rebut that presumption.

How can I find out?

The easiest way to establish paternity is to ask the child’s mother to cooperate with a DNA test. Most cities have DNA testing facilities and it is important that any testing is carried out at a proper testing centre so as to ensure that results cannot be tampered with. DNA testing is usually carried out by way of a mouth swab and so should not cause any distress to the baby.

What if the other parent won’t cooperate?

If DNA testing has been requested and refused, it is possible under Scots Law to apply to the court for a “declarator of parentage/non parentage”. The child in question must be “domiciled” (have their legal base) in Scotland and must have resided within Scotland or the Sheriffdom in which the action is raised (depending which court is being used) for a specified period in order to make such an application. The court may then order that consent be given by or on behalf of the child for DNA to be provided. If the mother of the child refuses to co-operate, the court is entitled to draw an adverse inference from that refusal.

Please note: this article is based on Scots Law. Advice may differ in England & Wales and elsewhere. Please seek advice from a solicitor qualified in the relevant jurisdiction.

 

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