"A matter of opinion" - Unofficial paternity tests and the impacts on children
by Barry Pearson
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Children's rights to information

This section is concerned with information and knowledge. It isn't concerned with any "tactical" means of learning it, such as DNA. Any rights are likely to differ between men, women, and children. The determination that a particular man and child are related is a single piece of information, but its context and its value are different to the man, woman, and child.

There are relatively few formalised rights on this matter. Asserted "rights" are often variants of wishful thinking. Sometimes they are based on analogies with other rights, such as comparisons between computer hacking and sampling someone else's DNA. Rights differ across the world. For example, the US hasn't ratified the UN Convention on the Rights of the Child. This paper is primarily about the UK, but draws on experience elsewhere.

This section takes as given the standard rights we have under the law for our protection and well being. These are standard laws for assault, theft, human rights, harassment, data protection, etc. A good question is whether we need revisions to these laws.

Formal rights of children

These are the best-recognised rights in this area. Key conventions and laws are:

- UN Convention on the Rights of the Child. This was ratified, with qualifications, by the UK in 1991.
- European Convention on Human Rights and Fundamental Freedoms.
- Human Rights Act 1998, based on the above European Convention.

The UN Convention talks of "the right to know and be cared for by his or her parents" [9]. This doesn't necessarily mean the biological parents, but the trend is in that direction. For example, responding to the UK's 1999/2002 Convention Report [10], the UN states [11]:

31. While noting the recent Adoption and Children Bill (2002), the Committee is concerned that children born out of wedlock, adopted children or children born in the context of a medically assisted fertilisation have not the right, as far as possible, to know the identity of their biological parents.

32. In light of articles 3 and 7 of the Convention, the Committee recommends the State party to undertake all necessary measures to allow all children irrespective of the circumstances of their birth or adoptive children to obtain information on the identity of their parents as far as possible.

Identifying the wrong man as the biological father is surely as open to criticism as failing to identify the right man. An unofficial paternity test won't necessarily inform the child. But children surely won't benefit from a climate of secrecy about true parentage.

The European Court's judgement in Mikulic v. Croatia, 17th January 2002, criticised Croatia for not providing a paternity test for a child of about five [12]. The Court's report stated:

"Private life, in the Court's view, includes a person's physical and psychological integrity and can sometimes embrace aspects of an individual's physical and social identity. Respect for "private life" must also comprise to a certain degree the right to establish relationships with other human beings ... In the Court's opinion, persons in the applicant's situation have a vital interest, protected by the Convention, in receiving the information necessary to uncover the truth about an important aspect of their personal identity".

UK courts appear to be adopting principles such as "it is better for the child to learn sooner rather than later"; and "it is better for a child to learn by paternity test rather than live with rumours". For example, an appeal court judge, Lord Justice Ward, said: "If [the child] grows up knowing the truth, that will not undermine his attachment to his father figure, and he will cope with knowing he has two fathers. Better than a time bomb ticking away".

In another case, Mr Justice Bodey decided that all the adults and the child had rights to respect for their private and family life, which conflicted with each other. The parents had the right not to have their life destabilised. But the most important right was the child's right to know "his true roots and identity". He used the phrase "the inappropriateness of a child being allowed to live a lie" [13]. Paternity tests are now sometimes being ordered against the mother's wishes [14].

The Adoption and Children Act 2002 s56-s65 permits children to learn more about their birth. So far the UK has not removed anonymity from sperm donation, in spite of a campaign for this. But that particular topic will probably not go away:

"Countries that have already removed donor anonymity are Sweden, Austria, The Netherlands and Switzerland. The state of Victoria and a clinic in California also allow offspring to trace donors. Research among donor offspring in California suggests that 85 per cent would like to trace their genetic parents at some point" [15].

"USA and Spain - anonymity can be abolished if a court decides it is in the interest of the child" [16]. (Germany doesn't have anonymity either).

None of these applies directly to unofficial paternity tests. But they reflect the trend that the interests of the child are typically to know the truth, sooner rather than later. And this should sometimes override the wishes of either or both parents. As far as the child is concerned, the mother's lover was an anonymous sperm donor!

When will a child take its mother to court to make her divulge with whom she committed adultery?

References

[9] Article 7 of the UN Convention on the Rights of the Child

[10] 2nd periodic report of the United Kingdom, 14 September 1999, plus June 2002 supplement.

[11] "Concluding Observations of the UN Committee on the Rights of the Child: United Kingdom" October 2002.

[12] Article 8 of the European Convention on Human Rights and Fundamental Freedoms states "1. Everyone has the right to respect for his private and family life, his home and his correspondence".

[13] The case of Re T (Paternity: Ordering Blood Tests) [2001] 2 FLR 1190, noted in Genetic testing and the impact on the family, Ann Northover and Grainne Dennison, Fam Law October 2002.

[14] The Child Support, Pensions, and Social Security Act 2000 amended the Family Law Act 1986 to permit this.

[15] From the website for "Abolish Adoption".

[16] From the University of Surrey website.

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Page last updated: 13 December, 2003 © Copyright Barry Pearson 2003