Legal and court ordered DNA testing

Proving paternity is not just a biological process in the courts’ eyes, explains Sarah White

A legal DNA test could refer to one of many different tests of which results conclusively prove that the people who took part in that test are biologically related. These results can also be used to disprove the alleged relationship. These tests provide legally admissible results to the parties concerned, supporting or disproving their relationship claims.

Most of the legal tests carried out are paternity tests. A legal paternity test will provide incontrovertible evidence that the tested male is the biological father of the child or children. There are many reasons why this proof of relationship would be required. In some cases, the DNA test is court ordered and carried out following the request of a judge. In other scenarios, the participants themselves decide to take the DNA test through a company or laboratory.

It is important to bear in mind that in some countries only results provided by an accredited laboratory can be accepted in court cases as evidence of a biological relationship between two or more people. The accreditations required are usually dictated by the local courts or government. In Australia, for example, the laboratory must be accredited by the National Association of Testing Authorities. In the UK, laboratories must be accredited by the Ministry of Justice for the results are to be suitable for legal or immigration cases. It is important to verify the laboratory chosen is listed on the Ministry of Justice website. Laboratories accredited by the Ministry of Justice includeThe Genetic Testing Laboratories. If the laboratory does not have the required accreditations, the DNA test results may be turned down when presented in court.

Generally, we can say that paternity testing is used in cases of:

• Child custody / alimony payments

• As proof of relationship for citizenship and immigration

• Changing the name on a birth certificate

Another case which sometimes crops up is that of illegitimate children. Illegitimate children are those children which have not been recognised by their parent(s) and are usually born outside marriage.

Although the term is still used, it is considered anachronistic and is slowly being replaced with “out of wedlock” or “natural child”. Illegitimate children have never been legally recognised by the man who fathered them but might, following the biological father’s death, wish to make a claim to the deceased’s estate. This again is generally a very difficult and complex issue to solve, namely because the illegitimate child will find it very difficult to gain access to DNA samples from the alleged father and the relatives will unlikely consent to a DNA test.

Another case which from time to time appears in court is paternity fraud. Paternity fraud happens when the mother of the child has knowingly deceived a man into believing he is the father of a child. Paternity fraud may be hard to prove as the intention to deceive could be quite difficult to present as a case in a way that is convincing to a court. This said, other evidence might be brought to bear.

In cases where the siblings or alleged siblings want to prove they are born from the same father, sibling tests can help provide them with the proof they need. For example, female siblings who wish to know if they have the same dad can carry out an X chromosome test. If only males are involved, a Y chromosome test will prove conclusive and if brothers and sisters need to prove they share a common parent they can carry out a STR test (short tandem repeat test).

Related Link: Solicitors Journal