Learning about family history and family ties is important. In this manner, one would be able to understand oneself; allowing a person to know his or her roots, who they are and where they come from. It is in our nature to connect with our ancestors, having a sense of belonging.
Understanding and discovering our history and parentage fills an innate need in each one of us (and makes good trash television: ask Maury Povich or Jerry Springer!). Activist Marcus Garvey is known to have said that “a people without knowledge of their history, origin and culture is like a tree without roots”.
It is a well-known fact that filiation towards the mother is based on the fact of birth. This should not raise any difficulties − mater in iure semper certa est. Many would find the question “Who’s your mother?” absurd, even as new reproductive technologies (such as surrogacy and IVF) and family formation may break the old idea of maternal certainty.
On the other hand, paternity has been always thought of as naturally unclear, as opposed to the apparent and uncomplicated fact of maternity.
Our basic provisions relating to paternity and filiation still rely on presumptions, the most important of which date back to Roman Law.
Article 67 of the Civil Code (Chapter 16 of the Laws of Malta) provides for a iuris tantum (rebuttable) presumption that the husband is presumed to be the father of the child born in marriage. This paternity presumption can be overturned only through judicial action, which action may only be initiated by a certain group of people expressly stipulated by law, in a few instances described at law. Without any doubt, this process is life-changing and dramatic for all the parties involved.
Our Civil Code contemplates for three actions having to do with natural filiation: (1) the disavowal of a child born during wedlock; (2) the contestation of the filiation of a person born 300 days after the dissolution or annulment of marriage or the time stipulated by law where the husband would have been in the physical impossibility to cohabitate with his wife or in cases where the wife had an adulterous relationship; and (3) an action of the child seeking to establish his proper filiation.
In the judgment ‘ABC nomine v EFC et’ delivered by Mr Justice Anthony Vella on November 10 (231/19AGV) (the names have been omitted due to the personal nature of the facts), the mother requested the court to declare that her husband is not the natural father of her daughter and that defendant GH be declared as the actual father of the child.
Without any doubt, the DNA test plays a pivotal role in ascertaining the paternity of the individual
The parties were married on June 28, 2000. Fifteen years into this marriage, the plaintiff gave birth to her daughter. The issue was that even though the parties were legally married, they had been living separately since 2013, thus before the child was even conceived. Therefore, despite the fact that the child was born ‘in marriage’, the husband was not the father. The other defendant, GH, was the biological father.
Now, we have said earlier that in article 67 of the Civil Code, the law presumes that children born in wedlock are the offspring of the spouses. Simply put, by means of this case, the plaintiff tried to attack this legal presumption.
In its decision, the court explained that our law does not consider lightly the request for a change in the birth certificate of a child born during marriage. This action is not only intended to deprive the child from its natural status of being born during marriage but also depriving the child from the family in which s/he was raised.
Without any doubt, the DNA test plays a pivotal role in ascertaining the paternity of an individual; this is mainly due to the fact that DNA results are indisputable. Interestingly, this genetic testing mechanism is one of the few instances in law where the court can be almost absolutely certain of which versions of events are true.
In many other cases (say, a land dispute), the court will be able to investigate the evidence, deduce who is saying the truth and who is not, but there will always be some level of doubt. Not the same can be said in paternity cases; DNA evidence has an accuracy of 99.99 per cent and can deliver to the court a scientific peace of mind that its decision is correct.
Having said that, in these cases, in the absence of genetic and scientific evidence, the Civil Court (Family Section) may still consider any other evidence presented before it which it deems to be relevant, including the drawing of inferences from the fact that a person did not provide a genetic sample, despite being ordered to do so. As a matter of fact, in this particular case, the parties’ DNA tests were not presented in court. Nevertheless, defendant EFC admitted that he was not the actual biological father, whereas defendant GH agreed with the plaintiff’s claims that he was the biological father.
After analysing the evidence brought forward (including the fact that all parties agreed about the actual paternity of the child), the court decided that defendant EFC was the natural father of the minor and acceded to the plaintiff’s requests.
These cases have little to do with law, and much more to do with sociology and psychology.
One must understand that these cases may sometimes result in the child switching fathers. Other times, it would just result in the child losing his/her ‘father’, the latter causing more heartache, anxiety and stress to the child.
Sad to say, there may be instances where the husband, afters years raising the child, discovers that he is not the natural and biological father. No doubt, the husband would feel hurt and angered by his wife’s betrayal, but should the aggrieved husband repudiate a child, who for years viewed this person as her/his only father? Is this change in paternity always in the best interest of the child?
These are very difficult questions.
Some may take the position that family relationships should be based on much more than genetics. While it is true that DNA testing has led to greater emphasis on genetic connections, the law’s appreciation of parent-child relationships is more complex than that. Indeed, some courts have even recognised the principle of social fatherhood and refused to change a child’s parentage, to preserve the child’s parental stability, despite having scientific proof that the person the child knew as his father, was not.
Whether or not one agrees is a debate that will continue for years.
Graziella Cricchiola is a junior associate at Azzopardi, Abela & Borg Advocates.