Genetic proof is a very determining factor in paternity suits to determine who the biological father is. Contrary to popular misconception, DNA testing is not ordered by the court; as the law stands today, the court can only recommend that a DNA test be taken. But the court cannot order the couple and the infant to be submitted to genetic testing to determine who the father is. If the mother chooses not to have the infant submitted to genetic testing then the court will draw inferences from such non-submission and paternity can be determined in other ways.

The crucial point, therefore, is whether DNA should be court-ordered or not. Presently, there is a Bill that is opining such amendments.

Article 70(3) of the Civil Code states that the court can “... invite all or any of the parties, including the child whose filiation is in dispute, to submit to the tests necessary to establish the genetic proof that may be relevant to the case...”.

The keyword in this provision is the verb “to invite”, which has no strength in itself. To invite is not “to order” and the court is merely making a suggestion or giving advice but has no determining power to order the parties to the suit to submit to DNA testing.

However, in cases of non-submission to DNA testing, the court will draw such relevant inferences as the case may be.

One may understand why the law, as it stands, does not provide for the court to order DNA testing. Such testing is something private and it involves the taking of a body sample. For example, in criminal evidence, intimate samples are deemed to require the consent of the accused. And when such consent for an intimate sample is not obtained from the accused, the police will, by means of an application, request the authorisation of the magistrate. Where the magistrate deems the police request justified, s/he will speak to the accused and explain to him/her the consequences of the refusal of such consent before asking for consent.

Therefore, if in criminal cases consent is deemed to be of utmost importance why is consent practically being done away with in the amendments being proposed as regards DNA testing in paternity suits?

The only logical reason that one might think of is that, in paternity suits, one of the parties is a child and, in any case, the best interests of the child are paramount and supreme and go beyond the interests of the parents.

Article 7 of the United Nations Convention on the Rights of the Child lays down that “the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents”.

The right to know the child’s parents belongs to the child. However, this is not an ultimate right because it is preceded by the phrase “as far as possible”.

Does that mean that there can be circumstances where it is not in the best interests of the child to know who the father is? The mother is always known because we follow the Roman dictum that the mother is always certain.

Therefore, the question on paternity always lies with the father. In fact, a new article is being proposed. New article 70A – Natural Parentage – states, among others, that “... the Civil Court (Family Section) must substitute consent that has not been given and order acquiescence in the taking of a sample...”

This means that the court will have the authority to do away with consent and authorise the taking of samples that will determine the paternity or otherwise of the person in question.

The present article 100A lays down that the court will “... invite the parties to submit to examinations...”. The proposed amendment in this article aims to change the term “invite” to “requires”, which gives the court the power to order DNA testing.

However, the best interests of the child remain paramount and, as highlighted by the United Nations Convention on the Rights of the Child, sometimes it is not in the best interest of the child to know who the father is. The proposed legislation will address this matter and the proposed article 70A states that “the Civil Court (Family Section) shall suspend the proceedings if and as long as the clarification of the natural parentage would result in a considerable adverse effect on the best interests of the minor child, which would be unreasonable for the child, even taking into account the concerns of the person entitled to clarify...”.

Therefore, if determination of paternity leads to a “considerable adverse effect on the best interests of the minor child”, the court will have the power to suspend proceedings.

What amounts to considerable adverse effect will be open to interpretation and will ultimately be up to us lawyers to argue effectively the case in question. Ultimately, the court will then have to decide.

Dr Mangion is a lawyer and a published author with a special interest in family and child law.