A man has won a paternity case and received a declaration as to who his father is despite the father’s refusal to undergo a DNA test.

As a child he was told that a person was his father but when he was 29 years old his mother told him that his father was actually another man.  That man refused to undergo a DNA test, or to formally accept the paternity, so his son applied under the Status of Children Act for a declaration as to who his father is.

The Court has a discretion to make a declaration of paternity if an eligible person is able to prove to the Court that on the balance of probabilities, a paternal relationship exists.  Although the best evidence is usually a DNA test, the Court cannot force a person to take the test.  The Court must instead weigh all the admissible evidence to conclude whether paternity is more probable than not.  The fact that a person refuses to do a DNA test is an admissible fact, which the Court can take into account.   

The factual evidence in this case was that the first alleged father was Chinese, and the “son” had no Chinese features.  He was also not recorded as the father on the birth certificate, in spite of the mother accepting child support payments from him for 15 years.  The Judge accepted evidence from the mother and uncle that the mother and alleged father acted like boyfriend and girlfriend at the time of conception, and had sexual intercourse.  The “son” also showed a physical resemblance to the second alleged father.  The Judge further accepted that there was a brief period during which he did acknowledge that he was the father. 

Finally, the Judge also took into account the evidence that the father declined to undergo a DNA test for the purposes of establishing paternity.  The Judge said that in the circumstances, it is proper to infer, from the refusal to undergo a DNA test, that he expected the DNA test would support that he was the father. The Judge was therefore satisfied on the balance of probabilities that he was the father, and made a declaration that he was the father.

An interesting side issue will be the status of the 15 years of child support payments made by the man now known to not be the father.

Jaenine Badenhorst
Family Lawyer
Wellington