Firstly, the court has the right under section 70 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 to request a scientific test in order to determine what the biological parentage of the child is. If consent is not granted or the child is not tested, then the court may draw adverse inference from the actions of the parties. The use of the word "may" makes it clear that the court has discretion whether to choose to make such a request and will not do so in every paternity case.
If a request is made, and the party addressed does not comply, then they will not be physically compelled to undergo tests nor be rendered in contempt of court. To do these things would hinder a person's civil liberties. Instead, if there is non-compliance on the part of the requested party, then the court may draw such adverse inference, if any, as seems appropriate, taking into account the subject matter of the proceedings. 1 The vital Smith v Greenhill2 case echoes somewhat the situation presented by Philip's case.
Here, a man sought declarator that he was the father of a child and also an award of access to her. The mother was married to another man. After proof the Sheriff concluded that both men were having sexual relations with her at the time of conception therefore either could be the father of the child, and refused the declarator. On appeal to the Sheriff Principal it was held that s. 70(2) gave the court discretion both as to whether to draw an adverse inference, and as to the nature of any inference to be drawn. It was submitted that by the Sheriff's drawn inference, he had not properly applied s. 70(2).
As it had been established that either the pursuer or the defendants husband could be the father, the Sheriff had been entitled to concluded that the presumption in favour of the husband3 had not been overcome: "It would have been unreasonable to found on s. 70(2) as justifying an inference, and therefore a conclusion , that he was not the father, and that the pursuer was. " The furthest the judge could go was to find that the pursuer could be the father, but equally, that the father could be the defendant's husband.
I believe this would be the opinion of Lord McSporran in the given case, as both had access to Eileen at the time of conception. The adverse inference is limited to the credibility of Eileen's claim that no sexual intercourse took place between her and Philip whilst separated, rather than inferring parentage. A problem concerning the parentage of Sally arises in Section 5 of the Law Reform (Parent and Child) (Scotland) Act 1896, which deals with all legal presumptions of paternity. There is a common law presumption that the "father is shown by the marriage".
Section 5 is a statutory re-enactment of this principal. The section states that: "A man shall be presumed to be the father of a child- a) If he was married to the mother of the child at any time in the period beginning with the conception and ending with the birth of the child; b) Where paragraph (a) does not apply, if both he and the mother of the child have acknowledged that he is the father and he has been registered as such... " Jack has done everything required of him by law under s. 5(1)(b). However, Philip falls into the s.
5(1)(a) category and it appears that (b) only applies if (a) does not, meaning Philip and not Jack is the presumptive father. No legal presumption arises simply because a man is cohabiting with a woman at the time when she conceives or gives birth. However the law does implicitly pay some recognition to the case where the father of a child can be identified from the circumstances. If both a man and the mother of the child have acknowledged that he is the father, and he has been registered as such in the appropriate Register of Births, Deaths and Marriages4, he shall be presumed the father.
But, in such a case where a man, namely Philip, already has the s. 5(1)(a) presumption, (b) does not operate. If Philip was the presumptive father, he could give consent to have Sally DNA tested. If section 5 does not apply, the matter must be solved by evidence. The question of paternity may be resolved by raising an action for decree of declarator of parentage. 5 The standard of proof in proceedings to establish or deny parentage is the normal civil standard of the balance of probabilities.
In Smith v Greenhill it was submitted that the Sheriff failed to correctly adopt the balance of probabilities test in s. 5(4)6. This argument was rejected. Finally, it must be asked whether it is in the interests of the parties to proceed with DNA testing. The ides of a child knowing the truth about their origins is weighed up against what the court perceives as being in the interests of the child's welfare. In Smith v Greenhill, the Sheriff pointed out that in any event he would not have awarded access to the pursuer, as he was not satisfied such an award would be in the child's interests.
Even if Philip is found to be the father through DNA testing, I do not believe that Lord McSporran would find this detrimental to her. Fatherhood alone is insufficient to give the father a legally recognised role in the upbringing of a child. If a family unit can be preserved, the judges will almost certainly seek to do so. It can be argued therefore that Sally should know who her biological father is, and the tests are not invasive, therefore could be done with relative ease.
In conclusion, Jack and Eileen may be simply against DNA testing, and feel they have nothing to prove. However, the refusal to undergo DNA testing may be inferred by the court as proof that Philip is Sally's real father. Essentially that is a matter for the court's discretion, and depends upon whether Lord McSporran feels that a decree of parentage through the drawing of an adverse inference in Philip's favour would be in the best interests of the child, or whether he will follow the example set in Smith v Greenhill.