Edinburgh sheriff finds man entitled to paternity test as part of child compulsory supervision order

The appellant, JS, had been party to referral proceedings in relation to a child that commenced in 2018. He was refused contact with the child in February 2019 after the mother claimed that he was not the child’s father.

The appeal was heard in Edinburgh Sheriff Court by Sheriff Alison Stirling.

Best interests

The child was born in November 2017 and was referred to the local authority in early 2018. The grounds referred to the sheriff by the reporter were that the child was likely to suffer unnecessarily or her health or development was likely to be seriously impaired due to lack of parental care and that she had or was likely to have a close connection with a person who had carried out domestic abuse. The latter ground appeared to rely on the appellant being the child’s father.

Following the making of a compulsory supervision order, the mother claimed that the appellant was not the child’s father. He continued to attend children’s hearings as a relevant person, and at a children’s hearing in February 2019 it was decided that the question of reinstatement of contact should be deferred until the question of paternity was fully resolved.

The appellant requested a review hearing, which took place in August 2019. The hearing refused to add a measure onto the compulsory supervision order requiring the local authority to organise a DNA test on the basis of advice they had received from the National Convener under the Children’s Hearings (Scotland) Act 2011 that it was not competent to order the child to undergo a mandatory DNA test.

The advice provided by the National Convener, which the panel was not bound to follow, stated: “Even if the mother consented to the DNA test, is it necessary for the hearing to know whether the putative father has a genetic relationship with the child in order to determine whether compulsory supervision is necessary and/or to determine contact. That doesn’t appear to be the case.”

The hearing additionally held that in the event that such an order was competent it was not necessary because contact with the appellant was not in the child’s best interests and he had other means to establish paternity.

It was submitted for the appellant that it was competent for a children’s hearing to include a measure on a child’s compulsory supervision order for the taking of a DNA sample and that this could be done in the absence of parental consent. Furthermore, it was in the child’s best interests to have the issue of paternity resolved for possible permanence order proceedings, as well as in other respects.

It was submitted for the reporter that such an order may not be enforceable, as it could not require a medical practitioner or DNA testing company to provide services. The hearing was justified in finding that DNA sampling was not necessary.

Wrongly advised

In her opinion, Sheriff Stirling began: “It is clearly competent to include a measure on a child’s compulsory supervision order requiring a sample to be taken from a child for the purposes of DNA paternity testing and ordering that the implementation authority arrange such an appointment and facilitate the taking of the sample and the DNA test.”

She noted: “Taking a cheek swab for the purposes of obtaining a DNA sample is a ‘medical or other examination of a child’ and is a measure which can be included in a compulsory supervision order [order under sections 83(1)(a) and (2)(f)(i) of the Children’s Hearings (Scotland) Act 2011].”

Considering the test to be applied to measures in compulsory supervision orders, she said: “The tests [the hearing was] required to apply are in sections 25, 27 and 28 [of the 2011 Act], and in particular the welfare and the no order principles. They should have asked themselves whether it was in the best interests of the child that an order was made requiring a cheek swab to be taken for the purposes of DNA testing and whether it was better for that order to be made than that it should not be made.”

She continued: “They did not do so. They were wrongly advised by the National Convener and by the reporter that the test was one of necessity, and they applied a necessity test. They reached the decision that a DNA test was ‘not necessary for [her] best interests’.”

Addressing arguments made under article 8 of the European Convention on Human Rights, she said: “In order to respect the private life of the appellant and the child the hearing required to consider varying the compulsory supervision order in line with Article 8 issues. They required to balance the rights of the appellant and the child to have the uncertainty as to the child’s personal identity and the legal relationship (if any) between them eliminated without unnecessary delay against the right of the absent mother to withhold her consent to testing. Had they done so, they would have varied the compulsory supervision order.”

For these reasons, Sheriff Stirling allowed the appeal and granted the order for DNA testing.