Paternity disputes – what has changed? By John Bolch

Family|Family Law|February 24th 2014

At the end of my post on Friday I mentioned the survey suggesting that nearly one in ten British fathers harbour doubts over the paternity of their children, and posed the question: are the results of the survey an interesting comment upon relationships in modern Britain, or just confirmation of something that has always been the case?

Well, I don’t recall any similar survey being done previously, so I can’t provide a definitive answer to the question. I do, however, remember in the early years of my career nearly thirty years ago dealing with many cases involving disputes over the paternity of illegitimate children, so my impression is that nothing has changed, at least over that period of time.

On the other hand, the way that we dealt with such disputes back then was rather different from today. These were the days before the Child Support Agency and, more importantly, before DNA fingerprinting tests became available.

In those days if the mother of an illegitimate child sought maintenance for the child from the person she alleged to be the father, she had to apply for an ‘affiliation order’.

An application for an affiliation order had to be made within three years of the child’s birth, unless the man alleged to be the father had paid money for the child’s maintenance during that period, in which case the mother’s application could be made at any time thereafter.

I’ve long since discarded any text books I had on the subject, but my recollection of the way it worked was that the mother had to adduce evidence which corroborated her allegation that the respondent was the father of her child. If she did, the court would find that the respondent was the ‘putative’ father.

Such corroboration usually took the form of an old-fashioned (i.e. non-DNA fingerprinting) blood test which (if memory serves me correctly) could prove that the respondent was not the father, but not whether he was.

I also recall taking evidence as to when the parents slept together, and counting back from the date of birth to see if the dates matched. Very personal stuff, and not very pleasant to deal with.

Once it was established that the respondent was the putative father, the court moved on to determine how much he should pay.

Affiliation proceedings were abolished by the Family Law Reform Act 1987, and of course paternity disputes are now usually dealt with in the context of applications for child support maintenance.

However, it was not a legal development but a scientific one that really transformed this area of the law. Also in 1987 DNA testing became available in this country. For the first time it was possible to determine with (virtual) certainty whether a man was a child’s father.

DNA testing does not require a blood sample. Instead, a mouth swab is used, with samples taken from the mother, the child and the alleged father. The samples are then sent to a laboratory, where they are tested to determine whether the child is related to the father. The results will either show that he is not the father, or that he is, with a confidence level in excess of 99.99%. Obviously, this level of certainty did away with the need for any argument in court as to whether he was the father!

So, whilst I’m not so sure that much has changed regarding the frequency of paternity disputes, a lot has certainly changed with regard to the way in which they are resolved.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Andrew says:

    You are right about blood tests which could only exclude paternity or demonstrate that it was very unlikely. And I remember that absurd Summerskill woman in the House of Lords saying that it was therefore unfair and should not be allowed.

    She was the one who wanted maintenance automatically linked to the RPI. it apparently eluded her that if the payer’s income did not keep up with RPI they should both lose out, just like they would if they were still married. What a misandrist she was!

  2. Andrew says:

    Not so long ago there was a rule of practice that if an application against Mr A failed a subsequent application against Mr B would be dismissed. Since ex hypothesi the woman did not know who the father was she should not be allowed to trouble anybody else. Harsh, but common-sensical!

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