Family Law

Nick Hodson, Partner, Stephensons Solicitors LLP and Ann Potter, Senior Lecturer in Social Work, Manchester Metropolitan University.

It has been widely recognised for some time in the fields of psychology, social work and law that knowledge of one's biological origins is generally a good thing and arguably a matter of right for most children and young people (A Bainham, 'Arguments about Parentage' in (2008) 67(2) Cambridge Law Journal 322; S Besson, 'Enforcing the Child's Right to Know her Origins: Contrasting Approaches under the Convention on the Rights of the Child and the European Convention on Human Rights' (2007) 21(2) International Journal of Law, Policy and the Family 137). Where there is doubt, DNA science has provided what is usually assumed to be a safe and reliable means for adults and children to be sure about who is related to who in their family. The 'scientific' status of DNA tests has generally resulted in a belief that such tests will provide safe, clear and reliable evidence. However, testing for biological relationships will not necessarily produce a positive result or experience for those involved (Besson, 2007; A Northover and G Dennison, 'Genetic Testing and the Impact on the Family'[2002] Fam Law 752). There is also no assumption here that biological relatedness is better or more important than other relationships a child or adult may have or develop, for example, in adoption. Increasingly, communities within the UK represent a wide range of culturally diverse constructions of family, parenthood and child-rearing and there is shifting emphasis in the relative importance of social and genetic parenthood. Determination of biological relatedness, while sometimes necessary for the court to establish the 'truth' or otherwise of legal familial relationships, may not hold the same importance or relevance to the adults and children concerned.

In addition to family relationship testing, there has been a reported growth in DNA testing for 'ethnicity', or more accurately, to determine racial inheritance. Concerns about the ethics, misconceptions and assumptions underlying such testing have resulted in a recent joint statement by the British Association for Adoption and Fostering and the British Society for Human Genetics (BAAF and BSHG, Statement on the use of DNA Testing to Determine Racial Background (2008)). This statement specifically advises against the use of DNA testing to determine ethnicity and sets out the need for clarity of purpose before commissioning such tests. There are no Ministry of Justice statistics available as to how often DNA test results become evidence in family proceedings. However the growth of an industry for DNA testing, including 'court directed testing', is apparent from the wide range of publicity material produced by testing companies in newspapers, magazines, websites and the regular use of DNA testing on TV programmes such as the Jeremy Kyle show. The impression given appears to be that DNA testing will provide quick, non-intrusive, irrefutable evidence, and the availability of home testing kits suggests that the testing process is easy and can be conducted on a 'DIY' basis.

The need for practice guidance and regulation of this growing industry was addressed to some extent when the Department of Health (DoH) issued a (voluntary) Code of Practice and Guidance on Genetic Paternity Testing Services (2001). This document is currently being revised following consultation on a new draft: Good Practice Guide on Paternity Testing Services. The updated guide takes account of developments in the field of DNA science and deals with a wide range of ethical and procedural issues such as the growth of covert (motherless) paternity testing. At the time of writing the new document is not finalised. Information from the DoH indicates that it is expected to be published later this year, however all companies approved by the Ministry of Justice to undertake court directed DNA tests will be obliged to comply with the guidance (Consultation Document: Good Practice Guide on Paternity Testing Services (DoH, 2008), at para 11)

For the full article, see October [2008] Family Law journal.

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