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(Court of Appeal, Longmore, Underhill, Macur LJJ, 17 September 2013)
Following the separation of the Latvian parents of a 5-year-old child, the father had regular contact. When contact became problematic the father issued proceedings in Latvia but an agreement was reached and recorded by court order that the father's claim had been pursued to establish a procedure for exercising rights with the child.
The mother and child later left Latvia for the UK initially with the father's consent. However, when the mother failed to contact the father he issued Hague Convention proceedings and the mother raised the issue that the father was not in fact the child's biological father.
The judge ordered an expert on Latvian law to be instructed and ordered the DNA testing of the parents and child. The father appealed the requirement for DNA testing claiming it had been premature.
The appeal was allowed. DNA testing to establish paternity was a serious step for any court to take and should not be ordered unless it was necessary for it to be done before a conclusion could be reached and only as a last resort.
On the facts of this case, DNA testing was not a mere case management decision. The first step should be for the expert to report on aspects of Latvian law and then if the father had a right of custody, or if, despite any conclusion of Latvian law, the father had a right of custody on the true construction of the Hague Convention, any question of DNA testing would have fallen away. It was only after that step had been taken that DNA testing should be considered.