In the UK, the named mother and father on a birth certificate are legally responsible for bringing up their child. After a split, the parent who takes day-to-day care of the child can apply for maintenance from the other parent. It is at this stage where some cases get a bit sticky, as the father may deny paternity.

At this point,  it is legal for the ‘father’ to deny paternity, but upon being contacted by Child Maintenance Services (CMS) they will have to provide significant evidence.

As long as the following circumstances are met, a man will be considered the father of the child if:

• The children are a resident in the UK, and
• They have not been adopted since the separation, and
• The father was married to the mother of the children at any time between the date of conception and the date of birth of the children, or
• He is named as the father on the birth certificate.

A DNA sample can only be taken if the person doing the test has permission from either:

If a person won’t take a DNA test

if the person being tested is an adult, a parent or guardian. If the person being tested is under 16, a parent or guardian.
You can ask the court to believe what you say about someone’s parents. This is called a “declaration of parentage” application. A DNA test could be ordered by the court.

There are other circumstances that will result in the man being listed as the father:

• Donor insemination and fertility treatment
• Conception through a surrogate parent in an agreement that lists the man as the father
• The courts have declared the man as the legal parent in a previous case
• The man legally adopted the child

What if the man continues to deny paternity?

The next step is for the CMS to talk to both the mother and the father separately. They will ask the man what he knows about the mother and how close he is to her, as well as about his sexual relationships and how he uses birth control. They will also ask why the man rejects paternity and if DNA testing has been done in the past. Last, they will ask the man if he is willing to give a DNA sample.

During the interview with the mother, she will be asked about her relationship with the man, if she had sex with other men in the three months before and after the baby was born, and if she is ready to take a DNA test.

Is it legal to refuse a paternity test?

Yes, it is possible for the man in the UK to say “no” to the paternity or DNA test that comes next in the steps above. But if the man doesn’t take the DNA test, most of the time the law will say that he is the father of the children. Legally, the court can’t force the man to take the DNA test, but he has nothing to lose and the case will move forward if he does.

If he doesn’t want to take the DNA test for money reasons, like not being able to pay for it, the CMS will pay for it. If he is the father, he must pay this fee back, but if he is not the father as he says, he will not pay for it.

In some cases, the whole process of arguing about who the father is doesn’t start until after the support fee has been calculated.

What happens if the man is proved to NOT be the father?

Backdated since the day of the paternity dispute, the mother should pay back any maintenance that she has received, however, she will not have to pay back any maintenance from before that date. The court will decide this ultimate repayment fee. The CMS will also refund any DNA testing costs to the man if he is not the father. 

What happens if the man is the father?

Whilst a DNA test cannot be forced on the man, if refusing the test results in the responsibility of parenthood, most will choose to take the DNA test and get definite proof. If that test comes back and the man is the father, he must pay the court costs, the DNA testing costs, and any arrears in maintenance. Having denied paternity and been proven wrong can also cause major complications in the proceeding contact and custody discussions.

Instruct me?

If you want to instruct Atty Magsino, please email donm@queensparksolicitors.co.uk or queensparksolicitors@gmail.com.