While it is easy to identify a child’s mother, this is not always the case for the father. Establishing paternity is less certain and more problematic than establishing maternity. Only scientific testing can confirm paternity. In Scotland the courts will not order a person to undergo a paternity test although they may request he does so. The reason for this is that a paternity test is a medical procedure and the law is unwilling to enforce a person to undergo a medical procedure or test. As a result of this the law relies on presumptions and deeming provisions which are to be found in the Law Reform (Parent and Child) (Scotland) Act 1986 (“the Act”)
The following presumptions, from Section 5 of the Act, assist the courts in disputed cases. A man shall be presumed to be the father of a child:
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These presumptions can be overturned by proof on a balance of probabilities either that the mother’s husband is not, or that someone else is, the genetic father of the child.
The father of the child may receive requests for maintenance contributions but have genuine doubts that the child is his and so may wish to dispute paternity.
This doubt may be resolved by means of a DNA test on both the child and the man alleged to be, or not to be, the father. However until this presumption is rebutted in a court of law the husband will be treated as the father of the child even when in fact he is not.
An action for declaratory of parentage or non-parentage may be raised in either the Court of Session or the Sheriff Court under Section 7 of the Act. An action may be raised by anyone with an interest. The majority of actions are raised by mothers seeking to establish paternity. In order to rebut any of the presumptions discussed above the pursuer must prove his or her case on the balance of probabilities. The best evidence is usually DNA profiling.
The rules of parentage of children produced as a result of assisted reproduction are fixed rules and unlike the presumptions of paternity, cannot be rebutted.
Where the woman was married at the time of the treatment but the embryo was created using sperm from someone other than her husband, her husband is treated as the child’s father unless it can be shown that he did not agree to the treatment. The onus is on the husband to prove that he did not consent.
Where unmarried, the woman’s male partner will also be treated as the child’s father so long as the man and woman are treated together and in the course of treatment services are provided by a person who is licensed to provide such services.
Merely establishing paternity does not in itself establish a full parent-child relationship. It is insufficient to give a legally recognised role in the upbringing of the child. It is sufficient however to impose certain responsibilities such as aliment and child support and to confer certain rights such as succession. Paternity also leads to legal inferences under the forbidden degrees of marriage, civil partnership and incest. It is also relevant for damages under the Damages (Scotland) Act 1976.
For further information on legal issues regarding the paternity of a child in Scotland, please contact our family lawyers based in Glasgow on 0141 404 1091 or fill out our online enquiry form.
