Skip to content
Law Society of Scotland
Search
Find a Solicitor
Contact us
About us
Sign in
Search
Find a Solicitor
Contact us
About us
Sign in
  • For members

    • For members

    • CPD & Training

    • Membership and fees

    • Rules and guidance

    • Regulation and compliance

    • Journal

    • Business support

    • Career growth

    • Member benefits

    • Professional support

    • Lawscot Wellbeing

    • Lawscot Sustainability

  • News and events

    • News and events

    • Law Society news

    • Blogs & opinions

    • CPD & Training

    • Events

  • Qualifying and education

    • Qualifying and education

    • Qualifying as a Scottish solicitor

    • Career support and advice

    • Our work with schools

    • Lawscot Foundation

    • Funding your education

    • Social mobility

  • Research and policy

    • Research and policy

    • Research

    • Influencing the law and policy

    • Equality and diversity

    • Our international work

    • Legal Services Review

    • Meet the Policy team

  • For the public

    • For the public

    • What solicitors can do for you

    • Making a complaint

    • Client protection

    • Find a Solicitor

    • Frequently asked questions

    • Your Scottish solicitor

  • About us

    • About us

    • Contact us

    • Who we are

    • Our strategy, reports and plans

    • Help and advice

    • Our standards

    • Work with us

    • Our logo and branding

    • Equality and diversity

  1. Home
  2. News and events
  3. Legal news
  4. Hearing should have ordered paternity test: sheriff

Hearing should have ordered paternity test: sheriff

11th January 2021 | family-child law | Children

A children's hearing applied the wrong tests in refusing to add a requirement that the local authority organise a DNA test to establish the paternity of a child subject to a compulsory supervision order, a sheriff has held.

Sheriff Alison Stirling gave the ruling at Edinburgh Sheriff Court in allowing an appeal by JS, who claimed he was the father of a three year old girl first referred to the hearing system at the age of three months. At that time JS and the child's mother both accepted the grounds of referral (lack of parental care, and close connection with a person who had carried out domestic abuse), and that JS was the child's father. Some time later the mother claimed that JS was not the father, though he continued to attend hearings as a relevant person.

When JS sought contact the matter was deferred until the paternity question was resolved. A subsequent hearing, on advice from the National Convener, refused to order a DNA test to be carried out on the basis that it was not competent to order the child to undergo a test. In the event that it was competent, it was not necessary as it was not in the child's best interests that contact take place.

On appeal JS argued that it was competent under s 83(2) of the Children's Hearings (Scotland) Act 2011 to order that a sample to be taken for paternity testing; there was no restriction regarding parental consent. The hearing had failed to address the benefit to the child of having the dispute about paternity resolved, and had failed to consider her best interests. It was wrong to rely on a test of necessity. Article 8 of the Human Rights Convention was also engaged.

The reporter argued that while an authority could be reaquired to make arrangements for a test, it could not require a test to be carried out as a practitioner might take the view that the mother's consent was required. The hearing was also justified in finding that the requirement was not necessary. Nor did article 8 require the hearing to take positive steps to ascertain parentage. 

Sheriff Stirling said it was clearly competent under s 83 to include in a compulsory supervision order a requirement that a DNA sample be taken for paternity testing, by cheek swab. Competence did not depend on enforceability: s 131(2)(b) envisaged that some orders might not be complied with. 

The test for additional measures falling within s 83(2) was that in ss 25-28, including welfare being paramount, regard being ha Their refusal was based on their conclusion that contact was not in the child's best interests, but JS was not then seeking contact. They failed to consider the benefits to the child of knowing who her father was as early as possible, or that JS might be excluded from future hearings while paternity remained in dispute. Had they properly directed themselves, they would have found it in the child's best interests to make the order and that it was better to make it than not to make it.

Article 8 was also engaged as it required that everyone should be able to establish details of their identity as individual humafactory for the reasons given in Mikulic v Croatia [2002]. If this were the only remedy, the United Kingdom is likely to be held to have violated article 8. However for families who are subject to the children’s hearing system there is a remedy in s 83(2)(f) of the 2011 Act.”

Contrary to the reporter's position, there was no merit in requiring a further hearing. It was undoubtedly in the child's best interests that an order be made, and the balance between her and JS's rights to have paternity determined and the mother's right to withhold consent “falls inevitably in favour of the child and the appellant”.

Click here to view the judgment.

Add To Favorites

Additional

  • News and events

In this section

  • Law Society news
  • CPD & Training
  • Blogs & opinions
  • Events
  • 75th Anniversary

Categories

  • civil litigation
  • criminal law
  • employment
  • obituary
  • careers
  • practice management
  • law society of scotland
  • government-administration
  • welfare/benefits
  • family-child law
  • reparation
  • professional regulation
  • property (non-commercial)
  • insolvency
  • consumer
  • human rights
  • mental health-adult incapacity
  • planning/environment
  • europe
  • information technology
  • immigration
  • education-training
  • executries
  • corporate
  • commercial property
  • agriculture-crofting
  • dispute resolution
  • risk management
  • intellectual property
  • client relations
  • tax
  • licensing
  • banking-financial services
  • trusts-asset management
  • reviews
  • opinion
  • For the public
  • Research and policy
  • Regulation
  • Journal online news
  • interview

News Archive

  • 2023
  • 2022
  • 2021
  • 2020
  • 2019
  • 2018
  • 2017
  • 2016
  • 2015
  • 2014
  • 2013

Related articles

  • Restricted UNCRC Bill approved by Holyrood
  • Disabled Children Transition Bill voted down at stage 1
  • Concerns over Bill designed to help disabled young people
  • Holyrood will look at changes to child rights legislation
Law Society of Scotland
Atria One, 144 Morrison Street
Edinburgh
EH3 8EX
If you’re looking for a solicitor, visit FindaSolicitor.scot
T: +44(0) 131 226 7411
E: lawscot@lawscot.org.uk
About us
  • Contact us
  • Who we are
  • Strategy reports plans
  • Help and advice
  • Our standards
  • Work with us
Useful links
  • Find a Solicitor
  • Sign in
  • CPD & Training
  • Rules and guidance
  • Website terms and conditions
Law Society of Scotland | © 2025
Made by Gecko Agency Limited