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.