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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34236
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I am married to my husband (D). We have 4 children. Our marriage

Resolved Question:

I am married to my husband (D). We have 4 children. Our marriage had difficulties 15 years ago (when we only had 2 children) and we separated for a while. I met someone else (J). Then my marriage began to get back on track. The person (J) I had been seeing became violent but I still saw him as I was afraid my marriage could still dissolve and I had 2 children to try and care for. I fell pregnant and my husband saw this as a wonderful addition to our fresh start. I carried on seeing this other man and he also believed the child I was carrying was his. My husband did not know I had continued the affair. When I gave birth I left off a father's name on the certificate as I wanted to do the right thing. 9 months later the man I had been seeing (J) pressured me into putting his name on the birth certificate. My husband didn't know this and always assumed he was on the birth certificate, as this was his son. The man (J) I had been having an affair with then left the country for four years but returned on a regular basis and when he did I would see him but generally he would beat me. My youngest children were witness to this (the eldest, then aged 9 has never forgotten the beatings). He shut my two youngest in a garage while he forced sex on me and then would be extremely nice and apologetic for his behaviour. I tried to end the relationship but he then threatened to tell my husband that not only had I continued my affair, but that my third son was not even my husband's. When my son was 3 years old I terminated the relationship but kept taking my son round to see this other man (J). Sometimes I would end up having non consensual sex.
Then my husband (D) was made redundant and spent 9 months at home. I fell pregnant again. This time I did not have any doubt (or so I believed) that this child was my husbands. However I still had to take my youngest son round to see this other man and once my daughter was born she (obviously) had to accompany me. Initially this other man had no interest in my little girl what-so-ever. I maintained she was my husband's daughter and he did not contest this. I regularly tried to avoid taking my son around to his house as my son had started to become aware what we were doing was wrong and he always referred to my husband as 'Dad' or "Real Dad' to me. He would probably see my son for 2 hours twice a week at most and of course my little girl was there. If I tried avoiding this (J) would always threaten to tell my husband what was going on and the blackmail continued. Sometimes I could get away with about two hours a month especially during term time.
Two years ago I started working full time and I allowed (J) to collect my youngest son from school. He offered, and I agreed, for him to collect my daughter at the same time. They would spend two hours once every two weeks. He then started demanding my son stay over, My son never wanted to and this was becoming harder to get away with at home. I was trapped and seemingly had no way out. I agreed that my son could stay a night every so often. (In 13 years he has stayed no more than 20-30 nights and NEVER consecutively.) My daughter probably has spent a total of 15 days (in accumulated hours in his presence.) I became aware that he had started to refer to her as 'his daughter' and when I challenged him on this he said that she could be for all he knew, and that if I refused to let her come over he would again tell my husband everything.
She also spent the odd night there but my son told me she cried and wanted to come home but (J) wouldn't let her. Again all this without my husband finding out. Then my daughter asked me directly not to go to (J's) house as she didn't like him rubbing her in the bath. Last summer my youngest daughter told her older sister (now 20) about (J) and that she didn't want to go there but Mummy made her. She also told her that (J) was making her call him Dad and would shout at her if he didn't. My eldest daughter approached me and said she needed to tell me something about (J) all those years ago. She said that on one occasion when she had got into bed with me and (J) and I had gone out of the room he fondled her between her legs. Imagine my utter horror. What was he now doing to my youngest daughter. About a week later my husband had to fix my youngest son's computer and discovered emails from (J) to our son. He was so unbelievably hurt but even worse I had to tell him that he wasn't on the birth certificate which is why I had allowed this subterfuge to go on so long. We agreed on a legal DNA test and my son signed his own consent. The result showed my son to be my husband's child. I then told (J) it was all out. He then claimed my daughter was his and has demanded a court hearing to force a DNA test on her. We have finally got the chance of a family life and now, god forbid, my daughter really is his. He is an abuser, a bully, a blackmailer and violent. Can a judge find it in her 'best interests' to force a test?
Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
May I ask why you have not already arranged for a DNA test on your daughter?
Clare
Customer: replied 3 years ago.
Hi Clare,
I have not arranged a DNA test on her because for 9 years I have believed her to be my husbands daughter and so has he. She is very much a team with her 3 siblings and it would rip her apart to be singled out. If we then discovered she was not my husbands her life would change. We don't have to prove her paternity as we were married at the time of her birth, my husbands name is XXXXX XXXXX birth certificate and my husband was present at her birth. She attends private school with her other siblings. We don't feel a need to discover something that would never have come to the fore. At 16 she can make the decision herself, surely that is better?
Expert:  Clare replied 3 years ago.
Hi
I am so very sorry but there is every chance that a DNA test will be ordered by the court and I am afraid that it will not be seen as "better to wait" until she is 16 to let her decide.
This will be seen as an issue of identity rather than contact and that is something that is taken very seriously and for it to hang over the family for a further 7 years is unlikely to be seen as healthy
From all that you have said there is no issue with regard to contact whatever the result
There is of course nothing to stop you from having a test done privately so that you are aware of the result in advance
I am sorry as i know this is not what you wish to hear - but there is no point in my giving you hope that I know would be false
Clare

Customer: replied 3 years ago.

Hi Clare,


When does "best interests of the child" apply? It seems the court relies on this but it is not made clear how this is applied. For example if my daughter's life is to change and her family is to break up is this deemed as "best interests"? Also if a court demands a DNA test can they also apply a 'stay' on this until she is 16?

Expert:  Clare replied 3 years ago.
Hi
In general terms it is held that it is in the interests of a child to be aware of their biological parentage and for there to be no delay in sharing this information once it is established
There has been some case law which has held that there should be consideration as to the position of the family but I have to be blunt and say that in this case I do not think that this is an argument that will stand up given the position with regard to her brother and all the other factors involved.
A summary of all the relevant case law is here
http://www.fnf.org.uk/law-and-information/paternity-law
Clare
Customer: replied 3 years ago.

Hi Clare,


Does my husband and my daughter's father have any form of say in this, as he has been the one who has raised her and any contact with (J) has been without his knowledge and not of the children's own volition? This case is not black and white but it seems it is being treated as such.

Expert:  Clare replied 3 years ago.
Hi
I am sorry - i do understand that the emotions involved are complex - but the actual issue is in fact a straightforward one (this is often the case in family law)
Your husband is and will always be her father (assuming he wishes to continue to be) no matter what a scientific test says
If the result of that test is in fact crucial to how he sees her then it is even more important that the issue is resolved - as otherwise if it eventually turns out that she is not biologically his then the implications will be enormous
Clare
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