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Ask Clare Your Own Question
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 35071
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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Hi Clare
Customer: replied 1 year ago.
I was a respondent in a case two years ago, regarding DNA test. The applicant withdrew his application after section 7 report was produced. The report stated that his application was not child focused, and DNA test should be ordered for my child, but not for the benefit of my ex husband. Now he is asking for the test again. I would like to re-open case and ask the court to issue directions as to who needs to be tested, because the child is now 14 years old.
Thank you for your question and for asking for meHow so you and your child feel about the DNA test?
Customer: replied 1 year ago.
I had offered Dna testing both our children in 2003, at the time of our separation, when the children were 18 months and 6 years old. He did not proceed with it. Then in 2004 he was advised to take one by CSA, which i gave my consent too. Again he did not proceed with the test. In 2014 he requested DNA test for my daughter only, who was 12 at the time (our son was already 16 years old) but withdrew his own consent. Now he is demanding one again, for the fourth time. My dayghter is not remotely interested in DNA test, she is aware that her father has offered "to confirm her biological identity" to her, but her answer to that was - what's the point? My ex-husband had accused my curtent partner of being her biological father, naming him in court papers. This is a baseless allegation, but my current partner was willing to provide a dnr sample to my daughter privately, to confirm to her what she always knew - that he is not her biological father. Again, she was not interested. Coincidentally, she can also excluded from being his biological child as their blood types dont match, we made her aware of this. In her view the matter is clossed.
I am in principle not objecting to dna test, but taking into account my daughter's view and everything else as i told you above, I see no point now, and would like to stop my ex-husband making these unmeritted applications.
Has he actually made a further application?
Customer: replied 1 year ago.
The CSA case was moved to CMA and I have been advised by CMA that he has.
he has asked the CMA to arrange a DNA test?
Customer: replied 1 year ago.
They told me that because his case has been moved to CMA from CSA, they are treating it as a new case and so it is his legal right to deny paternity, regardless of the fact that it is really not a new case (he has been paying through CSA for 11 years). If I don't give my consent, they would close the case. So I said I would, but it will be difficult to make my daughter do it if she doesn't want to, and in light of his previous claims which he never pursued. CMA don't seem to take much notice of that, and follow their procedure as if she is a newborn, DNA test is just a simple taking of a sample "that doesn't" hurt, and no consideration to legal paternity - we were married when my daughter was born, he is on the birth certificate.
An extract from the CAFCASS s7 report concluded:
"34. From the information I have received in this case, I have assessed that Mr Applicant has not taken into consideration child's best interest relating to paternity testing but he wishes to gain closure as to whether child is biologically linked to him or not. Therefore, this application does not appear to be child focused or in order for him to build a relationship with child. A DNA test should therefore not be completed for the purpose of meeting Mr Applicant's needs.
35. However, a DNA test should be completed in a sensitive manner, to determine child's identity needs as she has a right to know who her biological father is.Recommendations36. I have considered the 'No Order' Principle for this case and believe that No Order would not be in child's best interest at this time with regards ***** ***** paternity.
37.A Specific Issues Order is granted for a DNA test to be completed to determine who child's biological father is.
38. No Order should be made for child to spend time with Mr Applicant at this time, in line with her expressed wishes and feelings"The applicant was insisting on DNA test on the day the CAFCASS report was read in court. During negotiations, I put forward to the father's solicitor that my current partner, is happy to do the test, and once that comes negative, it will mean that the applicant is the father as there are no question of third possible person. The solicitor did not agree on the grounds that this still gives no confirmation of paternity to her client. I pointed out that it was my child's needs and not the applicants that are being considered, as per CAFCASS report. She challenged me to put this to the judge, which I did. They gave me three weeks to consider the report in more detail. At the next hearing, the applicant was representing himself and withdrew his consent for DNA.
I have to ask - how far do you wish to take this.The CMS are in the wrong and you can push them - but the payments may stop while it is being sorted?
Customer: replied 1 year ago.
I don't depend on the payments, and they are not much anyway. He has no interest in my daughter, he is just using his so called right to know because he can. This is a matter of principle, he is required by law to support the children. I am not prepared to use my daughter to prove that I was never cheating on him, in exchange to a hundred pounds a month. So i need some guidance how to play it next.
In that case you appeal the decision of the CMS.Always in writing - never by phone.You were married to the father and there have been Children Act proceedings.He did not demand a DNA test when the CSA first made the assessment and he has no right to do so now.You may well need to follow the complaint up to the Tribunal level - but push it this is NOT a new case.Having said that if he wishes to waste £400 on a test that will prove he is the father there is an element of thinking more fool him.....Please ask if you need further details
Customer: replied 1 year ago.
Thank you Clare, this is helpful.
I have a letter from my ex-husbands solicitor confirming that both he himself, and the solicitor have contacted the CMS in 2014 to demand the DNA test but were advised that CMS will not get involved as his case was opened in 2004. Is it worth send a copy of my application when appealing in writing, or at the Tribunal level, should it go to that stage?
And last question - could you offer some insight as to what made my ex to change his mind and withdraw his court application, as I have received no explanation. Is it likely that he was advised by his solicitor that the DNA test will not be ordered, or if it were, the results would only be disclosed to my daughter but not him? What was likely to happen if he proceeded with the application? Was there a likelihood that inferences would have been made by the court, in light of the previous demands for the test but failing to proceed with it?
I know it is not possible to predict what the outcome would have been, but it would be very valuable to hear a professional opinion based on court practice and experience.
There is no need to send a copy of the application with the appeal - they have all the detailsI would say that he stopped asking for the DNA test because you were willing to agree to it - it is a lot of money to spend to be told you are the father
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