Submitted by Zizipho Zondani on
BARBADOS
Title:
F v. M
Court:
Court of Appeal
Date:
3 April 2009
CRC Provisions:
Article 7: Name and nationality
Other International Provisions:
European Convention on Human Rights, Article 8 (Right to private life)
Case Summary:
Background:
A man (“F”) acknowledged paternity of a child and was recorded as the child’s father on the child’s birth certificate. Many years later, during a dispute over maintenance payments, a DNA test revealed that F was not the child’s biological father. Despite the DNA result, a Magistrates’ court found F to be the child’s father and ordered him to pay maintenance. F appealed against the order on the ground that the decision was contrary to the DNA evidence.
Issue and resolution:
A child’s right to know his or her parent. Taking into account the best interests of the child the Court considered the impact DNA testing had on the determination of paternity. The Court decided it was in the best interests of children to know their parents and set aside the maintenance and paternity order.
Court reasoning:
The key issue considered by the Court was what impact DNA testing had on the determination of paternity. The Court explained that where a DNA test is used there is no need to resort to presumptions to determine paternity, such as the rebuttable presumption that a person is a parent once registered on the child’s birth certificate. The Court accepted that the DNA test revealed the appellant could not be the biological father of the child.
The Court emphasised that cases concerning maintenance payments should take into account the rights and welfare of the child with a decision made in the child’s best interest. The Court was not satisified that the child’s interests were taken into account and would have preferred for consideration to be given to the impact of the paternity test result on the child. To safeguard children’s interests they should have their own legal representation separate from their parents. The Court explained children have a right to know as far as possible who their parents are, a right protected under the UN Convention of the Rights of the Child (Article 7). DNA testing can provide children with knowledge on who their biological parents are, the Court found it is generally in the child’s best interest to have this information on their identity. In determining the impact of DNA testing in this case the Court considered decisions by the European Court of Human Rights which found that States whose domestic law fail to take into account that DNA tests provide conclusive evidence of paternity breach the right to private life under Article 8 of the European Convention on Human Rights. Accepting DNA testing as the best scientific evidence for determining paternity the Court set aside the decision finding the appellant was the child’s father. The appellant was no longer required to pay maintenance for the child.
Excerpts citing CRC and other relevant human rights instruments:
A child's right to know the truth about his parents is acknowledged in the United Nations Convention on the Rights of the Child 1989, which was ratified by Barbados on 9 October 1990 and entered into force on 8 November 1990. In particular art 7 provides that:
'1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.'
A child has a right to know his or her true identity and it is generally in the child's best interest for this information to be obtained. The approach of the cases is that it is desirable to have the best evidence to ascertain the truth; this can be obtained by DNA evidence. In this case the truth should be known.
CRIN Comments:
CRIN believes this decision is in compliance with the CRC. Article 7 provides a child with the right, as far as possible, to know his or her parents.
Citation:
[2009] 74 WIR 64
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.
