Disputes over Paternity

A parent is a person who is legally recognised as being the mother or father of a child. A person can be a parent for various reasons: biologically, or because they have adopted the child, or because there has been a surrogate parent order or because (in some instances) they are a donor. The CSA/CMS is unable to decide maintenance applications until such time as a parent either admits that they are the parent or by a court order.

There may be instances in which a parent ‘with care’ does not disclose the identity of the other parent, and in other instances a person may deny being a parent. In these instances it is up to the CSA/CMS to investigate the case to see whether or not the person can be assumed to be the parent. In most, but not all, cases, the person who raises the dispute is a father who does not live with the child.

Pre-Calculation Disputes

An investigation into paternity may happen before or after the CSA/CMS decides how much maintenance should be paid. If the CSA/CMS has not made the calculation and there is no presumed parent, the calculation cannot be made until such time as the identity of the parent has been decided. The CSA/CMS will undertake its own investigations to see whether paternity can be established. These investigations may include interviewing both mother and alleged father, and may also seek DNA tests or resort to court action for a declaration of parentage. If an alleged parent does not turn up for the DNA test, the CSA/CMS can assume parentage, i.e. that they are in fact the parent of the child.

Post-Calculation Disputes

If the CSA/CMS has already made a calculation as to maintenance, the person is usually disputing their parentage for one of two reasons: in order to avoid paying maintenance, or because he no longer believes he is the child’s father. It is not sufficient to simply deny being the parent: there has to be some further evidence to support the claim. This may be, for example, evidence that the mother was having another relationship at the time she fell pregnant.

Whether a DNA test is offered depends on whether the parent with care (usually the mother) accepts that there might be a question as to parentage or not. If she accepts it, the CSA/CMS may offer a DNA test. If she disputes the claim, the onus is then on the man disputing paternity to prove that he is not the father, but the CSA/CMS will not offer a DNA test in these circumstances.

DNA Tests

The CSA/CMS offers DNA tests at discounted rates for those who take them voluntarily. If a court orders a test, the non-discounted rate will be payable. If the alleged parent cannot pay this sum in advance, the CSA/CMS may pay on the condition that he abides by the outcome of the test and, if found to be the parent, agrees to pay back the cost of the test. If the alleged parent is then found not to have parentage, they should get a full refund.

Court Orders

Sometimes, if all other avenues have failed a declaration of parentage can be sought in court. In Scotland, this is called a declarator of parentage. The types of instances that will lead to a court order being sought are: if a DNA test proves inconclusive, if the mother had fertility treatment and the alleged father disputes giving consent to the treatment, or if post-calculation the disputing father can only provide inconclusive evidence, which is disputed by the mother.

Either the parent with care of the child or the CSA/CMS can make the application to the court. If the parent with care makes the application, they will usually have to pay their own costs at court and if they lose the case, will probably be ordered to pay the costs of the person disputing parentage, too.

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