Mr. Deputy Speaker
With this, it will be convenient to discuss Government amendments Nos. 43, 82 and 54 to 56.
§ Mr. Rooker
I can deal with the amendments briefly, but in two parts. Apart from amendment No. 82, which I shall come to shortly, the amendments are technical. I will set out broadly what they cover.
Through amendments Nos. 42, 43, 54, 55 and 56, we are making a number of consequential changes to the rules to establish paternity. Clause 75 will amend the Family Law Reform Act 1969 to make changes to arrangements for court-ordered blood tests to establish paternity, so that authority to carry out the tests can be given to accredited laboratories rather than to individual testers approved for that purpose by the Lord Chancellor.
Although laboratories, rather than individual testers, will be accredited in general terms to carry out the tests, reports to the court with the results of tests in individual cases will still be made by the individual tester who has carried out the test. The references to "person" in section 20(2) of the 1969 Act could be construed as including a body of persons, which would cover the laboratory. Amendment No. 43 therefore replaces that reference with a reference to "the tester", and follows the change through in subsections (4) and (5) of the Act. It clarifies that the report to the court is to be made by the individual person responsible for carrying out the test—that is the tester—and that that individual can be required to provide a further statement to the court amplifying the report or to be called as a witness in subsequent proceedings.
Amendment No. 42 and part of amendment No. 54 are related drafting amendments. The remaining part of amendment No. 54, and amendments Nos. 55 and 56, are consequential changes in connection with the introduction, through clause 76, of the new section 55A of the Family Law Act 1986.
Amendment No. 82 will make a much more substantial change. It will change the procedure for court-ordered paternity testing. It will enable the court to overrule a refusal of consent by a person with care and control of a child under 16 to a direction to take a blood sample from the child to establish its paternity, where the court is satisfied that it would be in the best interests of the child for the sample to be taken.
The amendment relates to part III of the Family Law Reform Act 1969, which enables the court to direct the use of blood tests to resolve a dispute about paternity that has arisen in the course of civil proceedings. The need for the amendment was highlighted by a recent case. I have not checked the date, but I believe that the case took place after the Bill was published and may have even been after its Second Reading.
A judgment in the High Court by Mr. Justice Wall held that, under the current law contained in the Family Law Reform Act 1969, the court had no power to enforce a direction for taking a blood sample from a child under 16 to establish paternity, if the person with care and control of the child refuses to consent to the sample being taken. The judge's view is that, as a result, the 1969 Act may not comply with the European convention on human rights in that it can deny the child the opportunity to know about its parentage.
The amendment will put the onus the other way. A child will have a right to know who its parents are, and that is why taking a sample may be necessary. However, a court—and obviously not the child—will judge whether that is in the child's interests.
415 The Government believe that the law does not adequately protect the interests of children. That case shows that it is clearly unsatisfactory that the person with care and control of the child, who may well also be a party to the proceedings, should be able to frustrate proceedings to prevent the child's paternity being established. That can deny the child the right to know its father, and the father the right to be recognised as such and to play a part in his child's upbringing. I am assuming, of course, that the mother has care of the child.
The amendment therefore focuses on the best interests of the child. In deciding whether to give a direction for tests to establish paternity, the court will have the flexibility to distinguish between cases where establishing paternity is in the child's best interests, and those where it may not be. It will be up to the court to make the decision.
Where the child is old enough to express a view, the court will take such views into account in reaching its decision. The amendment will support that process by ensuring that directions given in the best interests of the child can be effectively enforced, and it will ensure that the law in this area complies with the European convention.
§ Mr. Pickles
We had long discussions in Committee about the problem of an unreasonable refusal and the consequences that would flow from that. I presume that those problems will move away because a child will have a right to discover, and the court will help to determine, its parentage. Will one of the factors in the court's determination be whether the child receives maintenance?
§ Mr. Rooker
I have not taken advice on that question, but I think that the answer would probably be no. The issue is determining paternity. Maintenance would flow from a decision on paternity, but the decision on that would be taken later by another body.
I made every effort to get as many of the Government's amendments to the Bill as it was on Second Reading tabled in time for debate in Committee, where we could have held detailed discussions. I regret that I was not able to do that. We had to take advice on the judgment that I have mentioned and we had to discuss it in government, so it was not possible to bring this amendment to Committee where we could have spent more time on it. However, I think that my answer to the hon. Gentleman's question is correct.
The amendment will ensure that the courts can enforce directions for tests to establish paternity so that the interests of children are properly considered and protected. I hope that the House will accept the amendments.
§ Mr. Burns
I listened carefully to the Minister. Everything that he said seemed eminently sensible to me as a layman. However, will he help me with an highly unusual constituency problem that is relevant to the amendments and the existing law on parentage as it affects the CSA?
A constituent came to see me, who, some years ago, had had a relationship with a girlfriend that had ended, I suspect, against her wishes. Two or three years later, he married his current wife. He, his current wife and his ex-wife were then bothered by the former girlfriend to the extent that the police were involved. After he had 416 remarried, the CSA contacted him out of the blue to say that he had a two-year-old child from his relationship with his former girlfriend, that she was on benefit and that he needed to provide details of his income for assessment.
That news came as a tremendous surprise to my constituent, because he was totally unaware at the time of the relationship that his girlfriend was pregnant and because the timing of the pregnancy did not coincide with when he went out with her. He demanded and was granted a blood test by the CSA, which, to his amazement, proved that the child was his.
There is nothing particularly unusual about such a case. However, my constituent then thought more about the matter, because he could not understand, from the time scale, how his ex-girlfriend could have conceived the child. It transpired that, during his relationship with her, there had been a time when she wanted, and he agreed, to conceive a child, but she had problems conceiving. He had agreed to participate in in vitro fertilisation treatment and some of his sperm were frozen in a sperm bank. After the relationship had ended, she had managed—I can only assume illegally, because he had not given his permission—to get hold of the sperm, and a successful conception took place.
My constituent argues that these are highly unusual circumstances, which they are, if they are 100 per cent. true, and I have no reason to doubt that they are. He did not want a child at the time when the child was conceived and born; he did not agree to his sperm being used, but he has heard from the CSA that the blood test in which he participated voluntarily has proved that he is the natural father. He argues that it is unfair that, under the child support regime, he is automatically expected to pay maintenance.
If one assumes that everything that I have been told and relayed to the House is accurate, is that gentlemen, in law, responsible for the financial upkeep of a child whom he did not want to be conceived and who was conceived, it would seem, by devious, if not illegal, means?
§ Mr. Rooker
The hon. Member for West Chelmsford (Mr. Burns) has clearly described the circumstances as he understands them, so I understand the question perfectly. However, I shall not even begin to attempt to answer it from the Dispatch Box. I shall not ask the hon. Gentleman to write to me because I understand the question; I shall write to him giving the best advice that I can.
Hon. Members come to Ministers with all kinds of cases, but I have not had one quite like that. I recently dealt with a case in which a man had admitted that he was the father, but two years later, after a CSA blood test and court case, it turned out that he was not. Such cases are part of human life.
The hon. Gentleman has asked an important question that deserves an answer, because I suspect that the situation is not unique. I shall seek advice and write to him.
§ Mr. Burns
I am grateful to the Minister for his kind offer, which I would like to take up, but to save him and his officials wasting their time, I can tell him that if he contacts Mrs. Faith Boardman, she will give him detailed 417 evidence of what my constituent has said. I should, however, appreciate an answer from the Minister as well as from Mrs. Boardman.
§ Mr. Rooker
Yes, of course. The specifics of the individual case are one thing, but there is also a general question about the issues that the hon. Member raised, so I will look into the matter and write to him.
§ Amendment agreed to.
§ Amendments made:No. 43, in page 79, line 8, at end insert—
- '(b) in subsection (2)—
- (i) for "person responsible for" there shall be substituted "individual", and
- (ii) after "this section" there shall be inserted "("the tester")";
- (c) in subsection (4), for "the person who made the report" there shall be substituted "the tester"; and
- (d) in subsection (5)—
- (i) for "the person responsible for carrying out the tests taken for the purpose of giving effect to the direction, or any" there shall be substituted "the tester, or any other",
- (ii) for "that person" there shall be substituted "the tester or that other person", and
- (iii) after "and where" there shall be inserted "the tester or".'.
§ No. 82, in page 79, line 8, at end insert—
§ '( ) In section 21 (consents, etc., required for the taking of blood samples), in subsection (3), for the words "if the person who has the care and control of him consents" there shall be substituted—
- "(a) if the person who has the care and control of him consents; or
- (b) where that person does not consent, if the court considers that it would be in his best interests for the sample to be taken.".'.—[Mr. Rooker.]