When a person refuses to submit to DNA testing under a Court order, the Court is entitled only to take the refusal on record to draw an adverse inference therefrom.
The DNA testing is the most legitimate and scientifically perfect means, which could be used in proceedings within parentage issue arises. DNA contains an individual's genetic characteristics as transmitted by their parents. Each parent contributes half the genetic material, but the child is a unique individual. These characteristics mean that a DNA test can positively identify a person's parents, but the accuracy of DNA testing depends on the skill of the person conducting the test. Since the discovery of DNA testing, Courts have been trying to reach the balance between the right of a person to object to undertake a DNA test and the right of a child to know its biological father.
The circumstances where a DNA test can be useful as proof in matrimonial litigation
Τhere is rebuttable presumption of legality of a child that was born during a marriage. The status of the child as a child born in wedlock can be challenged in court if it is proved that the mother did not actually conceive by her husband or that at the critical time of conception it was impossible for her to conceive. According to article 9 of the Law on Children (Kinship and Legal Status) Law of 1991 (187/1991) The status of a child as a child born in wedlock may be affected by:(a) The mother's spouse,(b) The spouse's father or mother if he or she died without losing the right of infringement;(c) the child,(d) the mother of the child,(e) the mother's first spouse in the event that an application for paternity is accepted by the second spouse, in accordance with the provisions of Article 7 of the abovementioned Law.
Also, the presumption of legality of a child can be rebutted by the results of a DNA test. The admissibility of DNA evidence is based on the consent of the person that is tested and there shall be evidence that it has be done without being forced. The risk of contamination shall be minimised, and the sources of DNA shall be well preserved and properly identified. In that regard, a DNA test can be used in matrimonial litigation to determine whether a man is another person’s biological father.
The jurisprudence of the European Court of Human Rights
The case concerned Mr. Mifsud’s complaint about being ordered by a court to undergo a DNA test in a contested paternity case. In December 2012 a woman, X, enacted court proceedings to have Mr. Mifsud declared as her biological father and for this to be written on her birth certificate. The applicant denied paternity and X asked the court to order him to take a DNA test, as provided for by the Civil Code in such cases. Mr. Mifsud objected, arguing that forcing him to take the test would breach his rights under Article 8 of the European Convention and asking for a relevant question to be addressed to the constitutional jurisdiction for an opinion. Both the Civil Court in its constitutional competence and the Constitutional Court dismissed Mr. Mifsud’s claim.
ECtHR found that the domestic courts had fairly balanced Mr. Mifsud’s rights and those of a woman, X, who was trying to establish that he was her father. In particular, the courts had examined Mr. Mifsud’s objections to take the test in a first-instance civil court and at two levels of constitutional jurisdiction, eventually finding against him and ordering for the procedure to take place. In that case ECtHR held, unanimously, that there had been no violation of Article of the European Convention of Human Rights. Article 8 provides the following:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court focused on whether the domestic courts had achieved the required balance between Mr. Mifsud’s wish to refuse to provide the DNA sample, a procedure which was an interference with his right for his private life to be respected, and those of X’s to uncover the truth about an important aspect of her identity. The Court emphasised that in such cases it examines the specific effects of domestic legislation on an applicant, rather than the law itself in the abstract.
You can read the decision of ECtHR here in English.
The position adopted by the Cyprus Supreme Court
The Supreme Court of Cyprus has confirmed the decision of the Family Court in a case where the mother of the child has filed an application to the Family Court in order to issue a decision that the respondent is the biological father of her child. The case concerned a child of unmarried persons who was born in 03/03/2010. The respondent, not only did not bring any testimony to support his position that he was not the biological father, but instead, he did not accept the proposition of the claimant (the mother) to have a DNA test. The Family Court ruled that the refusal by the defendant to consent to a genetic test, led to the conclusion that he was indeed the father.
After the Family Court’s decision, the respondent appealed the decision to the Supreme Court. The Supreme Court reaffirmed the judgment of the Court of First Instance concluding that the denial of taking a DNA test constitutes on its own sufficient grounds for the refusal of the appeal. While there can be no definitive proof other than the DNA test in such cases, the Supreme Court ruled that the applicant is indeed the father on the basis of the sequence of events that leads to no other reasonable conclusion.
It seems that the National Court decided alike the EU Court in a case of similar facts, where it concluded that refusing to take a test will be taken as evidence in favour of the other side in a dispute over parenthood. You can read the Supremes’ Court decision here in Greek.
A balance between the right of private life and the right of a person to know his parents, needs to be defined by the Courts. In both these cases, the second right was found to overrule the first. They both concluded that a man is the biological father until he accepts to have a DNA test and, in such situations, having DNA test cannot be seen as violation of article 8 of ECtHR. It seems that the Courts aim to protect the child’s rights and they have the view that with or without a DNA test a child shall be able to be recognized by its parents. A DNA test is not violating the Article 8 of the European Convention of Human Rights and at the same time the refusal of a man to take DNA test can be a proof of paternity. A child cannot be unable to find out who his/her father is or be denied parental support, or live in uncertainty as to his/her personal identity and be denied the right to family life.
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