Tuesday, April 05, 2011

Pater est quem nuptiae demonstrant

A recent high profile case in Scotland raises some interesting issues about paternity and financial responsibility.

James MacLetchie was married in 1988. In 1991 his wife gave birth to a son and Mr MacLetchie was registered as the father.

The couple divorced in 1995 and in 1996 the CSA contacted him in respect of maintenance for the child. However, Mr MacLetchie knew that the child could not be his, as in 1987 he had undertaken a test at Glasgow Royal Infirmary which revealed that he was infertile.

Notwithstanding this, the CSA were obliged to proceed against him, in view of the presumptions: (a) that the mother's husband is the child's father and (b) that the man named on the birth certificate is the father. The presumptions could have been rebutted either by DNA evidence - but the mother refused to submit to a test - or by a declaration (called a 'declarator' in the Scottish courts) of paternity from a court - but Mr MacLetchie did not initially apply for such a declaration.

Accordingly, the CSA proceeded to make an assessment and, for the next 13 years, took various forms of enforcement action against Mr MacLetchie, including attaching his earnings. In 2009 they applied to have him jailed for six weeks and his driving licence revoked. Finally, he applied to a court for a Declarator of Non-Parentage, which was granted by a sheriff last month, after his former wife refused four requests to provide DNA samples.

Mr MacLetchie is now calling for a change in the law, saying: "If a presumed father refuses to take a DNA test the CSA concludes he is the father and forces him to pay maintenance. Should the same law not apply in reverse if the mother refuses to take a DNA test – shouldn't the CSA conclude her claim is false without the father having to go through the expense and trauma or court action?"

The Child Maintenance and Enforcement Commission, issued the following statement:
"Paternity is formally contested in only around 1% of all Child Support Agency cases and DNA testing provides a simple and conclusive means of resolving these disputes. Whenever a mother refuses to co-operate with a test arranged by the Agency the case will be closed. The law of presumed parentage, however, requires alleged fathers who were married to the mother at the time of birth or named as father on the birth certificate to arrange a test themselves or to seek a declarator of non-parentage from the courts. While understanding Mr Macletchie's desire to see a change in the law, the Commission believes current legislation is being correctly applied in these situations in which the CSA has been given no discretion to close the case."

I don't think there can be any argument that the CSA applied the current law correctly, but should the law be changed? Is it right that in such circumstances the burden of (dis-)proof falls upon the father? I am not suggesting that the presumptions of parentage should be changed - that could have very wide implications - but perhaps the CSA/CMEC should be able to draw an adverse inference from the mother's refusal to submit to a DNA test, in the same way as a court would, and as suggested by Mr MacLetchie?

7 comments:

  1. Sounds like a reasonable suggestion, but since when have the CSA been reasonable?

    I do have a non-rhetorical question though, and that is - Does he get his money back? He should.

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  2. It's not up to the CSA - they just have to work within the system provided, which (up to now) has given them no discretion in this area.

    I don't think anyone is under an obligation to repay the money, unless a court orders them to do so.

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  3. Ok, I think the law should be changed then.

    Does he stand a good chance of suing her for the money back? Probably not.

    That said, I would have done the legal thing before and then sued her for the costs early on. The law still needs changing here though.

    Not that the law will ever do one thing in the interests of fairness to NRPs as they have no lobbying power or political clout.

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  4. These are not easily resolved issues. After I separated from my ex I paid child support through the CSA. A subsequent DNA test - demanded by the mother as a way of preventing contact - showed I was not the biological father and I received a refund from the CSA.

    I am now the primary carer for my son. Should I claim child support from his mother? (I won't) Should I make a claim against the biological father?

    There seem to be clear distinctions between financial, legal and moral obligations towards children. I don't have any clear answers, but the questions need to be asked.

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  5. Yes, there is a difference between what is legal and what is moral. I said exactly that in correspondence with my ex and her father recently. I agree that the questions need to be asked and the strict application of the formula is not fair. It all should go back to court.

    A friend of mine's son called me Papa (russian) the other day. I didn't know what to say. I just smiled.

    I give you credit for your approach, I don't know if I could be so sensible. I would probably ask for maintenance from the Mother. But I am not sure. My father brought me up and my Mum did not pay. It kind of defeats the CSA's argument this thread. If it were not defeated already. I hope it is and this subject will all go back to court. I think it will. I also think I don't mind my girlfriend's son calling me papa now.

    My ex gf is due to have a baby any day (should have asked me about it first). I have 2 with my ex wife. My gf has 1 child by her ex partner who does pay CM. My ex gf is a widow and gets no CM. I pity the CSA officer for the application I am about to issue. This was Thatcher's doing. Hope it can be reversed.

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  6. What a mess. Not as simple as cmo.org and the feminazi's suggest.

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  7. I meant http://www.cmoptions.org/

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