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?