Men given hope of forcing DNA tests to prove paternity

Men who are unable to prove their fatherhood because the mother refuses to allow the child to be DNA-tested have been given some hope, with the Government saying it may back enforceable court orders.

This would enable the child to be removed from the mother's care for a test. The move has long been advocated by men's groups, frustrated that in some cases mothers who do not want the biological father in their lives can legally block any involvement.

It usually relates to cases where the parents were not living together as a couple at the time of birth or within the 10 preceding months.

Justice Minister Mark Burton said yesterday: "Making court orders to undergo parentage testing may be preferable, however further consideration is required on the extent to which it is appropriate to compel the taking of body samples."

It was part of a Government response to a Law Commission report entitled "New Issues in Legal Parenting" released last year, which recommended 30 changes to parental status laws.

The Government has not embraced any of the recommendations outright, subjecting it to criticism from former Law Commissioner Francis Joychild, who helped write the report.

It has, albeit timidly, flagged four areas where it will "consider undertaking further work" to implement the recommendations, including the enforceable DNA tests.

Another of the areas involves extending the presumption of paternity.

The practical impact of this would mean men in de facto relationships with women at the time of birth who were not named as the father - deliberately or because they didn't bother - were legally assumed the father.

Fathers subsequently estranged from the mother who could prove the relationship existed at the time would be judged the father unless the mother proved otherwise.

The change could also thwart the plans of de facto or former de facto couples who do not put the father on certificates for child support reasons.

Enacting a minimum framework formalising consent requirements for DNA parentage testing and making it easier to transfer parentage to implement surrogacy are the other two areas the Government is working on.

It has agreed more work needs to be done on some issues but disagreed with other recommendations.

Ms Joychild said the response was "a bit disappointing. The Government set up the Law Commission to give it independent legal advice free from political pressures".

It had researched internationally, consulted widely and established a legal framework the Government could take out for public discussion.

"They don't really need to reinvent the wheel. The public should have their say, but we shouldn't be going to back to square one."

The recommendations were "not particularly controversial ... There is a need for these things, people want them".

More than 40 per cent of all New Zealand births took place outside marriages, making paternity issues particularly relevant.

Ms Joychild said fathers groups raised two key issues with the commission: the difficulty of proving they were fathers and of proving they weren't when they discovered their child might be someone else's.

The most significant change proposed was the compulsory DNA tests for children.

Technically courts can only recommend a DNA swab be taken from a child.

Several years ago an Auckland court forced a mother to surrender her child for a test, after four years of recommending she do it.

"The court found a way to do it, but it was so convoluted ... They finally made the child a ward of the court, but that's not really what the jurisdiction is for."

The father's paternity was recognised, but he'd lost four years with his child and a simple law change would solve all that, she said.

Law Society family law section chairman Simon Maude said the proposal should be enacted. Some women might object, but the interests of the child should be paramount.

He'd had cases where children of 10 or 11 didn't know who their father was and were told two different stories.

"It's a very harmful thing for a child, not knowing."

Men had only been able to apply for paternity orders since an amendment to the Care of Children Act last year, so it was likely more men would seek DNA tests for children.

The Government is also investigating a commission proposal that DNA paternity tests should be compulsory for men.

Under the plan, they would not be physically forced but would face fines of up to $2500 or three months in jail for refusing.