Presumption of legitimacy or inference of paternity?

Secretary of State for Work and Pensions v Jones (FD TLR 13 August)

For the purposes of an application by the Child Support Agency for a declaration of paternity, the justices had erred in giving greater weight to the presumption of legitimacy of a child born in wedlock than to the inference of paternity to be drawn from a refusal to undergo DNA testing. The mother, although married to someone else at the time, had lived exclusively with the respondent from January to September 1986, and gave birth a child on 28 December 1986. The respondent indicated possible paternity on a maintenance enquiry form but thereafter failed to supply a blood sample to enable the DNA test to be carried out. The inference of paternity to be drawn from such refusal was virtually inescapable according to the guidelines, and the justices had no right to ignore them. Furthermore, by their decision, the justices had made it impossible for the child ever to seek a declaration as to who was the father, which impacted upon the child’s rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Their decision was set aside and a declaration that the respondent was the child’s father was made.