DNA from saliva can be used in determining paternity, court rules

A Jamaican man who is fighting a legal battle for a determination as to whether he is the father of a five-year-old child got a landmark ruling last week which will benefit other men who have similar cases.

DNA test results obtained from saliva samples can be used as evidence to assist the court in determining paternity, the Court of Appeal has ruled.

“This is a monumental moment for some men who are frustrated in their efforts to establish that they are indeed the father,” noted attorney-at-law Nigel Jones, who is representing the man in the case he has brought against the child’s mother.

The Court of Appeal ruled last week that a DNA Parentage Test Report can be used to ascertain whether a man is or is not excluded from being the father.

“This is a landmark decision by our Court of Appeal following a Trinidad and Tobago Supreme Court decision in establishing that even though the Status of Children Act does not specifically provide for anything but blood test to determine paternity, there is nothing preventing use of other compelling evidence such as DNA obtained from saliva samples,” Jones told The Sunday Gleaner.

“Previously, there was slavish reliance on the reference to blood test under the relevant act. The act requires the consent of the parents. The interpretation was that in the absence of consent to the blood test, it would be almost fatal to the paternity application. The Court of Appeal has correctly interpreted the Status of Children Act as one which allows the applicant to prove the relationship to the satisfaction of the court and that any relevant and admissible evidence in relation to the issue should therefore be considered by the court. The court has expressly stated that an order for a test conducted by means of saliva sample would fall into such a category, albeit the absence of legislation allowing for its consideration as a means of establishing paternity.”

RESEMBLANCE FROM PHOTOGRAPH

The child at the heart of the custody battle was born on July 13, 2014.

The claimant only knew of the birth when the mother sent him a photograph of the child. He and the mother were involved in an intimate relationship before she got married to someone else. However, during the marriage they were also intimate.

When he saw the photograph, he commented that the child resembled him, and the mother said he might be the father. The mother disclosed that her husband was registered on the child’s birth certificate as the father.

She consented to a DNA test which was done in March 2015 after she provided saliva sample from the baby. The report, which was obtained in April 2015, stated that the claimant cannot be excluded as the biological father of the child and the probability of paternity “is 99.9998%”.

Following the outcome of the DNA test, the claimant took the matter to the Supreme Court in January 2017, seeking a declaration of paternity, joint custody with primary care and control to the mother, and his name to be on the child’s birth certificate.

The claimant sought an order from the Supreme Court to be given permission to rely on the April 2015 DNA result at the trial and for further DNA test using saliva to be done at Caribbean Genetics, as well as blood tests.

The Supreme Court gave the go-ahead for blood tests to be done to ascertain whether the claimant is or is not thereby excluded as the father. The judge turned down the application for a DNA test.

BEST INTEREST OF CHILD

The mother of the child, who was the defendant, appealed on the grounds that the judge erred because the order was not in the best interest of the child. She also contended that the judge did not have the jurisdiction under the Status of Children Act to order the blood tests without her consent.

The claimant filed a counter-appeal, challenging the judge’s refusal to order the DNA parentage test using saliva samples, or in the alternative to rely on DNA results already obtained from saliva samples.

The Court of Appeal, after hearing legal arguments, gave direction for the use of the blood tests with the consent of the mother to ascertain whether such tests show that the claimant is or is not thereby excluded from being the father of the child.

The court said in the event the mother consents, then the blood tests should be done within the next 30 days of the order at Caribbean Genetic.

The court further ruled that in the event that the mother fails to consent, then the DNA percentage report dated April 9, 2015 can be relied on at the trial to ascertain whether such tests, along with other pieces of evidence, show that the claimant is or is not excluded from being the father of the child.

The registrar of the Supreme Court has been directed to fix a date for a case management conference expeditiously with the consent of the parties, so that a trial date can be set.

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