Proof of paternity
Man claiming to be biological father
In terms of section 26(1) of the Children’s Act of 2005 (the Act) a person who is not married to the mother of a child and who is or claims to be the biological father of the child may-
1) apply for an amendment to be effected to the registration of birth of the child in terms of section 11 (4) of the Births and Deaths Registration Act, 1992 identifying him as the father of the child, if the mother consents to such amendment; or
2) apply to a court for an order confirming his paternity of the child, if the mother-
a) refuses to consent to such amendment;
b) is incompetent to give consent due to mental illness;
c) cannot be located; or
d) is deceased.
Presumption of paternity in respect of child born out of wedlock
Section 36 of the Act provides that ‘if in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child’.
Refusal to submit to taking of blood samples
Section 37 provides that ‘if a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party’.
The warning is to the effect that if, e.g. a man refuses to submit to the taking of a blood test where paternity is in dispute it must be presumed, until the contrary is proved, that such refusal is aimed at concealing the truth concerning the paternity of that child and the man would be deemed to have fathered the child.
Refusal by mom to submit her and child to testing
Where a blood or DNA test is submitted to voluntarily the results will be accepted as proof in paternity cases.
It is different where a mother refuses to give her consent. Prior to the enactment of the Act, in O v O, Friedman JP stated that there “is no statutory or common-law power enabling the court to order an adult to allow a blood sample to be taken for the purpose of establishing paternity”. Although there is still no such power, section 37 obliges the court to warn the mother of the consequences of her refusal (perhaps that the man she is accusing of having fathered her child can not be deemed to have fathered the child in the absence of a blood test). He would then in all probability not be ordered to pay maintenance for the child.
to read about various types of paternity tests.