Paternity Tests and the New Children’s Act

The new Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock. The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt. In the case of S v L 1992 (3) SA 713 (E) it was held that the phrase "in the absence of evidence to the contrary which raises reasonable doubt" means that whenever there is evidence to the contrary, the presumption does not operate or ceases to operate. This is also in line with the court’s decision in R v Epstein 1951 (1) SA 278 (O), where it was held that a presumption operating "in the absence of evidence to the contrary" only requires evidence, not proof, to counteract the presumption. The Children’s Act does not define the word "evidence", thus any acceptable evidence suffices, regardless of whether it is direct or circumstantial, however, it must raise reasonable doubt.

Section 37 of the Children’s Act states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility.

Refusal by mother to submit her and child to testing

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 cannot 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.

By Bertus Preller

Family Law Attorney

Abrahams and Gross Inc. Cape Town

www.divorcettorney.co.za

info@divorceattorney.co.za