DNA Testing in Matters of Filiation

DNA testing has now become an established part of the forensic arsenal for determination of the identity of individuals where such is required by the courts. However, there are several aspects of DNA testing that have implications in the determination of a case, and one of the issues is refusal to undergo such a test, as the following case illustrates.

His Lordship D. Chan Kan Cheong gave an insightful ruling this week in the case of Lafleur M vs Bhim (N 2015 SCJ 342),  whereby he set out  the circumstances in which an order for a DNA test could be given for ascertaining a paternity test.

In that case, the plaintiff claimed that the defendant is the father of her child but for his part, the defendant refused to acknowledge the child and contended that he in fact never had any sexual relationship with the plaintiff.

The plaintiff therefore applied to the court to obtain an order for the defendant to undergo a DNA test pursuant to section 8 of the DNA Identification Act 2009 in order to ascertain whether or not he was indeed the father.

The DNA Identification Act provides for a forensic analysis by the Forensic Science Laboratory for the purpose of ascertaining filiation where there is an order from a Judge to that effect or where the relevant parties agree to provide the DNA sample. For ease of understanding of our readers, filiation is the term that refers to the recognized legal status of the relationship between family members, or more specifically the legal relationship between parent and child.

In the present case, the Judge ruled that an order will be granted unless there are legitimate grounds for refusing the order. Legitimate grounds are essentially a matter of law or fact to be assessed by the Judge but he would refuse to make an order where the application is inconvenient, materially impossible or dilatory, or the case itself is not actionable.

The Supreme Court pointed out that even if there is an order upon a party to provide a DNA sample for testing, such person cannot be physically forced to give a sample and is entitled to refuse to do so. In the event that such person refuses to comply with an order in the absence of legitimate grounds, the Court is entitled to make appropriate conclusions as appear proper, including adverse inferences to that person while taking into account all the circumstances of the case.

A refusal to provide a DNA sample may therefore prove prejudicial against a party to the extent that the Court may find such conduct as creating a presumption that the relevant person is the father or the mother. It is to be noted that in France, there is the similar right to rely on DNA evidence unless there are some “motifs légitimes” (legitimate grounds) for refusing to provide DNA samples. There, again, it is at the discretion of the French Court to determine whether or not there are legitimate grounds.

Coming back to the present case, the Defendant had advanced that he did not want to provide a DNA sample on the basis that this would prove to be a humiliation to him and put a stigma on his reputation.

The Court however decided that this did not pass the test of a legitimate ground for refusal and gave an order for the provision of DNA sample.

• Published in print edition on 2 October 2015