Written by Denisha Padachey
30 OCTOBER 2023
Can a Mother Refuse a Paternity Test in South Africa?
In various circumstances, a potential father may request paternity or DNA testing to determine whether he is the biological father of a specific minor child. However, a minor child’s mother may refuse to allow their minor child to undergo paternity or DNA testing. It is, therefore, crucial for both parents of a minor child to understand the legal consequences if a mother refuses to allow for the paternity or DNA testing of a minor child.
Do Parents Need to Consent To A Paternity Or DNA Test Of A Child?
In order to conduct a paternity or DNA test on a minor child through a qualified facility, it is essential to obtain the consent of the biological mother, who has parental rights and responsibilities over the minor child in terms of Section 18 of the Children’s Act 38 of 2005, as amended (hereinafter “Children’s Act”). In addition, the potential father must also consent to provide his DNA or blood samples for the testing to occur.
How Should Paternity or DNA Testing Occur?
While there are various “at-home DNA testing kits,” it is recommended that a suitably qualified facility conduct the relevant testing to ensure its validity and so that the same be utilised in any court proceedings that may follow. Suitably qualified facilities in South Africa include, but are not limited to:
- Lancet Laboratories;
- PathCare; and
- Ampath.
What Happens If A Parent Denies A Paternity Or DNA Test?
Section 37 of the Children’s Act 38 of 2005 states:
“If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself, herself, or the child to taking a blood sample 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 the party.”
The Section above highlights that a blatant refusal to allow for a paternity or DNA test where there are concerns relating to the paternity of a minor child may negatively impact the credibility of the party refusing consent. Unfortunately, there is no way to proceed with paternity or DNA testing when consent is withheld, which makes an application necessary in the event of blatant refusal by either the mother or father of the minor child.
What Legal Recourse Is Available When a Parent Denies A Paternity Or DNA Test?
If a parent denies a paternity or DNA test, the party who requires the test must approach a competent court with a formal application to order the parent refusing to give consent to comply. Such an application requests that the court intervene and order the applicable party to comply with a specific order, regulation, request, or the like. If the application is successful, the court will order the biological mother to consent to the paternity or DNA test and comply with the requests of a suitably qualified facility.
In terms of YM v LB 2010 (6)0 SA 338 (SCA), where there is genuine uncertainty regarding the paternity of a minor child, the Court has inherent power to order scientific tests if it is in the best interests of the child. An application must, therefore, be drafted and submitted to a competent court, namely a Children’s Court or a High Court with jurisdiction, as they act as the upper guardian of all minor children and have the ability and power to order that a paternity or DNA test occur. It is, however, essential to understand that an application of this nature can be contested, and the Court will have the power to decide whether the paternity or DNA test is in the best interests of the minor child and whether it should be ordered.
Contact one of Burger Huyser Attorneys’ specialist family law attorneys for assistance with drafting the necessary application and guide you through the consequent legal processes.
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
