Posted Saturday, March 31, 2018
DNA is not the only evidence to establish the paternity of a child

In the absence of DNA, declaration of the parents of a child could be sufficient to prove the paternity of a child. This was held in a judgement delivered by Madame Justice Abigail Lofaro presiding over the Civil Courts (Family Section) in AB in her name and on behalf of her daughter ND -v- CD. The judgement was delivered on 21 March 2018.

The mother, AB filed an application before the courts, explaining that in 2002 she gave birth to a girl, ND and on the birth certificate her husband’s name was registered as the father. However, the parties at the time of conception were undergoing separation proceedings and although they lived together, she had an affair with a person she named as G, but does not know his name. The parties were separated in July 2003 by means of a contract. When AB became pregnant she informed her husband and told him that he was not the father. AB asked the court to declare her daughter not to be of her husband and order the Public Registry to amend the birth certificate.

CD replied by saying that the case should have also been instituted against the Director of Public Registry, but apart from that agreed with his wife.

The Court held that it took into consideration what the daughter declared to the Advocate of the Minor. She held that she met CD in court for the first time and she knew that he was not her natural father. She could not say who her father is, because her mother did not inform her who G was. She also objected to having her mother’s husband’s surname, since he was not her father.

The Court held that according to Article 67 of the Civil Code, the husband was presumed to be the father of the child. The Court also noted that the mother filed the case and not CD and therefore the action was based according to Article 77 of the Civil Code. However, this Article allows that the action must be filed within six months of the birth of the child, if filed by the mother. If the action is filed after the six months then authorisation for amendments to the birth certificate is not allowed. This was held in Nadine Falzon -v- Jalil Zaneldin, decided on 7 December 2016, which upheld a plea raised by the Public Registry that the six months period had elapsed. The would allow the natural father to file an application asking for him to be recognised as the father. Therefore, if the action is done after the six months, then the law would allow an action of filiation and not denegata paternita.

The Court pointed out that the mother was representing herself and her daughter. If the mother simply filed the action on her own, the case would have been thrown out, because it was filed well after the six months from the birth. However, the law allows the children to file the same action under Articles 83 and 84 of the Civil Code:

“83. Proof to the contrary may be made by evidence tending to show that the claimant is not the child of the person that he alleges has given birth to him, or, where this is proved, that he is not the child of the other spouse.

84. No prescription shall run for an action for a child to establish his proper filiation.”

On this ground court proceeded with the case.

With regard to the merits of the case the court could not rest of scientific evidence, since this is not the only evidence that establishes paternity. DNA results are considered as extremely important in such cases and surpass any legal presumption. The mother may accept that she had an extra matrimonial affair. If the action is brought by the child, this can be proved all the same. In this case the mother had immediately declared that the child was not of her husband and had admitted that she had an intimate relationship with someone she barely knew by name. Article 70(2) of the Civil Code reads:

“(2) The declaration of the mother to the effect that the husband is not the father of the child shall be given consideration in an action regarding the exclusion of the paternity of the husband”.

The Court pointed out also that the defendant agrees that the girl was not his daughter. Although there is no scientific evidence the Court was convinced that the girl was not CD’s child.

The Court then upheld the plaintiff’s request to amend her daughter’s birth certificate.

 

Dr Malcolm Mifsud

Partner
Mifsud & Mifsud Advocates
 
 
This article may also be accessed on Malta Today.  
 
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