- Can DNA tests be used to determine the biological father of a child?
- If the DNA tests can be used, will it then challenge the legitimacy of a child born into a marriage?
CAS V MPPL & ANOR  1 MLRA 439
- CAS is a pilot.
- MPPL is an air stewardess who is married to another pilot (“B”).
- CAS and MPPL had an affair before MPPL married B and continued the affair after MPPL married B.
- MPPL had a child during her marriage with B (“Child C”).
- CAS claimed that when Child C was born, he had lived periodically with MPPL and Child C as a family and had paid for the maintenance of Child C.
- MPPL had subsequently ended her relationship with CAS and prevented CAS from seeing Child C.
- CAS filed this case for an order that DNA test be done to determine who is Child C’s biological father.
- And if the DNA test proves CAS as the biological father, then he has asked to be declared the biological father amongst other orders that he has sought.
- MPPL in turn opposed the order sought by CAS on the basis that since Child C was born to CAS and B during the subsistence of a legal marriage, Child C is thus the legitimate child of MPPL and B.
- MPPL used the provision of S112 Evidence Act 1950 to support her argument. Essentially the section says that a child born during the continuance of a marriage between a child’s mother and any man, is conclusive proof that the child is the legitimate child of that man.
- The High Court dismissed CAS’ application and held that being born into MPPL and B’s marriage was conclusive proof that Child C was their legitimate child.
- The High Court also found that it would have adverse effects on the welfare of Child C to allow the DNA tests.
- CAS appealed to the Court of Appeal.
COURT OF APPEAL DECISION – APPEAL ALLOWED!
The Court of Appeal allowed CAS’ appeal on the following basis:
- There is a difference between paternity and legitimacy.
- Paternity is a question of fact to determine the biological parent of the child.
- Legitimacy is a legal question but does not bar a scientifically accurate and approved test, if the facts and circumstances of the case warrants it.
- In determining whether a paternity test ought to be ordered, the court must have regard to the best interests of the child. “Best interest” here refers to the right of the child to know who his or her biological parents are and the court ought not to be concerned solely or wholly with fears of illegitimising the child.
- The case was thus sent back to the High Court for the High Court to determine the issues after listening to the evidence of all parties concerned.