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Proof of Paternity, the History PROOF OF PATERNITY : THE HISTORY A thesis submitted to The University of Manchester for the degree of Master of Philosophy in the Faculty of Humanities Year of Submission 2012 Susan Vipont Hartshorne School of Law Proof of Paternity : The History CONTENTS Abstract ….. ….. page 3 Declaration and Copyright Statement 4 Introduction …. …. 5 Chapter 1 a) The Burden of Illegitimacy ….. 10 b) The Presumption of Legitimacy .…. 18 c) The Presumption of Incapacity ….. 25 Chapter 2 – Quasi-Medical Evidence a) Sterility and Impotence …. 31 b) The Period of Gestation …. 34 c) Anthropological Tests …. 39 d) Contraception …. 41 Chapter 3 – Blood Test Evidence a) Blood Tests : 1900 to 1939 …. 45 The Bastardy (Blood Tests) Bill 1938/9 b) Blood Tests : 1940 to 1961 …. 59 The Affiliation Proceedings (Blood Tests) Bill 1961 c) Blood Tests : 1961 to 1972 …. 74 Chapter 4 – Legislation at last a) The Law Commissioners’ Report on Blood Tests and the Proof of Paternity in Civil Proceeding, and The Family Law Reform Bill …. 94 b) The Family Law Reform Act 1969 (Part III) 101 c) A 1974 survey of the use of blood test evidence 117 Chapter 5 – Working Towards Certainty …. 127 a) Blood Tests 1973 to 1987 …. 129 b) Artificial Insemination …. 134 d) DNA Fingerprinting …. 142 e) The Family Law Reform Act 1987 …. 146 Appendices …. …. 151 Bibliography …. …. 155 Word Count: 56,781 2 A thesis submitted to The University of Manchester for the degree of Master of Philosophy in the Faculty of Humanities in 2012 by Susan Vipont Hartshorne Proof of Paternity : The History ABSTRACT This thesis traces the history of the various methods that have been used to try to prove paternity in England – from earliest times up to the implementation of the Family Law Reform Act 1987. This Act enabled courts to direct tests using DNA Fingerprinting on bodily samples in cases of disputed paternity and therefore to settle these cases using this new and accurate method – obviating the need for using other less accurate methods. Before the discovery of DNA Fingerprinting in 1984 there was no way to prove without doubt that a putative father was or was not the biological father of the disputed child. A number of other methods were used, but none were entirely satisfactory. This thesis first looks at the reasons why these cases needed to be resolved and shows why illegitimacy was to be avoided if at all possible. Then it shows how, in early times, fictional presumptions were used so that, in the absence of scientific methods, there could be some certainty in deciding these cases. It also charts the history of various quasi-medical methods which were used to help solve these problems – some more usefully than others. In addition it shows how artificial insemination by donor could, and did, complicate some cases – particularly when this took place in secret. This thesis focuses mainly on the 20 th century because at the beginning of this century it was discovered that blood groups were inherited and that therefore they could play some part in resolving disputed paternity cases. The thesis describes the struggle that took place before the courts would accept blood group evidence and the difficulties experienced before at last (at the third attempt) legislation was enacted in 1969. This Act (and the regulations made under it) set out a framework for the taking of blood, the testing of samples, its use by the courts and the inferences that could be drawn if parties refused to take blood tests. The effect of, on the one hand, prejudice against all things new and/or scientific and, on the other hand, the search for truth, using all available methods, is shown by the use of articles in journals or the press and also by remarks made in court by members of the judiciary. The effect of the gradual change in attitude of the public and of religious leaders towards the rights of children – and in particular the right of the child to know both its parents, is also noted. 3 Proof of Paternity : The History Declaration and Copyright Statement 1) Declaration No portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institute of learning. 2) Copyright Statement The author of this thesis (including any appendices and/or schedules to this thesis) owns certain copyright or related rights in it (the ‘Copyright’) and she has given The University of Manchester certain rights to use such Copyright, including for administrative purposes. Copies of this theses, either in full or in extracts and whether in hard or electronic copy, may be made only in accordance with the Copyright, Designs and Patent Act 1988 (as amended) and regulations issued under it or, where appropriate, in accordance with licensing agreements which the University has from time to time. This page much form part of any such copies made. The ownership of certain Copyright, patents, designs, trade marks and other intellectual property (the ‘Intellectual Property’) and any reproductions of copyright works in the thesis, for example graphs and tables (‘Reproductions’), which may be described in this thesis, may not be owned by the author and may be owned by third parties. Such Intellectual Property and Reproductions cannot and must not be made available for use without the prior written permission of the owner(s) of the relevant Intellectual Property and/or Reproductions. Further information on the conditions under which disclosure, publication and commercialisation of this thesis, the Copyright and any Intellectual Property and/or Reproductions described in it may take place is available in the University IP Policy (see http://www.campus.manchester.ac.uk/medialibrary/policies/intellectual- property.pdf ), in any relevant Thesis restriction declarations deposited in the University Library, The University Library’s regulations (see http://www.manchester.ac.uk/library/aboutus/regulations ) and in The University’s policy on presentation of Theses. 4 Introduction ‘It is a wise father that knows his own child… Truth will come to light; murder cannot be hid long; a man’s son may, but, in the end, truth will out.’1 Today more people than ever before want to know about their ancestry. This desire has been fuelled by television programmes such as ‘Who do you think you are?’ and ‘Long Lost Family’. Websites have mushroomed to help the process. Computer programmes are available to help us to construct our own family trees. And family history societies flourish. If we are adopted, or conceived with the help of Artificial Insemination by Donor (AID), we can now 2 find out who our biological parents are; where they lived; perhaps even meet them; and learn whether or not they suffered from any inheritable diseases. Many people now think they and their children have a right to know the truth about their ancestors – whatever surprises they might discover. Some even refer to the European Convention on Human Rights 3. For some people, knowledge of their ancestry gives them a sense of belonging, of having ‘roots’, and of the ‘dignity’ that they feel is necessary for their well-being. They want to be able to pass this information on to their children – even if they do not possess vast estates or titles for them to inherit. There has always been a need for this information – not just for social reasons and to satisfy mild curiosity, but to settle arguments about such things as inheritance, property and/or custody or maintenance of children. If blood or other bodily samples can be obtained, this information can now be found. However, it has not always been possible to provide that definite proof of paternity. Indeed in very early times it was not surprising that it was said 4 ‘God alone knew in these cases by whom the women conceived.’ This thesis traces the history of the various methods used to try to prove paternity in England from earliest times up to the implementation of The Family Law Reform Act 1 Shakespeare, Merchant of Venice Act II Sc. II 2 Adoption Act 1975; Human Fertilisation & Embryology Act (Disclosure of Donor Information) Act 2004 3 ECHR Article 8 4YB l Hen 113 5 1987. This Act contained provisions enabling Deoxyribonucleic Acid (DNA) Tests (also known as DNA Fingerprinting, DNA Profiling, or Genetic Testing) to be directed by the courts. There is now no room for doubt when testing for paternity by this method – provided always that the tests are carried out in the approved way. Until the discovery of DNA Fingerprinting in 1984 5, except for a very small handful of cases where very rare blood groups were involved6, it was only possible, by the use of blood tests, to prove paternity on a percentage probability basis – this did not usually give sufficient proof to convince the courts. Before the discovery at the beginning of the 20 th century that blood tests could assist with the process of proving paternity 7, it was even more difficult. When using blood tests, it was often possible – unless all the blood groups concerned were very common – to eliminate putative fathers who rightly denied paternity. However, because there has always been a need for certainty, a number of presumptions were used in order to achieve this 8 even if the results were not entirely accurate and at times it seemed that truth was sacrificed on the altar of certainty. In addition, quasi-medical methods to ‘prove’ or ‘disprove’ paternity were also used. Defences of sterility, impotence, an unusually long period of gestation, and the use of contraception were sometimes advanced, or anthropological evidence was produced to prove a resemblance.
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