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News from Germany Paternity Contestation: Using Secretly Done DNA Tests provided by CII member, Juergen Fritz Hebach Statement on the decision of the federal court from 12.01.2005 (Reference Code XII ZR 60/03 and XIIZR 227/03), after which the contestation of paternity cannot be supported on a secretly done DNA paternity test. Prof. Dr. Goesta Fischer / RA Michael Frey The civil court of appeal of the federal court of justice, which is in charge of the family court, has decided in two cases, whether a DNA paternity analyses without consent of the child or his alone providing authorised mother, can be utilised in the context of paternity contestation charges. In both cases, the plaintiff not married to the respective mother of the child, had appreciated their paternity at the youth welfare department. Years later, in one case they took a hair test and in the other case a spat out chewing gum as well as a respectively own saliva test for a genetic analysis to a private laboratory, without knowledge or consent of the child and the mother. The analysis showed respectively, that the donator of the saliva test couldn't be the biological father of the child from whom the crosscheck allegedly was. The paternity contestation charges supported on it had been rejected by the pre- authorities (top district court Celle and top district court Jena). The federal court of justice has confirmed these decisions on 12.01.2005. According to permanent jurisdiction of the senate, the mere assertion, not to be the father of the child, does not suffice to introduce paternity contestation proceedings in which the decent is regularly cleared by a legal expert opinion. The plaintiff must report rather concrete circumstances, which are suitable at objective consideration to arouse doubt about his paternity and the decent of the child of another man must seem not quite out of reach. Such an initial suspicion can, for legal justifications, not be supported on a 'secretly' done DNA paternity analysis. Independently of the egress of the current legislation, with which a general ban of such secret DNA analysis is considered, the senate has decided to consider the examination of genetic material of another person, without their expressed consent, is violating the fundamental right of informational self determination and is therefore illegal. This fundamental right of the child also doesn't need to take second place behind the interest of the man, to obtain certainty about his biological paternity. Therefore, the results of such an examination may not be utilised in a civil action and can also not be the basis of an initial suspicion. Also, the refusal of the child or the mother as the legal representative, to agree to the obtaining of such an analysis or the utilization of the result, regularly isn't suitable to justify an initial suspicion either. What consequences does this have? Is the DNA paternity test without consent of the child or the mother insignificant? By no means. At last, the putative father has no other possibility than a secret test to be able to check his paternity if the child or the mother refuse consent for the execution of a paternity test. With the aforementioned decision, it is certain however, that such a paternity test is illegal and the result can not be used in a paternity process. So if a father carries out a secret paternity test, he may not make the result of the paternity test public and he can under no circumstances use it as an advisory opinion for a paternity contestation. He must rather keep the result of the paternity test as inner knowledge for himself and find other grounds in the proceeding for the contestation of the paternity, as for example a concrete multiple intercourse suspicion regarding the mother of the child and / or prominent deviations in the physiognomy or in the physique of the child in respect to the apparent father. Officially, the paternity contestation should be supported on these circumstances. In the context of the paternity proceedings, if there was a concrete doubt, then there would be an officially paternity test advisory opinion being ordered , whose results for the apparent father would be, due to the first DNA analysis test ordered by him, predictable. Further consequence of the decision from the court of justice is actually, that every father, that has doubt about his paternity of his illegitimate child, carries out an, if necessary secret, DNA paternity test before a paternity recognition. If his paternity is confirmed, he can unhesitatingly appreciate the paternity. If the test does not confirm his paternity, he can refuse the paternity recognition and can await a possible proceeding of observation of the paternity with ease, because in this respect, he is not in the burden of proof. Outlook: Currently, the legislators are expected to generally forbid DNA analyses, without consent of the affected person, and eventually even have them put under penalty. Whether that is meaningful is highly controversial. Should the legislator actually decide for this, to prevent secret DNA analyses, he must as a countermove for certain facts, create a stand - alone legal right (besides others, to the putative father of the child) on execution and participation of the child on DNA analysis test, if like in the case of the apparent father- there is a special interest for it. It surely can not be accepted, that an apparent father is tied to his paternity recognition, if it is definitely certain, that he is not the father, like it was in the cases that the court of justice just decided on. Such proceedings cannot be in the interest of the child either, which because of this, probably never finds out anything about his actually physical father. For questions about this topic, we are at your disposal: Mr Prof. Dr. Goesta Fischer (phone: 04481-89-2782) and Mr RA Michael Frey, Rosdorfer Weg 4, 37073 Goettingen ( phone 0551-72025) Fred Dehmel CD, CII, CFI CSI Investigations (Head Office) 102 Chain Lake Drive, Suite 301 Halifax, Nova Scotia, Canada, B3S 1A7 **CSI has offices and investigators throughout the Maritimes and associates around the world Partners in INVESTIGATIONS CANADA 888-818-5251 (Toll Free) 902-450-0697 (Office) 902-484-5379 (Fax) 902-830-1514 (Cell) E-mail: fdehmel@csiinvest.com Website: www.csiinvest.com Certified International Investigator & Certified Forensic Investigator Member of CII, ACFE, ACFI, AIIP, ASIS, Intelnet, CPI-O, CPI-AC, CIS, IPA, CMPA, WIN |