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Question
Posted by: Clayton | 2010/07/27

Paternity

I have been asking the girl that claims that I am the dad to her daughter for a paternity test, but she refuses to do so. She says that its causing friction in her current relationship
And does not want to do the test, but maintains I am the father.

The child is now 6 years old and I can understand where she is coming from, but I would like to know even though it is very late in the child’ s life.
how do I go about getting a court order for her to do the test &  also what will the costs be &  what information would I need to obtain. Thank you

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Our expert says:
Expert ImageFamily law expert

The new Children's Act places in Section 36 a presumption in respect of a child born out of wedlock. The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt. In S v L 1992 (3) SA 713 (E) it was held that the phrase "in the absence of evidence to the contrary which raises reasonable doubt" means that whenever there is evidence to the contrary, the presumption does not operate or ceases to operate.

This is also in line with the court's decision in the case of R v Epstein 1951 (1) SA 278 (O), where it was held that a presumption operating "in the absence of evidence to the contrary" only requires evidence, not proof, to counteract the presumption. The Children's Act does not define the word "evidence", thus any acceptable evidence suffices, regardless of whether it is direct or circumstantial, however, it must raise reasonable doubt.

Section 37 of the Children's Act states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child's blood sample taken 'of the effect' which such refusal might have on his/her credibility.

Refusal by mother to submit her and child to paternity testing

In O v O, Friedman JP stated that there is no statutory or common-law power enabling the court to order an adult to allow a blood sample to be taken for the purpose of establishing paternity. Although there is still no such power, Section 37 obliges the court to warn the mother of the consequences of her refusal (perhaps that the man she is accusing of having fathered her child cannot be deemed to have fathered the child in the absence of a blood test). He would then in all probability not be ordered to pay maintenance for the child.



By Bertus Preller

Family Law Attorney

KWJ Inc. Cape Town

www.divorcettorney.co.za

info@divorceattorney.co.za

The information provided does not constitute a diagnosis of your condition. You should consult a medical practitioner or other appropriate health care professional for a physical exmanication, diagnosis and formal advice. Health24 and the expert accept no responsibility or liability for any damage or personal harm you may suffer resulting from making use of this content.

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Our users say:
Posted by: FREDDY | 2016/06/11

HI I WAS DATING THIS GAL FOR 7yrs I WAS WITH HIM NOVEMBER 2013 AROUND 12 TILL 13 AND SHE WAS PREGNANT DURING NOVEMBER COZ SHE DID GIVE BIRTH JULY, AFTER SHE GIVE BIRTH THEY DID SEND ME PIC OF THE BABY ...AFTER FOUR MONTHS OFF FAILING TO MAINTAINING THE BABY DUE TO PROBLEM OF MONEY SHE START TO TELL ME M NOT THE FATHER OF THE BABY ND SHE DISAPPEAR CHANGING HER NUMBER, I TRY TO LOOK FOR HER THRU FRIENDS BUT NEVER FOUND HER AFTER 9 MONTH I FOUND HER I THREATEN HER TO TAKE LEGAL ACTION ND SHE OPEN ME A PROTECTIONAL ORDER AD THE FIRST APPEARENCE SHE DID CAME THE FINAL ONE SHE NEVER CAME" THIS IT DID AFFECT ME SO BAD COS I DONT HV CLOSURE FOR THIS, SHE KEEP ON LIEYING TO ME ABOUT THE DATE OF THE DNA TEST CAN U PLS TELL ME HOW CAN I SOLVE THIS

Reply to FREDDY
Posted by: welly | 2016/05/08

Where can I get a partenity court here in SA especially in MP or GP

Reply to welly
Posted by: family law expert | 2010/07/31

The new Children's Act places in Section 36 a presumption in respect of a child born out of wedlock. The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt. In S v L 1992 (3) SA 713 (E) it was held that the phrase "in the absence of evidence to the contrary which raises reasonable doubt" means that whenever there is evidence to the contrary, the presumption does not operate or ceases to operate.

This is also in line with the court's decision in the case of R v Epstein 1951 (1) SA 278 (O), where it was held that a presumption operating "in the absence of evidence to the contrary" only requires evidence, not proof, to counteract the presumption. The Children's Act does not define the word "evidence", thus any acceptable evidence suffices, regardless of whether it is direct or circumstantial, however, it must raise reasonable doubt.

Section 37 of the Children's Act states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child's blood sample taken 'of the effect' which such refusal might have on his/her credibility.

Refusal by mother to submit her and child to paternity testing

In O v O, Friedman JP stated that there is no statutory or common-law power enabling the court to order an adult to allow a blood sample to be taken for the purpose of establishing paternity. Although there is still no such power, Section 37 obliges the court to warn the mother of the consequences of her refusal (perhaps that the man she is accusing of having fathered her child cannot be deemed to have fathered the child in the absence of a blood test). He would then in all probability not be ordered to pay maintenance for the child.



By Bertus Preller

Family Law Attorney

KWJ Inc. Cape Town

www.divorcettorney.co.za

info@divorceattorney.co.za

Reply to family law expert | 1 comment (hide)
Posted by: Anonymous | 2016/06/29

I had a woman claiming that I am her daughters father. we had a dna test done at ampath when the child was 2 weeks old and the result excluded me as the father. we wad to take our original ID documents and she signed consent and witresses. she claims test are wrong and that I am the father. can I use the ampath result at a maintainance hearing if she decides to go there?

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