The legislation on-line
Acts & Regulations for paternity testing
Related topic - Parentage, especially paternity
Home & weblog
Blog archive & site history
Site map & search

Acts & Regulations for paternity testing

This is an understanding of the main law that regulations the commissioning of paternity tests. It is concerned with the taking of samples for the purposes of DNA analysis. The key requirement is that the person taking a sample from a child must have parental responsibility, unless the child is old enough to give consent and does so. (This uses "Gillick competence").

Acts of Parliament

Some parts & sections Extract Explanation
Human Tissue Act 2004
This is a fairly large Act, and very little of it is relevant to paternity testing. In fact, "paternity testing" is not mentioned explicitly, and instead there is more general reference to having material with the intention of DNA analysis. Only directly relevant sections and schedules are shown below, and even they are abbreviated, especially by removal of the rules for dead people.

PART 1

REMOVAL, STORAGE AND USE OF HUMAN ORGANS AND OTHER TISSUE FOR SCHEDULED PURPOSES

Section 1

"Authorisation of activities for scheduled purposes"

(1) The following activities shall be lawful if done with appropriate consent-
(a) ... body of a deceased person ...;
(b) ... body of a deceased person ...;
(c) ... body of a deceased person ...;
(d) the storage for use for a purpose specified in Part 1 of Schedule 1 of any relevant material which has come from a human body;
(e) ... body of a deceased person;
(f) the use for a purpose specified in Part 1 of Schedule 1 of any relevant material which has come from a human body;
(g) ... body of a deceased person.

Section 1 is the foundation of the Act. It establishes that consent from an appropriate person ('appropriate consent' as defined in sections 2 and 3) is required before certain activities can be undertaken for particular purposes. These activities are storage and use of whole bodies, removal, storage and use of relevant material from the body of a deceased person, and storage and use of relevant material from a living person. The purposes to be regulated are listed in Schedule 1 and are referred to in these notes as 'scheduled purposes'. Relevant material from a human body is defined at section 53 as any material consisting of, or including, human cells, with the exception of gametes, embryos outside the body (as defined in, and separately regulated by, the Human Fertilisation and Embryology Act 1990), and hair and nail from a living person. Cell lines are also excluded by virtue of section 54(7), as is any other human material created outside the human body.

(Note - "hair" presumably means "hair excluding root cells containing DNA", but this is not clear).

PART 1

REMOVAL, STORAGE AND USE OF HUMAN ORGANS AND OTHER TISSUE FOR SCHEDULED PURPOSES

Section 2

"Appropriate consent": children

(1) This section makes provision for the interpretation of "appropriate consent" in section 1 in relation to an activity involving the body, or material from the body, of a person who is a child or has died a child ("the child concerned").

(2) Subject to subsection (3), where the child concerned is alive, "appropriate consent" means his consent.

(3) Where-
(a) the child concerned is alive,
(b) neither a decision of his to consent to the activity, nor a decision of his not to consent to it, is in force, and
(c) either he is not competent to deal with the issue of consent in relation to the activity or, though he is competent to deal with that issue, he fails to do so,
"appropriate consent" means the consent of a person who has parental responsibility for him.

(4) ... child concerned has died ....

(5) This subsection applies to an activity involving storage for use, or use, for the purpose of-
(a) public display, or
(b) where the subject-matter of the activity is not excepted material, anatomical examination.

(6) ... subsection (4) ....

(7) ... child concerned has died ....

Section 2 sets out the meaning of 'appropriate consent' in relation to activities regarding the body of a deceased child, or relevant material from living or deceased children. For the purposes of this section, children are people under the age of 18.

Living children who are competent to do so may give their own consent. If they are not competent or choose not to decide, appropriate consent will be that of a person with parental responsibility for them. Competence is not defined in the Act, but will be established according to common law principles (the 'Gillick test').

PART 3

MISCELLANEOUS AND GENERAL

Miscellaneous

Section 45

"Non-consensual analysis of DNA"

(1) A person commits an offence if-
(a) he has any bodily material intending-
(i) that any human DNA in the material be analysed without qualifying consent, and
(ii) that the results of the analysis be used otherwise than for an excepted purpose,
(b) the material is not of a kind excepted under subsection (2), and
(c) he does not reasonably believe the material to be of a kind so excepted.

(2) Bodily material is excepted if -
(a) it is material which has come from the body of a person who died before the day on which this section comes into force and at least one hundred years have elapsed since the date of the person's death,
(b) it is an existing holding and the person who has it is not in possession, and not likely to come into possession, of information from which the individual from whose body the material has come can be identified, or
(c) it is an embryo outside the human body.

(3) A person guilty of an offence under this section-
(a) is liable on summary conviction to a fine not exceeding the statutory maximum;
(b) is liable on conviction on indictment-
(i) to imprisonment for a term not exceeding 3 years, or
(ii) to a fine, or
(iii) to both.

(4) Schedule 4 (which makes provision for the interpretation of "qualifying consent" and "use for an excepted purpose" in subsection (1)(a)) has effect.

(5) In this section (and Schedule 4)-
"bodily material" means material which-
(a) has come from a human body, and
(b) consists of or includes human cells;
"existing holding" means bodily material held immediately before the day on which this section comes into force.

It is an offence under section 45(1) to have any bodily material (that is, any material which has come from a human body and which consists of or contains human cells) intending to analyse the DNA in it without qualifying consent, subject to certain exceptions. This offence applies to the whole of the UK. The offence does not apply if the results of the analysis are to be used for excepted purposes and these are listed in Part 2 of Schedule 4. These include general purposes such as medical treatment and criminal justice purposes, as well as more specific matters which largely reflect what may be done without consent under Part 1 of the Act, with modifications for Scotland where necessary. Paragraph 11 of Schedule 4 also has the effect that, if consent to use material has been obtained under section 1(1) of the Act, it is not necessary to obtain a separate consent where that use involves DNA analysis.

What constitutes qualifying consent is set out in Part 1 of Schedule 4. It may be given to analysis of DNA for any purpose. It can be given by the person from whose body the material came or someone with parental responsibility if the person is a child. Once the person has died, consent may be given by anyone who stood in a qualifying relationship (as listed in section 54(9)) with the deceased immediately before he died. The hierarchy referred to in section 27(4) does not apply to this list.

Certain material is outside the scope of the offence altogether and this includes material from a person who died more than 100 years ago and embryos outside the body (as these are subject to separate regulation by the Human Fertilisation & Embryology Act 1990). Also outside the scope of the offence are existing holdings of material where the identity of the person from whom it came is not known, and is not likely to become known. There is also an exemption if the person reasonably believes the material they have to be excepted.

PART 3

MISCELLANEOUS AND GENERAL

General

Section 53

"Relevant material"

(1) In this Act, "relevant material" means material, other than gametes, which consists of or includes human cells.

(2) In this Act, references to relevant material from a human body do not include-
(a) embryos outside the human body, or
(b) hair and nail from the body of a living person.

(Note - "hair" presumably means "hair excluding root cells containing DNA", but this is not clear).

PART 3

MISCELLANEOUS AND GENERAL

General

Section 54

"General interpretation"

(1) In this Act-

[snip]
"child", except in the context of qualifying relationships, means a person who has not attained the age of 18 years;
[snip]
"parental responsibility"-
(a) in relation to England and Wales, has the same meaning as in the Children Act 1989 (c. 41), and
(b) in relation to Northern Ireland, has the same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));
"relevant Northern Ireland department" means the Department of Health, Social Services and Public Safety.

(2) In this Act-
(a) references to material from the body of a living person are to material from the body of a person alive at the point of separation, and
(b)... body of a deceased person ....
(3) ... transplantation ....

(4) ... decent disposal ....

(5) ... body of a deceased person ....

(7) For the purposes of this Act, material shall not be regarded as from a human body if it is created outside the human body.

(8) For the purposes of this Act, except section 49, a person is another's partner if the two of them (whether of different sexes or the same sex) live as partners in an enduring family relationship.

(9) The following are qualifying relationships for the purposes of this Act, spouse, partner, parent, child, brother, sister, grandparent, grandchild, child of a brother or sister, stepfather, stepmother, half-brother, half-sister and friend of long standing.

(10) The Secretary of State may by order amend subsection (9).

 
SCHEDULE 1

Section 1

SCHEDULED PURPOSES

PART 1

PURPOSES REQUIRING CONSENT: GENERAL

1 Anatomical examination.
2 Determining the cause of death.
3 Establishing after a person's death the efficacy of any drug or other treatment administered to him.
4 Obtaining scientific or medical information about a living or deceased person which may be relevant to any other person (including a future person).
5 Public display.
6 Research in connection with disorders, or the functioning, of the human body.
7 Transplantation.

PURPOSES REQUIRING CONSENT: DECEASED PERSONS

[snip]

Emphasis added.

SCHEDULE 4

Section 45

SECTION 45: SUPPLEMENTARY

PART 1

QUALIFYING CONSENT

Introductory

1 This Part of this Schedule makes provision for the interpretation of "qualifying consent" in section 45(1)(a)(i).

Qualifying consent

2 (1) In relation to analysis of DNA manufactured by the body of a person who is alive, "qualifying consent" means his consent, except where sub-paragraph (2) applies.

(2) Where-
(a) the person is a child,
(b) neither a decision of his to consent, nor a decision of his not to consent, is in force, and
(c) either he is not competent to deal with the issue of consent or, though he is competent to deal with that issue, he fails to do so,
"qualifying consent" means the consent of a person who has parental responsibility for him.

(3) In relation to analysis of DNA manufactured by the body of a person who has died an adult, "qualifying consent" means-
(a) if a decision of his to consent, or a decision of his not to consent, was in force immediately before he died, his consent;
(b) if paragraph (a) does not apply, the consent of a person who stood in a qualifying relationship to him immediately before he died.

(4) In relation to analysis of DNA manufactured by the body of a person who has died a child, "qualifying consent" means-
(a) if a decision of his to consent, or a decision of his not to consent, was in force immediately before he died, his consent;
(b) if paragraph (a) does not apply-
(i) the consent of a person who had parental responsibility for him immediately before he died, or
(ii) where no person had parental responsibility for him immediately before he died, the consent of a person who stood in a qualifying relationship to him at that time.

Application to Scotland

3 (1) In its application to Scotland, paragraph 2 has effect with the following amendments.

(2) In sub-paragraphs (2) and (4)(b)(i) and (ii), for "parental responsibility for" there is substituted "parental responsibilities in relation to".

(3) At the end there is inserted-

"(5) In this paragraph-
"adult" means a person who has attained the age of 16 years;
"child" means a person who has not attained the age of 16 years;
"parental responsibilities" has the meaning given by section 1(3) of the Children (Scotland) Act 1995 (c. 36)."

This is the key part. It amounts to:

The child may be able to give consent. This needs Gillick competence.

Else the consent of a person with "parental responsibility" or "parental responsibilities in relation to" is needed.

(Then there are some extra qualifications for dead adults and dead children).

     

Regulations

Statutory Instruments Comments
2005 No. 919 The Human Tissue Act 2004 (Commencement No.1) Order 2005

"This Order provides for the coming into force of provisions of the Human Tissue Act 2004 (c.30) on 1 April 2005. The provisions brought into force enable the Human Tissue Authority ("the Authority") to be established, confer certain functions upon it and deal with certain consequential amendments".

It does not set a date for the commencement of section 45, so it doesn't affect paternity testing.

     
Page last updated: 15 September, 2005 © Copyright Barry Pearson 2003