DNA establishes paternity of child

This was the motivation behind a judgement delivered on 27 January, 2015 by the Civil Court (Family Section) presided by Mr Justice Robert Mangion.

In an application against the Director of Public Registry, CD and the curators of the minor children, AB explained that he is a Syrian national and while residing in Malta he had a relationship with CD. They had three children. In the birth certificate of one of the children, which was born in April 2001, EF was registered as the father since the mother separated from her husband by means of a contract signed in July 2000.

The plaintiff held that he, and not EF, was the father of the child. The defendant, the mother of the child, never denied that AB was the natural father. The plaintiff explained further that it is within the child’s interest that her paternity is established. The relationship between the father and the mother is now over and he has care and custody of the children. The plaintiff asked the court to order a correction of the child’s birth certificate, where EF’s name would be cancelled and instead his name would be inserted.

The Director of Public Registry held that he is not aware of the facts of the case and accepts the decision of the court. It is the plaintiff that has to prove against the presumption established in Article 81 of the Civil Code by showing that the birth certificate is not correct. Also the parties have to decide on the surname of the child in terms of Article 92(6) of the Civil Code.

CD also presented a statement of defence by stating that she is not contesting the claims listed in the application and therefore, accepts that the birth certificate should be corrected. 

The Court ruled that the plaintiff is the father of the child. It also ordered the Director of the Public Registry to correct the birth certificate

Mr Justice Mangion analysed the law and quoted Article 77A and C of the Civil Code, which states:

77A. Without prejudice to the provisions of article 81, any person claiming to be the natural father of a child born in wedlock, or his heirs if the person was deceased before the child is born, may proceed by sworn application before the competent court against the wife, husband and child, or their respective heirs if any one of them is deceased, in order to be declared as the natural father of the child and only if he produces evidence that during the time from the three-hundredth day to the one-hundred-and-eightieth day before the birth of the child, the wife had committed adultery with him and futhermore produces evidence of any other fact which may also be genetic and scientific tests and data that tends to exclude the husband as the natural father of the child.

77C. In the cases referred to in articles 77, 77A and 77B the person claiming to be the father of the child born in wedlock, or the wife as the case may be, may proceed with the action for the declaration of paternity if their sworn application is filed within six months from the birth of the child:

Provided that the Civil Court (Family Section) may, after the sworn application of the person claiming to be the father of the child born in wedlock or the wife and, if possible after having heard all the parties interested, and after having considered the rights of the plaintiff and the child, at any time authorise the person claiming to be the father of the child born in wedlock or the wife to institute an action for the declaration of paternity as mentioned in articles 77A and 77B.

The Court considered that the mother accepted that the plaintiff was in fact the father, there is still need of better evidence. In fact the DNA tests certified that the plaintiff was the child’s natural father.

Mr Justice Mangion moved to rule that the plaintiff is the father of the child, and not EF. He also ordered the Director of the Public Registry to remove EF’s name from the birth certificate and replace it with plaintiff’s name.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates