• Zoë Lawton

John Banks paternity case highlights a legal loophole

A puzzling legal loophole has become even more apparent thanks to the high profile court proceedings concerning former politician John Banks and his alleged son.


Japan-based English language teacher Antony Shaw, 47, is seeking a declaration of paternity from the High Court. If granted, Banks will become Shaw's legal father.

Shaw contends that he was conceived during a relationship between his mother and Banks in the late 1960s. No DNA test results are available to the court.


Shaw's lawyer Jacque Lethbridge confirmed that the evidence before the High Court is that Banks had been asked to undergo a DNA test both by the mother of her client and her client's maternal uncle but has refused.


Upon hitting this roadblock, perhaps surprisingly the law does not offer Shaw and other people in similar situations much of a solution.


Under our current law, judges can only recommend that a child (or adult) and their alleged father undergo DNA testing.


As it's just a recommendation, some alleged fathers refuse to co-operate. There is no penalty, such as a fine, for throwing the judge's recommendation in the bin.


If this happens a judge can draw an adverse inference which is taken into account along with the available evidence to decide if the man should be declared the legal father.


The sticking point for Shaw is that even if the court decides that John Banks is his legal father, without DNA results he will never know for certain whether Banks is in fact his biological father.


Children can also get caught in this legal loophole when the alleged father refuses to co-operate. Alternatively, the alleged father may be the one who wants testing to take place but the mother refuses to allow the child to be tested.


As a confirmation of paternity can automatically result in child support obligations, alleged fathers may seek to avoid this as much as possible.


Equally, a mother who suspects (or knows for certain) that the father is someone else may want to prevent the testing from going ahead so that the man seeking clarification has to keep paying child support.


Both men and women can essentially exploit the law to hide the truth if it suits them.

So is it time to change it?


The Law Commission has undertaken a review of the law regarding DNA testing and recommended that judges should be able to order it as it is usually in the best interests of the child to know the truth.


"As the child grows up, he or she is highly likely to want to know his or her genetic parentage. The experiences of adopted children and donor-conceived children who have had this fact concealed from them show the detrimental consequences of discovering later in life their true parentage."


The Law Commission went on to conclude that while a punitive approach is not in harmony with the general ethos of family law to facilitate relationships, the current law clearly wasn't working. The possibility of a $2500 fine or prison sentence of up to three months is needed to ensure people actually go through with testing.


Despite this strong recommendation, now made over 10 years ago, the Government doesn't appear to regard this an important law change.


This is surprising, especially considering the number of people who could be affected.

At the time the recommendation was made the Law Commission also pointed out that rate of misattributed paternity in New Zealand is around 1.8 per cent of the population. In other words, there are 80,000 people (both children and adults) who may have a different biological father to the one they were originally told. That's the population of Palmerston North. Add to that figure the alleged fathers and you have a significant total.


So with a lot of doubt potentially floating around, maybe it's time for the Government to make it easier for people to find out the truth.

This article was also published on stuff.co.nz