The High Court has ruled that a person who died more than 10 years ago was the father of a young man who had brought an action to establish his paternity.
Proceedings were instituted on behalf of the young man some years ago when an application was made for a direction that blood samples be taken from him and from a brother of the deceased.
A direction to that effect was made in 1993, but the brother did not comply with it in respect of giving a blood sample.
Mr Justice Budd, in a reserved judgment yesterday, said he had no shadow of a doubt the deceased man was the father of the young man. He had heard evidence from the young man's mother and other relatives in respect of a relationship between the mother and the deceased.
The judge said he had indicated, when the case was originally before the court in 1993, that consideration might be given to the making of an exhumation order for the purpose of obtaining a tissue sample from the putative father. Since the young man's mother and brother were alive, such a course was not necessary.
He had since noted with interest that such exhumation orders had been made for the purpose of obtaining samples in a case in Northern Ireland.
Mr Justice Budd said that in the absence of "cold scientific evidence" of DNA profiling and comparison he had heard the testimony of witnesses.
Counsel for the young man had indicated they wished at all times that the brother of the deceased should give a sample for DNA profiling to help ascertain or to negative paternity.
A further invitation to the brother was refused after and despite lengthy explanations to the effect that such a test could help rule out the deceased's paternity if the young man was proved by DNA tests to be unrelated to the brother.
The brother had conceded the young man was entitled to know who his father was but he was not prepared to give a sample. He was well aware he could give a blood sample, of the simplicity of giving a sample and the efficacy of the profiling procedure.
Mr Justice Budd said Section 35 (8) of the Status of Children Act, 1987, provided for the court to make a declaration that a person was a father where it was proved, on the balance of probabilities, in an application under the Section, that the named person was the father.
There was a wealth of corroborative evidence in the present case, he said.
He had kept in mind both the delay in bringing the claim and the difficulty in refuting an allegation of paternity after the death of a putative father. However, the evidence of the mother was entirely credible and thoroughly corroborated.
There was the added factor that, while time might dim frail human memory, the simple giving of a blood sample by the brother and subsequent DNA profiling done at the expense of the young man and unaffected by the time lag could have refuted a false allegation of the dead man's paternity. The brother had wilfully decided not to avail of scientific certainty.
It was a matter of regret that the brother was not prepared to co-operate in respect of DNA profiling as this would have yielded an objective scientific conclusion in respect of the possibility or negation of paternity and have saved expense and inconvenience. The young man was entitled to the declarations he sought, the judge ruled.