DNA: Lawyers advise couples, govt on handling affected children

Lawyers have called for tolerance among couples and enforcement of the country’s law regarding the welfare of children to minimise suffering when results of paternity tests turn out negative. 

The advice follows concerns that growing negative Deoxyribonucleic acid (DNA) paternity tests would split families, the building block of Uganda’s society, as the trust deficit forces more men to ascertain the paternity of children in their homes. 

Mr Richard Anguria Omongole, a lawyer in Kampala, said there is no specific law prescribing procedures to be followed when the DNA tests exonerate the husbands to whom wives falsely assigned children fathered by other men.

“All that they consider in the law at the moment, the Children’s Act, is the best interest of the child.  So if a child can understand, they will ask, ‘What do you prefer?’” he said. “You [aggrieved man] cannot say the child of two or seven years who knows that that is their home, should get out because the DNA results are negative but you want to stay with the child’s mother. It creates a problem,” he said.

Mr Omongole explained that it is the role of the police and court that is involved in following up on the matter to make sure the welfare of the child is upheld.

“To that extent, the court can protect the child, and make the other person (actual father) contribute for accommodation, food and school fees until the child is of age and is able to return [to the actual father] or when the other person [actual father] says the child should be given to him. That can be made with certain orders from court,” he added. 

However, Ms Patricia Atim, a family law expert and lecturer at Makerere University Law School disagreed with Mr Omongole on the notion that there is a need for a new law to manage events after negative DNA tests.

“DNA testing to determine paternity or maternity of the child is provided for under the Children’s Act and Children’s Amendment Act, 2015. People who are disputing the parentage of a child are legally allowed to conduct DNA testing because even our Constitution guarantees the right of every parent to know their child and every child to know their parents,” she said.

The family law lecturer said there is a need to counsel parents prior to and even after conducting the DNA tests to prepare them for the results that can come out. 

“In the event that DNA results are negative, then the parent who is now a victim of DNA negative result has the right to reject or take care of the child who is not theirs because the person then doesn’t have the primary duty,” she said.

At this point, the family law expert said, amicably, the aggrieved man should be able to tell the mother to identify the father of the child so that the child is handed over to the rightful parent. 

“It is now a decision because the Children’s Act says once DNA test has determined [the father], it is not automatic that the person who is determined as the [biological] father should take custody of the child,” she said.

The Act, in section 68 states, subsection 3 states: “In exercising its discretion under subsection (2), the court shall primarily consider—the welfare of the child...” Subsection (2) talks about the procedure for the declaration of parentage. 

Like Mr Omongole, Ms Atim said the best interest and welfare of the child is upheld when court decisions are being made. Ms Atim said the actual father should be brought to the discussion table.  

“So that if the actual father expresses willingness to take responsibility over his child, then the child is passed on to him as a legitimate father and he takes on his parental responsibility over this child,” Ms Atim said.

She continued: “In the event that actual father refuses, he is the kind of parents we have these days. Then the actual father is in breach of other laws such as parental neglect, and child neglect.’’ 

Ms Atim notes that it is, however, uncommon for the alleged father (exonerated by DNA results) to accept the burden of taking care of the child after the paternity test.

“As the law, we want to promote reconciliation, so that the child can be allowed to stay with the mother as the biological father provides basic needs,” she said.