My minor child was taken for a DNA test without my consent. What are my rights as the child's mother?

The long answer

Let’s take the issues on by one:

1. What is DNA testing?

2. Why are DNA tests done?

3. Can it be done on a minor child without the consent of the mother?

4. Possible negative consequences for the child

5. Where you can get help

1. What is DNA testing?

Lunch and Learn explains in a 2023 article that DNA is found in every cell of the body and the DNA of each person is unique. To test for paternity, blood samples from the mother, the alleged father and the child are needed.

When the paternity test is being done, the genetic characteristics of the child are firstly compared to those of the mother. The characteristics in the child that are not found in the mother have been inherited from the biological father. Therefore, if the man said to be the father does not have those genetic characteristics, it means that he is not the biological father.

2. Why is DNA testing done?

Lunch and Learn goes on to explain that a person is only obliged to pay maintenance to support their biological children. So a father could avoid paying maintenance by arguing that they are not the child’s biological father, and a DNA test is the way to prove that.

3. Can a DNA test be done on a minor child without the consent of the mother?

No, the biological mother, as the legal guardian, must provide written consent for the DNA test. If a father wants to establish paternity or dispute a claim, he must get the mother's consent for a minor child, unless he gets a court order.

These are the documents needed for a DNA test on a minor child:

• IDs (or passports) of both the mother and the alleged father; 

• Birth certificate or clinic card of the minor child; If the child has no clinic card or birth certificate the guardian must complete an affidavit and certify that affidavit by a commissioner of oaths; 

• Consent form completed and signed by the legal guardian for the blood testing.

But if the mother refuses to give her consent, the court has the power to consent to the test on behalf of the minor child, if it is convinced that the DNA test is in the child’s best interests. 

The Children’s court has the right to hear any matter about the paternity of a child, according to section 45(1)(c) of the Children’s Act 38 of 2005. The Act says that the court must act as the upper guardian of all children, and Section 28(2) of the Constitution says that “a child’s best interests are of paramount importance in every matter concerning the child.” 

One of the companies that do DNA tests, Lancet Laboratories, says for a sample to be collected and examined by the laboratory, all test subjects (or their legal guardians) MUST consent to the test and give written consent. Unless an affidavit or court order specifies otherwise, the mother of a minor child (younger than 18 years old) must give this permission if it is available.

So, to sum up, if a father wants to establish paternity or dispute a paternity claim, he must get the mother's consent for a DNA test on a minor child, unless a court orders it. 

If there was no court order, you can take legal action to challenge the DNA test result, as it was obtained without your consent as the legal guardian. You could contact the laboratory to inquire about the consent process they followed and the legality of the test result.

You could ask Legal Aid for help here. Legal Aid is a means-tested organisation that must assist people who can’t afford a lawyer. These are their contact details:

• Legal Aid

Tel: 0800 110 110 (Monday to Friday 7am to 7pm) 

Please Call Me: 079 835 7179 

Email: communications2@legal-aid.co.za

You could also approach the Black Sash, which gives free paralegal advice. These are their contact details:

• Black Sash

Email: help@blacksash.org.za and info@blacksash.org.za

Tel (national office): 021 686 6952

Helpline: 072 66 33 73, 072 633 3739 or 063 610 1865

4. Possible negative consequences for the child

An article by Smart DNA Nigeria about how DNA paternity testing impacts the mental health of children in Nigeria, says that such tests can trigger confusion, loss of trust, emotional distress and a crisis of identity, especially when the results of the test are unexpected.

That might be what your child is feeling when you say that since the DNA test, the child has not been okay.  

The article says that if you can give emotional support and open communication, and also get some help, when necessary, you can assist the child to cope with the difficulties that arise from paternity testing.

5. Where you can get help

I’m not sure that the department of health is the best place to start. Perhaps an easier place to start with is Childline South Africa. 

Childline states on their website that they will listen, show compassion and understanding, and help you figure out how to get out of your predicament. 

They have a 24/7 Helpline on 116, free from all networks. Or you can visit their Online Chat rooms Monday to Friday, 11am to 1pm and 2pm to 6pm to chat to a counsellor.

Childline National Office:

Tel: 031 201 2059

Physical Address: 24 Stephen Dlamini Road, Musgrave, Durban, 4000

Email: admin@childlinesa.org.za (General Enquiries)

Wishing you the best,
Athalie