The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, in the case “‘A’ (woman) and as curator of her son v ‘B’ and others” held, among other things, that although the refusal of ‘B’ to submit to DNA testing was not equivalent to an admission, it showed that not even defendant ‘B’ was convinced that the child was not his son and, secondly, that ‘A’ would not have asked for such analysis if she had had doubts as to who was its father.

The facts in this case were as follows.

‘A’ filed a lawsuit against ‘B’ requesting the court to correct the act of birth of her son, to the effect that it would be stated that the natural father of her child was ‘B’ and not her husband. ‘A’ said that her husband was not the father of the child. She also asked the court to confirm that ‘B’ was obliged, as the father, to pay for the child’s maintenance and education.

‘B’ died during these proceedings, which were continued in his stead by his wife and daughter. The Director of Public Registry was also a defendant in the proceedings.

On June 1, 2012, the Court of First Instance ordered the correction of the child’s act of birth within one month, but abstained from taking cognisance of the other requests of ‘A’ in view of the death of ‘B’. ‘A’ also asked for the cadaver of ‘B’ to be exhumed for DNA analysis but defendants objected.

‘A’ said that although she was married, her husband had long left Malta. She maintained that she was in a stable relationship with ‘B’, out of which their child was born. ‘A’ produced several witnesses and photo albums as proof of their intimate relationship. She said that ‘B’ had paid for the baptism party and had been her partner for several years. On the other side, ‘B’ denied that he was the father. He also referred to ‘A’ as a woman of loose morals.

His surviving wife and daughterdescribed ‘B’ as a good family man.

The first court held that ‘A’ had brought sufficient evidence to convince the court to accept her claims. It resulted from the testimony of her witnesses and photos that she had had an intimate relationship with ‘B’. It noted that ‘B’ had panicked when his wife discovered the affair and from then onwards, he had started to deny his relationship with ‘A’.

The court considered that ‘A’ had always been prepared to submit to genetic testing – something which she would not have done if she had not known that ‘B’ was the natural father.

Aggrieved by the decision of the first court, defendants entered an appeal calling for its revocation. They argued that its decision was legally and factually incorrect. They also pleaded the lack of interest of ‘A’ to file this lawsuit.

It resulted that the fact that the court had issued a care order in respect of her child did not mean that she had no legal interest. The care order was only a temporary measure.

The court considered that in ‘Carmen Zammit v Wail Dadouch’ dated April 19, 2005, the Court of Appeal had held that the mother of a child had legal interest to file legal action to impugn the legitimacy or fatherhood of her child. She had an interest that the true father be established, so that her child would know its real father. This interest was actual and legal and continued throughout the proceedings.

The court noted that the care order was issued on December 19, 2011, while the lawsuit was filed on November 6, 2007, at a time when ‘A’ still had authority as a parent and still had the care and custody of her child. The court pointed out that ‘A’ had had a right to file these proceedings on behalf of her son. In addition, it could not be stated that the interest of the child was not safeguarded.

In civil matters, the court could decide on a balance of probabilities and not beyond reasonable doubt, as in criminal cases, in the light of the evidence produced: (PA) ‘George Bugeja v Joseph Meilak’ dated October 30, 2003. The Court of Appeal, as a court of revision, should not disturb the appraisal of facts by the first court, unless it was gravely unjust (‘E. Cardona et v Dr G. Busuttil et’ January 10, 1995), and to avoid an injustice (‘P. Formosa v S. Debono’ dated October 5, 2001).

The Court of Appeal could not substitute the discretion of the first court which had heard the evidence: ‘Dr H. Mamo v J. Farrugia’ dated July 7, 2006.

The court said that in the absence of scientific proof, it was convinced in the circumstances that ‘B’ was the natural father of the child. It noted that ‘A’ had had a relationship with ‘B’ for more than six years and during this time, her child was born. Even after the birth of the child the parties had continued their affair. This was confirmed by witnesses.

The intimate relationship of ‘A’ with ‘B’ was confirmed by her photos as well as by witnesses. Defendants had not challenged the photos and the witnesses’ testimony

The Court of Appeal felt that it should not disturb the discretion of the first court in its assessment of the evidence. The intimate relationship of ‘A’ with ‘B’ was confirmed by her photos as well as by witnesses. Defendants had not challenged the photos and the witnesses’ testimony.

The court took into account that ‘B’ would not have posed for certain romantic photos with ‘A’ unless he was in a relationship with her, and that the first court was correct to arrive at such conclusions. Although the refusal of ‘B’ to submit to DNA testing was not equivalent to an admission, it showed that not even he was convinced that the child was not his son.

Though the burden of proof rested with ‘A’, genetic testing could not be carried out without the consent of defendants, maintained the court. Genetic testing would be helpful to the proper administration of justice as well as in the interests of the child, who was living in an institute as a result of the care order. It resulted that there was evidence disproving certain statements that ‘B’ was a good family man.

In the court’s opinion, the photos of ‘A’ showed that ‘B’ had had an intimate relationship with her, and they had been more than just friends. If it were true that ‘A’ was a woman of loose morals, ‘B’ should have avoided her company and should not have posed for certain photos with her, pointed out the court. It observed that the evidence given by ‘A’ had not been contradicted by defendants. It was true that the deceased had said he was not the father of the child, but the court felt that the version of ‘A’ was more credible. It was also satisfied with her evidence. The fact that a care order had been issued meant that ‘A’ was not in a position to look after the child, and not that ‘B’ was not the father of the child.

For these reasons, on February 28, 2014, the Court of Appeal dismissed the appeal and confirmed the decision of the first court. The court also dismissed defendants’ plea of nullity.

Dr Karl Grech Orr is a partner at Ganado Advocates.