Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON     2014SCLIVI57
	JUDGMENT (as redacted)   by   SHERIFF DOUGLAS A KINLOCH, Advocate   in causa   C S Pursuer;   against   K S First Defender;   and   J S Second Defender:   ________________

 

 

 

 

 

 

Livingston                                           October  2014

The sheriff, having resumed consideration of the cause, finds the following facts proved: 

 

1. The pursuer is CS.
2. The first defender is KS.
3. The second defender is JS.
4. The pursuer is domiciled in Scotland and was habitually resident within the Sheriffdom of Lothian and Borders at the date when this action was brought.   This court accordingly has jurisdiction.
5. The pursuer and the first defender were married on 23 September 1995. They separated in about January 2007, and were divorced in about March 2009.
6. There are two children of the marriage, namely the said JS, and ES.
7. The first defender and a person called AB had an affair in July and August 1996, when sexual relations took place between them.
8. The likely time of conception of the child JS was also in July and August 1996.
9. The pursuer and the first defender only had sexual relations on one occasion during the period July and August 1996.
10. The first defender has refused to cooperate with requests to provide samples for DNA testing. These requests were made by the pursuer’s solicitors and also by the CSA.
11. The child JS resembles the person AB.
12. Unlike the pursuer and the first defender the child JS has very dark hair. The person AB has dark hair. 
13. The pursuer has green eyes. The first defender has blue eyes, as does the child ES.  The child JS has brown eyes.
14. The pursuer and the first defender have pale skin. The person AB has skin of a darker colour. The child JS has a skin colour which is noticeably darker than that of the pursuer and the first defender.

 

 

 

 

THEREFORE: 

Finds and declares that the Pursuer is not the father of the child JS.

 

 

 

 

 

 

NOTE:

[1]        In this action the pursuer asks the court to find and declare that he is not the father of the child JS.   

 

Procedural history

[2]        The procedural history of the action is that a warrant to cite was granted at Livingston Sheriff Court on 19 February 2013, which interlocutor appointed a curator ad litem to the child JS, and also to two stepchildren of the pursuer.  No appearance was ever entered by the first defender, or by the curators ad litem.   The pursuer and the first defender were married at the time the child was both conceived and born, and section 5(1)(a) of the Law Reform (Parent and Child) (Scotland) Act 1986 provides that in these circumstances the pursuer is presumed to be the father of the child.  It is made clear in the textbook The Law Relating to Parent and Child in Scotland, by Wilkinson & Norrie, 3^rd. Ed. at para. 3.13, that this presumption can be rebutted but this requires proof on a balance of probabilities.        

 

 [3]       As an action for declarator of non-parentage falls within the definition of a family action (see the Ordinary Cause Rules, rule 33.1) and as evidence in such an action is normally by way of affidavits (OCR 33.28) the pursuer’s agent lodged a Minute for Decree together with affidavits in July 2013.  These affidavits were put before me for consideration.   Having done so, I asked the sheriff clerk to inform the pursuer’s agent that I considered that the evidence contained in the affidavits was insufficient to allow decree to be granted, especially as this was a case where there was no DNA evidence.  As a result of this the action was thereafter set down for a proof at which oral evidence was led. 

 

[4]        The proof called before me on 8 July and 29 August 2014, at which the pursuer was represented by Mrs MacPhee, Messrs Caesar & Howie, Solicitors, Bathgate.  At the proof I heard evidence from the pursuer, his mother, his  father, his brother, his present wife, and from a forensic science consultant (Dr Scott Bader).  I thereafter took the case to avizandum.

 

[5]        I should record at the outset that the pursuer had, in my view, a genuine and proper reason for bringing this action.  There were two children born during the course of the marriage, namely the child JS (the subject of this action) and his sister ES.  After the parties separated in about January 2007 the pursuer paid maintenance for both of the children, but eventually came to suspect that he might not be the father of the child JS.  By that time his maintenance payments were being paid through the Child Support Agency, and he contacted them and requested that they carry out DNA testing to see whether he was the father of JS.  The CSA asked the first defender to cooperate with DNA testing, but she did not do so.  The pursuer felt that he had no alternative but to raise this action.  The pursuer told me that he would accept the outcome of the action, whatever it was, and if it was held that he had failed to rebut the presumption, he would continue paying maintenance through the CSA.  He told me that despite his suspicions that he was not the father, he did not wish to simply stop paying maintenance, as he wished the matter dealt with in a proper way. 

 

Evidence in the case

[6]        In relation to the evidence given by the pursuer and his various family members, there was nothing whatsoever to cause me to doubt any of that evidence.  The pursuer gave his evidence, as did the other witnesses, in a way which seemed to me to be transparently honest.  I did not get the impression that the pursuer has raised this action simply to try and avoid paying maintenance, and there was therefore no real reason for him, or anyone else, to seek to mislead me.  I accordingly accept their evidence as being entirely reliable.   

 

[7]        The evidence I heard was to the following effect.  The parties were married on 23 September 1995.  The first defender had two children from a previous relationship.  The child with which this action is concerned is  JS.  The parties separated about January 2007, and were divorced in about March 2009.      

           

[8]        The pursuer’s evidence was that prior to JS being born the first defender had had a miscarriage, perhaps in June 1996.  He told me, and I accepted this as being true, that for the six weeks or so between then and the first defender becoming pregnant, they had only been intimate once, and had not taken any contraceptive measures on that occasion.  JS was born about two weeks late, and the likely time of conception, on the basis that the length of pregnancy would have been about nine months, would have been about July 1997.  The pursuer’s evidence was that when JS was born he was very surprised by his dark skin colouring, but the nurses told him that it was because he was late, and that his skin colour would fade.  He said that: “There was a definite difference with ES.  She had blond hair and was completely white skinned.  She never had the dark looks that JS had when he was born.”   

           

[9]        The pursuer told me that he had no inkling that he might not be the father of JS until many years later when, in about 2011, he had a conversation with his mother and father, and they informed him that they suspected that a person of Asian descent by the name of AB was the father.  It seems that the pursuer’s family had suspected this for some time, but had never mentioned it to the pursuer in order not to hurt his feelings.  The pursuer told me that he then discussed matters with his parents and brother, and certain facts came to light, and that “It all started falling into place”. 

 

[10]      These facts were that the pursuer’s brother, SS, who at the time lived close to the house where the pursuer and defender were living, had seen evidence in 1996 that the first defender was having an affair with a person of Asian descent.  The pursuer’s brother was in the habit of walking his dog in the evening, and around July and August in 1996 would often see this person’s car parked in the driveway of the pursuer and first defender’s house, at a time when the pursuer was out working.  He also saw a person of “Asian appearance” go into the house a number of times. The pursuer’s brother told me that on more than one occasion he also saw the first defender waiting outside a church, and then entering the same car which he had seen in the driveway.  This was about 4.30pm in the afternoon.    

 

[11]      The pursuer told me that around July and August 1996 he had two jobs.  During the day he worked as a nursing assistant, but in the evening he worked as a delivery driver for a local Indian restaurant.  His hours of work for the restaurant were approximately 4.00pm in the afternoon until 1.00am.  He was working four nights a week.  He said that the first defender would often come out with him in his car when he was doing the deliveries, but after about 10.00pm she would go and sit in the restaurant and wait for him while he did late night deliveries.  He said that the person AB worked in the restaurant, and he would often see the first defender talking to AB when he returned after a delivery.  At the time he never thought anything of it, but later realised that this was how the relationship had developed.    

 

[12]      After separating from the first defender and becoming divorced, the pursuer married his present wife, HS.  She gave evidence and told me that once the pursuer realised that he might not be the father of JS, she had decided to confront the alleged father, AB, about this.  AB worked in the local post office, and she went in to the post office to see him.  He was behind the counter, and she asked him if his name was AB.  He confirmed that it was.  She asked him if he knew the first defender, and he said that he hadn’t seen her in years.  She told him that they thought that he was the father of JS, and he said: “No.  She told me she was on the pill and the baby was CS’s.”  She then said to him: “So you did have an affair with KS” As I understood the evidence, there was no direct admission of an affair, but that AB said: “She told me it was over between her and CS”.  She said that AB did not wish his family to find out about anything because of his religion, and the fact that he now had a daughter.  She said that AB asked her to send him a photograph of JS, which she did a short time later, and that AB had replied: “Yes he looks like me, but you can’t prove it”.    

 

[13]      The pursuer and his witnesses told me that they were convinced that AB was the father of JS because of JS’s dark skin colouring, and the fact that he looked like AB.  The pursuer told me that he and the first defender both had typical Scottish pale skin, and that from my observation of the pursuer in the witness box and of a photograph of the first defender, appeared to be correct.  He told me that he had green eyes and that the first defender had blue eyes.  He was 100% sure of the colour of the first defender’s eyes because he had given her an engagement ring which was a blue sapphire to match the colour of her eyes.  He told me that their daughter ES has blue eyes and blonde hair.  His wife’s hair colour was naturally a red brown colour.  JS had brown eyes and very dark hair.  He felt that JS was looking more and more like AB as he became older.  The pursuer’s wife, HS, told me that AB had a nose which was “crooked” and which leaned over to one side, and she said that JS’s nose was exactly the same.  She thought that JS and AB looked like each other. 

 

[14]      The pursuer and his witnesses gave evidence that JS’s skin colour was much darker than theirs, to the extent that JS had been teased about this at school, and called nicknames, and on one occasion the pursuer’s mother had been asked if JS was adopted.  The pursuer gave evidence that even when he had a suntan his skin colouring was still lighter than JS’s, and of a different shade.  The pursuer showed me various photographs, all of which are lodged in process, showing JS, the first defender, ES, and other people, and suggested that it was clear from the photographs that JS’s skin was darker.  That appeared to me to be manifestly correct.  

 

[15]      The pursuer also gave evidence as to efforts which had been made to obtain DNA samples from the first defender and JS.  Once doubts about the paternity of the child had been raised the CSA had made a formal request to the first defender to supply samples from herself and the child JS for DNA testing.  She had not cooperated with this request.  A letter from the CSA dated 17 January 2014, which is number 2 of the pursuer’s third inventory of productions, confirmed that this was the case.  His solicitors had also written to her requesting DNA testing, but again she had not responded.  Reminders had been sent, but it had proved impossible to obtain her agreement to have DNA testing carried out. 

 

Pursuer’s submissions

[16]      The pursuer’s agent very helpfully lodged written submissions, and as these are available for reference I need not set these out here.    

           

[17]      The factors founded upon by the pursuer as being sufficient to rebut the presumption that he is the father of the child are that:  (1) the first defender had the opportunity for sexual intercourse with the alleged father around the likely time of conception; (2) the alleged father effectively made an admission to the pursuer’s present wife that he had had an affair with the first defender; (3) adverse inferences should be drawn against the first defender by virtue of her refusal to provide samples for DNA testing; (4) the dark skin colouring of JS; (5) the resemblance in certain aspects, such as eye colour and hair colour, to the person AB.  I will deal with each of these factors in turn.    

 

Factors relevant to paternity

[18]      In relation to the first of these factors, I find it established that in July and August 1996 the first defender and the alleged father had an affair where the opportunity to have sexual intercourse arose.  However, I also agree with the agent for the pursuer that the alleged father appeared to accept having had sexual intercourse with the first defender when the pursuer’s present wife spoke to him, and I therefore find it proved that sexual relations did actually take place between the first defender and the person AB.    

 

[19]      I therefore find it established that the sexual intercourse between the first defender and AB was around the likely time of conception.  In this connection I should mention that the fact that a normal pregnancy lasts about 9 months seems, as I read paragraph 3.11 of Wilkinson & Norrie on Parent & Child, to be a matter which is deemed to be within judicial knowledge.  It is said there that “it can probably be said that the fact that gestation of more than ten months is possible, although highly unusual, is now sufficiently notorious to bring it within judicial knowledge”.  If that is within judicial knowledge then so must be the normal length of pregnancy, and that places conception in July or August 1996. 

 

[20]      However, there was also sexual intercourse by the pursuer with the first defender on one occasion which was also around the time of conception.  That act of intercourse could also have resulted in the first defender becoming pregnant, and so the evidence that the first defender and AB had sexual intercourse only establishes that he could be the father of JS, as could the pursuer.      

 

DNA Testing

[21]      In relation to the question of DNA testing, the question arises as to what inferences, if any, can be drawn from the first defender’s failure to provide samples for testing.  At an earlier stage of the proceedings the pursuer’s agent asked me to consider requesting the first defender to provide samples from herself and from JS for DNA testing.  This was in terms of section 70 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.  As I understand it, nowadays samples are taken by means of a swab from the mouth, and therefore there is no physical discomfort of any sort to be endured by the person providing a sample.  Despite this, I took the view that as the first defender had already been asked by the pursuer’s solicitors and by the CSA to provide samples from herself and the child for analysis, and had refused to co-operate, there was likely to be very little to be gained by the court making a further and third request.  For that reason I decided against authorising such a request. 

 

[22]      Where a request is made by the court, and is not complied with, then section 70(2) of the 1990 Act provides that:  “The court may draw from the refusal or failure such adverse inference, if any, in relation to the subject matter of the proceedings as seems to it to be appropriate.”   Can, however, an adverse inference be drawn from a request made outwith the court proceedings?  In relation to this, it is said in Wilkinson & Norrie at 3.31 as follows: 

 

“In Doherty v McGlynn Lord Cameron thought, even before the enactment of the statutory power, that a refusal to consent to scientific tests upon oneself could be sanctioned by ‘the consequential inference to be drawn adverse to the interest of the party in disobedience’, and although he cited no authority for this proposition, a parallel might have been found in the requirement which may be made of a pursuer in a personal injuries action to submit to medical examination.”

 

Lord Cameron was, however, dealing with a case where there was “an order by a competent court of civil jurisdiction requiring a party to submit him or herself to physical examination”, whereas in the present case the request was by solicitors and by the CSA.  However, having considered the matter, I see no reason whatsoever to think that appropriate inferences cannot be drawn from a less formal request to provide samples.  Such a request may not carry the same weight as a request made by the court, but it is, surely, just another fact to be taken into account in determining whether or not the presumption has been rebutted. 

 

[23]      With regard to the inference, if any, which should be drawn in the present case, para 3.32 of Wilkinson & Norrie contains a discussion of the English approach.  This can be summarised as being that:  “He who obstructs the truth will have the inference drawn against him” (re G (Parentage:  Blood Sample) [1997] 1 FLR 360).  The first defender here was asked by the CSA to provide samples for DNA testing. That is a request by a government agency for proper and important purposes.  A failure to co-operate with such a request is, in my view, to be regarded as being of importance.  The first defender, in my view, has obstructed an inquiry into the truth of the paternity of the child JS, and the virtually inescapable inference to be drawn from this is in favour of the presumption being displaced.   

 

Physical resemblance

[24]      In relation to the question of physical resemblance, or lack of it, this raises some issues which are not without complication.   

 

[25]      The pursuer and his witnesses gave evidence that there is a strong resemblance between JS and AB.  According to the pursuer, “JS is AB’s double”.  He said also that, “JS has a kink in his nose like AB”.  The pursuer’s mother said that, “JS’s skin colour is Asian” and that JS had “very dark hair and dark eyes”.  The pursuer’s father said, dealing with the reverse side of the coin, that he had never seen “any likeness whatsoever” between the pursuer and JS.  He said that, rather, he “could always see an Asian likeness in the child”.  Indeed, on the evidence I accept, AB himself said to the pursuer’s present wife that, “Yes, he looks like me”. 

 

[26]      The pursuer’s agent very properly and helpfully referred me to the case of Grant v Countess of Seafield 1926 SC 144 as authority for the extent to which I could take these matters into account.   In that case the pursuer claimed that he was the son of the Earl of Seafield, but that this had been kept hidden for many years.  The circumstances leading to the case are of interest and are narrated at page 145 of the report as follows: 

 

“… in October or November 1846 Viscount Reidhaven and Miss Caroline Stuart, who was then pregnant to Viscount Reidhaven [later the 7^th Earl of Seafield], set sail from the west of Scotland in a sloop or yacht so as to have Miss Stuart brought quietly to the neighbourhood of the Seafield estates.  The ship was unable to put into Cullen owing to stress of weather, and on or about 3 November 1846 arrived off Banff.  There Viscount Reidhaven and Miss Stuart accepted each other as husband and wife on board the ship.  Miss Stuart was afterwards put ashore at Banff where she gave birth to a male child who was the pursuer.  The pursuer was smuggled up Speyside, where he was brought up secretly by foster parents.  On 12 August 1850 Viscount Reidhaven and Miss Stuart went through a public ceremony of marriage in London.  Another son, Ian Charles, was born to them on 7 October 1851 … The pursuer further averred that he … was entitled to the titles and honours of Seafield, and … that his birth and parentage had always been kept secret …”. 

 

In support of his claim the pursuer averred that: 

 

(Cond 14) “The pursuer bears a noticeable family resemblance to Viscount Reidhaven in features, gait and mannerisms, and he also has certain traits of resemblance to his mother, Caroline.  In early youth Caroline’s hair was brilliant and fair, of a yellow or auburn shade.  Up to the age of about 40 her hair remained of a rich auburn colour, which showed up fair in certain lights …  About the age of 40 her hair turned dark …  This combination of noticeable auburn colouring with dark hair and tendency to change rapidly from one to the other is a noticeable Blantyre characteristic, and has been inherited by the pursuer …”

 

[27]      In the Outer House the Lord Ordinary held that the averments as to personal and family likeness were irrelevant, and in support of that view referred to an English case decided in the House of Lords (Slingsby v Att-Gen (1916) 33 TLR 120, where Lord Shaw had referred to the Law of Scotland as follows: “The evidence given as to the likeness of the child to Mr and Mrs Slingsby was worthless.  That class of evidence, except in the case of a difference of colour, had in Scotland for more than a century been rejected, on the ground ‘that it was loose and fanciful’”.  The decision of the Lord Ordinary as to the admissibility of the evidence was reclaimed.  In refusing the reclaiming motion, and holding that the averments were irrelevant, the Lord Justice Clerk (Alness) said as follows: 

 

“Experience teaches us that persons who are entirely unrelated often bear a striking resemblance to one another, while persons who are closely related not infrequently bear not the slightest trace of resemblance.  If this type of evidence is admissible, is it also admissible to lead evidence, and to give weight to it, to the effect that there is no physical resemblance between two persons, one of whom claims to be the son of the other, and on the ground to set up a doubt as to paternity?  The one enterprise seems to be as plausible as the other; both seem to be to be condemned by experience as of equal futility and peril.” 

 

[28]      On the basis of the Grant case, Mrs MacPhee for the pursuer conceded, I think correctly, that the evidence mentioned above of the pursuer and others that JS looks like the person AB was not competent evidence, however strong that resemblance is said to be, and that I should not take it into account.  As Grant is binding on me, I agree that I must proceed on that basis.   

 

Hair Colour

[29]      Mrs MacPhee urged me, however, to take account of the difference in hair colour between JS and the pursuer, on the basis that this was not just a question of resemblance, but something more definite, namely a difference in colour.  Having considered that submission I take the view that the decision in the case of Grant also prevents me taking into account the evidence which I heard that JS has very dark hair, unlike the rest of his family.  An alleged similarity in hair colouring between the pursuer in the Grant case and the person said to be his mother was held to be irrelevant, and I think that this precludes me from being able to take the question of hair colour into account. 

 

Skin Colour

[30]      The pursuer’s agent further argued that the Grant case was authority for the proposition that skin colour was not just an aspect of physical resemblance, but was something separate, and that it was relevant evidence which could be taken into account.

 

[31]      Although in Grant the court held that holding that the pursuer’s averments about resemblance in “features, gait and mannerisms” were to be excluded under the general rule, as were the averments regarding hair colour, it also held that in exceptional cases evidence of physical features was competent. For instance, Lord Anderson said as follows: 

 

“I do not think it is accurate to state, as a general proposition, that, by the law of Scotland, evidence as to family resemblance is incompetent, because, in certain exceptional cases, such evidence has been admitted.” 

 

Later in the judgment Lord Anderson gave examples of exceptional circumstances where such evidence has been admitted by saying that: 

 

“As I have stated, there are highly exceptional and extremely rare cases where evidence as to physical resemblance is admissible.  But, in such cases, there must be averments, not of ordinary physical resemblance, but of abnormalities.  In such cases there is no room for the play of fancy.  They yield reasonably certain results to the exercise of exact observation.  Thus, if a child were born with a single eye in the middle of his forehead, it would be reasonably safe inference to trace his ancestry to Polyphemus.  In the only two exceptional cases which have occurred in Scotland since 1810, the same reasonable certainty of conclusion could be predicated.  In Sinclair, the abnormality was that a white woman gave birth to a dark skinned baby.  This exceptional circumstance justified the admission of evidence of physical resemblance to the alleged Negro father [my underlining].  In the case of Stewart the abnormality took the form of a child having been born with six toes.  This let in evidence of the possession of six toes or fingers by several members of the alleged mother’s family.” 

 

[32]      From my understanding of the Grant case, it seems well established that skin colour is something that I can take into account, and I accordingly will do so.

 

[33]      In relation to the question of skin colour, I heard evidence from Dr Scott Bader, a consultant forensic scientist working for The Forensic Institute in Glasgow.  He spoke to report which is to be found in the pursuer’s fifth inventory of productions.  He is a first class honours graduate in physiological sciences from The University of Oxford.  He was a very impressive witness.      Dr Bader’s evidence was  that where there was a relationship between a light skinned mother and a dark skinned father then the expectation would be that the child would be darker skinned than the mother. 

 

Eye Colour

[34]      The question of eye colour raised an interesting and difficult question.  The pursuer has green eyes.  The first defender has blue eyes, as does the parties’ daughter, ES.  But JS has brown eyes.  The first question which arose was whether that difference in eye colour between the pursuer and JS was something which indicated in any way the identity of the father.

 

[35]      Dr Bader gave evidence regarding the genetics of inherited characteristics.  It is a complicated subject.  As Dr Bader says in his report that the “genetics of eye, hair and skin colour are complicated and not yet fully understood”.  It can be seen from Dr Bader’s report that the question of recessive genes is important in this area.  Some of these things are within common knowledge, but it is apparent from Dr Bader’s report that the subject is very much more complicated than may be apparent to the average person.  In relation to eye colour, Dr Bader says at page 5 of his report that: 

 

“Eye colour is traditionally considered as a simple Mendelian trait where a gene variant that codes for brown is dominant over green or blue, and green is dominant over blue.  It has quantitative genetic properties in that there are varying shades of brown, hazel, green, blue, grey.  The gene OCA2 controls a characteristic of the sub cellular structure affecting pigmentation (the pigment itself is called melanin), in a Mendelian fashion, such that the brown gene variant is dominant to the blue variant …  In general terms, it is not likely for two blue and/or green eyed parents to produce a brown eyed child, however it is possible.  The eye colour of other children is also not particularly indicative, since the genotype of any child is to a large extent the result of random mixing of gene variants from each of the parents.  Unpublished data from an Australian research group (given in confidence to me by a personal communication) has shown an incidence of about 15% brown eyed offspring from blue eyed mother x blue eyed father.” 

 

 [36]     In his evidence Dr Bader sought to explain in further detail, in a manner which could be understood by a layman, the genetic processes at work.  As I understood it, the basic processes are in essence are quite simple, being that generally dark pigmentation is dominant over light, and so generally brown eyes will be dominant over blue and green.  Dr Bader said that traditionally this was how genetics was taught, but that it had become apparent that because of the complicated genetics of Caucasians it is possible to get dark colours of eyes from two people with non-brown eyes. 

 

[37]      The pursuer’s agent submitted to me that, on the basis of Dr Bader’s evidence, I ought to take into account the fact that JS has brown eyes as being a factor, although no more than a factor, which suggests that AB was his father.  She argued that this was not a question of physical resemblance, which in terms of the Grant would be excluded, it was simply a factual issue, and therefore was competent evidence, just as the evidence of skin colour was competent evidence. 

 

[38]      It is possible, it seems to me, to take the view that the fact that the pursuer and the first defender on the one hand and JS on the other have different eye colour is simply to be seen as evidence that the pursuer does not resemble JS.  After considerable thought, however, I have come to the conclusion that Mrs MacPhee’s submissions on this point are correct.  While eye colour is not an “abnormality” which would fall within the exception to the rule, neither is it essentially a question of opinion, in contrast to the evidence which I heard that JS looks like AB.   Just as in the Grant case where the question of skin colour was seen as being competent evidence, I have come to the conclusion that eye colour is also competent evidence.  It seems to me that the reasoning in Grant that certain matters, such as skin colour, leave “no room for the play of fancy.  They yield reasonably certain results to the exercise of exact observation”, also applies to differences in eye colour.  Despite the varying shades of colours which exist, both skin colour and eye colour are, it seems to me, essentially matters of fact rather than opinion, in contrast to questions of physical resemblance which on the authorities is to be seen as being just a matter of opinion. 

           

[39]      For these reasons I have come to the conclusion that the rationale of the decision in Grant allows evidence about eye colour to be seen as competent evidence which I can take into account and which assists in the determination of paternity. 

           

Summary and conclusion

[40]      To summarise all the above, I hold it established that the first defender and the person AB had an affair in July and August 1996, when sexual relations took place.  The likely time of conception of the child JS was also July and August 1996.  The pursuer and the first defender only had sexual relations on one occasion during that time.  It seems as a matter of common sense to be more likely that the relationship over a period of two months between the first defender and AB would result in pregnancy than the single occasion on which it took place between the pursuer and the first defender.  The refusal of the first defender to cooperate with DNA testing is a fact which leads to adverse inferences being drawn against her in relation to the question of whether the pursuer is the father of JS.  It strongly suggests, to use the pursuer’s words in evidence, that she has something to hide.  The fact that JS has a skin colour which is much darker than the rest of his family is a very strong factor which indicates that the person AB is the father.  The fact that JS’s eyes are brown similarly indicates that the pursuer is not the father.    

 

[41]      On the evidence, and for the above reasons, I have no hesitation in coming to the conclusion that the pursuer is not the father of JS.  The refusal of the first defender to cooperate with DNA testing, which would have given a conclusive answer as to the truth, has to be seen as a very strong factor suggesting that the pursuer is not the father.  The skin colour is another very strong, almost conclusive, factor.  Even if I am wrong in the view which I have taken that the evidence about eye colour is competent, the other evidence which I have just referred to is, to my mind, more than ample evidence to prove on the balance of probabilities that the pursuer is not the father. 

 

[42]      For all these reasons I will grant decree of declarator as craved, declaring that the pursuer is not the father of JS. 

 

 

 

 

 

 

 

 

 

Sheriff Douglas A Kinloch