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26 1987

STATUS OF CHILDREN ACT, 1987

PART VII

Blood Tests in Determining Parentage in Civil Proceedings

Definitions ( Part VII ).

37. —In this Part—

blood samples” means blood taken for the purpose of blood tests;

blood test” means any test carried out under this Part and made with the object of ascertaining inheritable characteristics;

excluded” means excluded subject to the occurrence of mutation;

the Minister” means the Minister for Justice.

Direction by court on blood tests.

38. —(1) In any civil proceedings before a court in which theparentage of any person is in question, the court may, either of its own motion or on an application by any party to the proceedings, give a direction for the use of blood tests for the purpose of assisting the court to determine whether a person named in the application or a party to the proceedings, as the case may be, is or is not a parent of the person whose parentage is in question, and for the taking, within a period to be specified in the direction, of blood samples from the person whose parentage is so questioned, from any person alleged to be a parent of that person and from any other person who is a party to the proceedings, or from any of those persons.

(2) Where, on the application of any party to proceedings—

(a) a direction is given under subsection (1) of this section, such party shall pay the costs of taking and testing blood samples for the purpose of giving effect to the direction (including any expenses reasonably incurred by any person in taking any steps required of him for that purpose) and of making a report to the court under section 40 (2) of this Act,

(b) such party obtains, under section 40 (4) of this Act, a written statement explaining or supplementing any statement made in a report under the said section 40 (2), that party shall, subject to any direction by the court, pay the costs (if any) of obtaining the written statement (including any expenses reasonably incurred by any person in taking any steps required by him for that purpose),

but any amount paid or to be paid by virtue of this subsection shall be treated as costs incurred by such party in the proceedings.

(3) The court may at any time revoke or vary a direction previously given by it under this section.

Consent to, and taking of, blood samples.

39. —(1) Subject to subsection (3) of this section, a blood sample which is required to be taken from any person for the purpose of giving effect to a direction under section 38 of this Act shall not be taken from that person except with his consent.

(2) Where for the purpose of giving effect to a direction under section 38 of this Act a blood sample is required to be taken from a person who is not of full age and the court considers that he is in the circumstances capable of giving or refusing the necessary consent, any consent given or refused by him shall be as effective as it would be if he were of full age.

(3) For the purpose of giving effect to a direction under section 38 of this Act—

(a) a blood sample may be taken from a minor, other than one to whom subsection (2) of this section relates, if the person having charge of or control over the minor consents:

Provided that where more than one person has charge of or control over the minor and they disagree as to whether consent should be given, the minor shall be treated as not having consented;

(b) a blood sample may be taken from a person of full age who is, in the opinion of the court, incapable of understanding the nature and purpose of blood tests if the person havingcharge of or control over him consents and any medical practitioner in whose care he may be has certified that the taking of a blood sample from him will not be prejudicial to his proper care and treatment:

Provided that where more than one person has charge of or control over the person concerned and they disagree as to whether consent should be given, the person concerned shall be treated as not having consented.

Blood tests and reports.

40. —(1) Where blood samples are taken for the purpose of giving effect to a direction of a court under section 38 (1) of this Act, they shall be tested—

(a) under the control of such person (including a person to whom subsection (6) of this section relates) as all the parties to the proceedings before the court agree to, or

(b) where the parties are not in agreement,

(i) under the control of such person to whom subsection (6) of this section relates, or

(ii) under the control of such other person,

as the court shall direct.

(2) The person under whose control blood samples are to be tested by virtue of subsection (1) of this section shall make to the court by which the direction was given a report in which he shall state—

(a) in relation to each person from whom blood samples were so taken, the results of the tests, and

(b) in relation to each person (other than the person whose parentage is in question) from whom blood samples were so taken—

(i) whether the person to whom the report relates is or is not excluded by the results from being a parent of the person whose parentage is in question, and

(ii) if the person to whom the report relates is not so excluded, the value, if any, of the results in determining whether that person is a parent of the person whose parentage is in question,

and the report shall be received by the court as evidence in the proceedings of the matters stated therein.

(3) A report under subsection (2) of this section shall be in the form prescribed by regulations made under section 41 of this Act.

(4) Where a report has been made to a court under subsection (2) of this section, any party may, with the leave of the court, or shall, if the court so directs, obtain from the person who made the report a written statement explaining or supplementing any statement made in the report, and that statement shall be deemed for the purposes of this section (other than subsections (3) and (6)) to form part of the report made to the court.

(5) Where a direction is given under section 38 (1) of this Act in any proceedings and the blood samples to which the direction relateshave been tested by virtue of this section, a party to the proceedings, unless the court otherwise directs, shall not be entitled to call as a witness the person under whose control the blood samples were tested for the purpose of giving effect to that direction, or any person by whom any thing necessary for the purpose of enabling those tests to be carried out was done, unless within 14 days after receiving a copy of the report he serves notice on the other parties to the proceedings, or on such of them as the court may direct, of his intention to call that person as a witness and, where that person is so called, the party who called him shall be entitled to cross-examine him.

(6) (a) The Minister may, for the purpose of subsection (1) of this section, appoint a person or category of persons under whose control blood tests may be carried out.

(b) The Minister may at any time amend or revoke an appointment under this subsection but such amendment or revocation shall not affect any blood test carried out, or the testing of any blood sample for the purpose of this Part which was submitted for testing, before such amendment or revocation.

(c) Notice of an appointment, or the amendment or revocation of any appointment, shall be published by the Minister in the Iris Oifigiúil.

Regulations for purpose of giving effect to this Part.

41. —(1) The Minister may make regulations for the purpose of giving effect to this Part.

(2) Without prejudice to the generality of subsection (1) of this section, regulations made under this section may in particular—

(a) regulate the taking, identification and transport of blood samples;

(b) require the production at the time when a blood sample is to be taken of such evidence of the identity of the person from whom it is to be taken as may be prescribed by the regulations;

(c) require any person from whom a blood sample is to be taken, or, in such cases as may be prescribed by the regulations, such other person as may be so prescribed, to state in writing whether he or the person from whom the sample is to be taken, as the case may be, had during such period as may be specified in the regulations suffered from any such illness as may be so specified or received a transfusion of blood;

(d) prescribe the form of any report to be made to a court under this Part.

(3) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Failure to comply with direction on blood tests.

42. —(1) Where a court gives a direction under section 38 of this Act and any person fails to take any step required of him for thepurpose of giving effect to the direction, the court may draw such inferences, if any, from that fact as appear proper in the circumstances.

(2) Where in proceedings on an application under section 35 of this Act a court gives a direction under section 38 of this Act for the taking of blood samples then, if any person named in the direction fails, within such period as may be specified by the court, to take any step required of him for the purpose of giving effect to the direction, the court may dismiss the application.

(3) Where in any civil proceedings in which the parentage of any person falls to be determined by the court hearing those proceedings there is, by virtue of section 46 of this Act, a presumption of paternity relating to such person, then if—

(a) a direction is given under section 38 of this Act in those proceedings, and

(b) any party who is claiming any relief in the proceedings and who for the purpose of obtaining that relief is entitled to rely on the presumption fails to take any step required of him for the purpose of giving effect to the direction,

the court may adjourn the hearing for such period as it thinks fit to enable that party to take that step, and if at the end of that period he has failed without reasonable cause to take it the court may, without prejudice to subsection (1) of this section, dismiss his claim for relief notwithstanding the absence of evidence to rebut the presumption.

(4) Where any person named in a direction under section 38 of this Act fails to consent to the taking of a blood sample from himself or from any person named in the direction whom he has charge of or control over, he shall be deemed for the purposes of this section to have failed to take a step required of him for the purpose of giving effect to the direction.

Penalty for personation for blood test purposes.

43. —If, for the purpose of providing a blood sample for a test under section 40 of this Act, any person personates another or proffers another knowing him not to be the person named in the direction, he shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months, or to both;

(b) on conviction on indictment, to a fine not exceeding £2,500 or to imprisonment for a term not exceeding two years, or to both.