Paternity, DNA testing and the children's hearing: a critical examination of JS, Appellant 2021 SLT (Sh Ct) 116

JS, Appellant is a decision of the sheriff court in which the issue was whether it was competent for a children's hearing to add a measure into a compulsory supervision order that would require the child to be DNA tested in order to determine whether the appellant was the child's father. The sheriff held that attaching such a measure was indeed competent and, instead of returning the matter to the children's hearing, she varied the compulsory supervision order herself to contain that measure. While the decision has little precedential value it does raise important and more general issues relating to the competency of measures to be included in compulsory supervision orders, the role of "necessity" in hearings' decision-making, the ECHR-compatibility of the Scottish rules for determining paternity and the extent to which sheriffs should themselves make welfare decisions in children's hearings cases. This article will seek to show that the sheriff's approach to most of these issues was misconceived, notwithstanding that she was seeking to remedy an injustice faced by the appellant. It ends with a suggestion of how that injustice ought to have been remedied.