Before making the decision to go ahead with a test, please take time to consider the implications for yourself and your family of undergoing testing to ensure that it is in the best interests of the child. The results can sometimes be unexpected and may have legal implications. You may therefore wish to take your own legal advice through a solicitor or an advice agency such as the Citizens Advice Bureau.

Once you have decided to proceed with testing it is essential that you get the consent of each individual who is to be tested. The Human Tissue Act created the offernce of “DNA theft” (section 45).

In England & Wales you have to be an adult in legal terms (18 years old) before you can consent to DNA Testing. Responsible adults with parental responsibility must give consent for young persons under the minimum age.

The Act also lists the purposes for which consent is required. The consent required under the Act is called 'appropriate consent', which broadly means consent from the appropriate person, as identified in the Act. Penalties of up to three years imprisonment or a fine, or both, are provided in the Act as a deterrent to failing to obtain or to misusing consent.

The Human Tissue Act and DNA Testing The Act makes it an offence to have human tissue, which includes hair, nail and gametes in this context, with the intention of its DNA being analysed without the consent of the individual from whom the tissue came, or of those close to them if they have died. This provision applies UK-wide. Penalties for not obtaining consent are provided.

Section 45 of the Act has a particular relevance to paternity testing given that it covers the non-consensual analysis of DNA. It stipulates that "A person commits an offence if he has any bodily material intending":-

• that any human DNA in the material be analysed without qualifying consent, and
• that the results of the analysis be used otherwise than for an excepted purpose,

A person guilty of an offence under this section:-

• is liable on summary conviction to a fine not exceeding the statutory maximum;
• is liable on conviction on indictment:- to imprisonment for a term not exceeding 3 years, or to a fine, or to both.

Guidance and Codes of Practice One of the HTA’s statutory functions is to issue codes of practice. The first six codes have been published and the first covers the central issue of consent. The giving of consent is seen as a positive act. The absence of refusal is not evidence of consent.

The section on consent and the use of DNA is the one area of the Code of Practice that specifically refers to paternity testing, rather than considering it as part of the whole. It states that “As the issue of paternity testing is a sensitive one, further guidance has been published by the Department of Health in this area.” This further guidance is the DH’s voluntary Code of Practice and Guidance on Genetic Paternity Testing in the UK, first published in 2001 and which is currently under review.

The Department of Health have stated that new Paternity Testing code will have to be consistent with the HT Act and with other legislation relating to Court-directed services and advertising. They envisage that the new code will go beyond the Human Tissue Act and the Codes to give more detail, and best practice guidance, that is tailored to paternity testing. Industry consultation on the new DH code will has taken place but the new "Good Practice Guide" has yet to be published.