Section 70 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 enables courts to seek scientific evidence (like DNA tests) in civil cases, particularly in family law matters involving questions of parentage or drug misuse. This section gives courts a mechanism to request blood tests or other body-fluid or tissue samples from parties, helping to establish biological relationships and drug misuse with greater certainty. In practice, it plays a vital role in paternity disputes, child support cases, and even inheritance claims, by facilitating DNA testing while balancing individual consent rights.

Court Powers to Request DNA or Blood Samples

Section 70 empowers the Court of Session or sheriff court in Scotland to request parties in a civil case to undergo genetic or blood testing for evidential purposes. This can include testing a party’s own sample or obtaining a sample from a child (with appropriate consent). In essence, the court may ask for scientific evidence to clarify biological relationships. The main points of Section 70 can be summarized as follows:

• Sample provision: The court may request a party to provide a sample of blood or other body fluid or tissue for laboratory analysis. This broad wording means it’s not limited to blood and can cover saliva (cheek swabs), hair follicles, or other tissue needed for modern DNA testing. The provision was deliberately framed to accommodate advances in genetic testing beyond simple blood-group tests, with legislators noting that “body tissue” explicitly includes DNA sample collection.
• Child’s sample: If the evidence required involves a child’s sample, the court may request a party who has the authority (e.g. a parent or guardian) to consent to the taking of a sample from the child. A child under 16 cannot legally consent on their own, so someone with parental rights and responsibilities must do so. The court will always consider the best interests of the child in such situations. Generally, knowing one’s true parentage is deemed beneficial for a child, so the court is likely to favour testing if it will help clarify the parent-child relationship.

It is important to note that the court’s power under Section 70 is framed as a request, not an absolute order or mandate. This wording was chosen to respect individual autonomy and legal rights – no one can be physically forced or compelled to give a sample against their will. Prior to this Act, Scottish civil courts had no power at all to obtain blood tests, which drew criticism that crucial evidence was being missed especially as DNA technology advanced. Section 70 filled that gap by giving courts authority to seek scientific testing, while stopping short of coercion. In other words, the court can ask for a DNA or blood test in a civil case, but it cannot drag someone to a clinic – instead, the law relies on a different kind of pressure, as explained next.

Refusal to Provide a Sample and Adverse Inferences

Because compliance with a Section 70 request is voluntary, the legislation built in a significant consequence for refusal. Subsection (2) of Section 70 provides that if a person “refuses or fails” to provide a requested sample (or to take the necessary steps for a child’s sample), “the court may draw such adverse inference… as seems to it to be appropriate.”. In plain terms, refusing a court-requested DNA test can hurt your case. The judge is allowed to infer that your refusal implies you have something to hide, and this inference can be taken into account when deciding the facts at issue.

Under Scottish law, a refusal to consent to a paternity test cannot result in punishment or contempt of court, since the request is not an enforceable order. However, the penalty is the damage to one’s case. Section 70 explicitly permits the court to use a refusal as evidence. For example, if an alleged father in a paternity suit declines to give a DNA sample, the court may infer that he fears the test would prove paternity, and the court can treat that as evidence that he is the father. Similarly, if a mother withholds consent for a child to be tested, the court may infer the child is biologically related to the man who sought the test (since, if he truly were not the father, one would expect no objection to proving it). The Court of Session has noted that an adverse inference is often the only recourse, because physical compulsion is not allowed in civil cases – unlike in some criminal contexts – so the law strikes a balance by “drawing an inference” rather than forcing the sample.

It’s important to understand that an adverse inference does not automatically decide the case on its own; the court will still weigh all the evidence and circumstances. The standard in civil cases is the balance of probabilities (more likely than not). DNA evidence (or the lack thereof due to refusal) is one piece of the puzzle. In practice, courts will look at the whole context – for instance, evidence of a relationship or timing of conception, acknowledgments of paternity, physical resemblances or other genetic clues – alongside any inference drawn from a refusal to test. A refused test can tip the scales if other evidence points toward a particular conclusion. In many cases, though, parties do comply and provide samples, since a DNA test can conclusively resolve the issue. Often the mere possibility of an adverse inference encourages cooperation. Scottish solicitors note that it is generally “preferable for DNA profiling to be undertaken by agreement and not as part of litigation”. Section 70 is there as a framework when parties won’t agree voluntarily.

How Section 70 is Used in Family Law Cases

Although Section 70 technically applies to “any civil proceedings”, its most common use is in family law disputes – especially those about parentage (paternity or maternity). Establishing who a child’s biological father (or mother) is can have far-reaching legal consequences. Here are some typical scenarios in which Section 70 comes into play:

• Paternity Disputes and Declarator Actions: In Scots law, a person who wants legal confirmation of parentage can raise a court action for a declarator of paternity (to confirm a man is the father) or declarator of non-paternity (to confirm a man is not the father). For example, an unmarried father who is not named on the birth certificate might seek a declarator of paternity in order to obtain parental rights, or conversely a man listed as the father might seek to prove he is not the biological father to prevent having to pay child maintenance. Under Section 70, the court in such cases may request DNA samples from the adults (and consent for the child’s resting) to scientifically determine parentage. Advances in DNA testing have made resolving these cases much more straightforward, and courts readily use Section 70 powers to get to the truth. If the mother or alleged father refuses testing, the court can infer that the refusal signals the test would have confirmed the other party’s claim.
• Child Maintenance Cases: Determining parentage is crucial for child maintenance (child support) obligations. A father (or mother) has a legal duty to financially support their child, but if paternity is disputed, that duty cannot be enforced without clarity on parentage. Section 70 provides a route for the court (or the Child Maintenance Service, via court) to ask for DNA testing when someone alleged to be a parent denies it. In fact, the Child Maintenance Service (CMS) can arrange DNA tests for alleged parents in dispute; under Section 70 the court can likewise request samples if the matter comes before a judge. If a man alleged to be the father refuses to take a DNA test without good reason, the court may infer paternity and order the child maintenance be paid accordingly. This means that simply refusing the test will not allow a parent to evade child support.
• Succession and Inheritance: Questions of parentage also arise in inheritance disputes and estate matters. Under Scottish succession law, since illegitimacy was abolished in 2006, all children have equal rights to inherit from a parent’s estate, whether born in or out of wedlock. This can lead to situations where, after someone dies, an individual comes forward claiming to be the biological child of the deceased (especially if not widely known to the family). Executors and surviving family members might understandably seek proof. Section 70 can be relevant if, say, a purported child makes a legal rights claim on the estate – the court may request DNA samples from that person and known children of the deceased to verify the claim. Section 70 helps ensure that only true biological children are treated as such in law when it comes to inheritance.
• Drugs Testing: Where a parent is seeking a child contact Order but there are allegations of drug misuse by the other parent a solicitor can motion the court for a drugs test by way of a hair test, to determine whether the allegations are true.

It’s clear that accurately determining parentage is often fundamental to resolving family law cases justly. It affects a father’s ability to obtain parental rights and responsibilities (for example, an unmarried father not on the birth certificate must prove paternity to claim parental rights). It affects a child’s right to receive financial support from a parent. Section 70 was enacted to give Scottish courts a powerful tool to get to those biological truths. As the Scottish Law Commission observed during the reform, relying on presumptions or he-said/she-said testimony in such matters could lead to injustice, whereas scientific evidence (when available) allows courts to reach decisions that reflect reality.

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