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Blunkett and the Milkman Clause

norman dennis, 6 December 2004

The most important effect of the Blunkett affair could well be the hitherto most neglected, namely, the astonishing twist he has given to the old legal question, Who is a child’s father?
From at least as far back as the twelfth century the legal rule has been that if a mother of the child is a married woman then, unless proven to the contrary, her husband is father of the child. (“Pater est quem nuptiae demonstrant.”)
The main intention was, of course, to protect the institution of marriage from the destructive intrusion into the life of a family of the lover of an adulterous wife.
The subsidiary intention was to allow the husband if that was he wanted, to refuse to accept the life-time burden of bringing up another man’s child. The husband’s get-out of proving the child is not his is bluntly called in some American states “the milkman clause”. The husband’s only purpose in seeking proof that the child was not his own was, and could only be, his wish that the marriage be dissolved because of his wife’s infidelity. In common law the rebuttal of the presumption of the husband’s paternity required evidence beyond reasonable doubt that the husband was not the father. The Family Law Reform Act 1969 reduced the burden of proof to the balance of probabilities, and Lord Reid ruled in one case that even weak evidence must prevail–all obviously in the interest of the the husband who was otherwise being tricked into raising someone else’s child. The idea that any of this was in the interests of the milkman, the wife’s lover, probably never occurred to anyone for hundreds of years. Yet this is exactly the way in which Mr Blunkett is seeking to use this body of law. The very recent innovation of DNA testing for the first time removes all doubt about biological fatherhood.
For this fact to be used to enable the offending male to intrude permanently into the family life of a husband and his reconciled wife turns topsy-turvy the unambiguous intention of the law and public opinion of centuries, and if accepted would deal another grievous blow to the precious and battered institution of life-long monogamy. For the Home Secretary of all the people in the land to take the initiative in playing the litigious milkman is simply grotesque.

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