(dissenting)—I dissent for two reasons. First, the court did not have jurisdiction over Alisha's paternity. Compliance with mandated service requirements is necessary for the court to adjudicate any dispute. Under RCW 4.28.020 the court acquires jurisdiction in a matter from the time of commencement of the action. However, an action may not continue in the absence of a necessary party. RCW 26.26.090 states:
The child shall by made a party to the action. If he is a minor he shall be represented by his general guardian or a guardian ad litem appointed by the court. The child's mother or father may not represent the child as guardian or otherwise.
(Italics mine.) Additionally, RCW 4.28.080(H)3 requires that minors less than 14 years of age be personally served, as well as their parents. Alisha, 4 years of age, was never served; she was never made a party to the action which is a precondition to subject matter jurisdiction under the parentage act (RCW 26.26). Moreover, her guardian, who was her grandmother, never consented to the court's personal jurisdiction. The court has jurisdiction to appoint a guardian ad litem, but it is necessary for either the guardian to consent to service on the part of the child, or that the child herself be served, to bring the child before the court as a party.
This was the precise issue before the court in State v. Douty, 92 Wn.2d 930, 603 P.2d 373 (1979). There, a pater*407nity action was initiated by the prosecutor,4 and a guardian ad litem need not have been appointed pursuant to RCW 74.20.310.5 Nonetheless, the applicable provisions of the Uniform Parentage Act were the same; the child was deemed an indispensable party to the action. The failure to serve the child deprived the court of jurisdiction to enter judgment. The court in Douty stated at pages 932-33:
Initially, it should be noted that the child, though named in the action, was never served. Consequently, he is not before the court. Under RCW 26.26.090, the child "shall be made a party to the action." A minor child is to be represented by a general guardian or a guardian ad litem. At least one court has held that the absence of the child, as an indispensable party, deprives the trial court of jurisdiction to enter a judgment under the California version of the UPA. See Perez v. Department of Health, 71 Cal. App. 3d 923, 138 Cal. Rptr. 32 (1977). Applying the reasoning of the California court, the instant case would be subject to dismissal.
This is consistent with the apparent intent of the drafters of the Uniform Parentage Act; that a parentage action may be brought by the child, as well as by one of the parents, and therefore, the child must be a party in the full sense. See Jefferson County Dep't of Social Servs. v. D.A.G., — Colo__, 607 P.2d 1004 (1980); A.G. v. S.G.,_Colo__, *408_, 609 P.2d 121, 123 n.5 (1980).
Here, the child was not served although she was named as a party to the action. Our Supreme Court in Douty held that because the child was not served, the child was not before the court. She is an indispensable party. Douty, supra at 932. Lacking an indispensable party in the instant case, the trial court lacked personal jurisdiction; thus its determination of parentage was void ab initio.
Even if, under the majority's rationale, the court had jurisdiction to determine parentage, I would remand for the purpose of allowing Mr. Hansen the opportunity to undergo blood tests to substantiate his denial of paternity. Even though the defendant may be viewed as guilty of laches for not complying within the appropriate time frame, I accept the rationale adopted by the court in Wessels v. Swanson, 289 N.W.2d 469 (Minn. 1979). There, the defendant appealed from a denial of his motion to vacate a default judgment which determined him to be the parent of a child. The Supreme Court of Minnesota determined that although the trial court did not abusé its discretion in adjudicating him to be the father, affirmance of the order was directed to be effective 90 days from the filing of its opinion unless, within that time, the defendant presented evidence of a reliable blood test to substantiate his denial of paternity. The court stated:
We are cognizant, however, not only of the financial burden placed upon defendant as a result of the adjudication of parentage, but also of the even more significant consequences of the adjudication both for him and the other persons affected by it. . . . Such consequences require that an adjudication of paternity be based on the most reliable kind of evidence available. . . . [W]e have recognized that recently developed and highly sophisticated blood-grouping tests may furnish such evidence and have urged the legislature to consider the matter of blood testing in the context of paternity actions. In this case we have concluded that if such tests furnish reliable evidence substantiating defendant's denial of paternity, such evidence would furnish a reason justifying relief from the operation of the judgment. . . *409Wessels, at 470.
The evidence of his blood test is obviously material to. the case and could well affect its outcome.6 As stated in Beautyman, Paternity Actions—A Matter of Opinion or a Trial of the Blood?, J. Legal Med., April 1976, at 17, 19:
Given the genotypes of a child and its mother, a scientist can state positively that men of certain blood types could not be the father. There are two classes of exclusion:
1. A man is excluded if he and the mother both lack a gene that the child has, because a child cannot have a gene lacked by both parents. For example, an O father and an A mother cannot have a B child because neither putative parent has the B gene.
2. A man is excluded if genes he must hand on are not *410present in the child. For example, an AB man cannot have an 0 child, because an AB parent must contribute either an A or a B gene to the child.
(Footnote omitted.) Absent blood tests, Mr. Hansen would be unable to present sufficient evidence he was not the father.7 Under Washington's Uniform Parentage Act only clear, cogent and convincing proof may rebut the strong presumption of paternity. RCW 26.26.040(5). A blood test here may conclusively prove the nonpaternity of Mr. Hansen.
Moreover, RCW 26.26.100(1) provides: "The court may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood tests." (Italics mine.) I do not view RCW 26.26.100 to be limited to pretrial motions. The act is remedial in nature and is to be construed liberally to accomplish the purpose for which it was enacted. Douty, supra at 936. Consequently, Mr. Hansen's request for a blood test to provide a defense to paternity was not untimely merely because it was made at a hearing on a postdefault motion. See Wessels, supra at 470.
Mr. Hansen has a substantial interest in the accuracy and outcome of the adjudication. He has a direct financial interest since he could be contributing to the support of Alisha throughout her minority. In addition to financial interests, Mr. Hansen, if found to be the father, is also indirectly threatened with loss of liberty since criminal prosecution for nonsupport has been initiated, which may result in incarceration.
For the foregoing reasons, and to insure justice will be accomplished, I would set aside the default judgment and remand the case to allow Mr. Hansen the opportunity to provide proof of nonpaternity. No prejudice would result to *411any party. The interests of the child,8 parents, society and our system of justice are not furthered by denial of an opportunity for an accurate determination of nonparentage. As stated in a well known English case where a blood test proved adultery: '"There is nothing more shocking than that injustice should be done on the basis of a legal presumption when justice can be done on the basis of fact. . . .'" J. Legal Med., April 1976, at 17, 25, citing H. v. H., [1966] 1 All E.R. 356.
Reconsideration denied June 16, 1981.
Review granted by Supreme Court September 25, 1981.
RCW 4.28.080(11) states:
"If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, guardian, or if there be none within this state, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed, if such there be."
That the State brought the action in Douty does not distinguish it from the instant facts. The appearance of the guardian ad litem in this action does not confer jurisdiction upon the court without first serving the minor.
RCW 74.20.310, enacted after Douty (Laws of 1979, 1st Ex. Sess., ch. 171, § 15, p. 1607) states:
"The provisions of RCW 26.26.090 requiring appointment of a general guardian or guardian ad litem to represent the child in an action brought to determine the parent and child relationship do not apply to actions brought under chapter 26.26 RCW if:
"(1) The action is brought by the attorney general on behalf of the department of social and health services, the child, or the natural mother; or
”(2) The action is brought by any prosecuting attorney on behalf of the state, the child, or the natural mother when referral has been made to the prosecuting attorney by the department of social and health services requesting such action.
"The court, on its own motion or on motion of a party, may appoint a guardian ad litem when necessary."
In Carlyon v. Weeks, 387 So. 2d 465, 466 (Fla. Dist. Ct. App. 1980), the court stated the following, discussing the benefits and reliability of human leukocyte antigen (HLA) testing and its probative value on the issue of paternity: "Paternity can be excluded with certainty in certain cases by blood testing, but it can never be proven with certainty."
In Hepfel v. Bashaw, 279 N.W.2d 342, 345 (Minn. 1979), the court noted: [Ajppallingly little attention is given to the accuracy of the determination. Professor Harry D. Krause, in a study of illegitimacy law and social policy, found that—
"* * * conviction rates reaching 95% are not uncommon in paternity actions, * * *
"'Testimony from the sitting judiciary hearing paternity cases revealed to the Commission . . . that the evidence in most cases consists of an accusation . by the woman and a denial by the defendant. Under such circumstances, the judges feel constrained to enter a finding of paternity. . . .
"In these circumstances, it is not surprising that a study based on blood tests indicated that in a group of 1,000 cases of disputed paternity, 39.6 per cent of the accused men were not actually the fathers of the children in question.
See also Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J. Fam. L. 543 (1978); Shaw & Kass, Illegitimacy, Child Support and Paternity Testing, 13 Hous. L. Rev. 41, 51 (1975).
Recent cases which allowed blood tests for the purpose-of establishing nonpaternity include: Winston v. Robinson, 270 Ark. 996, 1000-01, 606 S.W.2d 757, 760 (1980); People v. Askew, 74 Ill. App. 3d 743, 747, 393 N.E.2d 1124, 1128 (1979); McGowan v. Poche, 393 So. 2d 278, 280 (La. Ct. App. 1980); Ramsey County v. S.M.F., 298 N.W.2d 40, 44 (Minn. 1980); State ex rel. Ortloff v. Hanson, 277 N.W.2d 205, 206 (Minn. 1979); Bunting v. Beacham, 45 N.C. App. 304, 306, 262 S.E.2d 672, 674 (1980); Hansen v. Hansen, 119 N.H. 473, 475, 402 A.2d 1333, 1334 (1979); Parenti v. Parenti, 263 Pa. Super. Ct. 282, 397 A.2d 1210 (1979); State v. Lawson,_W. Va._,_, 267 S.E.2d 438, 439 (1980).
Mr. Hansen's only defense under the Uniform Parentage Act was that he was not the father. To preclude him from introducing blood tests has the effect of denying him a defense. A denial of this defense constitutes a violation of due process. See People v. Graham, 48 Ill. App. 3d 689, 692, 363 N.E.2d 124, 127 (1977); see also Webb v. Texas, 409 U.S. 95, 98, 34 L. Ed. 2d 330, 333, 93 S. Ct. 351 (1972).
Recently in Throndset v. J.R., 302 N.W.2d 769 (N.D. 1981), the Supreme Court of North Dakota, in dealing with a similar issue declared at page 774:
Our concern is with the effect of such an order on [the child] as she matures and becomes an adult. Paternity may be denied by the putative father or a man determined to be the father after judicial proceedings. That denial may well have a more detrimental effect on a child when the judicial proceedings have culminated in a default judgment which the court has refused to vacate upon the request of a man who wishes to have blood tests taken to determine his parenthood and who seemingly questions whether or not he is the actual father of the child. Our concern is with [the child] rather than with [the putative father].