On April 5, 1995, the Department of Human Resources ("DHR") filed a petition pursuant to OCGA 19-11-1 et seq. alleging that the appellee-defendant, Eldridge F. Mitchell III, was the father of Jonathan Curtis Rewis and seeking both reimbursement of public assistance previously paid in support of the minor child and future child support payments. Mitchell has never been married to the minor child's mother, and his name does not appear on the minor child's birth certificate. Mitchell filed a timely answer denying paternity. DHR filed a motion to compel DNA blood testing pursuant to OCGA 19-7-45. After a hearing, the trial court issued an order compelling Mitchell to submit to a blood test for the purpose of determining paternity. At Mitchell's request, the trial court issued a certificate of immediate review on such order. However, the interlocutory appeal was denied by this Court. After Mitchell failed to appear for his court-ordered paternity test, DHR filed a complaint for contempt on February 24, 1997. In response to the motion for contempt, Mitchell raised both due process and equal protection violations and a laches defense; both of these defenses, along with a statute of limitation defense, were raised previously in his answer. 1. DHR's first enumeration of error alleges that the trial court erred by improperly applying the equitable defense of laches in this action. We agree. DHR's cause of action is brought pursuant to the statutory authority of the Child Support Recovery Act, OCGA 19-11-1 et seq. Under such act "[t]he payment of public assistance to or on behalf of a child creates a debt due and owing the state by the parent or parents responsible for the support of the child." OCGA 19-11-5. "By accepting public assistance for or on behalf of a child . . ., the recipient shall be deemed to have made an assignment to the department of the right to any child support owed for the child. The department shall be subrogated to the right of the child or children or the person having custody to initiate any support action existing under the laws of this state and to recover any payments ordered by the courts." OCGA 19-11-6 (a). Further, OCGA 19-11-8 (a) places a statutory duty on DHR to take action under the Child Support Recovery Act, the child support statutes, and other appropriate state and federal statutes to assure that a child who has applied for public assistance is supported by the responsible parent, when it appears that the child has been abandoned by one or both parents or that the responsible parent has failed to provide support to the child. Not only is DHR proceeding under a specific statutory scheme, the underlying right that DHR seeks to enforce is statutory in nature, i.e., the right of an illegitimate child to receive support from its father upon proof and determination of paternity. At common law, the father of an illegitimate child had no duty to support his illegitimate offspring; the illegitimate child was the legal responsibility of its mother. American Mut. &c. Ins. Co. v. Hogan, 91 Ga. App. 891 (87 SE2d 661) (1955). However, statutorily in Georgia, "[i]t is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child until he reaches the age of majority, except to the extent that the duty of one parent is otherwise or further defined by court order." OCGA 19-7-24. " 'The duty of the father of an illegitimate child to support such child is not created by the judicial determination of paternity. That determination is merely a procedural prerequisite to the enforcement of the duty by legal action. The father's duty to support his child arises when the child is born.' [Cit.]" (Emphasis supplied.) Weaver v. Chester, 195 Ga. App. 471, 472 ( 393 SE2d 715) (1990). "[O]nce paternity is legally established, the father may be required to pay back support for past expenditures made on behalf of the child." Hughes v. Dulock, 207 Ga. App. 492, 493 ( 428 SE2d 406) (1993). Further, the right of a child to support belongs to the child and cannot be waived by a parent. Worthington v. Worthington, 250 Ga. 730 (301 SE2d 44) (1983); see Nelson v. Mixon, 265 Ga. 441, 442 ( 457 SE2d 669) (1995). When a putative father fails to voluntarily support an illegitimate child, the determination of paternity is a condition precedent to court imposition of support. A paternity proceeding was also unknown at common law and is a creature of statute. OCGA 19-7-40 et seq. The authority for DHR to bring a paternity action in the name of and for the benefit of a child is given in OCGA 19-7-43 (a) (4). OCGA 19-7-43 (d) and 19-7-45 mandate that the court order genetic tests to determine paternity unless "good cause" is shown why the genetic tests should not be conducted. Therefore, this action brought by DHR is one of law and not of equity. "The doctrine of laches is a purely equitable defense and is not applicable to a complaint for the enforcement of a legal right." 1 Stuckey v. Storms, 265 Ga. 491 (458 SE2d 344) (1995); Jones v. Tri-State Elec. Coop., 212 Ga. 577, 582 (3) ( 94 SE2d 497) (1956). Further, to prevail on a plea of laches, it is essential that the pleading party prove harm caused him by the delay. In this case, there is no evidence of record to show that Mitchell was prejudiced by DHR's failure to bring this cause of action earlier. If it is proven that Mitchell is the father of the child, his duty of support would be no greater than if this suit had been brought at the time of the child's birth. Moreover, if a defense of laches was allowed in this type of action, it would encourage a putative father to deny paternity and attempt to delay the bringing of an action until such defense could be asserted, and he could thereby escape his statutory obligation of support. 2. Our holding in Division 1 renders it unnecessary to address DHR's remaining enumeration of error. Dwayne H. Gillis, for appellee. | 
