Paternity fraud

Family Law Guidance in Paternity Fraud from Recent Case Judgements

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Paternity fraud is when the woman in a relationship falsely makes her partner believe that he is the biological father of their child(ren). This is a tort (i.e., an offense against a person) as compared to the legal definition of a crime (i.e., an offense against society) and goes to civil court.

Family solicitors in Newcastle state that this is one of the most sensitive cases they handle, because the damage it does is twofold – it is deceit towards the husband while it also robs their children of their father. In a harmonious relationship this can leave a man emotionally devastated, in a divorce it would leave the question if there’s any point supporting children that aren’t his in the first place even though they may have strong familial ties before that.

UK Law is biased towards the welfare of children in a divorce. There are many questions raised when assigning custody and maintenance in cases like these. Should a father have rights for children that might not be biologically his, but still better off in his custody than their biological mother? Can a father recover spending for children that are not his? Is it necessary that a child be informed that they are not the direct progeny of the father they had known all their lives? What about things like artificial insemination and surrogacy? These are other questions reveal that it is rarely as easy to resolve on first glance.

Here are some legal decisions from recent cases to help guide your thoughts in similar situations.

 

Can a father receive compensation from a Paternity Fraud decision?

If it is proven to be a case of malicious deceit, the victim is due damages in a decision. Compensation for mental pain, distress, suffering and loss – and specific damages for amounts paid and loss of earning potential during the time of deception. Note that being cuckolded by itself is not due compensation for infidelity and the court will often decide most in favor of the child’s welfare.

The most often cited landmark cases are A v B (2007) and Rodwell vs Rodwell (2011).

In A v B (2007), A and B were in a relationship between 1996 and 2002. After divorce B admitted that the child was not A’s, and a paternity test proved this. A then commenced proceedings for damages for the deceit. Against the argument that it could impose unnecessary hardship to the mother and child, it was prior deemed that a defendant’s lacking state of finances was irrelevant to whether or not the claim could proceed (P vs B, 2001). In A vs B (2007) it was also judged that no longer being in contact was also not relevant to receiving damages.

In Rodwell vs Rodwell (2011), Mr. Rodwell had been paying maintenance for over four years. However, after suspicions began percolating he asked for a paternity test and it was proven that actually none of his children were his at all. The court decided that he was due general damages for distress equivalent to bereavement.

  • Child Maintenance Service will not refund previous child support paid. It is not possible to recover payments for upkeep because there is an expectation that someone in a parental role should take care of the child regardless of parentage or knowledge of parentage. Restitution can only happen through civil proceedings as a tort case, or CMS may ask the other parent to pay back child maintenance. Refunding can only be done for payments made after the date they made the claim of not being the parent.
  • In A vs B (2007), the father was due 50% of spending on vacations and other special expenditures (such as holidays, gifts, and meals out between parent, partner, and child).
  • In Rodwell vs Rodwell (2011), Mr. Rodwell was awarded damages of £ 25,000 for the period of deceit encompassing 16 years. Bereavement has general damages of about £ 10,000, but will often be awarded less since there are no actual deaths involved.
  • Claims can be laid upon the mother or the mother’s “other man” who had not accepted his parental responsibilities but instead passed it on to another man. Even if he does know nothing of the child, in the end he may be compelled to make financial amends or assume future responsibility for maintenance.
  • The “social father” who has treated the children as his own for a long time and wishes to continue to treat them as his own has more difficulty demonstrating injury, and it is the commonly the opinion that suddenly severing the relationship with their children will cause them harm. Such a man actually receives in return the benefits of fatherhood. Thus, ironically, a man who offers payments but little other contact is more due payment from financial support extracted on basis of a genetic connection that doesn’t exist. The damages for deceit does not disappear however.

 

Can you sue for paternity fraud as a measure to affect the divisions of assets in a divorce?

Within the UK, spousal maintenance and child upkeep during divorce are not decided on basis of fault. Child support decisions by the courts attempt to meaningfully disentangle themselves from the issues of the parents and their causes for divorce. Compensation for misconduct can only be broached in civil proceedings.

In a recent case FRB v DCA [2019] EWHC 2816 (Fam), H (husband), W (wife), were married in 2003 and separated in 2017, with C (child) conceived during the marriage. H sought a DNA test which proved that C wasn’t his child and issued a claim for the tort of deceit. He argued that he suffered loss and damages compared to what he would pay in financial remedy proceedings compared to the sums of all the money he paid on her living expenses since she became pregnant with C.

H had decided to maintain his role as C’s psychological father, and the claim for sums paid for C’s upbringing and education were dropped.

Justice Cohen struck down the H’s appeal for damages on the grounds that the level of damages he called for are based on hypothetical calculations. While tort for paternity fraud is allowable, the allocation of spouse’s resources can only be deal with under the Matrimonial Causes Act rather than a common law remedy as within matrimonial proceedings the court already assumes jurisdiction for ‘conduct’ when determining the financial consequences of the divorce. Running both proceedings concurrently is considered an abuse of process.

  • Also, according to B v IVF Hammersmith Ltd [2019] 2 WLR 109, the court cannot make a decision about the costs of parenthood or the lost opportunity of genetical fatherhood for the husband. The court cannot make a decision that would attribute to the benefit of the existence of a child to offset against the financial costs of the child’s upbringing. It is considered morally unacceptable to regard a child as a financial liability.
  • A man that is not biologically related to the child cannot be pursued for child support. However, a ‘child of the family’ with which the husband wishes to keep contact with is due maintenance from their responsible parents as part of the conditions of a divorce. The role of a psychological father in the life of a child is considered an important one to the wellbeing of the child equal or more so than merely being the genetic father.

 

Should it be made known to the child that they are not the biological offspring of their father?

There are few secrets that can destroy a family as thoroughly as the knowledge about one’s real paternity. This is knowledge that can do as much harm as it would do good, and it is difficult to determine except on a case by case basis entirely up to the parents. However, not repudiating paternity would leave the father continually liable for all child support, be unable to recover any damages for the deceit, and would not leave him any option for retaining custody of their children if they were better off living with him than their mother.

The case AB v CD & C [2019] EWHC 1695 (Fam) asks at what stage a child should be informed that the man believed to be their father was not their genetic father, and whether the identity of their biological father should be disclosed by the mother.

The child (C), believed that (AB), the husband of his mother (CD), was their father. Unfortunately he was conceived while the mother was having an affair with someone else (X) who is his biological father. The identity of X however was not known to AB. AB was devastated to learn that C was not his child but wished to retain a central figure in the boy’s life. The mother was genuinely remorseful about what she had done, but the fact of C not being AB’s son was widely known in her social circles.

AB issued proceedings against CD for breach of confidence, claiming damages for distress, and sought that the mother be ordered to disclose the identity of X and that C should be told. CD objected that C needed to know as soon as possible, perhaps in two more years when he was older enough to comprehend what having two fathers would mean, and resisted that she needed to divulge X’s identity at all.

The court appointed guardian for C suggested that C was better off being told sooner rather than later, and him finding out the truth through rumors and other less savory means.

  • The judge agreed with the recommendation that that children, if told early, would have the information be of less devastating import to their lives than if they were to find out later when older.
  • Disclosing the position of X’s paternity as C’s father was concluded to be wrong until X’s position was known. Letting C know of his status could be deferred until then, lest the child feel even more emotional turmoil in feeling there was more being kept from him.
  • Children over 18 have the right to know who their biological parents are and an application may be made under section 56 of the Family Law Act 1986.
  • Is it possible to obtain a DNA test without the consent of the mother?

Under the 2006 Human Tissue Act, you cannot take or test a person’s DNA without proper consent. One must have the permission of the individual (if an adult) or that of their recognized guardian (if a minor). It is not necessary for the mother to be tested as well.

A father listed in the birth certificate of the child does not need the mother’s consent to perform a DNA test since he is also the lawful guardian of the child.

If you are not a relative, you need to have signed consent of the mother or other guardian.

  • Is it possible for a father to refuse paternity testing? Yes. It is illegal to conduct a paternity test using their samples without their consent. The only way to get them to provide DNA samples if they are unwilling is through a court order.

 

Is natural parenthood the paramount consideration when assigning custody of the child?

In the case A v B and C [2018] EWHC 3834 (Fam) Keehan J there was a question regarding a 16 year old girl (C), whose parents were Nigerian nationals. C lived with her mother with no contact with C’s father. They came to live since 2002 in the UK with C’s maternal aunt. Contact between C and her father initiated in 2012 when C’s paternity was confirmed. Then in 2016 her mother unexpectedly died.

She then began to live with her aunt, who applied for a child arrangements order. The court made a shared order between her father and her aunt. The father challenged this, looking for an arrangement solely in his favor, with the reasoning that as the child’s natural parent it was best that she lived with him.

The court decided with precedent of McFarlane L.J. in Re H (A Child) [2015] EWCA Civ 1284 at paragraphs [89-94], and again in Re W (A Child) [2016] EWCA Civ 793 at paragraph [71], that there is no assumption in favour of a natural parent or a natural family member. The court maintained that it was in the child’s best interests to live with her father but also spend time with her aunt on three occasions per week to build a relationship with her father while also benefiting from maintaining contact with her wider maternal family.

  • Instead of natural parenthood being the overriding concern, everything is determined with the paramountcy of the welfare and best interests of the child or children concerned.

 

Closing Remarks

It is a sad truth that the suffering of men from fraud have very little recourse for remedy and often are penalized by society when they attempt to claim damages as their due against the long-standing lies and unjust financial burden inflicted upon them. When paternity fraud is brought out into the open, and they seek to punish the woman that defrauded them, it may appear as if the father is repudiating their children. Even if he wishes to retain his paternal role, resentment boils.

The recent case of Richard Mason being awarded £250k in damages comes to mind. He was diagnosed with cystic fibrosis and found out that he had been infertile since birth. This means that all three of his children were never his. While two of his children have broken contact with him, saying he was being manipulative and looking for attention by selling his story to the papers, the damages awarded compensates somewhat from their millions in the divorce settlement.

A far less well-off father with little value to the papers has little protection and options for remedy. Damages under ‘distress’ and emotional harm include the loss of opportunity for genuine fatherhood.

  • In P v B (Paternity: Damages for Deceit) [2001] 1 FLR 1041 Judge Stanley Burnton ruled that a man was legally entitled to recover damages of £90,000 from the mother of a child both for pecuniary loss and for the ‘indignity, mental suffering/distress, humiliation’ caused by the false allegation of paternity.
  • In A v B (Damages: Paternity) [2007] 2 FLR 1051 a stockbroker claimed £100,000 for emotional hurt, and for the cost of bringing up a child and paying school fees. Judge Sir John Blofeld awarded him £22,400 in damages for the emotional distress, but would not order compensation for the costs of raising the child. Mr Blofeld said ‘Mr A fell in love with his son as he believed. He loved him, he wanted him, he treasured him’.

Fathers who sue for compensation and damages make public their humiliation and get scorn for trying to recover their expenses, with many in the public thinking that doing so implies that he feels it was a waste of his time and money to care for the children that, until the DNA test, had been treated with all care and returned affection as natural family members. But a fraud has been committed and by the time it is discovered it is usually too late for them to have another family. And yet, attempting to claim justice can have the consequences of total breakdown of family relationships, the exclusion of the father in the lives of his children, and a future where his opportunities for natural progeny are much lower.

Asking for a paternity test however is an heavy breach of trust, and knowing might not be worth it at all. There remain no easy solutions, and the public must come to terms with the idea that men are also victimized and have the right to equal courtesy in the courts.


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