Damages for deception: Will IVF case be the first of many?

In a case thought to be
the first of its kind, a judge has awarded a lecturer
£39,000 in damages, together with costs anticipated to be
a further £60,000, after his ex-wife deceived him into thinking their child was his biological son.

We await the formal transcript, but the press reports that in 2004 the then husband and wife, referred to as 'X' and 'Y' to protect the identity of the child, travelled to Spain for IVF treatment. During the course of their visit, the husband gave a sperm sample.
A few months later, when the marriage was in difficulties,
the wife returned to the clinic accompanied by a former boyfriend and conceived
the child using his sperm.

The child was born in 2005. When he was six months old, the couple separated, later divorcing. Although the child lived with his mother, the former husband looked after him frequently as the wife often worked away from home. He paid child maintenance (asserted to be in excess of £80,000), ignorant of the fact that the child was not biologically his.

In 2011, a dispute arose in relation to the amount of time
the child was spending with
the husband. The wife then announced he was not the biological father, confirmed by DNA testing. The wife denied this was a surprise to the husband, claiming that there had been
no fraud. The husband then commenced a claim for damages for distress and humiliation, as well as the return of maintenance payments and compensation for loss of earnings. He succeeded, the judge finding the wife guilty of 'deliberate fraudulent misrepresentation'.

There may be many unsuspecting separated parents who continue to live with, care for, and provide financial assistance for children they believe are their biological children when in fact they
are not.

The case raises a number of interesting questions for family lawyers. In the era of the modern family, IVF treatment is much more widely available, with employers such as Google offering to assist employees to postpone starting a family by paying for egg freezing. In the context of divorce and financial claims, could such circumstances persuade a court that the deceiving party's conduct is
so unreasonable that it would cause the court to adjust the financial order as punishment? In Children Act disputes, we expect that this case may very well be the first of many, and
civil practitioners will be keen
to advise on a potential new
area of law attracting claims for damages.

But claimants should pause to consider the ripple effect of such a claim if they play an active role in the child's life. Such a claim
(as in this case) could cause
a complete breakdown in the claimant's relationship with
a child they always treated
as their own. Before launching into litigation, claimants may wish to consider whether damages would be enough to compensate for the loss of that relationship. SJ

Fiona O'Sullivan, pictured, is a consultant and Tania Derrett-Smith an associate in the family team at Weightmans