Who's your daddy?

An unusual case could wing its way to the courts after a man who agreed to a court order transferring his family home to his wife and daughter in divorce proceedings later discovered that he was not the biological father of the child. He now feels aggrieved and is attempting to raise the funds to take this matter back to court.

Whether he is able to raise these funds and whether his claim will succeed remains to be seen. Having originally agreed to the order, he cannot appeal on the basis that the court made a mistake. He would have to show that he was deliberately deceived. His ex-wife maintains that she did not know he was not the father when the order was made. It will therefore be up to the judge to decide whether this is the case after hearing evidence from the parties.

Such instances of paternity fraud are not common in England. Most reported cases come from the USA, although a previous similar case was heard in the UK High Court in 2007. Here, the 'father', known as Mr A, was a wealthy stockbroker. He brought proceedings against his ex-girlfriend who was the mother of his child, seeking compensation for the emotional distress he suffered as a result of being led to believe he was the father of her son when this was not the case. He claimed a refund in respect of maintenance and private school fees of £100,000. The court awarded Mr A £7,500 for distress suffered and a further £14,943 for money for holidays and meals out which he had spent on the mother. The total was thus £22,443 '“ far less than the claim of £100,000.

Alleged fathers should be aware that there is protection from paternity fraud when an application for child support is made through the Child Support Agency (CSA), which can arrange DNA testing to settle the matter. If the test proves that the man is not the father of the child, then any maintenance he has paid through the CSA pending the outcome of the test will be refunded by the CSA.

The reality

This offers up the argument of whether family lawyers should advise their clients to request DNA testing to establish paternity before agreeing to any financial arrangements, particularly if they are to be set out in a court order. In reality, considerable delays would be caused by fathers requesting DNA testing before entering into financial arrangements. While the court will only hear an application in relation to Declaration of Parentage regarding a child if it considers it to be in the best interest of the child, this would still lead to an increase in applications to the court.

Further delays would be incurred while the limited number of accredited laboratories sought to meet the increased demand. The test could heighten tensions in a situation already emotionally charged.

Relationships between a father and child could be damaged if the child thought that their father was attempting to reject them, while unscrupulous mothers hoping for exactly that may seize upon the opportunity.

When the parties are married, the court can make an ancillary relief order '“ a financial order '“ under section 25 of the Matrimonial Causes Act 1973. The court must first consider the welfare of any child of the family while a minor. This therefore extends to children born to both parties or to one of the parties either before or after the date of marriage and who have been treated as part of the family. When the recent paternity fraud case hit the headlines, the child was a child of the family as she had been treated as such. Had the decision been left to the court, the wife and child may have been allowed to remain in the house but the husband may have retained an interest in the property if it was felt that an outright transfer would not be fair in the circumstances.

Whether the parties are married or not, if a man has always played the role of a father to the child then even if it is found that he is not the biological father he can apply to court for a contact or residence order provided he has permission of the court to issue such an application.

Considering a challenge

If a man has any doubt about paternity, he should consider an immediate challenge. He will not necessarily be able to recover any money he has spent on maintaining a child unless that maintenance was paid directly through the CSA, although it may be possible to recover compensation for distress. However, it would be unrealistic for all men to request DNA testing as a matter of routine. The system simply could not cope with the increase in workload and, more importantly, it may cause unnecessary emotional trauma for the children involved.

But what should a practitioner do if approached by someone who believes they are the victim of a paternity fraud? Obviously a full proof of the background and circumstances will need to be taken from the client as a preliminary step. A letter should then be sent to the mother before action, suggesting that DNA testing be arranged on a voluntary basis to establish paternity. If the mother does not agree that she and the child should submit to such testing voluntarily, the father could issue an application for a Declaration of Parentage and seek a direction from the court for DNA testing.

As indicated above, provided the court considers it to be in the best interests of the child to determine their parentage, there should be no difficulty obtaining a direction for DNA testing. If the mother refuses to comply with the court direction for DNA testing, the court would then be at liberty to draw inferences from that conduct '“ namely that the father was someone other than the person named by the mother.

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