Paternity fraud is not something that comes up every day, thankfully. The discovery that, contrary to what you have always assumed, you are not biologically related to a child you have loved and raised as your own must be absolutely devastating. Aside from the emotional cost, there is also the rather more hard-headed consideration of having financially supported a child while under the impression of a biological link that was not there. Is there a remedy? A recent case suggests there could be, in the form of a claim for damages for deceit.
In this case, the couple met in 1997 and married in 2002. A little boy was born in 2005 as a result of IVF treatment, towards the end of their relationship – they separated in 2006 when he was about 7 months old. They drew up a separation agreement which included a provision that the husband would pay child maintenance. They divorced in 2007, and in the paperwork the wife asserted that the boy was a child of both of them. The divorce proceeded smoothly and the finances sorted and implemented. Later, in 2011, when relations had become strained and arrangements were not going smoothly, the husband issued an application for contact with the boy. Shortly after the application had been made, the wife informed him that he was not the boy’s biological father after all. This was confirmed by a DNA test.
It turns out that there had been some underhand goings on by the wife, and an old (and reignited) flame at a fertility clinic in Spain. The couple had first attended the clinic in Barcelona in September 2004, at which time the husband had provided a sperm sample, which was frozen. The wife returned in January 2005, but did not take the husband with her. The relationship was in difficulty at this point. Instead she took a former boyfriend with her, who gave a sperm sample at the clinic.
It seems the clinic were under the impression that the former boyfriend was in fact the husband; a notion of which neither the wife nor the boyfriend disabused them. His sperm was used to fertilise the egg, and the pregnancy was successful.
When the husband discovered that the wife had attended the clinic with the former boyfriend, he asked whether his sample had been used. The wife told him the clinic had been about to use the ex’s sample, but she told them to use his instead. In fact, the clinic had a policy of using the freshest sample, and believing the ex to be the husband had simply used the most recent sample, which was that of the ex.
Believing the baby to be his, the husband was named on the birth certificate. He raised the boy jointly until the couple separated. The wife in fact knew all along the child was biologically her ex-boyfriend’s, as did the ex-boyfriend himself. When the husband discovered that the child was not his, he launched a civil claim for damages for deceit and repayment of the child maintenance he had paid since the couple parted.
The judge who heard the case was clear that there is a cause of action in deceit in a domestic context such as the one here. There are certain key things which need to be proven for the claim to succeed. They are:
- the defendant said something or represented something through their conduct;
- which they knew was untrue;
- they intended the claimant to believe it, or were reckless whether he did or not;
- they meant the claimant to do something as a result of believing it, and the claimant acted on what they said; and
- as a result the claimant suffered loss.
So in this case, although the wife had not directly said “the boy is your child”, she had told the husband his sperm had been used, had named him on the birth certificate, told the school he had parental responsibility and had accepted child maintenance from him for several years. That amounted to a representation, and she knew it to be untrue. The judge was clear that the wife intended for the husband to believe that he was the boy’s father and to act on that belief. It was clear that the husband would not have signed the separation agreement and continued to pay child support had he known he was not the boy’s father.
As the husband had paid money on the belief that the boy was his, he had suffered financial loss. Consequently the claim for deceit was made out. In addition, the aspects of the separation agreement which related to child support had been entered into fraudulently.
The court ordered the wife to pay £10,000 in general damages (for distress), £4,000 for loss of earnings (his depression and anxiety following the discovery affected his earnings), and she was ordered to repay £25,321 (including interest) which her former husband had paid under the agreement for the upkeep of the property in which the wife and son lived.
It is worth noting that the child maintenance per se was not repaid as there are public policy considerations arising from earlier case law which states that damages should not be awarded arising from maintenance of a child. So the husband did not get the money back which he had paid for the maintenance of the boy.
It’s easy to forget that there is a little boy at the heart of this story. We hope that he has been protected from the fallout of this case.
Ten years ago there was a report that claimed that one in 25 fathers may not be the biological parent of the child they believe to be theirs. The figures are a bit controversial, but if there is any truth in them, then following the clarification of the option of a claim for deceit in this case, then we may see more of these cases.
If you would like to make an appointment to see any Simon, Gail, Adam, Sue or Tricia to discuss any aspect of family law, please get in touch on 01223 443333.