201901.09
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Paternity Fraud and the Tort of Deceit in the context of Matrimonial Proceedings

What are the fathers’ rights regarding paternity fraud? The fraud takes place when a mother tells someone he is the father of the child in order to elicit some form of benefit. This could be due to financial, emotional or physical insecurity, or a combination of all three, in the absence of the biological father be it for whatever reason, and also the mother’s desire that her child should have a father figure in his/ her life.

With the above intention in mind, there are also some who will go to any extent to convince their partner/ husband they are the father of the child. Faking a DNA test to fulfil this objective has accordingly been known to take place. The father becoming convinced, then maintains the child as his own, following the deception. What psychological pain there must be years later for him to come to know he is not in fact the father of the child and has brought up a third party’s child all these years is beyond belief.  Going past toy shops, schools, seeing parents taking and picking up their children to and from school, must bring heart wrenching memories flooding back.

 The elements of the tort of deceit

The tort of deceit falls within paternity fraud. The ingredients of the tort of deceit can be summarised as follows: – the party must make a formal representation in relation to the fact by the saying of words and or conduct. Mere silence is not enough. He/she must know that the fact is untrue at the time the representation is made and the representation itself must be fraudulent, either deliberately or recklessly made with the intention that it will be acted upon. The claimant must prove that he/ she suffered loss or damage. The claimant must issue their claim within six years of discovering the fraud or from the time which they could, with reasonable diligence have discovered it.

Compensation claims for paternity fraud

A father having been deceived will endeavour to recover damages for deceit and try to claw back what he has paid throughout the child’s life from the date of knowledge of the deceit, by way of compensation. Two heads of compensation are involved here, the first is general damages for mental pain, distress, suffering and loss, for example the loss of the chance of fatherhood, loss of earnings, and the second is specific damages as to actual amounts paid during the time the mother was practising the deception. By far the more substantial quantum of compensation should normally be general damages, as special damages relate to payments actually made for the child during the child’s minority until 18 years, or depending on the situation, until he/ she completes full time education which ever shall be the later event.

Compensation can include payment for holidays and meals out between assumed father and child, which may be at a reduced rate, taken into account of the enjoyment for the assumed father during this period, as it could be said that enjoyment during these occasions was a benefit to him. But it is unlikely that payments to recover general expenses for upkeep are recoverable as there is an expectation of someone in a paternal role to take on responsibility for a child regardless of parentage or knowledge of parentage. Nor is it possible to claim as damages something which another court, in these cases the family court, has ordered to be paid by way of financial support for the child i.e. child maintenance say in an overall consent order, in the event when the assumed father has taken on the social role of a biological father.

Damages for distress can be recovered as part of the overall general damages and the courts have been keen to emphasise the effect of this type of deceit on both the deceived parent and the child, describing it as akin to bereavement and using the standard award for bereavement as guidance for damages.

So, in summary, on the issue of recoverable damages, payments that are expenses the court considers a person in a parental role would have to pay in any event, irrespective of parentage or knowledge of parentage would not usually be recoverable. I do not consider that as part of the measure of damages the courts take into account the infidelity aspect and nor would they reimburse where the assumed father has made child support payments whilst taking on the social role of father. If for any reason the assumed father had not taken on that role but was forced to make child support payments, reimbursement would in those circumstances be an appropriate measure as part of the special damages.

The reversal of property settlements and compensation can therefore arise where paternity fraud is discovered. The ethical justifications for such claims are obvious and relate to the financial cost of bringing up children, the absence of choice about taking on these expenses, the hard work involved in child rearing, emotional attachment that are formed with children, the obligation of the mother to make truthful claims about paternity and the deception involved in infidelity.

Examining certain decided cases

In the case matter of A v B [2007] EWHC 1246 QB, A and B were in a relationship together between 1996 and 2002, during which time they sometimes cohabited. B already had a child from a previous relationship, and in 1997 she became pregnant with second child and told A that it was his child. B maintained this and insisted that the child was A’s on many occasions. A treated the child as his own and paid for holidays, nursery and school fees and many other outgoings associated with the child, and arising from the (presumed) fact of his being the father of the child, for the first five years of the child’s life.

In 2002, after the relationship between A and B had broken down, and the parties were involved in contact proceedings in the family division, B alleged that A was not the father of the child and a paternity test proved that this was the case. Compensation proceedings against B claiming damages for deceit commenced a County Court.

The concept of paternity fraud was not unknown to English law. The tort of deceit did apply to domestic relations and the reasoning in the matter of P v B [2001} 1 FLR  1041 was approved and followed. The defendant’s impecuniosity was irrelevant to whether or not the claim in deceit could proceed. It was held it was not contrary to public policy to award general damages. They would be awarded to A in the sum of £7500 to reflect the substantial and continuing degree of distress and the deep sense of loss suffered. The fact that A no longer had contact with the child was not relevant to the award.

Claims for special damages for holidays and restaurant meals taken by A and B with the child were awarded at 50% to take account of the enjoyment A had in them. Special damages for the sole benefit of the child would not be awarded: McFarlane v Tayside health board [ 2000] 2 AC 59 followed. If there were children in this sort of relationship they had to be cared for, including the necessary expenditure, regardless of biological parentage or knowledge of it. Special damages which were cheques paid by A to B during and after her pregnancy could not be split and allocated between A, B and the child and would not be awarded for this reason and in view of the courts establish reluctance to place a financial value on a human relationship.

In a matter of Rodwell v Rodwell 2011, Richard Rodwell was a loving father until his marriage broke down. After the divorce, he paid regular child maintenance for more than four years, from his salary as a factory manager. But in 2008 he ordered DNA tests after hearing rumours about his daughter’s paternity and the result showed that each child was fathered by a different man. As a result of that knowledge, the children cut off all contact with him. He claimed that his ex-wife turned the children against him. The court in this case treated the damages as akin to bereavement awarding a similar sum to the one that you would receive if your child died in an accident which was then £11,800.

The level of deceit in this case was fairly substantial and also Mr Rodwell’s new wife was too old to give him children, so he had lost the chance of fatherhood. It was like bereavement because he had lost the children he believed were his. He said he treated them as if they were his own. He was there at their births, went to their nativity plays, and help them with school work. He said he could not stop thinking about the children as they were his life. He said he always wanted children and grandchildren and now it was too late for him. The children were the most important people in his life and now they were gone. He said he had to do a DNA test as there was a whispering campaign going on that the children were not his, and he needed to know. He said he could not live with the uncertainty any longer.

Mr Rodwell started dating Helen who became his wife in 1989 when they were both food packers at a factory near Kings Lynn Norfolk. They moved in to a caravan together and in 1990 married at Kings Lynn register office. He said that Laura was born in 1992 with his presence at the birth and signing the birth certificate. Two years later Adam was born with Mr Rodwell still having no reason to suspect that Helen had been unfaithful. He said that his life seemed complete. They had moved into a house. He was happily married. He had a good job and two healthy children.

But by 2000 the marriage was struggling. He explained that his ex-wife was disappearing for several days without telling him where she was going. He only found out from used train and coach tickets that he discovered. He said he would collect the children from school as usual and walk into the house and it would be empty with no note or anything. His ex-wife would go to places such as Newcastle or Manchester and if he asked why she had gone there she would say that was nothing to do with him.

When the couple divorced in 2004 Helen was granted custody the children and the next four years Mr Rodwell paid £300 a month maintenance to both children. His total bill was £15,600.

Four years after the divorce he began hearing rumours that Laura by this time 20 years of age was not his daughter. Mr Rodwell said people said Laura didn’t look like him and that Helen had been seeing a teacher who lived on the caravan park. He confronted Helen on the phone but she insisted he was Laura’s father. Finally, a DNA test proved otherwise. She didn’t say sorry after the DNA test. He said that he did not tell Laura but he described in court documents how her attitude changed towards him. He said she didn’t come to see him and if he saw her in the street she would make obscene gestures with her fingers and on one occasion even kicked his car. Laura also posted a crude message on Facebook that read I hate you so much, I really loved you when you called me your little angel I take it you were just saying it and you start all that after 16 years; you have ruined my and Adams life, I hope you are happy for what you have put us through. Mr Rodwell also decided to have a DNA test done to check Adams paternity and he said he still has no idea who is Adam’s father. For Nearly 17 years he said he cared for Laura as his own daughter, and for Adam for over 14 years and now it’s all gone. He said he would have been happy to have a close relationship with them as a stepfather but his ex-wife wouldn’t allow this and told them to keep away from him.

Mr Russell was awarded compensation in 2001 of £12,500 for each child and costs of £25,000. He also won a court order forcing his ex-wife to move out of the marital home which was up for sale £119,995. His ex-wife declined to comment.

The case of X v Y 2015 EW MIS CB 10 CC 20 March 2015

Many fathers would not think to request a DNA test particularly if they had no reason to doubt their partner’s honesty. The revelation may never come to light or only when a medical problem arises or the relationship breaks down. The unusual case of X v Y 2015 EW MISCB 10cc 20 March 2015 related to a child conceived through IVF treatment. The claimant father had been led to believe that he was the biological father by both the mother and a Spanish fertility clinic who mistook the mother’s boyfriend for the father when taking a further sperm sample. The mother only revealed that she knew the clinic had instead used her boyfriend’s sample instead, years after the parties had divorced in an attempt to limit the father’s future contact with a child. In this case the father was able to recover both damages for distress and compensation for loss of earning which he claimed was as a result of the stress of dealing with the mother’s revelation. Unlike in A V B and Rodwell, he was also able to recover additional sums which he had agreed, as part of the divorce settlement, to pay the mother for the upkeep of the property for her and the child. The judge was able to distinguish these payments from previous cases because the father had agreed to pay them, rather than having been ordered, and they could be separated from general payments for upkeep of the child. Specifically, these were voluntary payments made in addition to payments for the child’s needs, for the benefit of the mother towards the upkeep of the property in the circumstances where she did not need such support as she earned considerably more than the father and could have easily maintained her own property.

Paternity fraud has a devastating effect on families. It is often damaging for the child who is deceived by their mother to believe somebody is their father who is not. It can open someone up to claims in both civil and criminal courts depending on the circumstances. After all fraud is a criminal issue to contend with.

In the most recent case of Richard Mason well documented in the Mail on Sunday on 6 January 2019 with the headline ultimate betrayal — wife is forced to pay husband £250,000 for tricking him into believing three sons were his for 21 years.  Mr Mason a multi- millionaire, and father to 3 children was left stunned by doctors after a diagnosis that turned his life upside down. Richard Mason one of money supermarket.com cofounders discovered when he went to see doctors with his new wife as it was feeling unwell, particularly since his sister had years before passed away from cystic fibrosis. Of the various tests, he was advised there was no way he could father any children, as he had been infertile since birth. Shocked to hear this news, Mr Mason said that he has three children from his previous marriage. The doctors advised him that that was impossible.  He could be the biological father to his three children from his previous wife, as he had been infertile since birth. He was told that he would never be able to father children when he confronted his former wife she denied the allegations and said that he was the father of all three children. The eldest is now 23 and the two twins are 19 years of age.

Mr Mason’s former wife only conceded the deceit when DNA tests categorically confirm he was not the father of the three children. She was ordered to pay compensation to him in the sum of £250,000, despite the fact that her defence was that she did not practice deceit, (an allegation the Birmingham County Court did not believe) because her former lover had always used a condom and she always thought that Mr Mason was the biological father. The real father was nowhere to be seen and took no part in the paternity proceedings. This may be a reason as to why the judge did not believe in the defence of Mrs Mason who obtained an order that his details could not be revealed.  Mr Mason does not know even to date if the biological father knows that he has fathered three children. Of course, Mr Mason did not know all those years that he was infertile, as indeed, there was no reason for him to so believe, since as far as he was concerned he had three children. The couple commenced divorce proceedings in 2006 which was finalising 2008, and in 2009 in a financial settlement Mrs Mason received £4 million lump sum which included the boy’s private school fees in advance. Mr Mason complied with child support agency (later the child maintenance service), assessments, for maintenance which amounted to nearly £3000 a month in the early years following the divorce. According to him this was never enough for his ex-wife. She hounded him for years employing consultants to investigate his financial affairs and to try to make him pay more. In 2016 after DNA tests proved he was not the father his former wife conceded that he was not. Then commenced separate proceedings in the Birmingham County Court for compensation for deceit which has recently been concluded.

As a result of cystic fibrosis Mr Mason’s lung capacity has substantially decreased and he considers it will be about 10 years when he will require an oxygen tank to enable him to breathe. He said he’s only able to continue on a day-to-day basis by the support he is receiving from his new wife.

Conclusion

Until and unless more assumed fathers decide to bring their cases before the courts and thereby force the court into examining the issues that need to be resolved, those men who have been deceived and lied to and taken advantage of, may well be denied justice, lose their money, their chances of fatherhood, and often their faith in humanity.  Furthermore, if the child’s mother says that the father is not the biological father, the father must prove paternity before seeking custody. If they are already in court through a custody dispute with the child’s mother the judge can be asked to order a DNA test as part of that proceeding.

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