Husband Awarded Damages in Paternity Deceit case

In a recent decision of the Central London County Court a man has been awarded £100,000 damages and costs against his former wife who had deceived him into believing he was the father of a child born to her through IVF.

The couple had attended a fertility clinic in Spain several years earlier when the husband had provided a sperm sample. Unbeknown to him the wife later returned to the clinic with a former boyfriend and was impregnated with his sperm.

The child, a boy, was born in 2005. Unfortunately, the couples marriage broke down shortly afterwards and they separated when he was 6 months old. In 2008 they divorced. The husband paid over £80,000 child maintenance over several years and had contact with the boy. However in 2011 the couple disagreed over the level of contact and the wife announced that the husband was not in fact the childs father which was confirmed by a DNA test. The husband brought a claim for compensation and damages for the distress and humiliation he had suffered on learning the truth. The wife argued that her former husband had always been aware that he may not be the childs biological father. However the court rejected her claims awarding the husband £10,000 damages, £4,000 loss of earnings and over £25,000 in respect of child maintenance wrongfully paid.

This is not the first time a court has awarded damages for paternity deceit. In 2011 in a similar case, his Honour Judge Moloney QC at Cambridge County Court awarded a former husband £25,000 damages plus costs against his former wife following the discovery that he was not the biological father of the two children he had raised during the marriage and subsequently maintained following the divorce.

These extremely difficult cases raise the question of parental responsibility and the likely harmful psychological effect on the child of disrupting their relationship with a parent with whom they will almost inevitably have formed a close bond.

It would be possible in such circumstances for the deceived parent to make an application to acquire parental responsibility for the child under Section 4 of the Children Act 1989. However the reported cases which have emerged are very fact specific, mainly involving step parents who originally believed themselves to be the biological parents of the child. In Re S (a child) [2013] the mother was a Colombian citizen married to a British man. The child was born shortly after the start of their relationship and the husband was named as the childs father on the birth certificate (although he was not the biological father). He also had parental responsibility under Colombian law. The parties separated when the child was 5 whereupon the mother made an application to relocate the child to Colombia where she had a large extended family and better employment prospects. The husband opposed the application and made an application under Section 4(A) CHA 1989. It was noted that such orders were normally made in favour of an incoming step parent who wished to raise a child together with the parent with parental responsibility. However it was acknowledged that the power to confer parental responsibility was flexible. With the mothers agreement the court granted parental responsibly to the husband which was considered appropriate in the light of his attachment and commitment to the child.

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