Successful Claim for Paternity Fraud

Mr Rodwell bought a claim against his former wife for letting him think that the two children he raised until they were teenagers were his. The Court found in his favour and it was held that:

  • A man who is led to believe by the mother that he is the biological father of a child and, as a result, assumes the role of that child’s father (whether or not the ‘father’ and mother are actually living together) can potentially successfully sue the mother in the tort of deceit and obtain damages and costs.
  • The father however cannot recover or be repaid the money he has paid out by way of child maintenance. The court takes the view that the birth of a baby brings advantages and disadvantages that are inseparable. Therefore if the ‘father’ takes the benefit of the birth (i.e. the pleasures of parenthood) he must also take the burden (i.e. the cost).
  • The starting point for damages is the amount awarded for the loss of a child under the Fatal Accidents Act 1976. At present, this statutory figure is £11,800. After that, factors such as the length of time of the deceit, the number of children, the ages of the parties and the effect on the health of the man are relevant.

It was held that for a claim to be successful there are five elements which need to be satisfied:

  • A representation by words or conduct. For example, where a married woman is in a relationship with her husband at the time of conception there is a presumption of legitimacy:
  • allowing the ‘father’ to be present at the birth and to be named on the birth certificate
  • allowing and encouraging the ‘father’ to be involved in the everyday routines and bringing up the child
  • claiming maintenance from the ‘father’ in respect of the child.
  • That the representations must be in time to the knowledge of the mother at the time they are made.
  • The mother must make the representation deceitfully, either deliberately or recklessly in the sense that she could not care whether the representation was true or not.
  • The representation must be made with the intention it is acted upon by the ‘father’.
  • The ‘father’ must have acted upon the deceitful representation and thereby suffered damage.

Each case will of course depend on its own facts.

Further questions are then of course raised relating to the birth certificate; contact arrangements; parental responsibility; etc.

It is worth noting of course that in a lot of cases the action is only bought after separation, at which point the mother would usually have full-time care of the children, and is often unlikely to have the capital and/or the income to pay the fairly substantial damages and costs.


Elizabeth Bettes

Published on 12/04/2013

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