Essay Example on Paternity Fraud: Misrepresentations and DNA Testing

Abstract

Paternity fraud happens when a woman makes representations to a man that they are the biological father of her children while knowing that this may not be true because they have undisclosed sexual relationships with other men. The man then acts on her representations to assumes parental responsibility for another man's child. The woman's mis-representations about the paternity of a child are then subsequently discovered through DNA testing. Throughout the common law world, jurisdictions that gave ratified the CRC have migrated away from the parental rights regime to the parental responsibility system that conceptualizes fatherhood as an obligation to pay for the upbringing of a biological child or children a man intentionally accepts to have parental authority over through the process of adoption. The legal conception of fatherhood has led to an increasing number of voices demanding that men have a legal remedy whenever they are victimized by paternity fraud . The reproductive right argument in favor for the law to give men a remedy when they are victimized by paternity fraud is faulty because reproductive health rights have not been normatively expressed in a multilateral treaty (or in customary international law for that matter). The tort of deceit offers the most viable avenue for men to get a remedy because as a general policy, UK common law does not allow a wrongdoer escape sanction after their wrongdoing is discovered. Consequently, the tort of deceit can be used to address paternity fraud between married and divorced spouses. The tort accurately captures the conduct of the woman who misrepresents who the father of her child is. Furthermore, it is in the best interests of a child to know who their biological father is.

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Key words: Paternity fraud, Tort of Deceit, Children Rights, Best interests of a Child, Family Law, Res Judicata.

Introduction

Classical moral philosophy views a child as the property of their biological parents. The opposing view is that children can never be private property. To those who believe that children belong to their biological parent , the law is justified in conceptualizing parental authority as a right in the manner that United Kingdom (UK) common law viewed the parent-child relationship.Therefore, UK common law sees marriage as a civil contract created by a man for the benefit of their unborn children. From this perspective, UK common law only gave children born in wedlock rights that are created from a legal obligation imposed on their fathers. All this to say that in the UK common law system, the conception of fatherhood is a legal obligation to pay for the upbringing of their children. Hence the rebuttable presumption of legitimacy existed as a safeguard against married men suffering the indignity of paying for the upbringing of another man's child without their informed consent.

The idea that children can never be owned by their parents was first advanced by the philosopher John Locke. For Locke, parental authority is a duty to care for a child until the minor can fend for themselves. Hence, parental authority over a child can be extinguished if it is in the best interests of a child to do so. British colonialism may have exported the parental rights regime to all corners of the Empire but post-1945, the Lockean conception of parental authority became the basis for making minors holders of rights that do not depend on their mother's marital status at the time of their conception and birth. The doctrine of child welfare advanced by Locke became the jurisprudential basis for the UN Convention on the Rights of a Child (CRC). After common law jurisdictions ratified the CRC, their family law migrated from the parental rights regime to the parental responsibility system espoused by Locke. For example, the United Kingdom (UK) ratified the CRC and enacted the Children's Act (CA 1989) modelled on the parental responsibility regime. Hence in Re B (A Child) the presiding judge observed that post-1989, no one has the biological right to be a parent or raise a child.

Paternity fraud happens when a woman represents to a man that they are the father of their child even though they know that this may not be true because she has a sexual relationship with other men. This article limits itself to paternity fraud between divorced spouses. There is an increasing clamour throughout the common law world for men to be offered a legal remedy after DNA testing disestablishes paternity for a child or children, they have been paying child support for as part of a divorce settlement. Even though the CRC has redefined the legal conception of fatherhood, the law still expects a man to pay for the upbringing of a minor they have parental authority over through genetic linkages or adoption. For instance, the UK Family Law Reform Act (FLA), Child Support Act (CSA), along with the Adoption and Children's Act (ACA), work together to create a legal obligation on men to only pay for the upbringing of their biological children.

A panoramic view of the arguments in favour of penalizing women for engaging in paternity fraud reveals two positions. The first is that it is a violation of men's reproductive rights in an arbitrarily way. Secondly, when a mother engages in it, they are violating their child's best interests. But the fact that misattributed paternity victimizes both men and minors, child welfare concerns complicate any inquiry into the question of whether the law should be used to address paternity fraud. The challenge for lawmakers in common law jurisdictions that follow the parental responsibility model is to strike a balance between the reproductive rights of men with the best interests of a child.

Reproductive Health Rights & Paternity Fraud

The UK common law conception of marriage as a private economic relationship grounded in a civil contract meant under the parental rights regime, establishing the paternity of a child was a justiciable point of law governed by the rules governing the presumption of legitimacy. The presumption of legitimacy was developed to work in favour of children born during their mother's coverture to protect the institution of marriage.[] After 1989, the categorization of children as illegitimate started getting eradicated throughout the common law world because it is incompatible with the idea of minors as holders of human rights.

The United Nations Declaration of Human Rights (UDHR) is the normative foundation for international human rights. The UDHR and two human rights treaties subsequently brought into force in 1966[]collectively form the International Bill of Human Rights (or the UDHR Model). At the centre of how the UDHR Model works are inter alia the idea that men, women and children have equal rights. Moreover, everyone has the right to an "effective legal remedy" when one of their human rights is violated.

The extension of parental responsibility to unmarried men has resulted in a body of scholarship advocating for women to be held accountable for victimizing men through paternity fraud because it is a violation of men's reproductive health right to choose when to sire children. To some, for women to have unrestricted access to abortion as a reproductive health right, men must have the right to financial abortions to maintain logical consistency with the UDHR Model. Penalizing women who engage in paternity fraud is a logical extension of their pursuit for equal reproductive rights between the sexes. To others , laws have a 'pre-existing bias in favour of male-centred viewpoints,' and they are wielded by the state to govern the private lives of citizens, the law must not be used to sanction paternity fraud or dissolve a man's legal obligation to pay for the upbringing of a child even after DNA testing disestablishes paternity.

The framing of paternity fraud as a male reproductive health right issue is, in a sense, the wrong way to go about things. Sexual and Reproductive rights are not normatively expressed by the UDHR model, through a multilateral treaty. Neither is it a customary international law norm.

The Legal Conception of Fatherhood

The presumption of legitimacy operated in UK family law to determine the paternity of a minor because of the dichotomy between the legal obligations of putative fathers and the legal rights of their children.[]Through judicial decisions, rules were set on how to determine when the paternity of a child is established or disestablished.[]The UK courts also resolved that the standard of proof in a paternity suit should be on a balance of probability like in a civil suit.

A natural desire for conclusive evidence of paternity pushed UK Family law into accepting scientific testing as a judicial aid. Medical expert opinion was made admissible when it is relevant to determining the length of gestation[] by a mother or proof of a man's impotence. Next, the science of blood testing became a feature of 20th Century family causes. It was first used in Wilson v Wilson to determine the paternity of a child during divorce proceedings. Thereafter, UK courts first rejected the idea that a child or adult can be compelled to undergo a blood test before in Holmes v Holmes, the position was reversed. In that case, it was determined that judges could compel parties to undergo blood tests to determine the paternity of a child. Thus, in Re L (a Child), it was determined that a refusal to participate in blood testing by a party was an admission of a lack of paternity.

These rules were generated before CA 1989 and the CRC migrated UK family law to the parental responsibility system in which "no one has the biological right to be a parent or raise a child." The courts have broad discretion to determine what is in the best interests of a child. A body of jurisprudence has been developed that shows that before a court makes a decision likely to impact the rights of a child, the welfare of the minor will be of paramount importance. This has a practical implication for the use of scientific testing when paternity is a fact in issue in a civil suit. On this point of law, the position seems unclear.

Post-1989, UK courts have determined that automatic parental responsibility may be acquired by both married and unmarried men the moment their biological child is born. In a decided case, it was held that because it is in the best interests of a child to know who their genetic parents are, but in a subsequent case, it was held that a court may opt not to use DNA testing to determine paternity if it serves a minor's best interests. These conflicting positions may have been in an attempt to strike a balance between the interests of a non-biological father using that the tort of deceit to seek redress[]and the need to protect the best interests of a non-biological child.

P v B (Paternity Damages for deceit) [2001] Revisited

As a general rule, an action for deceit lay at common law when a person "makes a fraudulent misrepresentation of fact with the intent to induce another to act upon the misrepresentation to their detriment." It can be traced back to an 18th Century English court decision where the defendant was found tortuously liable for fraudulently misrepresenting to the claimant that a third party was a person who wouldn't default on an obligation to pay for goods supplied on credit. In subsequent cases, the parameters of...