The law is playing catch-up with medical advancements in DNA testing says Ffion Greenfield, Solicitor in the Family Team at Seddons
Recently, the two following cases of Paternity Fraud (PF) have been examined in the press; firstly, that of Richard Mason who discovered he was not the biological father to his three children, who he had raised to adulthood. Secondly, the case concerning a man (who cannot be named for legal reasons) whose ex-partner forged his signature on consent forms authorising IVF treatment using embryos the couple had stored with the clinic following their first, consensual treatment some years earlier (when they were still in a relationship).
Whilst it is important to remember these cases are rare, such coverage highlights that in most family units, quite correctly, fathers assume their DNA link to the children they are raising. Mostly, there is absolutely no reason to assume otherwise. But what can and should the law be doing to protect those fathers and children whose assumption is misplaced, based on misrepresentations by the mother?
These two cases throw up an interesting dichotomy as to the role of medical advancements in paternity cases. In the matter of the fraudulent IVF, medical advancements enabled the mother to commit PF by having a child without the knowledge or consent of the father. Whereas, medical progression enabled Mr Mason’s discovery of the PF through a diagnosis of Cystic Fibrosis eradicating any medical chance he could have children. Therefore, currently it appears that the law is playing catch-up and seemingly medicine and the law need to align to prevent PF.
Ultimately, both men feel let down by the law as to the lack of remedies available to them (and to the children, who are also victims of this fraudulent behaviour). This highlights the need for multi-faceted legal reform, not only in terms of trying to remedy PF after the fact, but also in terms of preventative measures.
Currently PF claims are brought through the Civil Courts and if successful the Claimant will be awarded damages. However, damages can only be recovered to the extent that the Defendant has the funds to pay them.
If the claim is brought against the mother, as it was in Mr Mason’s case, there maybe limited funds for him to be compensated from (albeit, in this case the mother had more funds than the average person following her £4 million ward in their divorce settlement years earlier). This added to the injustice felt by Mr Mason, as that divorce settlement would have prioritised the needs of the parties’ children when dividing the matrimonial resources. Of course, those children were not Mr Mason’s, therefore it seems unjust that his divorce settlement was (quite correctly based on the information available to the parties at that time) determined in this way. However, this purely financial remedy cannot resolve the sense of loss that Mr Mason is experiencing and has likened to bereavement.
In the fraudulent IVF case, the man was able to bring a claim for damages against the IVF clinic who no doubt had greater resources to compensate him. Again, this financial compensation was unable to remedy the emotional and psychological trauma he experienced. As a result, he has called for PF to be classed as a criminal offence, which arguably has significant merit from a deterrent perspective.
A fundamental obstacle to widespread legal reform is that different courts take very different views on how best to tackle PF. No doubt, the Family Courts, inherently guided by the principle that the ‘welfare of the child is paramount’ struggle with the premise that years of Child Maintenance payments be repaid by the resident mother, despite her deceit, as this deprives the child(ren) of those financial resources. Likewise, the Family Court may be uncomfortable with the resident mother’s imprisonment under a new criminal offence of PF. Thus, depriving a child of their mother, when they have just seemingly lost their father as they knew him. Again, we see that currently, attempting to provide a remedy for the father through action against the mother, does not sufficiently protect the children.
It seems therefore that a legal reform strategy of ‘prevention as well as cure’ is needed. This could be promoted through easier access to DNA testing, diminishing the stigma attached to such requests for certainty by a potential father; a Declaration of Parentage/DNA test result becoming a standard requirement of the Child Maintenance Service assessment; and in cases of IVF, significant consideration must be given to the extent to which the Human Fertilisation and Embryology Authority divest powers of checks and balances, issues of consent and storage, to the clinics themselves, with external regulation being implemented.
It is easy to be unnerved by cases such as these, but as noted, they are rare, and in the vast majority of cases, DNA does not mean Do Not Assume.
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