“Paternity fraud” also known as misattributed paternity or paternal discrepancy, occurs when a man is incorrectly identified as the biological father of a child. The underlying assumption of paternity fraud is that the mother deliberately misidentified the biological father, while misattributed paternity may be accidental. This fraudulent misrepresentation thus leads the man to erroneously believe that he has a biological connection with the child of another man which in fact does not exist. Paternity fraud is a relatively new area of claim which has a huge impact on all members of the families involved both emotionally and financially. Paternity fraud could come in form of the following;

Misattributed Paternity
This is when a woman knowingly or unknowingly falsely identifies a man as the biological father. The common reasons are often due to
an affair, divorce, or social stigma.

Concealment of Previous Relationships
This usually happens when a past relationship has been concealed, leading the man to believe he is the biological father.

Assisted Reproductive Technology Fraud
This occurs in cases involving fertility treatments or artificial inseminations when a woman conceives using donor sperm, but
intentionally tells her partner that he is the biological father.

THE LEGAL IMPLICATIONS OF PATERNITY FRAUD

The legal ramifications of paternity fraud are significant. When paternity is misrepresented, the falsely identified father may face legal obligations to pay child support and may also have custody and visitation rights if the fraud is discovered, the legal process of correcting the paternity record can be lengthy and complicated. Each jurisdiction has its own set of laws and regulations regarding paternity fraud. These can range from defining legal responsibilities and obligations to establishing procedures for disputing paternity claims. It is crucial to understand the legal framework surrounding paternity fraud and how it may vary from one jurisdiction to another. In some jurisdictions, the legal definition of paternity fraud may vary. For example, some jurisdictions may require a deliberate intent to deceive in order to classify an act as paternity fraud, while others may focus on the act itself, regardless of intent. These variations in legal definitions can have significant implications for individuals involved in paternity fraud cases. Paternity fraud can also impact inheritance rights and benefits, such as social security and insurance claims. Law regarding paternity fraud vary widely across different regions, and legal recourse depends on local statutes and case law precedents.

ENGLAND AND WALES

Paternity fraud is not a crime in England and Wales. This type of fraud is a civil wrong which comes under the tort of deceit. Any court proceedings in relation to paternity fraud should be made through the civil court. Paternity fraud is a comparatively new area of claim, which although not illegal, is certainly considered as deceit. The five ingredients of deceit are as follows:

• A representation made by words or
• That the representation must be untrue to the knowledge of the maker at the time the representation was made.
• The maker must make the representation by fraud either deliberately or recklessly in the sense that they could not care whether the representation was true or not.
• The representation must be made with the intention that it should be acted upon by the Claimant.
• It must be proved that the Claimant acted upon the fraudulent representation and thereby suffered damage.

If a case tick one or more of the aspects above, a potential claim for damages arising out of the tort of deceit and/or fraudulent or reckless misrepresentation relating to paternity. If you succeed on liability, on the balance of probabilities i.e. it is more likely than not that your ex-partner deceived you, then the question of damages will be considered. Damages will fall into three categories:

1. Damages for deceit

2. Damages for mental anguish and psychological trauma

3. Special Damages

It should be noted that there is a high threshold that must be met in order to commence legal action for paternity fraud. There have been a couple of reported cases between unmarried couples where the man has been successful and been awarded a small amount of damages in respect of paternity fraud. It is not possible however, to get damages for the cost of bringing up and caring for a child who you find out is not yours biologically. There has been one case which was widely reported in the media whereby a wealthy man was awarded £250,000 to be repaid to him from his ex-wife’s £4m divorce settlement after he found out that he was infertile and there was no chance the three children in question were biologically his. If paternity fraud is raised whilst there is ongoing divorce or financial remedy proceedings, there cannot be a separate case in the civil courts. The issue must be raised within the ongoing divorce or financial remedy proceedings.

Where a woman is found to have deceived a man regarding the parenthood of a child, she may be liable to pay damages to the man. She would also be at risk of being ordered to pay the man’s legal fees. Ultimately though, the moral and emotional consequences of such deceit are likely to largely outweigh any legal consequences. You cannot be sent to prison or otherwise criminally prosecuted for paternity fraud. Thus, nobody can be forced to undergo DNA testing in England and Wales. The consent of all those being tested must be obtained before any test can be carried out. If the paternity is questioned and no previous test has been done, the Court is likely to order the parties to undertake a DNA test. If any party refuses to do so, the court may infer what the results of that test may be had it been taken.

UNITED STATES OF AMERICA

Generally, Just like in England and Wales paternity fraud is not a crime in the United States of American. This means that any court proceedings brought against the fraudulent party must be made through the civil courts. Its left for the party to either sue for tort of deceit or breach of trust.

However, in 2023 during the 113th Tennessee General Assembly, a bill, (Fraud Bill) HB 253/SB 331, made its appearance, reigniting discussions about the impact of paternity fraud on relationships and families. Governor Bill Lee signed this new legislation into law on April 24.

The newly enacted law took a decisive stance against those who knowingly establish a person as the biological parent of a child with the intent to deprive the actual biological parent of their parental rights. Such an act was now deemed a Class B Misdemeanor, carrying legal consequences for those who engaged in this specific form of fraud.

However, this law diverged from its predecessor in crucial ways. It did not mandate DNA testing for unwed fathers as a prerequisite for paternity acknowledgment, nor did it revoke the five-year  statute  of  limitations  for  contesting  paternity. Exceptions were made in cases involving children conceived as a result of rape, children who were adopted or in the process of being adopted, or when the victim of the offense was the defendant’s spouse at the time of the offense. Moreover, the five-year statute of limitations, albeit still in place, may see its fair share of legal challenges as individuals grapple with the emotional and financial consequences of paternity fraud. So, in a general sense apart from residence in Tennessee an aggrieved party of paternity fraud can sue for tort of deceit.

NIGERIA

In Nigeria Paternity Fraud is not a crime per se but actionable under tort of deceit or breach of trust. It can also be a credible evidence to prove adultery as a ground for dissolution of marriage. Paternity fraud may not survive as a crime, however, the making of the false statement by putting the name of a false father on a document as public as a birth certificate amount to a criminal offence, and the woman can be charged for forgery or perjury occurring out of paternity proceedings.

There is no doubt that when a DNA test reveals that the child in the marriage belongs to another father, what this legally means is that the woman has committed adultery which is a part of the one ground for dissolution of marriage, the putative father can claim damages against the biological father and his adulterous wife to assuage his losses and can also claim financial maintenance from the woman on the ground that she caused the union to break down irretrievably.

Under the Matrimonial Causes Act, Section 31 of the Act provides that:

“(1) A party to a marriage, whether husband or wife may, in a petition for a decree of dissolution of the marriage alleging that the other party to the marriage has committed adultery with a person or including that allegation, claim damages from that person on the ground that that person has committed adultery with the other party to the marriage and, subject to this section, the court may award damages accordingly.

• The court shall not award damages against a person where the adultery of the respondent with that person has been condoned, whether subsequently revived or not, or if a decree of dissolution of the marriage based on the fact of the adultery of the respondent with that person, or on facts including that fact, is not made.
• Damages shall not be awarded under this Act in respect of an act of adultery committed more than three years before the date of the petition.
• The court may direct in what manner the damages awarded shall be paid or applied and may, if it thinks fit, direct that they shall be settled for the benefit of the respondent or the children of the marriage.”

It should equally be noted that the victim can sue for “tort of deceit “. A paternity fraud victim may also be able to claim damages under existing civil laws. There are no known cases specifically for paternity fraud in Nigeria. But there are multiple cases on tort of deceit and breach of trust.

THE ETHICAL IMPACT AND CONSEQUENCES OF PATERNITY FRAUD

The ethical dimension of paternity fraud revolves around the principles of honesty, trust, and fairness. Deceiving a man into believing he is the biological father of a child violates his right to make informed decisions about his life and responsibilities. It also undermines the trust that is foundational to relationships.

Emotional and Psychological Effects

The emotional and psychological impact of paternity fraud should not be underestimated. Discovering that one’s presumed biological relationship is based on deception can lead to feelings of betrayal, anger, and confusion. Both the individuals directly affected and their families may experience significant emotional turmoil as they come to grips with the truth.

Similarly, the child who discovers that their presumed father is not their biological parent may experience a profound sense of confusion and identity crisis. They may question their place in the family and struggle with feelings of abandonment or rejection. The emotional impact on the child can be long-lasting, affecting their self-esteem, relationships, and overall well-being.

Financial Implications

Paternity fraud can have substantial financial consequences for all parties involved. These may include potential inheritance disputes and the financial burden of conducting DNA testing to establish accurate parentage. The financial implications of paternity fraud can be far- reaching and may have long-term effects on the financial stability of those impacted. It is important to recognize that the impact of paternity fraud extends beyond the emotional and psychological realm. The financial implications can be substantial, affecting the stability and well-being of all parties involved. As society continues to grapple with the complexities of paternity fraud, it is crucial to provide support and resources for those who find themselves caught in its web.

Inheritance Implications

Beyond immediate financial considerations, paternity fraud introduces complexities in matters of inheritance. If a child is perceived as the legitimate beneficiary, rightful beneficiaries may be unjustly deprived of their entitled inheritance.

VICTIMS OF PATERNITY FRAUD AND THE RIGHTS VIOLATED: NIGERIA AS A CASE STUDY

As previously stated, there is a segment of the society that bears the brunt of paternity fraud. The devastating effect in most cases cannot be over emphasised. Also, certain rights of the victims are being or usually violated by the singular act.

The Child: A child, caught in the web of paternity fraud is denied his/her origin or original identity, original paternity and biological family which is clearly against the best interest of that child. Section 1 of the Child’s Right’s Act provides that in every action concerning a child whether undertaken by an individual, public or private body, institutions of service, court of law or administrative or legislative authority, the best interest of the child shall be the primary consideration.

A child who has grown emotionally attached to a particular family i.e. his/her supposed father, siblings and relatives will definitely be traumatised psychologically and socially by the ground breaking news of paternity fraud and having to accept that he/she belongs to a totally different family from the one they had longed believed to be actual family. Also, in cases where the biological father dies before discovery of paternity fraud, the child may be completely denied the opportunity to meet his/her biological father. Again, Paternity fraud is a violation of the child’s right to dignity as the child is subjected to mental and emotional injury and torture as Section 11(a) of the Child’s Right’s Act 2003 provides that every child is entitled to respect for the dignity of his person, and accordingly, no child shall be subjected to physical, mental or emotional injury, abuse, neglect or maltreatment, including sexual abuse.

The Putative or Non-biological father: One cannot imagine the level of emotional trauma a putative father who had built a bond with his supposed child, expended emotional energy, time and finance over a

child would go through upon discovery of paternity fraud and such effect shouldn’t be undermined by society.

The Biological Father: In most cases the biological father of the child is unaware of the existence of his child thereby being completely denied his right to parent his child or a relationship with his child, support his child and basically build a bond with the child and of course upon discovery will be mentally and emotionally devastated and also having to deal with building a fresh relationship with his child.

The Family, Relatives and Friends of the both Non-biological Father: The siblings of the child if any, extended family (supposed grandparents, cousins, aunties, uncles etc) will all be traumatised upon hearing news of paternity fraud. On the other hand, the family/relatives of the biological father of the child, having to accept a new member of the family after being denied a substantial year of good relationship with that child will of cause be overwhelming.

CAUSES OF PATERNITY FRAUD

1. Infidelity: Extramarital relationships can result in uncertainty about paternity, leading some mothers to misattribute fatherhood intentionally or out of confusion. Infidelity complicates the establishment of paternity and can result in deliberate or accidental deception.
2. Financial Stability: Mothers may claim a child belongs to a man just to secure financial support for the child.
3. Social Pressure: Societal expectations and norms can pressure a mother to identify a socially or economically desirable man as the father. Social pressures can influence a mother’s decision to misattribute paternity, particularly in cultures where single motherhood is stigmatized.
4. Lack of Knowledge: In some cases, the mother may genuinely believe the wrong man is the father due to timing or misinformation. This lack of knowledge can result in unintentional paternity fraud, where the mother incorrectly identifies the biological father.

MITIGATING PATERNITY FRAUD

Mitigating paternity fraud requires a multifaceted approach that includes legal reform, public awareness, and ethical educations. First

of all, the state and society must understand and move beyond the perception that paternity fraud is restricted to marriage, infidelity or adultery but transcends to being an injurious act which effect traumatises its victims that ought to be protected by the state and subsequently paternity fraud be treated as both a tort and a crime. The state should make laws to protect victims of paternity fraud by criminalising the act with punishment.

1. Legal Reform: Laws should be updated to provide clear procedures for addressing paternity fraud and ensure that falsely identified father have legal recourse. Mandatory DNA testing at birth could be considered to prevent such fraud.

2. Public Awareness: Increasing awareness about paternity fraud and its consequences can help prevent it. Public education campaigns can highlight the importance of honesty and the potential harm caused by paternity fraud.

3. Ethical Education: Promoting ethical behaviour and decision- making within relationships can reduce instances of paternity fraud. Counselling and support service for families can also play a role in addressing and preventing these issues.

4. Support Systems: Providing support for those affected by paternity fraud, including counselling and legal assistance can help mitigate the emotional and financial impacts.

CONCLUSION

Paternity fraud is a deeply complex issue with significant legal, ethical, and social implications. Addressing it requires a comprehensive approach that includes legal reform, public awareness, and ethical education. By understanding the causes and consequences of paternity fraud and taking proactive measures to prevent and address it, society can better protect the rights and well-being of all individuals involved. The importance of addressing paternity fraud cannot be overstated. It is essential to foster a legal and social environment that promotes honesty, fairness, and trust in familial relationships. Through concerted efforts in legal reform, public education and support services, society can mitigate the impact of paternity fraud and ensure that the rights and well-being of all parties involved are protected.

Thank you for reading. If you found this article helpful or interesting, feel free to share.

Written by

Maxwell Jideofor, Esq.

 ASSOCIATE

MARBLE PARTNERS LP