Many family lawyers will have come across the scenario whereby a man claims to have been deceived by a mother into believing, incorrectly, that he is the father of her child. What remedy is available to him in such a situation? The County Court case X v Y provides an answer.
The case concerned three people: the man ‘X’, his former wife ‘Y’, her son ‘Z’ and Z’s biological father ‘P’, who was also Y’s former partner.
X and Y first met when her relationship with P was coming to an end. They married in 2002. Z was born towards the end of their relationship. The parties separated in 2006 when he was about seven months old. They both signed a separation agreement which included a provision by X for the maintenance of Z. Y issued divorce proceedings in 2007, and in the Statement of Arrangements she stated that Z was a child of both parties.
In July 2011 X issued an application for contact to Z. Shortly after this Y informed X that he was not Z’s biological father. A DNA test was carried out, which showed conclusively that he was not the father. X subsequently brought an action against Y for damages for deceit, claiming that Y, by her words and conduct before and after Z’s birth, deceived him, knowing that the biological father was in fact P.
The circumstances surrounding Z’s conception need to be explained. He was born as a result of IVF treatment. In September 2004 X and Y travelled together to Spain for fertility treatment at a clinic in Barcelona. X gave a sample of his sperm, which was frozen. The intention was that donated eggs would be used and that X’s sperm was to be used for fertilisation and the embryo implanted in Y.
Y returned to the fertility clinic in January 2005, by which time there were problems in her relationship with X. She arranged for P to travel with her and provide a sample of his sperm. Neither X nor P informed the clinic that P was not X, and the embryo that was subsequently implanted was fertilised with P’s sperm.
Hearing X’s claim, Her Honour Judge Taylor found that the five elements of deceit were made out:
- A representation by words or conduct: Y did represent that X was the father of Z – for example, by accepting money for Z’s maintenance.
- That representation must be untrue to the knowledge of the maker at the time the representation was made: Y did know that X was not Z’s father – she knew, for example, that the clinic would use the newer sperm sample unless she requested otherwise, and she even told Z that P was his father.
- The maker must make the representation by fraud, either deliberately or recklessly, in the sense that he or she could not care whether the representation was true or not: at the very least, Y had a doubt as to whether X was the father, yet she made no attempt to inform him.
- The representation must be made with the intention that it should be acted upon by the claimant: i.e. in the separation agreement.
- Lastly, it must be proved the claimant acted upon the fraudulent misrepresentation and therefore suffered damage: i.e. X paying money to Y believing that Z was his son.
Accordingly, X’s claim succeeded. He was awarded £10,000 general damages for distress, pain and suffering consequential on the deceit and its discovery, £4,000 for loss of earnings and some £25,000 in respect of monies paid by him to Y for the maintenance of the property in which Y and Z lived. Interestingly, he was not awarded the money he spent directly on Z’s maintenance, as it is not generally considered that such sums should be recoverable. The reasons for this, it seems, are public policy, the enjoyment that X had from his relationship with Z prior to finding out that he was not Z’s father and because sums paid solely for the benefit of Z should not be awarded against his mother.
The full judgment in X v Y can be read here.