A news story broke over the weekend informing us that the German Justice Ministry has drafted legislation which will require mothers in certain paternity cases to reveal who they had slept with. The move is apparently in response to a court ruling last year in which a man sued his wife after she admitted he might not be the biological father of their child. The man tried to force his wife to reveal the name of her former lover, but she successfully appealed to the constitutional court, which ruled that there was no law under which she was obliged to. However, the judges said in their ruling that new legislation on the issue would be welcome.
The law will oblige the mother to name “the man who was present at the moment of conception”, on the request of a partner who is paying child support. The mother would only have the right to remain silent if she had good reasons not to name the biological father, and a court would determine whether this was the case. The idea behind the law is that it will enable the man who has wrongly been paying child support to reclaim what he has paid from the true father of the child.
The law has been called the “Cuckoo Kids’ Law” in the German media, after the German phrase for children conceived in adultery, “cuckoo children”, the equivalent of our “milkmen’s kids” (thoughts of Benny Hill come to mind…). From the reports I’ve read it seems that it is quite controversial, and has stirred up considerable debate in Germany, particularly as privacy in that country is very highly guarded.
So, is it a good idea, and should we have such a law over here?
I think it’s useful to start by considering the extent of the problem of ‘parental discrepancy’, the slightly awkward term used to describe cases where a child is identified as being biologically fathered by someone other than the man who believes he is the father. In the short time that I have been researching for this post I have come across various figures for the number of such cases, ranging from fewer than 2% of all children to more than 10%. Perhaps the most accurate figure came from a 2005 review of studies into paternal discrepancy published in the British Medical Journal. That came up with a figure of 4%, or one in twenty-five of all children biologically fathered by someone other than the man who believes he is the father. OK, that may be a lot less than 10%, but it still seems a pretty high figure to me.
Following on from that, I think we can all agree on two things: firstly, and most importantly, that it is best in most cases that a child knows the true identity of his or her father (although obviously there are serious issues as to how the matter is handled). A law along the lines proposed in Germany would surely reduce that one in twenty-five figure. The second thing is that it is unfair that a man is required to pay support for a child that is not his, in circumstances where the mother fails to disclose that he is not the father. Once the mother discloses that the man paying child support is not the child’s father, then he is no longer obliged to pay, and can seek reimbursement for support already paid.
So, such a law appears to be a good idea. However, there is, of course, already a remedy available for the man who has doubts as to whether he is the father: he can deny paternity and request a DNA test. If the result of the test is negative, or if the mother refuses to take the test, then that can be the end of the matter. If the Child Maintenance Service (‘CMS’) has made a presumption of parentage against the man, for example because he was married to the mother when the child was conceived, or if the man was named as the father on the child’s birth certificate, the man can apply to a court for a declaration of non-parentage. Either way, if the DNA test is negative or the court makes a declaration of non-parentage then the CMS can refund any support paid from the date it received information from the man denying paternity.
That remedy should actually cover most cases, making any new law virtually superfluous. I suppose there may be cases where the man can only recover from the true father, and there is the point that requiring the mother to disclose the true father raises the possibility of the true father being made to pay child support (although once paternity is disproved the CMS will interview the mother to ask her who else could be the father). However, do we really want to force mothers into disclosing private details of their personal lives just to achieve those things? I’m not sure that we do.