It is not of course unusual for a child to grow up believing that the man in their household is their father, when he is not. Often, this situation merely arises because the parents have separated and the mother, with whom the child lives, has formed a relationship with another man. Sometimes, however, the situation is rather more complex, as in the recent case AB v CD.
The facts of AB v CD are unusual, albeit far from unique. The mother and the husband were married in 2003, and some years later their only child, a boy, was conceived. The mother said that at the time she was having an affair with another man, ‘X’. However, she was still in a sexual relationship with the husband, and she convinced herself that she was carrying his child. Throughout the remainder of the marriage the child was treated as the much-loved child of the two spouses.
Unfortunately, the marriage broke down and the parties separated in early 2017. The husband said that in 2018 he heard rumours that the mother had been having an affair around the time of the child’s conception. He therefore asked the mother to agree to a DNA test. That was carried out in December 2018, and both that test and another test carried out the next month confirmed that the husband was not the biological father of the child.
Needless to say, the husband was devastated by the news. He responded by issuing a raft of legal proceedings against the mother, including the aforementioned deceit claim. Originally, he claimed from the mother reimbursement of all the money that he had spent on the child in the mistaken belief that he was his child. Thankfully, that claim was subsequently dropped, after the husband decided that that he wanted to continue to play the role of father to the child.
For the purpose of the rest of this post I will only be looking at one of the issues raised by the husband. He argued that the child needs to know, as soon as possible, who is his father. The husband did not know the identity of ‘X’ (at least not for certain), and therefore asked the court to order the mother to disclose his identity, so that the child can be told. The mother’s position was that the child is presently too young to understand what is meant by the concept of him having two fathers in his life – she suggests that the matter should wait for about two years. Unless I’ve missed it, the reports do not give the child’s exact age, but it appears that the mother’s adultery took place in about 2011, which would make the child about seven years old.
As indicated, the issue fell to Mr Justice Cohen to decide.
In his first judgment, handed down on the 2nd of July, he said that he agreed with the guardian’s view that the child is at an age when it will be easier for him to accept that the husband is not his father, than it will be when he is older. There was also the risk that the child might hear rumours about his paternity from others. He therefore ordered that the mother should disclose to her solicitors the name and contact details of X, and that the solicitors should write to him, to inform him of the situation, and to seek his response.
The letter was duly written, and X’s response was that he did not recognise the jurisdiction of the courts of England and Wales to deal with this matter, and said that the allegations “have no iota of truth whatsoever”. He said he was shocked that there are proceedings that involve his identity and reputation, and reserved his rights in this regard.
The matter returned to the court on the 8th of August. Mr Justice Cohen had to decide, in the light of X’s response, when the child should be told of X’s identity. His decision was that the best answer was to say that the mother must reveal the identity of X as and when the independent social worker in the case says to the mother that the child should now be told the identity of X.
Let us hope that all of this is not too distressing for the child. At least he has two parents, albeit one not a biological parent, who clearly want the best for him.
DNA sequencing cost’s are dropping to the point where it will be a normal part of medical screening. When this is done to the child at birth as routine this will reduce the chance of a husband bonding with a child that isn’t his and being duped into paying for the child.