Child maintenance responsibility if not the biological father
A theme of my posts here this week seems to be paternity or rather lack of it.
Obviously, the issue of paternity is often argued because it will have a bearing upon whether the alleged father has a responsibility to maintain the child. But, as we will see, it is quite possible for a man to still have a responsibility for child maintenance, even though he and the mother agree that he is not the father.
How can this be?
A parent for the purposes of the law
All was explained in the recent Privy Council case C v C (Jersey). As that name indicates, the case concerned an appeal from a court in Jersey. Specifically, it concerned an appeal by a man against the dismissal of his appeal against an order requiring him to pay maintenance for a child.
The relevant facts of the case, which need to be stated at some length, were as follows.
The man has British nationality and has lived for many years in Jersey. The mother has joint Russian and Latvian nationality and now lives in Mauritius with a man whom she married there in 2014.
The man and the mother met in Latvia in 2000. They then pursued a sexual relationship, during the man’s visits to Latvia.
A child was born to the mother in June 2003. The mother registered his birth in Latvia, giving another man’s name as the father.
In 2006 the man applied to a court in Latvia for a declaration of his paternity of the child, and for registration of him as the father of the child on his birth certificate instead of the other man who had been so registered. In his supporting statement, the man said that he was the “true” “biological” father of the child and that he and the mother planned to marry and to care for him together. The mother and other man supported the application, which was duly granted.
In 2008 the mother moved, with the child, to live with the man in Jersey. However, the marriage never took place. The relationship ended in 2010, and the mother and child returned to live in Latvia.
In 2011 the mother applied to the Royal Court in Jersey for an order that the man should make financial provision for the child. She told the court that the man was not the father.
On the basis of that statement by the mother, the man applied to the court in Latvia for an order to annul the registration of his paternity of the child. The Latvian court dismissed his application, holding that, in the absence of DNA evidence (which the man said was not required, due to the mother stating he was not the father), he had failed to establish that he was not the child’s natural father. The mother had argued that the man had long known that he was not the father and that he had never been misled into believing otherwise.
The mother’s financial provision application in Jersey then proceeded. The father’s lawyer accepted that, as a result of the continued registration of his paternity in Latvia, he was a parent of the child for the purposes of Jersey law and was liable in principle to make financial provision for him. The Jersey court duly made an order requiring the man to pay maintenance for the child, at the rate of £5,000 per month.
The man appealed twice against the order, eventually arguing that, in the light of the fact that both he and the mother agreed that he was not the child’s biological father, it had not been open to the court to make any order against him for financial provision for the child. The appeals were dismissed, and the man appealed again, to the Privy Council.
The Privy Council held that the Jersey court was right to recognise that the Latvian declaration established the man’s paternity for the purpose of Jersey child maintenance law. The Jersey court had not been required to decide for themselves whether the man was the child’s biological father. The man’s actions after seeking the 2006 declaration had been ‘deeply cynical’. It was only when confronted with the mother’s claim for financial provision for the child that he applied to have the declaration annulled.
Upon the failure of that application, he actively affirmed the declaration, by using it as a basis for ‘bizarre, tactical, applications’ to the Latvian court, including for custody of the child (incidentally, the Privy Council speculated whether the mother might have denied that the man was the father simply in order to protect herself against a custody claim by the man). Within the financial proceedings in Jersey, he accepted his parentage of the boy, up until the point at which the court was about to dismiss much of his first appeal.
Accordingly, the Privy Council dismissed the appeal.
You can find the full Privy Council judgment here.
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