Is Paternity Fraud really a “ticking time bomb”?

This horrifying behaviour is called “Paternity Fraud”.

Matthew Syed has written about Paternity Fraud in The Times:

“It hardly needs stating that this is scandalous. To put the interests of the child above the father’s right to know may sound benign but it is deeply pernicious. Imagine a man whose bank account is covertly robbed to pay for the upbringing of a child with whom he has no kinship. To inform the man of the fraud would clearly be contrary to the interests of the child. Would we really say that he should not be told?”

The feature cites cases of celebrities who have attempted to escape the consequences of their paternity. It quotes statistics which, at closer range, appear to be largely unproven. Mr Syed’s view about Paternity Fraud – or “PF”, as he calls it – is as follows:

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“PF is unlike any other crime: it is a deception that reaches deep into our evolutionary selves. The urge to propagate one’s genes, to nurture one’s own flesh and blood, is the most basic of all impulses. A single DNA test might not merely unravel a lifetime of commitment; it could make a mockery of one’s raison d’être.”

I carefully read through this article several times, and tried to find the relevant statistical evidence to back up the claims about those millions of duped men across the planet. I found little. There are references made to a “current best estimate” and “unpublished data”, which apparently adds up to tens of thousands of men in this country and tens of millions worldwide. However hard data, to prove these claims beyond reasonable doubt, is not in evidence.

So is this issue as rampant and universal as Mr Syed would have us believe? He can only quote from one unpublished survey, which drew upon DNA samples from an unnamed number of “volunteer families” in the UK and identified an estimated Paternity Fraud rate of 7 per cent. Among a group of volunteer Ashkenazi Jews, the estimated Paternity Fraud rate was nil. The hysteria makes for good headlines, certainly, but is it founded in fact?

In the UK there were no restrictions on paternity tests until the Human Tissue Act 2004 came into force in September 2006. Section 45 states that it is an offence to possess without appropriate consent any human bodily material with the intent of analysing its DNA. Legally declared fathers have access to paternity testing under the new regulations, provided the parental DNA being tested is their own. They may not test other people’s DNA without their consent. Tests may however be ordered by courts when proof of paternity is required and the Ministry of Justice accredits bodies that can conduct this testing.

So should there ever be an unqualified and unregulated “right to know” as this journalist suggests, without recourse first of all to the courts to consider the whole matter in detail? I could not disagree more strongly.

The journalist argues for the rights of the father over the rights of the child. But that is not how the law relating to children is applied. The welfare of the (wholly innocent) child takes precedence and is paramount. Once a case comes to court I of course accept that honesty and the “right to know” is the most likely outcome, it being generally accepted that it is usually in the best interests of the child to know its origins.

But it isn’t a foregone conclusion and if there are cogent reasons, such as compelling psychiatric evidence that a child will be profoundly harmed by being told the truth, the court will have to weigh up the pros and cons and make a carefully considered order. They will always act on the fundamental basis that the welfare of the child is paramount and consider if the most serious long-term harm could be caused to a child who casually learns the truth of his or her parentage.

In any event, for all those tens of thousands of fathers who we are led to believe may be fretting about the paternity of their children, consider this: does it really matter whether a child is the biological offspring of his or her father? Does it really matter if a loving father and his child never find out? What harm is being done to the man, child or woman concerned – that is until they find out and the predictable fallout occurs? And yes, I have noted the practical arguments about possible, unintentional incest in the future– but is that barely a possibility, let alone a probability?

As a divorce lawyer who has acted for some 12,000 clients over the past 30 years, I wearied of the blame game long ago. I have spent my professional life advising many, many men and women who have been caught in the adultery trap. They are not monsters; they are human beings.

Nor do I believe that women who have had affairs are fundamentally wicked creatures who should be required to confess all, if they have become pregnant by one man and have decided to save their relationship by shielding a partner and child – and, in most cases, themselves – from the truth.

Human beings aren’t robots. Life happens to all of us. In the cases that I encounter, the truth has come out and the relationship has cracked beyond repair. In such cases the divorce won’t necessarily have been caused by the adulterous actions, but by the subsequent knowledge of those actions and the inability of both parties to move on.

In Webb v Chapman [2009] EWCA Civ 55 a father tried to sue his ex-wife for deceiving him over the paternity of her daughter. The couple divorced after a DNA test when the child was over 18 showed that the husband was not in fact the daughter’s genetic father. He unsuccessfully claimed damages against his ex-wife and her new partner at Bournemouth County Court and applied, unsuccessfully, to the Court of Appeal for permission to appeal against the ruling of the court below. Given all the hassle caused, I wonder, was it ultimately worth it?

The “right to know” is also acknowledged by Mr Syed to have wrought appalling effects on fathers who have found out the truth: “anger, angst and even metaphysical confusion”. He acknowledges that the ripple effect of knowing the truth has serious ramifications, not only for the man and woman, but also for the child. Not forgetting the siblings, the wider family, the biological father, the community and so on.

So here is a question to which I have no doubt you will all have different opinions. Can all that harm and all that trauma be justified simply because of the man’s “right to know”?

I don’t think it is. I don’t support the decision by Boots to sell paternity testing kits over the counter.  Experience has taught me, time and time again, that no good comes of opening Pandora’s Box. All over the world, people make mistakes.  Sometimes they come to regret those mistakes. But “knowing” at the expense of an innocent child and the wider families seems to me to be selfish beyond measure. Sometimes in society we consider our “rights” to be so sacrosanct, so precious and important, we become deliberately or unintentionally oblivious of the harm that “rights” can do to others.

As a pragmatist, a realist and someone who is firmly on the side of the wholly innocent child, I believe that the “right to know” should always come second. And as for selling paternity kits over the counter? They should be banned.