Posted on May 14, 2015 in Family Law by Amanda Wilson
In a recent landmark case, a university lecturer, who was deceived by his wife into thinking that he was the father of the son she gave birth to following in vitro fertilisation, has been awarded £40,000 in damages.
The man, who claimed to be unaware that the child was created with sperm provided by a former boyfriend, sought damages for "distress and humiliation", damages to cover the amount he had paid in maintenance, and compensation for loss of earnings.
This is the first case of its kind and may provide a cautionary tale in circumstances where the parentage of a child could become an issue. It is well understood that parenthood carries with it certain legal rights and responsibilities. Under the Children (Scotland) Act 1995, all mothers and married fathers have automatic parental rights, while non-marital fathers gain them by registering as the child's father after 4 May 2006. This includes having a say in where the child lives, with whom the child has contact, who bears financial responsibility and who makes decisions in relation to the child. There are also separate considerations in relation to matters such as succession law. This means that establishing maternity and, more usually, paternity can often have far-reaching and costly implications.
So who's the Daddy (or Mummy)?
As far as maternity is concerned, the law provides that the woman who carries the child in her womb and who gives birth to it will be treated as the mother of that child. It is irrelevant where the egg came from or how the egg was implanted. For obvious reasons, disputes over maternity are rare. It is certainly (usually) safe to assume that a child is conceived of the woman who bears it. Modern disputes over maternity have generally arisen where a woman has been handed the "wrong baby" at the hospital or in the wake of a natural disaster.
As a starting point, the law makes certain presumptions in relation to paternity. These presumptions however merely provide a legal starting point since each presumption is rebuttable and can be displaced by proof on the balance of probabilities. A man is presumed to be the father of a child if he was married to the child's mother at any time from the child's conception to its birth or both he and the mother have acknowledged that he is the father and he has been registered as such. Where neither of these situations exist, and there is a dispute over paternity, the only option available is to apply to court for declaratory of parentage.
Establishing parentage or non-parentage.
Disputes over a child's parentage will almost always be about paternity rather than maternity but the same mechanism, by way of obtaining a declarator of parentage, applies to resolving the dispute in either case. An action for declarator may be raised in either the Court of Session or Sheriff Court and can be determined incidentally to other proceedings. While in practice the action is usually raised fairly soon after a child is born, the issue may arise at a later stage and, in fact, may be brought by the child itself.
In determining such cases, the court may have regard to a number of elements. This can include:
- Evidence of an established relationship or, better still cohabitation between the mother and the alleged father;
- Behaviour of the couple;
- The views of family and friends;
- Evidence of physical resemblance; and
- Evidence of the gestation period.
The kind of evidence led in parentage cases has however changed dramatically since the arrival of DNA profiling. This provides a reasonably certain way of establishing parentage. Unfortunately, this is rarely the end of the matter as often the very fact that matters have reached court means that one or other party wishes to resist the issue. Fundamental to Scots law is the principal that a civil court cannot compel a competent adult to submit to a blood test. Similarly, where the child is too young to consent themselves, those with parental rights and responsibilities in relation to the child also have the right to refuse to the child being tested.
In the past, the courts were not permitted to draw any inference from a person's refusal to submit to the testing of either themselves or the child. Therefore, it would often be the case that the party wishing to refute parentage would be well advised to simply refuse to be tested in the hope that other evidence would be insufficient to establish parentage. Since 1989 however, while it remains the case that the court cannot compel anyone to agree to be tested, it may request a party to do so and may draw an inference from any refusal to do so. Although, this does not mean that a finding of parentage will necessarily follow a refusal, it does to some extent lessen the appeal of simply keeping one's head down.
There are a number of reasons and motives behind individuals wishing to raise an action to establish parentage . These can be financial in nature, but can also arise from parents simply wishing to be allowed more involvement in a child's life. It would perhaps be unfair to say that resisting these kinds of actions is never legitimate and can hinge on various considerations. From a legal perspective, the court must simply be satisfied as to the sufficiency of the pursuer's evidence. Those wishing to raise such an action are therefore well advised to gather as much information as possible.