Guardian/Observer

Man sues over boy that was not his son

Clare Dyer, legal correspondent
Tuesday January 23, 2001
Guardian Observer (UK)

A businessman was given the go-ahead yesterday to sue his former lover for deceit after discovering he was not the father of the boy he thought was his son.

The ground-breaking high court ruling allows the 53-year-old man to sue for damages for emotional distress and for the cost of maintaining the boy and his mother for the eight years they lived together.

The man's solicitor, now his wife, said he was claiming up to £250,000, to cover the cost of maintaining his former partner and her son, now 12, plus interest and an unquantified sum for emotional distress.

Neither the man, who is from the West Midlands, nor his former partner, who is aged 44 and lives in the north of England, can be identified because of a court order protecting the identity of the child.

The man had a vasectomy in 1975 and he and the woman started living together in 1984. In 1988 she had a son which he claims she led him to believe was his. His solicitor said he began to suspect the boy was not his because as he grew older he looked less like the man. In 1996, after the couple had parted, the man had an "unofficial" DNA test on a hair follicle from the boy and discovered he was not his son. The result was confirmed by an official test last year.

Lawyers for the boy's mother had argued that civil actions for deceit or fraud could not be brought in the context of cohabitation or marriage. Virtually all the decided cases involve commercial disputes. The English courts had never pronounced on the point but, citing US and Canadian cases, Mr Justice Stanley Burnton ruled that domestic partners could be sued for fraud.

The boy's mother, who has also married, said that she was disappointed that the case was allowed to go to trial.

Her solicitors said: "We consider it is simply wrong that a man can have a close and loving relationship with a woman for 13 years and her child for eight years and then seek to recover every penny he has ever paid out in respect of them.

"We believe that the deceit action is an attempt by the claimant to avoid his financial debt to the defendant in respect of the former family home, now standing at over £65,000."

The damages claim is expected to be heard before the end of the year. At that hearing the judge will decide whether there was a fraud and, if so, what if any damages the man should receive.

Mr Justice Stanley Burnton warned yesterday that his decision meant only that a claim could be brought. The man might not win damages even if deceit was established.

He had "considerable sympathy" for submissions by the woman's counsel that it would be "distasteful and morally offensive" for the man to get back all the money spent on the woman and her son. Awarding him the total sum would not take account of the fact that he had enjoyed their companionship for many years.

The judge began his judgment by recalling Richard Dehmel's poem, Verklarte Nachte (Transfigured Night), where a woman confesses to her lover that the baby with whom she is pregnant is not his. "He forgives her, and accepts the child as his own. In this case the opposite is alleged to have occurred."

Mark Harper, family law partner in the London solicitors firm Withers, said: "It seems like an Americanisation of English law. I don't see how it can help a couple resolve their differences amicably."

Guardian Unlimited © Guardian Newspapers Limited 2001