By Daniel K. Kip, And Kenule P. Kip, Esq

INTRODUCTION

Over the years, paternity fraud has become a course for concern due to its increasing rate. Imagine yourself being a victim of paternity fraud either as child, putative father, and biological father or as a family. Devastating right?

 

Paternity fraud all over the world is considered a mere tort/civil wrong with compensation for damages to the putative father as remedy. However reimbursement of child support funds from mother has been considered a long shot in most jurisdictions and in fact, courts have frequently ordered continuation of child’s support[1] as it is for the best interest of the child in accordance with the UN Declaration of Children’s Right. The approach of the court overtime has failed to address the probable long term psychological and social effect of paternity fraud on the several victims of this act.

This work brings to light the concept of paternity fraud, the devastating effect it has on victims, the weak means of establishing paternity, why paternity fraud should be seen beyond a mere civil wrong or marital affair per se and the preventive measures the state and courts can take to curb the alarming rate of paternity fraud in our society.

WHAT IS PATERNITY FRAUD

Paternity fraud also known as misattributed paternity or paternal discrepancy occurs when a man is incorrectly identified to be the biological father of a child. It is simply when a mother misidentifies a man as the biological father and legitimate father of a child. For paternity fraud to occur, the intention to deceive and conceal the original paternity from the putative father and child by the mother must be present. There must be a co-mingling of the actus reus2 and mens rea3.

Paternity Fraud cannot be said to have occurred where a non-biological father voluntarily acknowledges paternity of a child while being aware of no biological connection with the child. It can also not be said to have occurred if intention to deceive or conceal original paternity by the mother is absent. Cases of Third Party Negligence, e.g a careless nurse switching babies[2], do not fall within the ambit of Paternity Fraud.

VICTIMS OF PATERNITY FRAUD AND THE RIGHTS VIOLATED

As previously stated, there is a segment of the society that bear the brunt of Paternity Fraud. The devastating effect in most cases cannot overemphasised. Also, certain rights of the victims are being or usually violated by the singular act.

  • The Child: A child, caught in the web of Paternity Fraud is denied his/her origin or original identity, original paternity and biological family which is clearly against the best interest of that child. Every child is entitled to know his parents and is imbued with the right for preservation of his/her identity. Article VII of the United Nations Convention on the Rights of the Child provides that a “child shall be registered immediately after birth and shall have the right to a name, the right to acquire a nationality, and, as far as possible, the right TO KNOW and be cared for by HIS or HER PARENTS.”. Article VIII enjoin member states and parties to “respect the right of the child to preserve HIS or HER INDENTITY, including nationality, name and FAMILY RELATIONS as recognised by law without unlawful interference”. To further buttress the right of a child to Paternity, the Child Rights Act of Nigeria Section 14 of the Act stipulates that “Every child has a right to parental care and protection, and accordingly, NO CHILD SHALL BE SEPERATED FROM HIS PARENTS AGAINST THE WISH OF THE CHILD….”From the foregoing, it is conclusive that paternity fraud violates the rights of a child under the United Nations Convention on the Rights of the Child and the Child Rights Act of Nigeria.

On the other hand, Section 1 of the Child’s Right’s Act provides that “in every action concerning a child whether undertaken by an individual, public or private body, institutions of service, court of law or administrative or legislative authority, the best interest of the child shall be the primary consideration”.  Also The Children and Family Relationships Bill 2014 of Ireland defined a child’s best interest to include the physical, emotional, psychological, educational and social needs of the child including the child’s need for stability having regard to the child’s age and stage of development.

A child who has grown emotionally attached to a particular family i.e his/her supposed father, siblings and relatives will definitely be traumatised psychologically and socially by the ground breaking news of paternity fraud and having to accept that he/she belongs to a totally different family from the one they had longed believed to be actual family. Also in cases where the biological father dies before discovery of paternity fraud, the child may be completely denied the opportunity to meet his/her biological father.

Again, Paternity fraud is a violation of the child’s right to dignity as the child is subjected to mental and emotional injury and torture as Section 11(a) of the Child’s Right’s Act 2003 provides that “every child is entitled to respect for the dignity of his person, and accordingly, no child shall be subjected to physical, mental or emotional injury, abuse, neglect or maltreatment, including sexual abuse”.

  • The Putative or Non-biological father: one cannot imagine the level of emotional trauma a putative father who had built a bond with his supposed child, expended emotional energy, time and finance over a child would go through upon discovery of paternity fraud and such effect shouldn’t be undermined by society.
  • The Biological Father: In most cases the biological father of the child is unaware of the existence of his child thereby being completely denied his right to parent his child or a relationship with his child, support his child and basically build a bond with the child and of course upon discovery will be mentally and emotionally devastated and also having to deal with building a fresh relationship with his child.
  • The Family, Relatives and Friends of the both Non-biological Father: The siblings of the child if any, extended family(supposed grandparents, cousins, aunties, uncles etc) will all be traumatised upon hearing news of paternity fraud. On the other hand the family/relatives of the biological father of the child, having to accept a new member of the family after being denied a substantial years of good relationship with that child will of cause be overwhelming.

The tremendous effect paternity fraud has on the victims cannot be taken lightly. This typifies how the act of a single person can affect a large number of persons emotionally, socially and psychologically.

FLAWED APPROACH OF STATES AND COURTS TOWARDS PATERNITY FRAUD

States and courts have compared paternity fraud to adultery which has resulted in a weak attention given to paternity fraud as it is regarded to be greatly linked to an unfaithful spouse in a marriage, as the putative father is often the only recognised victim of paternity fraud.

Questions have arisen as to whether it is the responsibility of the state to let men know their wives are unfaithful. The courts have left unattended to, the other victims of paternity fraud, without a remedy and with no protection whatsoever.

Courts in different jurisdictions all over the world have treated the issue of paternity fraud as a mere tort/civil matter with compensation for pain and suffering or damages per se awarded to putative father. Courts and states have failed to consider the injurious and traumatic effects on the child as a result of paternity fraud and also the numerous victims and negative effects resulting from this act.

The state fails to recognise that the right to dignity of a child is breached when they are denied knowledge of their paternity/original identity, denied relationship with their actual father and consequently being subjected to mental and emotional torture from such act. This is not withstanding the blatant contravention of the United Nations Convention on the Rights of the Child and the Child Rights Act of Nigeria.

According to the American Association of Blood Banks, globally, a third of all men are not the actual fathers of their presumed children. Also, a DNA expert from the Lagos State Teaching Hospital claims that 30% of the Nigerian men who went to paternity testing laboratories were not the biological fathers of the children in their custody. It is therefore apparent that the effect of paternity fraud on the society is huge and the state should be involved in curtailing it.

ESTABLISHING PATERNITY AND ITS INHERENT SHORTCOMINGS

Generally paternity is established when:

  • A man signs the birth certificate of a child as father.
  • A woman identifies a man to be the father of her child and the man acknowledges the child.
  • A child is born in wedlock. The presumption is that the child belongs to the husband of the mother.
  • A Deoxyribonucleic Acid (DNA) Test is conducted. This is the most accurate and reliable form of establishing paternity as it is said to be 99.9% accurate, however, it is the least used mode and the need for it only arises when there is a family dispute.

 

Questions the Society/State should ask:

  • Are these means of establishing paternity most reliable?
  • Should society always rely on the assumption that a child born into wedlock belongs to both parents?
  • Should society always rely on an imperfect human(mother) to decide the paternity of a child?
  • Should the child be made to suffer a psychological and social delusion as a result of relying on a deficient source to determine paternity, where paternity turns out false.
  • Why should the victims of paternity fraud suffer so much damage when it can be prevented by the state?

HOW CAN THE STATE CURB/PRERVENT PATERNITY FRAUD

First of all, the state and society must understand and move beyond the perception that paternity fraud is restricted to marriage, infidelity or adultery but transcends to being an injurious act which effect traumatises its victims that ought to be protected by the state and subsequently paternity fraud be treated as both a tort and a crime. The state should make laws to protect victims of paternity fraud by criminalising the act with punishment (eg 2years imprisonment with reasonable fines attached). This will indeed serve as a deterrent.

Secondly, the mode of establishing paternity should not be reliant on any of the aforementioned factors Except the conduction of a DNA test which is most accurate and reliable.  A compulsory/mandatory DNA Test for determining paternity before any man can sign the birth certificate of a child as the father or acknowledge the child should be deliberated by the legislature of every state and passed into law.

CONCLUSION

Where the state passes a law making a DNA test a prerequisite for acknowledging paternity of a child at birth and also makes laws criminalising such act with punishment attached, the rapid occurrence of this injurious act will be lowered and the state will reduce the chances of individuals getting away with paternity fraud, thereby protecting the rights of the child and every other citizen who would have become a victim of this act.

CO-AUTHORS:
DANIEL K. KIP, ACIArb.
[email protected]

KENULE P. KIP, ESQ.
[email protected]
[1] Cornelio v Cornelio, 2008 CanLII 68884 (ON SCJ)
2 The act itself
3 The guilty mind or intention
4 A Zambian nurse confessed to have been switching babies for fun for over 30years