FLR 2007 2 FLR 1051 has just reported the case of A v. B (Damages: Paternity) which was decided by Sir John Blofeld in the QBD in April last year.

B had told A that he was the father of her child Y and for a number of years he paid for family outings and items for the child including such things as nursery fees.

After the parties separated a DNA test showed A was not the father and he successfully sued B for damages for deceit. This is a claim almost unknown, certainly before P v. B (Paternity: Damages for Deceit) 2001 I FLR 1041 and the Judge also looked at a 2006 Australian case and some American cases.

First point to note is that B did not know athat A was not the father but she had sex once with a stranger during the relevant month (as well as three times with A) so she knew there was a chance he was not but shut her eyes to it and when he queried paternity she assured him there had not been anyone else.

The Judge’s reasoning on the damages is hard to follow. He awarded £7,500 general damages for distress which is understandable. The claim for special damages, however, fell under two main heads: holidays, restaurant meals and so on which the family took together, and the child’s expenses such as nappies, cot, nursery fees etc.

The Judge allowed half the first category (£14,900) and none of the second. He allowed half the first category (only half because of the benefit A himself had derived – his counsel made this concession in argument) because those were unnecessary luxuries and because they would not have been of particular benefit to a small child, more to the adults who happen to take the child with them.

Why should either reason make these expenses recoverable?

These are the sort of things a man might happily pay for when there are children he knows are not his or no children at all. What is the relevance of mother enjoying them more than the child, or of them being luxuries not necessities?

Either way the money has gone and the only question is whether it is as a direct result of the fraud. Surely it is more difficult to say that it was solely a result of the fraud precisely for the reasons that that the adults enjoy these things and they are not necessities.

He allowed none of the second type of expense because – following failed sterilisation cases – public policy dictates that the law must take the birth of a healthy baby to be a blessing not a detriment and the advantages and detriments of parenthood are inextricably linked together. Here A had enormously enjoyed his relationship with Y until the “bombshell” but even if he had never seen the child, so the Judge’s reasoning goes, he could not have recovered those expenses.

Can this be right? These are surely the expenses a man would not be expected to pay for a child who is not his. Are not the above all the expenses A would never have paid if he had known the truth? And never mind pieties about the value of a healthy baby; it is no actual real benefit to someone who is not related to it and (as was the case here by the time of trial) never even sees it. In fact, as the general damages acknowledged, A had been caused immense pain by the matter. The general damages were fixed by reference to – though less than – cases on bereavement.

Finally, the Judge thought that anxiety at the prospect of opening the floodgates to similar claims had been overstated. I would have thought there could be a lot of such claims, and people may only be deterred, if at all, by the strange damages position.   

Written by Rebecca Fitton-Brown, Barrister at New Walk Chambers, specialising in Family Law.