It is common for disputes about parentage to emerge during separation or divorce, and sometimes even surface many years later when the other parent has made regular maintenance payments. But is it possible to claim back child support if you find out the child isn’t biologically related to you? This guide looks at the options..
It is common for disputes about parentage to emerge during separation or divorce, and sometimes even surface many years later when the other parent has made regular maintenance payments. But is it possible to claim back child support if you find out the child isn’t biologically related to you? This guide looks at the options..
If you have a family law issue and you require legal advice to understand your options, contact specialist family law solicitor Joanne Major. Joanne is the founder of her specialist family law firm and has spent her 25-year legal career specialising in family and matrimonial cases.
What happens if I dispute parentage of the child?
If you or the other parent denies they are biologically related to the child they are paying maintenance for, the Child Maintenance Service (CMS) can:
- Ask for evidence that proves they are not the parent, such as DNA test results
- Tell the receiving parent what has happened and ask them for evidence to prove the parentage
If there is no evidence to prove that the paying parent is not the biological parent, the CMS can:
- Ask both parents to take a DNA test
- Ask the court to make a decision
If no dispute is made, or there is no compelling evidence that proves the contrary, the CMS “assumes” parentage in the following circumstances:
- You were married to, or the civil partner of, the child’s mother at any time between the conception and birth of the child (unless the child is adopted)
- You are named on the child’s birth certificate (unless the child is adopted)
- A DNA test shows you are the parent
- You legally adopted the child
- You are named in a court order as the parent when the child was born to a surrogate mother
Do I have to keep paying child maintenance during the dispute?
If you are assumed to be the child’s parent under the above rules, the CMS will calculate the amount of maintenance payable. However, if you subsequently prove that you are not the child’s parent, you will no longer be deemed liable to pay.
If you fall into a category where the CMS does not assume you to be the child’s parent, you will not be required to any pay child maintenance until the dispute has been resolved. If you are subsequently found to be the parent, then the amount of child maintenance will be back-dated to when the case was opened.
Can I claim a refund of child maintenance payments if I’m not the parent?
If you prove you are not the child’s biological parent, the CMS may:
- Refund the payments that have been made since the date you denied you were the parent. So if you didn’t find out you were not biologically related to the child until many years later, any payments you made up to the point of denial will not be able to be clawed back. Therefore, if you have any doubts as to the child’s parentage, it is better to address these as soon as possible if you are to avoid losing a potentially significant sum of money.
- Offset the amount paid in child maintenance against maintenance payable for another child
- Refund the costs of any DNA tests provided, these are arranged via the CMS itself. Where you have carried out your own tests before contacting the CMS, the fees will not be refunded.
- Ask the other parent to pay back any child maintenance to you. In light of how the CMS is funded, and the cutbacks in services, don’t be surprised if the CMS suggests this option first. In that situation, you may need to consider bringing a claim within civil proceedings, otherwise you could be waiting many years.
In 2013, Richard Rodwell, who had raised two children during his marriage to his ex-wife, discovered they were not biologically related to him, and were, in fact, the result of extra marital affairs. Following their divorce, Mr Rodwell had paid child maintenance for more than four years until he heard rumours that the children were not his. Following DNA tests confirming he was not the father of either child, he applied to the court within civil proceedings for paternity fraud. The court awarded him £25,000 in damages, which was akin to a bereavement award in a fatal accident claim.
This case highlights the problems getting a full refund when you don’t find out until many years later that you are not a child’s natural parent. As stated above, the CMS may only refund payments made after the date on which someone first denied being the parent. If, as in Mr Rodwell’s case, you have been paying child maintenance for some time before learning you might not be biologically related to the child you are paying for, and don’t request a DNA test until many years later, the CMS will not refund everything you have paid. If you find yourself in that situation, an application will need to be made within civil proceedings.
Can I bring a case against my ex for paternity fraud?
If you discover that a child you have raised as your own is not biologically related to you and you were led to believe by their mother that you were their natural father, you may be able to bring a claim for compensation for paternity fraud. This is considered under the laws of “tort”, in particular, the tort of deceit. In order to demonstrate you have been a victim of deceit, you must show the following:
- That you were informed, either in words or conduct, that the child was yours. It is important to note that silence is not sufficient to satisfy this criteria
- That the child’s mother knew that the fact was untrue at the time you were told – for example, they confirmed you were the child’s biological parent
- That the representation made by the mother was fraudulent and was either recklessly or deliberately made with the intention you would act upon it
- That you suffered a loss as a result of the deceit (such as paying child maintenance)
There is a strict time limit on when you are able to bring a claim. This is 6 years from the date of discovering the deceit or from the date on which you should reasonably have known about it. The court is unlikely to compensate someone for all the costs of raising a child because it is generally expected that whether or not someone is biologically related to a child, they would contribute to the costs of the family.
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