Child maintenance – what happens if the presumed parent is not the parent after all?

21 January 2013

It was reported in the press that Richard Rodwell, who raised two children during his marriage to his ex wife, recently discovered that they were in fact the product of extra marital affairs.  Following Mr and Mrs Rodwell’s divorce, he paid child maintenance for over four years until he decided to investigate rumours that the children were not his.   Following DNA tests confirming that he was not the father of either of the children, Mr Rodwell made an application to the Court within civil proceedings.  The Judge awarded him £25,000 in damages, treating the award as akin to a bereavement award in a fatal accident claim.

Guidance in relation to the payment of child maintenance is given on the Government’s website, with details of what you should do if paternity is disputed.   As a first step, the father will be asked to provide evidence that he is not the child’s father.  If such evidence is not available, the Child Maintenance Service (or the Child Support Agency) can ask for a DNA test to be undertaken (although both parents – or the child themself if over 16 – must consent to this).   

There are a number of situations in which parentage will be presumed.  For example, where the person named as the parent*:

a) was married to the child’s mother at any time between the conception and birth of the child (unless the child was adopted)
b) is named on the child’s birth certificate (unless the child was adopted)
c) has taken a DNA test that shows they’re the parent
d) has legally adopted the child
e) is named in a court order as the parent when the child was born to a surrogate mother

If a maintenance calculation has already been made (and maintenance is being paid) but a presumed parents later proves (for example following a DNA test) that he is not the biological parent, the Child Maintenance Service may refund those payments made after the date on which they first denied they were the parent.  If, as in Mr Rodwell’s case, they had been paying maintenance for some time before they learnt that they might not be the parent, and therefore didn’t deny parentage or request a DNA test until years later, the Child Maintenance Service will not refund all of the maintenance paid. In that situation, an application will need to be brought within civil proceedings.

Aside from the ethical and emotional issues involved, there are a number of other issues arising out of a discovery that someone is not in fact a child’s biological parent, some of which I will be covering in my next blog.

*) see www.gov.uk/child-maintenance/overview for further details

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