Dad or undad: liability for paternity fraud

Which is worse, discovering that one has a child after being led to believe that this was not the case, or learning that one has been paying child support for a child who never existed? Does an action lie, in delict, in either case? Two recent cases, one on either side of the Atlantic, may help to focus the answer to that question.

On 20 June 2015, the Scotsman reported that 29-year-old Vikki Gilmore and 35-year-old Christopher Yates were each sentenced at Perth Sheriff Court to three years' imprisonment after being convicted of fraud. Ms Gilmore had told a former lover, Steven North, that she had terminated the pregnancy resulting from their brief relationship. This was untrue. She had, in fact, given birth to their daughter, registered herself and Mr Yates as the child’s parents, handed the child over to Mr Yates and received between £100 and £300 (newspaper reports vary) in return – remarkably small sums in the world of baby selling. In the attempt to throw Mr North off the scent, the pair concocted an elaborate ruse, creating a Facebook page for a fictional lesbian lawyer that recounted details of her bearing a child for Mr Yates as a result of artificial insemination and handing the baby over to him pursuant to a surrogacy agreement.

At first, Mr North was devastated by the news of the termination, but his suspicion was piqued and he sought police assistance, only to be turned away initially with that old chestnut, “This is a civil matter”, something that later events proved to be untrue. He persevered, however, eventually using DNA evidence to establish his paternity of the little girl, securing parental responsibilities and parental rights and going on to raise his daughter along with his now wife.

Meanwhile, in Iowa, Johna Loreen Vandemore was sentenced to 18 months in prison for collecting almost $100,000 in child support payments from the alleged father, identified only as “TK”, of a baby who never existed. The couple met on an online dating website, had a brief relationship and Ms Vandemore claimed that she became pregnant as a result. Again, there was an elaborate ruse, this time involving a fake birth certificate and the victim receiving photographs that purported to be of his child. TK paid her $1,000 per month for some six years by way of child support and met medical expenses for the child. The deception only came to light after TK married and his wife engaged the services of a private investigator.

The criminal law has provided something of a remedy in each case, with the women being punished for their crimes, but what of compensation for the victims? (Criminal injuries compensation under the statutory scheme, currently the Criminal Injuries Compensation Scheme 2012, is not applicable, since it is confined to addressing the effects of crimes of violence.) Each was a victim of a scheming woman, albeit they do not elicit sympathy in equal measure. As soon as he became suspicious, the Scottish father took steps to establish the truth, fighting a long battle so that he could raise his daughter. TK may have discharged what he thought were his financial responsibilities, but he seems to have made no effort to see his child, far less to establish a personal relationship through face-to-face contact.

Intentional infliction of emotional distress

The Iowan criminal proceedings addressed compensation to the victim by including in the sentence an order for the payment to TK of $95,850 by way of restitution. That, however, covers no more than repayment of most of the money TK had handed over. It did not deal with his injured feelings. It is one thing to be made to look a fool, but the injury to this man went much further than that. He believed he had a child and, while he was less than a model father, he must live with the disappointment of knowing that to be untrue, at least on this occasion. If this has caused him pain, then he may have an avenue for redress through the tort of intentional infliction of emotional distress (IIED).(1) Men have been successful in pursuing such claims in the US where they have been misled into thinking they were the father of a child, only to discover later, after they had bonded with the child, that this was untrue (see, for example Miller v Miller, 956 P 2d 887(Okla. 1998); cf cases such as Day v Heller, 264 Neb 934 (Neb. 2002), where the claim was held barred on public policy grounds). Would the law of delict provide a remedy to someone in TK’s position in Scotland?

The Scottish case had a happy ending, with the father and daughter establishing a family relationship. Nonetheless, each was deprived of the other’s company for some three years before matters were resolved, being denied the opportunity to bond from the earliest stage of the little girl’s life. Again, in the US, fathers who have been permanently deprived of a relationship with their child have been awarded damages for IIED in their actions against those who deceived them while the child was adopted by a third party.(2) There would appear to be no reported case in the US that is on all fours with Mr North’s experience, but would he or his daughter have a remedy in delict against the child’s mother in Scotland?

Certainly, there are policy arguments to support recovery, since values held dear by the legal system were violated. The rights of both Mr North and his daughter to respect for their private and family life, guaranteed by article 8 of the European Convention on Human Rights, were undoubtedly infringed by Ms Gilmore’s calculated course of deceptive conduct. In addition, the child’s right to respect for her identity, under article 8 of the United Nations Convention on the Rights of the Child, was violated. It may be more difficult to make a case for a man who, like Ms Vandemore’s victim, TK, paid money wrongfully in the belief that he was supporting his child, but it can be argued that he was induced to engage in a form of family life that turned out to be illusory, something that must have some implications for his own sense of his private life. (He acted and went beyond asserting the “mere biological kinship” that was regarded as insufficient in Lebbink v Netherlands (2005) 40 EHRR 18, para 37.) It is also worth remembering that courts have sometimes ordered men who use deception to avoid their financial responsibilities to a child to pay compensation: The Times on 16 June 2015 reported the case of Thomas Kenny who received a six month suspended sentence and was ordered to pay £885 by way of compensation after he sent a doppelgänger along to take a DNA test.

The English courts had already shown themselves to be wary of actions of the IIED variety for fear of litigation being generated by every petty slight and act of unkindness (cf Lord Hoffmann in Wainwright v Home Office [2004] 2 AC 406, at para 46), when the Supreme Court addressed the issue recently in O v Rhodes [2015] 2 WLR 1373. While acknowledging that her view was “necessarily obiter”, since the case concerned an injunction prohibiting the publication of a book, Lady Hale (at para [88]) set out the following triumvirate of requirements for the tort of intentionally causing physical or emotional harm:
“(a) the conduct element requiring words or conduct directed at the claimant for which there is no justification or excuse, (b) the mental element requiring an intention to cause at least severe mental or emotional distress, and (c) the consequence element requiring physical harm or recognised psychiatric illness”.

That sets the bar very high, possibly too high for Mr North, his daughter and men like TK since, based on the facts available to us, none of them suffered a recognised psychiatric illness as a result of their experiences. Even if they had, it seems, they might fall foul of the requirement that the wrongdoer intended to cause severe mental or emotional distress, rather than simply being reckless and not caring about the consequences of her deception – and it is worth noting that Lady Hale and her brethren rejected the place of recklessness, quite explicitly, on grounds of both principle and pragmatism.(3)

The significance of the wrongdoer’s intention is illustrated by a recent, but pre-Rhodes, Scottish case, Shields v Crossroads (Orkney) 2014 SLT 190. There, a woman who had a brief sexual relationship with the social worker dealing with her case on behalf of a charity raised an action against the charity as the social worker’s employer. She was unsuccessful in securing damages for injury to her mental health occasioned by the affair, and much of the decision turned on negligence and vicarious liability. However, Lord Pentland touched (at para [54]) on the issue of deliberate infliction of harm, albeit the point had been “sparsely pleaded”, and concluded that because the social worker’s motivation was “to have a sexual relationship with the pursuer and not to inflict harm on her”, the infliction of emotional harm was not deliberate.

There is older Scottish scholarly authority to support the idea that recklessness as to consequences is enough for liability to attach,(4) something reinforced by modern authors.(5) If recklessness is enough, then it would not matter that each of the women in our parentage and non-parentage cases was motivated by financial gain (it may be that Ms Gilmore was also motivated by a desire to have no further involvement with Mr North or the child), rather than a desire to inflict harm on her former lover. However, in the light of the decision in Shields and, perhaps more significantly, the speeches in the UK Supreme Court in Rhodes, Mr North, his daughter and anyone in TK’s position might be wise to consider pursuing their cases on other grounds.

Misrepresentation

A rather more fruitful avenue might be for the pursuer to found on the dishonest nature of the wrongdoer’s conduct, proving that the defender made misrepresentations in the knowledge that they were untrue and that the pursuer acted in reliance upon them, thus suffering loss or damage. While not essential, the fact that a defender had already been convicted in a criminal court could only be of assistance to the pursuer in such cases.

Although the limited relevant English case law to date relies on the common law tort of deceit, and concerns men duped into believing that they were the fathers of children who actually existed,(6) it seems reasonable to apply the same principle to men in TK’s situation. Mr North might face more of a challenge. It was in the nature of the deceit perpetrated against him that it caused him not to act since he believed, at least initially, that there was no child with whom he might form a relationship. It would be absurd, however, to permit recovery for deceit that caused a person to act to his or her detriment, while denying it in cases where the deceit resulted in injurious inaction.

Another possibility would be to found on fraud or dolus, a delict long recognised in Scotland (Stair, I ix 9). The limitation here, however, is the possibility that recovery would be limited to economic loss, physical injury or “shock amounting to physical injury” (Walker, Civil Remedies (1974), 1010-1011). Whether there is greater scope to permit recovery for injury to feelings in the context of personal relationships may be an avenue worth exploring. Certainly, there is fairly ancient case law to demonstrate damages being awarded for violation of what one author has described as “the integrity of family life”,(7) suggesting that a modern counterpart might be developed using rights now guaranteed under article 8 of the European Convention on Human Rights. Nor would such an approach be without more modern precedent. As recently as 1983, a Scottish court awarded damages in respect of fraudulent entrapment into marriage: Burke v Burke 1983 SLT 331.

Certainly, the Scottish Law Commission, in its Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), was sympathetic to the view that “In the case of intentional wrongdoing, we now think the defender should normally be liable for the harm he intended to cause; this should include distress, anxiety, grief, anger, etc” (para 3.7), albeit a pursuer might be a little troubled by the reference to intention. In any event, that statement was made in the context of a law reform recommendation and one that has not yet been taken further.

A very practical concern

Thus, it is not entirely clear whether the Mr Norths of this world, along with men who pay child support for non-existent children, have a remedy in delict. Similar ambiguity surrounds the position of the little girl who was deprived of the opportunity to bond with her father during her early years. A very practical problem, of course, is whether the potential defender has assets to meet any award of damages – something that seems unlikely in respect of a woman who sold her child for £300 (at most) or who engaged in child support fraud. Until a defender presents who is both similarly deceptive and reasonably affluent, the prospect of success for such actions will remain a matter for speculation.

References

(1) The Restatement (Second) of Torts (1965), § 46(1), dealing with Outrageous Conduct Causing Severe Emotional Distress”, provides: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” While the most recent proposed revision, Restatement (Third) of Torts (Discussion Draft, 3 April 2014), §104, refers to “Intentional (or Reckless) Infliction of Emotional Harm”, the conditions for liability are expressed in substantially similar terms. While IIED claims were dealt a severe blow by the US Supreme Court decision in Snyder v Phelps, 131 S Ct 1207 (2011), that case involved balancing liability against the First Amendment guarantee to freedom of speech, something that does not arise in these cases.

(2) Kessel v Leavitt, 204 W Va 95 (W Va. 1998) (child adopted while father was kept in the dark; mother’s position constitutionally protected, but father awarded $8 million in damages in an action against her brother, parents and adoption attorney who conspired to secure the adoption), and Smith v Malouf, 722 So 2d 490 (Miss. 1998) (father stated a viable claim against his child’s mother and her parents where they secretly placed the child for adoption while he was seeking custody). On occasion, an adoption order has been revoked in these circumstances: Deboer v Schmidt (In re Clausen), 501 NW 2d 193 (Mich. 1993). That is not the approach taken countrywide: In Re Robert O v Russel K, 80 NY 2d 254 (NY. 1992).

(3) On principle, see Lady Hale at para 81: “Imputation of intention by operation of a rule of law is a vestige of a previous age and has no proper role in the modern law of tort. It is unsound in principle.” Her more pragmatic objection was the ambiguity of the term; see para 84: “Recklessness is a word capable of different shades of meaning.” See also Lord Neuberger, at para 112, who took the view that “bearing in mind the importance of freedom of expression and the law not sticking its nose into human discourse except where necessary, it appears to me that the line should be drawn at intentionality”.

(4) David M Walker, The Law of Delict in Scotland (2nd ed) (Edinburgh: W Green, 1981), p 167: the wrongdoer “is liable for consequences, which not intended, are the natural and direct consequence of his conduct… even though unforeseen”. It is arguable, of course, that the harm experienced by the victims in our cases was entirely foreseeable.

(5) See Professor Elspeth Reid’s commentary on Shields, “Loose connections: matters of the heart and delictual liability” (2014) 18(1) Edin LR 97, p 101: “Establishing subjective motivation to inflict harm is an extremely exacting requirement which is not normally insisted upon in the intentional delicts”, since it is “generally accepted that recklessness as to whether the victim would be harmed” is enough. See also John Blackie and James Chalmers, “Mixing and matching in Scottish Delict and Crime” in Matthew Dyson (ed), Comparing Tort and Crime: Learning from across and within Legal Systems (Cambridge: Cambridge University Press, 2015), pp 306-307.

(6) See, for example, A v B (damages: paternity) [2007] 3 FCR 861, where a man who was misled by a child’s mother, with whom he was cohabiting at the time, into believing he was the father of a child, succeeded in recovering damages, both in respect of monies paid and by way of compensation for distress. See also Magill v Magill [2006] HCA 51, where the High Court of Australia rejected the claim of a husband who had been deceived over the paternity of two of the three children born during his marriage. There, the court split, with three judges founding on the lack of any obligation to disclose marital infidelity, while three others accepted that there could be circumstances in which such an action might succeed, but did not find them to be present in the instant case.

(7) John Blackie, “Unity in Diversity: the History of Personality Rights in Scots Law”, in Niall R Whitty and Reinhart Zimmermann (eds), Rights of Personality in Scots Law (Dundee: Dundee University Press, 2009), pp 68-70.