Legal Nigeria

PATERNITY FRAUD – By Success Oghosa Osasogie

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Success Oghosa Osasogie

“It can’t be true Deby, after all my sacrifices to see my two children attend the best school and excel in life you tell me they aren’t mine? You are wicked!”

“I’m sorry John but when a child wasn’t forthcoming, I had to look for a way out to escape disgrace from your family members and the society tagging me a barren woman”. Deby wept uncontrollably.

Imagine bringing up a child  only to discover not yours. The effect is devastating and traumatic. What happens when a father abandons a child and mother from birth, the woman remarries and the new husband takes responsibility of the child till tertiary level, can the former husband claim he is the father of the child who is now an adult by requesting a paternity test? What is the attitude of the court in both scenarios?

I will throw more lights on the attitude of the court in paternity fraud whether for a child or an adult.

The Child Rights Act defines a child as one who is below the age of 18, this implies that anyone above 18 in Nigeria is an adult.  Paternity fraud is where a non-biological father is deceitfully identified to be the biological father of a child. The mother incorrectly identifies the non-biological father as the biological father of the child. It must be noted that this is not a situation where the non-biological father acknowledges paternity where he clearly knows otherwise. Paternity fraud involves deceit and misinformation by the mother of a child to the non-biological father who believes he is the father of the child.

DETERMINATION OF PATERNITY

  1. By Acknowledgment : where a father acknowledges or admits he is the father.
  2. By presumption: where a child is born during the subsistence of the marriage or within wedlock, it is presumed the husband is the father of the child.
  3. By proof: This is through scientific test called Deoxyribonucleric Acid Test(DNA Test) or through a document in form of birth certificate . Ukeje v Ukeje.

The Child Rights Act makes clear provision that the paternity of a child may be determined through medical report, section 63(1) states that the court may through an application order scientific test to be carried out to determine the paternity of a child. In the opinion of the court and in light of the provision of the Child Rights Act, it is in the best interest of the child.

Emphasis here is a child not an adult. This implies that where the child is an adult, the Court shall not direct a scientific test to be carried out for the determination of paternity unless the adult consents.  The reasons for the court not granting such an application for scientific test in the case of an adult were stated in the case of Anozia v Nnani & anor (2015) NWLR (pt 1461)241 as follows:

  1. He who asserts must prove.
  2. The court will not procure evidence needed for the Claimant to prove his case.
  3. The court is for adjudication not inquisition.
  4. The court is a trial court not an investigative body.

Furthermore, doing so will amount to a breach of the constitutional right of privacy of such an adult. S 37 CFRN 1999 as amended.

EFFECT OF PATERNITY FRAUD

The first victim is the child who grew up with the excitement and knowledge that the putative father is his/her biological father. This most times affects the child psychologically, mentally, academically , and socially.  It will be devastating for such a child. There is also a breach of the right of the child as spelt out in the Child Rights Act(2003) and the UN Convention on the Rights of a Child(Art. VIII) which states interlia that every child must be registered at birth and shall have the right to know and be cared for by their parents. States are further enjoined to preserve the identity of every child and this includes family relationship. Section 14 Child Rights Act states that every child shall have a right to parental care and protection, no child shall be separated from parents without their wish.

A child who is a victim of paternity will also face emotional torture especially where the biological father is no longer alive. The trauma of having to call a man Father where in the real sense he is not and only to be told that the biological father is not alive is double jeopardy.

The non-biological father also suffers emotional and psychological trauma especially where he has become so attached to the child , spent resources and efforts in bringing up such a child in love. It will definitely be a hard nut to chew.

The biological father where he is not aware may be excited at first but will be bitterned and emotionally devastated knowing he has to build a fresh relationship, create bond with the child. This may not be an easy fish to fry. The denial of bringing up that child himself and creating a bond from childhood may not be too pleasant for such a father.

Recommendation/Conclusion.

The issue of paternity fraud has always been a big issue in our society and begs for serious attention. The court should not be less stringent when it involves the determination of an adult child,the same measure for a child should be given in the case of an adult. Secondly, Birth registration should be greatly encouraged and the process less difficult so many individuals can do the needful. Finally, paternity fraud is yet to be criminalized in Nigeria, it is high time the legislature criminalized paternity fraud.

Success Oghosa Osasogie is a Lagos based Legal Practitioner and a Professional Volunteer.

Contact information:

LinkedIn: Success Osasogie

Facebook: Success Oghos

Email: oghoslegal@gmail.com

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