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Paternity Fraud in Ghana
How Paternity is determined in Ghana
In the past, the law on paternity was not as advanced as it is today, nor was the technology. The Family Tribunal could only rely on Customary Law to determine paternity. At the time, DNA testing was a new technology and not as common or accessible as it is today. Consequently, a man who was not the biological father of a child could still be required by law to support or continue supporting the child.
A Case From the Past
In the case of Quarshie v. Bosso [1992] 1 GLR 77, a man suspected his wife of adultery. He customarily divorced her and stopped maintaining the child. The wife then went to the Family Tribunal to compel the man to look after the child. The tribunal ordered blood tests, which proved that the man was not the biological father. However, the Family Tribunal ruled that he was still responsible for the child. This was because, at the time, the law did not grant the Family Tribunal the jurisdiction to order blood tests. Therefore, the evidence from the blood test was disregarded.
On Appeal
As expected, the man appealed the Family Tribunal’s ruling to the High Court. The High Court ruled that the Family Tribunal could only rely on Customary Law in matrimonial matters. The man was traditionally half Akan and half Ewe. Under his Customary Law, paternity was established by three elements: if the child was born by the man’s legal wife, if he named the child, and if he had acknowledged the child. Unfortunately for the man, he satisfied all these requirements. Therefore, the Family Tribunal’s decision was upheld. The man was bound by his Customary Law and could not deny paternity.
As disheartening as this may be, that was the position of the law when it came to the Family Tribunals. On the contrary, the High Court had the jurisdiction to consider blood tests. The tests were admissible and could be relied upon, although the High Court judge was not bound by the results.
Today
Before you panic, it is unlikely that a Ghanaian court would compel a man to support non-biological children. This could happen only in rare circumstances, which we will explain soon. All courts, including the Family Tribunal, can now order and rely on expert evidence, including DNA tests. However, the courts are still not bound by the expert’s evidence.
Whenever legal proceedings involve children, the primary concern is the child’s best interest. The court may interpret the law to force a man to support a non-biological child if it serves the child’s best interest. Although we have found no recent examples of this in Ghana, several cases in the West show this happening. Even though Ghanaian laws could be interpreted this way, it is unlikely a Ghanaian court would do so.
We believe today’s courts would honor the results of a DNA test in paternity cases.
Paternity by Force
A crucial question we can examine here is, why would the court force a man who is not a biological father to maintain a child?
It is based on an old paradigm of res judicata and estoppel. This means an issue that has been determined is final. That same issue should not be re-examined. This had the ‘best interest of the child’ principle as its foundation.
Father by Practice
So where a man was functionally the father, i.e., he has lived with a child for several years and has built a good relationship, the Court would consider his paternity to be finally determined and not up for re-examination even if a DNA test shows otherwise. He would be essentially estopped from re-opening the issue of paternity. This would be to protect the best interest of the child, their emotional, financial and general wellbeing. The “father” would be encouraged to continue as he has always been.
Father by Blood
The advent of technologically advanced paternity testing has brought about a new paradigm. A movement away from res judicata/estoppel and towards scientific certainty. This proposes that even where a man is functionally the father of a child but not biologically so, he ought to have the right to disestablish paternity.
The first idea is therefore, functional paternity – prioritizes the man’s social/financial relationship with the child and the child’s best interest to determine/enforce paternity. On the other hand, biological paternity – prioritizes the man’s biological relationship with the child to determine/enforce paternity.
The Right To Choose Paternity
The Debate
Those who advocate for functional paternity, only concern themselves with the best interest of the child. They will not give the man a choice. They totally disregard the emotional/psychological pain of the non-biological father. The injustice and cuckoldry of finding out the child was never really his but that of his partner’s paramour.
On the other hand, those who advocate for biological paternity usually seek to end the injustice against the man. They do not necessarily disregard the best interest of the child. The idea is that the best interest of that child is the responsibility of the biological father not the non-biological. They want to give the non-biological father the choice to either accept and continue paternity or reject it.
I believe that if functional paternity advocates found a way to also address the injustice and pain suffered by the man, and the biological paternity advocates also found a way to address the best interest of the child, then they could be combined into one uniform paradigm to address the issue of paternity fraud holistically.
It is ironic however that the advocates of functional paternity would usually (not always) argue for a mother’s right to choose abortion or to give up their baby for adoption without the father’s say. In that case, they willingly grant that the mother’s personal interest or happiness or career etc., is superior to the child’s best interest. They usually would not grant same for the men who are not even the biological father.
The Resolution
This is what I think a unified paradigm would look like. A father who discovers that a child he has been raising is not his biological child would have the option to either continue the relationship with the child or disestablish paternity. Where paternity is disestablished, the relationship and responsibility should be passed on to the true biological father of that child.
Furthermore, the non-biological father ought to have a remedy in criminal law or civil tort against the fraudulent mother whether he chooses to accept or reject paternity.
In order to succeed in either criminal or civil action, the claimant non-biological father would obviously have to establish the following:
- That he is not the biological father of the child
This is essential and the foundation of the whole claim. - That the mother fraudulently misrepresented him to be the father or was grossly negligent.
The mother must possess actual or constructive knowledge of the truth and deliberately misrepresent it to the father. It cannot be an incident of a mere mistake or accidental mix-up by doctor or nurses. - The identity and location of the true biological father of the child.
With this last element, I am not sure whether the onus should lie on the father or the mother or both to provide this information.
Clearly, the elements that give rise to criminal and civil liability are present. Specifically, the criminal offence of defrauding by false pretences and civil liability in Tort for recovery of general, special and even punitive damages.
Criminal Action
In Ghana Defrauding by false pretences is defined at section 132 of the Criminal Offences Act, as, “A person is guilty of defrauding by false pretences if, by means of any false pretence, or by personation he obtains the consent of another person to part with or transfer the ownership of anything.”
A false pretence is where a person represents the existence of a fact to be true when they know that it is not true or they don’t believe that it is true with the intention to defraud.
Mapping this onto paternity fraud, it means a mother of a child deliberately represents to a man that he is the biological father of that child, when she knows, in fact, that he is not or when she does not believe that he is, with the intention to deceive him and obtain benefits. In this case, the benefits would be the man’s social and financial responsibility to the child. The man, in this case, ought to be able to bring a criminal complaint against the woman for defrauding by false pretences.
Civil Tort
In Tort, generally, for the claimant to be entitled to recover damages, they must show the following:-
- That they were owed a duty of care
- That the duty of care was breached by an offender
- That they have suffered quantifiable injury as a direct result of the breach
If these are established, then the claimant would be entitled to recover damages. The purpose of damages is to restore the claimant to a state that he would have been in if the breach of duty/injury had not occurred.
Mapping this onto Paternity Fraud, it means that a mother owes a duty of care to speak the truth about the biological parentage of their child. If they fail to do this, then they have breached that duty. The man who was lied to ought to be entitled to recover damages for the time and financial commitments made towards that child during the period that he wrongfully believed that child to be his.
Conclusion
Paternity Fraud in Ghana is ugly business. It is unpleasant and painful for all the persons involved, especially the father and the child. Not to mention the shame and stigma from society. It is a real thing that happens and I do not believe can be eradicated. This is just my opinion on how it can be dealt with in a fair and reasonable manner that does justice to all the persons involved.
The contents of this article are purely educational and by no means intended to be legal advice or an expression of the possible outcome of any case.
2 Comments
This is very insightful, and I have learnt a lot from LexisGH. Kudos 👏
Great piece! Insightful! Thanks for sharing.