Paternity fraud and the tort of deceit

Abstract

Recent cases in England, Australia and the United States have seen efforts to expand the tort of deceit to allow a remedy in cases of paternity fraud. The tort of deceit has traditionally applied to commercial transactions and the divergent approaches taken by both the English and Australian courts point to the complexity of applying it to domestic arrangements. In England the tort was successfully applied to two cases involving cohabiting couples, P v B1 and A v B. 2 Meanwhile, the Australian High Court rejected the application of such a tort to a married couple in Magill v Magill3 largely on the basis that the court refused to apply the tort to representations relating to sexual fidelity. This article proposes to examine these cases and consider to what extent they are relevant to an Irish court. It will also briefly question whether the current emphasis on the biological parent is correct and whether courts should instead eschew the biological model in favour of the social model of parenthood, which arguably better reflects the best interests of the child.