In a complex and unique legal case, a Jersey businessman (father) has been held financially liable for the child of his ex-partner, a Latvian national (mother), despite not being the biological, step or adoptive father.
The circumstances of this case were highly unusual and the ruling hinged on two factors. Firstly, on an interpretation of the definition of 'parent'. Advocate Jamie Orchard of Viberts, who successfully represented the mother, explained that "in order for the court to be able to order a person to make financial payments for a child, they must be the ‘parent’ of that child according to the definition set out in the Law".
Key to this case was the fact that the father had previously entered into a 'formal acknowledgement of paternity' under Latvian law whilst he was in a relationship with the mother. In doing so, he took on all the responsibilities of a biological father, including financial ones.
Orchard convincingly argued that the definition of 'parent' under the Children (Jersey) Law 2002 allowed itself to include more than simply biological, step and adoptive parents and could apply to the non-biological father who was not married to the biological mother.
The second influencing factor was that the Latvian Supreme Court had already rejected the father’s attempt to dispute the legitimacy of the paternity declaration after the relationship break up. The Latvian courts held that the father was legally responsible for the child and that included financial responsibilities.
Orchard explained that under private international law, a matter that has been litigated in another jurisdiction should not be capable of being re-litigated in Jersey (by way of the principle of 'res judicata'), providing it satisfies a number of criteria. One of those criteria gave Viberts the leverage needed for its client, namely that 'the judgment of a court of competent jurisdiction, on the merits, are final and conclusive'.
The outcome of this case should not, however, be a cause for undue concern for other unmarried, non-biological 'fathers' (often referred to as 'psychological' or 'common law’ fathers) in Jersey.
Orchard said: "This case was unique in that the father had voluntarily entered into a legally binding declaration in a foreign jurisdiction, which defined his status as the child’s father. There is no such similar process in Jersey.
"What it does confirm is that where a man enters into such a declaration, in Latvia or elsewhere, those declarations are likely to be recognised in Jersey should either party (and/or the child) move to Jersey.”
Orchard concluded: "It should, however, be borne in mind that a 'psychological parent’s' obligation to financially support a child has not yet been dealt with by the Jersey courts following this judgment. There is, perhaps, therefore, some uncertainty in this area, but any liability will be very dependent on the specific facts of each case."
The case has been appealed and therefore this ruling is subject to change.