48
VIRGIN ISLANDS
STATUS OF CHILDREN ACT, 2013
ARRANGEMENT OF SECTIONS
Section
PRELIMINARY
1. Short title and commencement.
2. Interpretation.
3. Application.
PART I
STATUS OF CHILDREN
4. All children of equal status.
5. Presumption of paternity.
6. Presumption where child is born as a result of artificial conception
procedures.
7. Instruments filed in Registry.
PART II
PARENTAGE
8. Declaration of parentage.
9. Parentage testing procedure.
10. Matters to be taken into account by Court in making determination.
11. Reports of parentage testing procedure.
12. Approval of laboratory.
PART III
DISPOSITION OF PROPERTY
13. Transitional provisions relating to instruments.
14. Persons dealing with property after the commencement of this Act.
15. Protection of executors, administrators and trustees.
PART IV
MISCELLANEOUS
16. Hearing.
17. Existing Rights.
18. Regulations.
19. Consequential amendments.
20. Repeal and savings.
SCHEDULE
No. of 2013
49
Status of Children Bill, 2013
I Assent
BOYD MC CLEARY
Governor,
, 2013
VIRGIN ISLANDS
No. of 2013
A Bill for
An Act to provide for the equal status of children and for connected matters.
[Gazetted , 2013]
ENACTED by the Legislature of the Virgin Islands as follows:
PRELIMININARY
1. This Act may be cited as the Status of Children Act, 2013 and shall
come into operation on such date as the Governor may, by proclamation
published in the Gazette, appoint.
2. In this Act, unless the context otherwise requires,
“Accreditation Agency” means an organisation that writes standards and accredits
laboratories for parentage testing, that is to say, the American Association
of Blood Banks (AABB), the American Society of Histocompatibility and
Immunogenetics (ASHI) or any other similar agency;
“approved laboratory” means a laboratory approved by the Minister under section
12 for the purpose of carrying out a parentage testing procedure;
“child” includes a person who is eighteen years of age or over;
“cohabitant” means a person who is living or has lived for a period of at least
three years with a person of the opposite sex as a husband or wife although
not legally married to that person;
“Court” means the High Court, or a Magistrate’s Court where the subject matter
falls within its jurisdiction;
No. of 2013 Virgin
Islands
Short title and
commencement.
Interpretation.
50
“DNA” means deoxyribonucleic acid;
“Laboratory Director” means the person holding, or acting in, the post of the
Laboratory Director in the Public Service of the Territory;
“legal practitioner” means a person who is qualified to practice law in the
Territory pursuant to Part IV of the Eastern Caribbean Supreme Court
(Virgin Islands) Act;
“marriage” includes
(a) a void marriage; and
(b) a voidable marriage that has been annulled by a Court;
“medical practitioner” means a person who is registered as a medical practitioner
under section 10 of the Medical Act;
“Minister” means the Minister responsible for Health and Social Development;
“parent” means a natural father or natural mother of a child as the circumstances
require, and includes an adoptive mother or father;
“parentage testing procedure” includes
(a) the carrying out of a scientific examination of tissue, fluid or
other sample containing a person’s DNA; or
(b) any test carried out on a person involving the application of
medical science,
for which an accreditation agency has propagated and maintains current
standards for the purpose of obtaining evidence with respect to parentage;
“prescribed” means prescribed by Regulations made under this Act;
“Registrar” means the Registrar General of the Civil Registry; and
“Registry” means the Civil Registry.
3. This Act shall apply to a child, whether or not
(a) the child was born before the commencement of this Act;
(b) the child was born within the Territory;
Application.
Cap. 80
No. 4 of 2000
51
(c) the child’s father or mother is a person who belongs to the
Virgin Islands pursuant to section 2 (2) of the Virgin
Islands Constitution Order; or
(d) the father or mother of the child has ever been domiciled in
the Territory.
PART I
STATUS OF CHILDREN
4. (1) The legal distinction in the status, rights, privileges and obligations
of children born within and outside of marriage is abolished and all children shall,
from the date of the commencement of this Act, be of equal status.
(2) Save as provided in this Act, the status, rights, privileges and
obligations of the parents and all kindred of a child born out of wedlock are the
same as if the child were born in wedlock, but this provision does not affect the
status, rights, privileges or obligations of the parents as between themselves.
(3) For the purpose of construing any enactment or instrument, the use
of the words of relationship, such as “legitimate”, “illegitimate”, “lawful” or
“unlawful”, “heir” or “issue”, in the absence of a contrary expression of intention,
shall be determined in accordance with subsections (1) and (2).
5. (1) Unless there is proof to the contrary, on a balance of probabilities,
there is a presumption that a person is, and shall be recognised in law to be, the
natural father of a child in any one of the following circumstances:
(a) the person was married to the mother of the child at the
birth of the child;
(b) the person was married to the mother of the child and that
marriage was terminated by
(i) death;
(ii) judgment of nullity; or
(iii) divorce where the decree nisi was granted,
within ten months before the birth of the child;
(c) the person marries the mother of the child after the birth of
the child and acknowledges by word or conduct that he is
the natural father of the child;
All children of
equal status.
Presumption of
paternity.
U.K.S.I. 2007
No.1678
52
(d) the person was a cohabitant with the mother of the child at
the time of the birth of the child, or the child was born
within ten months after they ceased to be cohabitants;
(e) the person has been adjudged or recognised in his lifetime
or after his death by a Court to be the father of the child;
(f) the person has signed an instrument with the mother of the
child acknowledging that he is the father and that
instrument was executed as a deed or by each of them in
the presence of a legal practitioner or a Justice of the Peace
or a registered medical practitioner or a minister of religion
or a marriage officer or a midwife; but such an instrument
shall be of no effect unless it is notarized and has been
recorded in the Registry;
(g) the person acknowledging that he is the natural father of the
child, or that person and the mother of the child have
signed and executed an instrument to this effect in the
presence of a legal practitioner, but that instrument shall be
of no effect unless it is notarised and recorded in the
Registry during the lifetime of the person acknowledging
himself to be the father;
(h) the person has acknowledged in the process of the
registration of the child, in accordance with the provisions
of the Registration of Births and Deaths Act, that he is the
father of the child;
(i) the person who is alleged to be the father of the child has
given written consent to that child adopting his name in
accordance with the provisions of the Registration of Births
and Deaths Act; or
(j) the person who is alleged to be the father of the child has
by his conduct implicitly and consistently acknowledged
that he is the father of the child.
(2) Where circumstances exist that give rise to presumptions of
paternity in respect of more than one father, no presumption shall be made as to
paternity.
6. (1) If a child is born to a woman as a result of the carrying out of an
artificial conception procedure
Presumption
where child is
born as a result
of artificial
conception
procedures.
Cap. 276
Cap. 276
53
(a) while the woman was married to a man; and
(b) the procedure was carried out with their consent,
whether or not the child is biologically a child of the woman and of the man, the
child is their child for the purposes of this Act.
(2) Unless there is a valid contract to the contrary, if a child is born to
a woman as a result of the carrying out of an artificial conception procedure,
whether or not the child is biologically a child of the woman, the child is her child
for the purposes of this Act.
(3) Subsection (1) applies to cohabitants where neither of them was
married to any other person.
(4) For the purposes of this section
“artificial conception procedure” means
(a) where a woman conceives a child as a result of her
own ovum being fertilized by the sperm of a donor
in a procedure involving either in vitro or in vivo
fertilization;
(b) where a woman conceives a child as a result of her
own ovum being fertilized by the sperm of her
spouse (without sexual intercourse) in a procedure
involving either in vitro or in vivo fertilization;
(c) where a child is conceived as a result of a woman
receiving for gestation in her body an ovum donated
by a donor, which ovum has been
(i) fertilized in vitro; or
(ii) fertilized in vivo,
with sperm provided by her spouse;
(d) where a child is conceived as a result of a woman
receiving for gestation in her body an ovum
provided by a donor, which ovum has been
(i) fertilized in vitro; or
(ii) fertilized in vivo,
54
with sperm donated by a donor; or
(e) any other conception procedure that is prescribed by
Regulations;
“donor” means any person not being a woman or her spouse who
donates her ovum or his sperm, as the case may be, for an
artificial conception procedure; and
“spouse” includes the male partner in a cohabitant relationship.
(5) For the purposes of subsection (1), a person is to be presumed to
have consented to an artificial conception procedure being carried out unless it is
proved, on the balance of probabilities, that the person did not consent.
7. (1) An instrument referred to in section 5 (1) (f) and (g) must, be filed
in the Registry.
(2) The Registrar shall cause records of all instruments and copies
filed under subsection (1) to be made and kept in the Registry and shall, on
request made by any person who the Registrar is satisfied has a direct interest in
the matter, cause a search of any record to be made and shall permit that person to
inspect any such instrument or copy where the Registrar is satisfied that the
person has a direct interest in the matter.
(3) If the Court makes a declaration under section 8
(a) the Registrar shall cause a copy of the declaration, to be
filed in the Registry under this section; and
(b) on receipt of the declaration, the Registrar shall amend the
birth certificate of the child by inserting the name of the
natural father on the birth certificate with such words to the
effect that parentage has been established by a declaration
of the Court and shall file a copy of the declaration in the
Registry as if it were an instrument referred to in section 5.
PART II
PARENTAGE
8. (1) A person who
(a) alleges that any named person is a parent of a child;
Instruments filed in
Registry.
Declaration of
parentage.
55
(b) alleges that the relationship of father and child exists
between him and another named person;
(c) alleges that the relationship of mother and child exists
between her and another named person; or
(d) having a direct interest in the result, wishes to have
determined the question whether the relationship of parent
and child exists between two named persons,
may apply to the Court for a declaration of parentage and the Court may, if it is
satisfied that the relationship exists, make such declaration whether or not the
mother, father or child is, or all of them are, living or dead.
(2) Where a declaration is made under subsection (1) and it is
subsequently made to appear to the Court that new facts or circumstances have
arisen that have not previously been disclosed to the Court and could not by the
exercise of reasonable diligence have previously been known or if for any reason
the Court thinks it desirable so to do, the Court may revoke the declaration and
thereupon that declaration shall cease to have any effect.
(3) The Court shall not make or revoke a declaration under this section
unless the Court is satisfied that, so far as is reasonably practicable,
(a) all persons whose interests are or may be affected by the
declaration or revocation are notified; and
(b) such persons are represented before the Court or have been
given the opportunity of making representations to the Court
with respect to the subject matter of the proceedings.
(4) In any proceedings in the Court, a declaration made pursuant to
this section shall be conclusive evidence of the matters contained in the
declaration.
9. (1) In any proceedings in which the parentage of a child is required to
be determined by the Court, the Court may
(a) on the request of a party to the proceedings;
(b) on the request of a person representing the child; or
(c) of its own motion,
Parentage testing
procedure.
56
issue a direction requiring a parentage testing procedure to be carried out for the
purpose of obtaining information to assist in determining the parentage of the
child.
(2) The Court shall, before issuing a direction pursuant to subsection
(1), ensure that
(a) the child to whom the direction relates,
(i) if sufficiently mature, has been counselled about
the effects of the parentage testing procedure and
has understood such effects; or
(ii) if eighteen years or older, after having been
counselled about the effects of the parentage
testing procedure and has understood such effects,
has given consent to the parentage testing
procedure; and
(b) it is in the best interest of the child to do so.
(3) A direction under subsection (1) may be issued in relation to
(a) the child;
(b) a person believed by the Court to be a parent of the child;
or
(c) any other person, where the Court is of the opinion that the
information that could be obtained if the parentage testing
procedure were to be carried out in relation to the person
may assist in determining the parentage of the child.
(4) Where the Court issues a direction under subsection (1), the Court
may
(a) issue such directions requiring a person to submit to a
parentage testing procedure or to furnish information
relevant to the medical or family history of a person; and
(b) issue such directions as it considers necessary in relation to
costs incurred with respect to
(i) the carrying out of the parentage testing procedure
or other directions issued by the Court in relation to
the parentage testing procedure; or
57
(ii) the preparation of reports in relation to the
information obtained as a result of the carrying out
of the parentage testing procedure.
(5) The Court may at any time revoke or vary a direction previously
given by it under this section.
(6) A person who fails to comply with a direction issued under
subsection 4 (a), is not liable to any penalty in relation to the contravention, but
the Court may draw such inferences as it considers fit in the circumstances.
(7) If a direction under this section is to a child who has not attained
the age of eighteen years, a parentage testing procedure or other act shall not be
carried out in relation to the child under the direction unless a parent, guardian or
other person who has the care and protection or parental responsibility of the child
consents to the procedure or act being carried out, but the Court may draw such
inferences from a failure or refusal to consent as the Court considers fit in the
circumstances.
(8) If a direction under this section is to a person who is suffering from
a mental disorder and is incapable of understanding the nature and purposes of the
parentage testing procedure or other act, that procedure or other act shall not be
carried out in relation to that person under the direction unless the parent,
guardian or person who has the care and control of that person consents and the
medical practitioner in whose care the person is, has certified that the parentage
testing procedure will not be prejudicial to the person’s proper care and treatment.
(9) A person who acted with due skill and care in the carrying out, or
acted with due skill and care in assisting in the carrying out of, the parentage
testing procedure or other act under this section is not liable in any civil or
criminal action in relation to the procedure or other act.
10. (1) Before making a determination under section 9, the Court may, if it
is of the view that to do so would be in the best interest of the child or person who
is suffering from a mental disorder and is incapable of understanding the nature
and purposes of the parentage testing procedure or other act, appoint a guardian
ad litem for the child or person suffering from a mental disorder.
(2) In deciding whether to issue a direction under section 9 the Court
shall
(a) consider and determine all objections made by a party to
the proceedings, or a person representing the child or
person suffering from a mental disorder, on account of
medical, religious or other grounds; and
Matters to be taken
into account by
Court in making
determination.
58
(b) if it determines that an objection is valid take the objection
into account in arriving at its decision.
11. (1) Where a parentage testing procedure is carried out pursuant to a
direction under section 9, the Laboratory Director shall provide the Court with the
report received from the approved laboratory stating
(a) the results of the tests;
(b) whether the person to whom the report relates is or is not
excluded by the results from being the parent of the child;
and
(c) where the person is not excluded from being the parent, the
value, if any, of the results in determining whether that
person is the parent of the child.
(2) The Court may summon the Laboratory Director to come before it
to provide an explanation, clarification or interpretation of the report received
from the approved laboratory.
(3) Where a report has been provided to the Court under subsection
(1), any party to the proceedings may, with the leave of the Court, or shall, if the
Court so directs, obtain from the Laboratory Director a written statement
explaining, clarifying or interpreting any statement made in the report, and that
statement shall not form part of the report to the Court.
(4) A report provided to the Court under subsection (1) may be
received in evidence in any proceedings under this Act.
(5) Where a report referred to in subsection (1) is received in evidence
in proceedings under this Act, the Court may
(a) on the request of a party to the proceedings;
(b) on the request of a person representing the child or person
suffering from a mental disorder; or
(c) of its own motion,
make an order requiring the Laboratory Director, or any person whose evidence
may be relevant in relation to the report, to appear before the Court and give
evidence in relation to the report.
Reports of parentage
testing procedure.
59
12. (1) The Minister may approve any laboratory recommended by an
accreditation agency for the purpose of carrying out parentage testing procedures.
(2) Where the Minister approves a laboratory under subsection (1) for
the purpose of carrying out a parentage testing procedure, the name of the
approved laboratory shall be published in the Gazette by the Minister.
PART III
DISPOSITION OF PROPERTY
13. (1) The following dispositions are to be construed as if this Act had
not come into operation
(a) dispositions made inter vivos before the commencement of
this Act; and
(b) dispositions made by a will or codicil executed by a person
who died before the commencement of this Act.
(2) If a disposition referred to in subsection (1) contains a special
power of appointment, this Act shall not
(a) extend the class of persons in whose favour the
appointment may be made; or
(b) cause the exercise of the power to be construed so as to
include any person who is not a member of that class.
(3) The estate of a person who dies intestate as to the whole or any
part of his or her estate before the commencement of this Act shall be distributed
in accordance with the enactments and rules of law which would have applied to
the estate if this Act had not come into operation.
14. For the purposes of the administration or distribution of any estate
or property, an executor, administrator or a trustee shall, whenever it is material in
the circumstances, make honest and reasonable inquiries as to the existence of any
person who could claim an interest in the estate or property by reason only of this
Act, but shall not be obliged to pursue such inquiries further than he or she
honestly and reasonably believes to be necessary.
15. (1) A person who could claim an interest in an estate or property by
reason of this Act shall not lay an action, in relation to the estate or property,
against
Transitional
provisions relating
to instruments.
Persons dealing with
property after the
commencement of
this Act.
Protection of
executors,
administrators
and trustees.
Approval of
laboratory.
60
(a) an executor;
(b) an administrator; or
(c) the trustee under any instrument,
to enforce any claim arising by reason of the executor, administrator, or trustee
having made any distribution of the estate or of the property held upon trust or
having otherwise acted in the administration of the estate or of property held upon
trust disregarding the claims of that person, if at the time of making the
distribution or otherwise so acting, the executor, administrator, or trustee had no
notice of the relationship on which the claim is based.
(2) This section shall not prejudice the right of any person claiming an
interest in the estate or property referred to under subsection (1), which interest is
alleged by the claimant to have existed at the time the executor, administrator or
trustee made the distribution or otherwise acted aforesaid, to follow such estate or
any property representing it into the hands of any person, other than the
purchaser, who may have received it.
PART IV
MISCELLANEOUS
16. (1) Unless the Court otherwise orders, the hearing of an application
made pursuant to Part II of this Act shall not be in open Court.
(2) A person shall not publish, whether by newspaper, or by radio or
television or otherwise, the name of or any particulars relating to the identity of
any person by, or in relation to whom proceedings are taken under Part II of this
Act without the authority of the Court before which such proceedings are taken.
(3) A person who contravenes subsection (2) commits an offence and
is liable on summary conviction, to a fine not exceeding five thousand dollars or
to a term of imprisonment not exceeding three months.
17. This Act does not affect rights that became vested before its
commencement.
18. The Minister may make Regulations generally for the better
implementation of the provisions of this Act and without prejudice to the
generality of the foregoing with respect to the following:
(a) forms;
Hearing.
Existing Rights.
Regulations.
61
(b) the carrying out of parentage testing procedures under
directions issued under section 9;
(c) the preparation of reports in relation to the information
obtained as the result of the carrying out of parentage
testing procedures or other acts under directions issued
under section 9;
(d) fees;
(e) the carrying out of conception procedures; and
(f) providing for such matters as are required or necessary for
giving full effect to this Act and for its due administration.
19. The enactments set out in the first column of the Schedule to this
Act are amended to the extent specified in the second column of the Schedule.
20. (1) The Legitimacy Act is repealed.
(2) Notwithstanding the repeal of the Legitimacy Act, any Rules made
thereunder and in force immediately prior to the commencement of this Act shall,
so far as they are not inconsistent with the provisions of this Act, continue in force
until revoked and replaced by Regulations made under this Act.
Repeal and
savings. Cap. 271
Consequential
amendments.
Schedule
62
SCHEDULE
[Section 19]
ENACTMENTS AMENDED
Enactments Amendments
Adoption Act Cap. 269
In section 6 by repealing subsection (2) and substituting the following
subsection:
“(2) An adoption order shall not deprive the adopted
child of any right to or interest in property to which, but for the
order, the child would have been entitled under any intestacy or
disposition, whether occurring or made before or after the
making of the adoption order, and where at any time after the
making of an adoption order, the adopter, or the adopted child or
any other person dies intestate in respect of any real or personal
property, that property shall devolve in all respects as if the
adopted child was born to the adopter.”.
Children and Young
Persons Act, 2005 (No. 8 of 2005)
(a) In section 33 by repealing subsections (2) and (3) and
substituting therefor the following:
“(2) A contribution order shall,
unless varied or revoked, remain in force so
long as the child or young person remains in the
care and supervision of the fit and proper person
and the court when making such order shall
have regard to any order for the maintenance
and education of the child made under Part V of
the Magistrate’s Code of Procedure Act, which
is in force in respect of the child or young
person and any such contribution order may be
varied or revoked on the application of either
the contributor or person to whom the
contributions are payable.
(3) A contribution order shall be
enforceable, at the instance of the person to
whom the contributions are payable, in the same
manner as an order for maintenance and
education under Part V of the Magistrate’s Code
of Procedure Act.”.
Cap. 44
Cap. 44
63
(b) by repealing section 34 and substituting therefor the following:
34. (1) Where a child or young person who
is ordered by a youth court to be committed to
the care and supervision of a fit person is born
out of wedlock, and an order for his
maintenance and education made under Part V
of the Magistrate’s Code of Procedure Act is in
force, the Court may at the same time order the
payments under such order to be paid to the
person to whom contributions in respect of the
child or young person are payable under section
32.
(2) Any sums received under the
maintenance and education order made under
Part V of the Magistrate’s Code of Procedure
Act shall be applied in like manner as if they
were contributions received under a contribution
order.
(3) The making of an order under this
Act shall not extend the duration of an order for
maintenance and education.”.
(c) In Schedule 3 by repealing the entire order named “ORDER
TRANSFERRING PAYMENTS UNDER AFFILIATION
ORDER” and substituting therefor the following:
“Children and Young Persons Act, 2005
[Section 35]
ORDER TRANSFERRING PAYMENTS UNDER AN
ORDER FOR MAINTENANCE AND EDUCATION
WHEREAS an order for maintenance and education was made
on the…….day of……......…against……..of…………ordering
him to pay the sum of……….a week to…….towards the
maintenance and education of…………a child/young person
of the age of……………………
AND WHEREAS an order committing the said child/young
person to the care and supervision
of………………………..has this day been/was on
the…….day of………………..made by this court.
Cap. 44
Cap. 44
“Provisions as to
maintenance
and education
order.
64
AND WHEREAS the said…………………………has made
application for a contribution order.
IT IS HEREBY ORDERED that the payments to be made by
the said………………………………….under the said order
shall be made to……………………………….instead of to the
said…………………………..the first of such payments to be
made on the…….day of……………………so long as the said
order remains in force, to be applied in accordance with the
provisions of the Children and Young Persons Act.
Given under my hand this……day of…………………..20
at…………………………..”.
Marriage Act
Cap. 272
In the Second Schedule by
(a) deleting
(i) the number and words “1. Where the Infant is
legitimate.”;
(ii) the number and words “1. Where both parents are
living: (a) if parents living together;” appearing
under the heading “Circumstances” and substituting
therefor the following:
“1. Where both parents are living:
(a) if parents are living together, be they
married or cohabitants, that is to say,
persons who are living together for at
least three years as husband and
wife, although not legally married;”;
and
(b) deleting the number and words “2. Where the Infant is
illegitimate.” and all the words thereafter.
Registration of Births
and Deaths Cap. 276
(a) In section 17 by repealing subsection (2) and substituting
therefor the following:
“(2) A Justice shall not authorise the registration of
the birth of any child after the expiration of twelve months
following the day of the birth of the child unless either of
the parents or the guardian of the child has made a
declaration in writing before such Justice of the particulars
65
required to be registered touching the birth of such child
according to the best of the knowledge and belief of the
declarant, and such Justice shall sign the entry of the birth
in the Register as soon as conveniently may be after the
making of the declaration.”.
(b) by repealing section 18 and substituting therefor the following:
18. In the case of a child whose parents were
not married to each other at the date of his birth or
at any time during the period of ten months before
his birth, it shall not be lawful for the District
Registrar to enter the name of any person as the
father of such child in the register except
(a) at the joint request of the mother and
the person acknowledging himself to
be the father of the child;
(b) at the request of the mother on
production of
(i) a declaration made by the
mother stating that that person
is the father of the child; and
(ii) a statutory declaration made by
that person acknowledging
himself to be the father of the
child;
(c) at the request of the father on
production of
(i) a statutory declaration
acknowledging himself to be
the father of the child; and
(ii) a statutory declaration made
by the mother stating that that
person is the father of the
child; or
(d) at the request of the mother or that
person, which shall in either case be
made in writing, on production of a
“When name of
father of child
born out of
wedlock to be
entered.
66
certified copy of a declaration in
respect of proceedings to which
section 8 of the Status of Children
Act, 2013 relates, naming that
person as the father of the child.”.
Passed by the House of Assembly this day of , 2013.
INGRID MOSES-SCATLIFFE,
Speaker.
PHYLLIS EVANS,
Clerk of the House of Assembly.
67
MEMORANDUM OF OBJECTS AND REASONS
This Bill seeks to make provisions for the equal status of children throughout the Territory and
for connected matters.
The preliminary clauses (clauses 1 to 3) of the Bill would deal with provisions relating to the
short title and commencement, interpretation and the application of the Bill.
This Bill, set out in four Parts, would address the status of children in Part I, deal with parentage
in Part II, make provisions for disposition of property in Part III and for miscellaneous matters in
Part IV. The Parts in more detail are as follows:
Part I, “Status of Children”, would consist of clauses 4 to 7.
Clause 4 (1) would provide that all distinctions that exist as a result of the marital status of the
parents of a child shall be abolished.
Clause 4 (2) would provide that the status, rights, privileges and obligations of the parents and all
kindred of any child are the same but that this would not affect the status, rights, privileges and
obligations of the parents as between themselves. Subclause (3) would provide that for the
purpose of construing any enactment or instrument the use of words of relationship such as
“legitimate”, “illegitimate”, “lawful” or “unlawful”, “heir” or “issue” would be determined in
accordance with subclauses (1) and (2).
Clause 5 (1) would make provisions with respect to the presumption of paternity. It states that
unless there is proof to the contrary, on a balance of probabilities, there is a presumption that a
person is, and shall be recognised in law to be, the natural father of a child in any one of the
following circumstances:
(a) the person was married to the mother of the child at the birth of the child;
(b) the person was married to the mother of the child and that marriage was
terminated by
(i) death;
(ii) judgment of nullity; or
(iii) divorce where the decree nisi was granted, within ten months before the
birth of the child;
(c) the person marries the mother of the child after the birth of the child and
acknowledges by word or conduct that he is the natural father of the child;
68
(d) the person was a cohabitant with the mother of the child at the time of the birth of
the child, or the child was born within ten months after they ceased to be
cohabitants;
(e) the person has been adjudged or recognised in his lifetime or after his death by a
Court to be the father of the child;
(f) the person has signed an instrument with the mother of the child acknowledging
that he is the father and that instrument was executed as a deed or by each of them
in the presence of a legal practitioner or a Justice of the Peace or a registered
medical practitioner or a minister of religion or a marriage officer or a midwife;
but such an instrument shall be of no effect unless it is notarized and has been
recorded in the Registry;
(g) the person acknowledging that he is the natural father of the child, or that person
and the mother of the child have signed and executed an instrument to this effect
in the presence of a legal practitioner, but that instrument shall be of no effect
unless it is notarised and recorded in the Registry during the lifetime of the person
acknowledging himself to be the father;
(h) the person has acknowledged in the process of the registration of the child, in
accordance with the provisions of the Registration of Births and Deaths Act, that
he is the father of the child;
(i) the person who is alleged to be the father of the child has given written consent to
that child adopting his name in accordance with the provisions of the Registration
of Births and Deaths Act; or
(j) the person who is alleged to be the father of the child has by his conduct
implicitly and consistently acknowledged that he is the father of the child.
Subclause (2) would provide that where circumstances exist that give rise to presumptions of
paternity in respect of more than one father, no presumption would be made as to paternity.
Clause 6 would provide for the presumptions of parentage, where a child is born as a result of
artificial conception procedures. Subclause (1) would provide that if a child is born to a woman
as a result of the carrying out of an artificial conception procedure – (a) while the woman was
married to a man; and (b) the procedure was carried out with their consent, then whether or not
the child is biologically a child of the woman and of the man, the child is their child.
Subclause (2) would provide that, unless there is a valid contract to the contrary, if a child is born
to a woman as a result of the carrying out of an artificial conception procedure, the child is her
child whether or not it is her biological child. Subclause (3) would provide that subclause (1)
would apply to cohabitants where neither of them was married to another person.
69
Subclause (4) defines, for the purposes of the Bill, the terms “artificial conception procedure”,
“donor”, and “spouse”.
Subclause (5) would provide that a person is presumed to have consented to an artificial
conception procedure being carried out unless it is proved, on a balance of probabilities, that the
person did not consent.
Clause 7 (1) would provide for the filing of instruments referred to under clause 5 (1) (f) and (g)
to be filed in the Registry. Subclause (2) would provide that the records of all instruments and
copies filed with the Registrar General of the Civil Registry (hereinafter referred to as “the
Registrar”) to be kept in the Civil Registry (hereinafter referred to as “the Registry”) and to be
made available to persons for inspection where the Registrar is satisfied that that person has a
direct interest in the matter. Subclause (3) would provide that if the Court makes a declaration
under clause 8, the Registrar shall cause a copy of the declaration to be filed and on receipt of the
declaration, the Registrar shall amend the birth certificate of the child by inserting the name of
the natural father on the birth certificate stating that parentage has been established by a
declaration of the Court and shall file a copy of the declaration in the Registry.
Part II, “Parentage”, would consist of clauses 8 to 12 and would make provisions for the
declaration of parentage.
Clause 8 (1) would provide for instances in which a declaration of parentage may be made by the
Court. The clause would specifically provide that a person who:
(a) alleges that any named person is a parent of a child;
(b) alleges that the relationship of father and child exists between him and another
named person;
(c) alleges that the relationship of mother and child exists between her and another
named person; or
(d) having a direct interest in the result, wishes to have determined the question
whether the relationship of parent and child exists between two named persons,
then, that person may apply to the Court for a declaration of parentage, and the Court may make
such declaration whether or not the mother, father or child, or all of them are, living or dead.
Subclause (2) would provide that where a declaration is made and new facts or circumstances
subsequently arise that had not previously been disclosed to the Court, the Court may revoke the
declaration and thereupon the declaration shall cease to have any effect. Subclause (3) would go
on to provide that the Court shall not revoke a declaration unless it is satisfied that persons who
may be affected are notified and that such persons have the opportunity to be represented before
the Court with respect to the subject matter. Sublause (4) would provide that in any proceedings
in the Court, a declaration made pursuant to clause 8 shall be conclusive evidence of the matters
contained in it.
70
Clause 9 would make provisions for the carrying out of parentage testing procedures. Subclause
(1) would state that in any proceeding where the parentage of a child is required to be determined
the Court may, either
(a) on the request of the parties,
(b) on the request of a person representing the child, or
(c) of the Court’s own motion,
issue a direction for a parentage testing procedure to be carried out.
Subclauses (2), (3) and (4) would deal with the circumstances under which the Court may issue a
direction. Specifically, the Court, before issuing a direction would ensure that the relevant child
is sufficiently mature and has been counselled about the effects of the procedure and understood
the same, or if eighteen years or older, and after having been counselled and understood the
effects, has given consent to the procedure and that it is also in the best interest of the child to do
so. The Court would also issue a direction in relation to the child, a person believed by the Court
to be a parent of the child or to another person to be determined by the Court. The Court would
also be empowered to issue a direction requiring a person to submit to a parentage testing
procedure while addressing matters of cost of the procedure and reports to be made on the
procedure.
Subclauses (5), (6), (7), (8) and (9) would deal with revocation or variation of a direction and the
liability of a person carrying out the procedure. More specifically, the Court would be
empowered to vary or revoke a direction. And, although a person may not comply with a
direction to carry out a procedure, the Court could draw such inferences as it considers fit. A
direction relating to a child under the age of eighteen years or to a person suffering from a mental
disorder and incapable of understanding the procedure shall not be carried out unless the parent,
guardian or other person who has care and control of that child or person, consents to the
procedure.
Clause 10 would provide that the Court may, before making a determination under clause 9,
appoint a guardian ad litem for a child or person suffering from a mental disorder. And would
provide that, in deciding whether to issue a direction under clause 9, the Court shall (a) consider
all objections made by a party to the proceedings or a person representing a child and (b) if the
Court determines that an objection is valid it would be taken into account.
Clause 11 would make provisions requiring the Laboratory Director to provide the Court with
the report from an approved laboratory that carried out the parentage testing procedure stating
the results of the test. This clause would also empower the Court to require, if it sees fit, the
Laboratory Director to come before it and to provide explanation, clarification, or interpretation
of the report. A report provided to the Court could be received in evidence in any proceedings
under this Bill and where it is received in evidence the Court would be empowered to make an
71
order requiring the Laboratory Director or another person to appear and give evidence in relation
to the report.
Clause 12 would make provisions allowing the Minister to approve any laboratory recommended
by an accreditation agency for the purpose of carrying out parentage testing procedure.
Part III, “Disposition of Property”, would consist of clauses 13 to 15 and would make provisions
for the disposition of property before and after the commencement of the Bill. Clause 13 would
provide for gifts inter vivos and for transitional provisions relating to instruments that were
executed and became effective prior to the commencement of the Bill, such as a will of a person
who died before the commencement of the Bill. Such instruments are held, by virtue of
subclause (1) to be governed by the enactments, rules of construction and law which would have
applied to them if the Bill had not come into operation. Subclause (2) states that where an
instrument to which subclause (1) applies creates a special power of appointment, nothing in the
Bill shall extend the class of persons in whose favour the appointment may be made, or cause the
exercise of the power to be construed so as to include any person who is not a member of the
class.
Clause 14 would provide that for the purposes of administration or distribution of an estate or
property, an executor, administrator, or trustee of an estate or property shall, whenever it is
material in the circumstances, make honest and reasonable inquiries as to the existence of any
person who could claim an interest in the estate or property by reason only of the provisions of
the Bill. The executor, administrator or trustee is however not obliged to pursue such inquiries
further than he or she honestly and reasonably believes to be necessary.
Clause 15 would make provision to protect an executor, administrator or trustee from an action
being taken against them by a person who could claim an interest in property by virtue of the
provisions of the Bill where that executor, administrator or trustee had no notice of the
relationship on which the claim is based at the time when the distribution of the estate or
property was made.
Part IV, “Miscellaneous”, would consist of clauses 16 to 20 and would make general provisions
relating to hearings, existing rights, regulations, consequential amendments, repeals and savings.
Clause 16 would make provisions requiring hearings of an application under Part II not to be
made in open court. It would make provisions prohibiting persons from publishing the identity
of any person involved in the proceedings. The clause would also make a penal provision for
persons in breach of the provision against publishing.
Clause 17 would make provisions protecting existing rights.
Clause 18 would make provisions which would give the Minister responsible for Health and
Social Development the power to make regulations and would specifically give the Minister
power to make regulations respecting the following:
(a) forms,
72
(b) the carrying out of parentage testing procedures,
(c) the preparation of reports,
(d) fees,
(e) the carrying out of conception procedures, and
(f) matters necessary for giving effect to the Bill.
Clause 19 would deal with consequential amendments and would relate to the Schedule to the
Bill, where certain Acts (the Adoption Act Cap.269, the Children and Young Persons Act, 2005
(No. 8 of 2005), the Marriage Act Cap. 272, and the Registration of Births and Deaths Act Cap.
276) are amended in order to bring them in sync with the aims and objectives of this Bill, and to
remove discriminatory provisions and language against children born out of wedlock. The
Adoption Act would be amended to allow a child who is adopted by his natural father to claim
on intestacy as one of his father’s children. The Children and Young Persons Act would be
amended to reflect an amendment to the Magistrate’s Code of Procedure Act wherein the
affiliation order was removed and replaced with the order for maintenance and education thereby
allowing both parties to be held accountable for the maintenance and education of his or her
child or children. The Marriage Act would be amended to remove the provision which states
that the parent or guardian eligible to give consent to the marriage of a child where either child is
under eighteen years of age and not a widow or widower is dependent on whether or not that
child was born in wedlock. The Registration of Births and Deaths Act would be amended to
provide that where a child was born out of wedlock a man would not be registered as the father
of such child unless
(a) at the joint request of the man and the mother,
(b) at the request of the mother on production of statutory declarations coming from
herself stating that the man is the father of the child and another made by the man
acknowledging the same,
(c) at the request of the man on production of statutory declarations coming from
himself acknowledging that he is the father of the child and another made by the
mother stating that the man is the father of the child, or
(d) at the written request of the mother or the man on production of a certified copy
of a declaration in respect of proceedings to which clause 8 of this Bill relates,
naming the man as the father.
Clause 20 would deal with repeal and savings and would repeal the Legitimacy Act. This Act
modifies the common law regarding the discriminatory treatment of children born out of
wedlock. However, even in the instances where the Act attempts to soften the discriminatory
effect of the common law it still perpetuates the discrimination. For instance, the Act provides
that persons whose parents were subsequently married after their birth had an opportunity to
acquire legitimacy status in law. However, this privilege is not extended to persons whose birth
were the result of an extra-marital affair by one or the other parent.
Top Related