Status of Children Act, 2013

No.

of 2013

VIRGIN ISLANDS STATUS OF CHILDREN ACT, 2013 ARRANGEMENT OF SECTIONS

Section PRELIMINARY 1.

2.

3.

Short title and commencement.

Interpretation.

Application.

PART I STATUS OF CHILDREN

4.

5.

6.

7.

All children of equal status.

Presumption of paternity.

Presumption where child is born as a result of artificial conception procedures.

Instruments filed in Registry.

PART II PARENTAGE

8.

9.

10.

11.

12.

Declaration of parentage.

Parentage testing procedure.

Matters to be taken into account by Court in making determination.

Reports of parentage testing procedure.

Approval of laboratory.

PART III DISPOSITION OF PROPERTY

13.

14.

15.

Transitional provisions relating to instruments.

Persons dealing with property after the commencement of this Act. Protection of executors, administrators and trustees.

PART IV MISCELLANEOUS

16.

17.

18.

19.

20.

Hearing.

Existing Rights.

Regulations.

Consequential amendments.

Repeal and savings.

SCHEDULE 48

No.

of 2013

Status of Children Bill, 2013

Virgin Islands

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 Short title and commencement.

Interpretation.

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;

49

“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;

Cap. 80

“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

No. 4 of 2000

(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.

Application.

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;

50

U.K.S.I. 2007 No.1678

(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 All children of equal status.

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).

Presumption of paternity.

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; 51

(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.

Cap. 276

Cap. 276

(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.

Presumption where child is born as a result of artificial conception procedures.

6. (1) If a child is born to a woman as a result of the carrying out of an artificial conception procedure

52

(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,

53

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.

Instruments filed in Registry.

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 Declaration of parentage.

8. (1)

A person who (a)

alleges that any named person is a parent of a child; 54

(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.

Parentage testing procedure.

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,

55

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)

(b) (3)

(4)

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

it is in the best interest of the child to do so.

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.

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 56

(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.

Matters to be taken into account by Court in making determination.

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 57

(b) Reports of parentage testing procedure.

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.

58

Approval of laboratory.

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 Transitional provisions relating to instruments.

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.

Persons dealing with property after the commencement of this Act.

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.

Protection of executors, administrators and trustees.

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

59

(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 Hearing.

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.

Existing Rights.

17.

This Act does not affect rights that became vested before its commencement.

Regulations.

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;

60

Consequential amendments.

Schedule

Repeal and savings.

Cap. 271

(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.

61

SCHEDULE [Section 19] ENACTMENTS AMENDED Enactments Adoption Act Cap. 269

Amendments 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

(a)

In section 33 by repealing subsections (2) and (3) and substituting therefor the following:

(No. 8 of 2005)

Cap. 44

Cap. 44

“(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.”.

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(b)

by repealing section 34 and substituting therefor the following: “Provisions as to maintenance and education order.

Cap. 44

Cap. 44

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.

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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)

(b)

Registration of Births and Deaths Cap. 276

(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

deleting the number and words “2. Where the Infant is illegitimate.” and all the words thereafter.

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 64

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: “When name of father of child born out of wedlock to be entered.

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)

(d)

65

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

at the request of the mother or that person, which shall in either case be made in writing, on production of a

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.

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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

(c)

(i)

death;

(ii)

judgment of nullity; or

(iii)

divorce where the decree nisi was granted, within ten months before the birth of the child;

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;

67

(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.

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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.

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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

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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)

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(b) (c) (d) (e) (f)

the carrying out of parentage testing procedures, the preparation of reports, fees, the carrying out of conception procedures, and 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.

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