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;

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(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) forms,

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(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.