Putting the child first

Charles Dickens’ Oliver Twist is not precisely a Christmas story but just desserts and happy endings are well supplied and at the end of the day all is right with the world.

The journey to happily ever is through the eyes of an orphan boy who has been cast up the parish/welfare system and who does his best to survive in the wake of his mother’s death and his father’s unexplained absence. One of the greatest insults he receives during the course of the tale is when his mother is described as “a regular right-down bad ‘un” which leads him to defend her honour, such as it was.

The English Poor Laws provided, among other things, for the care of what were familiarly known as bastards (children born out of wedlock), and required them to be supported by the church parish. These laws could best be described as harsh and for example circa 1609 English statutes provided that “any lewd woman” having had a bastard chargeable [to the parish could] be sent to the house of correction for a year. Circa 1743, a bastard born in a place where the mother is not settled is to have its mother’s settlement while the mother’s “just desserts” was a public whipping.

Eventually the winds of humanitarian change began to blow and reached these shores on January 1, 1980 via the Status of Children Reform Act, Cap. 220. Section 3 essentially legitimised all children in this island, whether born before or after that date by providing that “the distinction at common law between the status of children born within or outside of marriage is abolished and all children shall … be of equal status…”

The Family Law Act Cap. 214 followed in 1982 and gave equal status to the unions of persons who cohabited for five years but had simply not tied the knot. Since marriage was no longer to be the determining factor in whether a child could claim a particular individual as his father, a number of legal constructs referred to in law as “presumptions” were created to ascribe paternity.

Section 7 of the act generally provides that a male person may be recognised in law to be the father of a child where:

1) he is married to the mother at the time of the birth;

2) he was cohabiting with the mother at the time of the birth and the child is born within 280 days after the end of the relationship;

3) a court determines that he is the father;

4) he affirms that he is the father whether by swearing an affidavit or signing a deed to that effect jointly with the mother, declaring paternity when the birth is registered or where he has “by his conduct implicitly and consistently acknowledged that he is the father of the child”.

Presumptions can always be displaced by cold hard facts. The standard for such displacement is on a balance of probabilities or in other words, whether in the circumstances it is more likely than not that the individual will hear the voice of Maury Povich saying “you are not the father”.

Generally a person requires “locus standi” (standing) to bring a matter before the court. However, the law is concerned first and foremost with the welfare of the child and as such section 9 makes it possible for “any person having an interest in a child” to apply to the court for a declaration as to paternity.

In the “dark ages” of court proceedings, paternity was determined by using either the highly fallible blood test (which only disproves paternity but cannot indicate which particular individual is the father) or the even more fallible court trial where all and sundry were treated to the sordid details of the relationship or lack thereof and the mother’s general sexual reputation.

The advent of DNA testing has changed the way in which such matters are handled, and might I add for the better, since such testing puts it beyond reasonable doubt whether or not a particular male is the father of the child in issue.

We are told that there is a pot of gold at the end of every rainbow and in the circumstances discussed in this article, legitimisation and equality of status translate to a share of a father’s intestate estate or in circumstances where the child is still a minor, provision must be made no matter what the contents of the father’s last will and testament.

Many a child who would have been left out in the cold has reaped significant benefits as a result of the change wrought on New Year’s Day almost 23 years ago.

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