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Worksheet #1 - Status of Children

The document outlines the legal status of children, focusing on legitimacy and paternity laws in the Commonwealth Caribbean, particularly in Guyana. It discusses historical perspectives, common law presumptions, statutory modifications, and the establishment of parentage through various legal provisions. Key legislative acts and case law are referenced to illustrate the evolution and current framework of family law regarding children born out of wedlock.

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21 views3 pages

Worksheet #1 - Status of Children

The document outlines the legal status of children, focusing on legitimacy and paternity laws in the Commonwealth Caribbean, particularly in Guyana. It discusses historical perspectives, common law presumptions, statutory modifications, and the establishment of parentage through various legal provisions. Key legislative acts and case law are referenced to illustrate the evolution and current framework of family law regarding children born out of wedlock.

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gabriellaanamartinez
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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UNIVERSITY OF GUYANA LAW 3202 – FAMILY LAW

11
FACULTY OF SOCIAL SCIENCES
DEPARTMENT OF LAW WORKSHEET
1

Lecturers: Ms. Alexis Downes-Amsterdam, Attorney-at-Law


Ms. Faye Barker, Attorney-at-Law
Mr. Chukwuma Oriuwa, Attorney-at-Law

STATUS OF CHILDREN

A. Reading:
Deech, “The Reform of Illegitimacy Law” 10 Fam. Law 101
Hayes, “The Use of Blood Tests in the Pursuit of Truth” 87 LQR 86

Legitimacy Act, Cap. 46:02


Children Born Out of Wedlock Removal of Discrimination Act, # 12 of 1983
Status of Children Act 2009, Guyana
Families and Children Act, CAP 173, Belize (Part IV & VIII)
Status of Children (Reform) Act, Barbados

B. Legitimacy

1. Historical Overview
Like most systems of jurisprudence, the law in the Commonwealth Caribbean based legal
relationship between the parent and the child not simply on the fact of parenthood but upon
the concept of legitimacy, to be determined by reference to the existence of a valid marriage
of the parents. This position led to the development of curious rules. For instance, general
words such as issue, children or descendants were construed as to applying to legitimate
children only unless there was a clear intention to the contrary.
See too Hill v. Crook (1873) LR 6 HL 265 and Re Lewis 15 WIR 520

Hogan v. Hogan [1983] 1 WLR 1232


Syndall v. Castings Ltd [1966] 3 All ER 770

2. Common law and Legitimacy/ Paternity

(i) Presumptions:
At common law no child is legitimate unless his parents are married to each other at the time
of his conception or the time of his birth. There is thus a presumption at common law that a
child born into a marriage is legitimate.

Where a child is born to a married woman, the husband is presumed to be the father of the
child. The presumption is a rebuttable one, the burden being on the person seeking to displace
the presumption.
The Ampthill Peerage Case [1976] 2 All ER 411
Estate of Princess Nina Aga Khan 19 WIR 102
Re Pellitiri [1991] 1 Qd R 154 (Aus) 1992 Commonwealth Law Bulletin 482

The presumption equally applies –

(a) Where the child is born within the possible period of gestation after the marriage has been
terminated by the death of the husband.
Re Heath [1945] 1 Ch 417
Re Overbury [1955] 1 Ch 122
Preston-Johnson v. Preston-Jones [1951] 1 All ER 124
F v. F [1968] 1 All ER 242
Cotton v. Cotton [1954] 2 All ER 105

(b) To a child conceived during the marriage but born within the normal gestation period
after the marriage has been terminated by divorce.
Knowles v. Knowles [1962] 1 All ER 659
Re Leman’s Will Trust 115 LJ Ch 89
Evans v. Evans [1940-7] All ER Rep. 110

(c) To a child conceived by premarital intercourse but born during the marriage – irrespective
of how soon after the marriage the child is born. By marrying the mother, the husband is
prima facie taken to have acknowledged the child as his. Gardner v. Gardner [1877] 2 AC
723

(ii) Rebuttal of Presumption - Evidence


The presumption of legitimacy is based on two factors. First, proof that the parties had sexual
intercourse, and second, that the child is the issue of that intercourse.
Banbury Peerage Case 57 ER 62
Aylesford Peerage Case (1885) 11 App. Cas. 1
Francis v. Francis
B v. B [1969] 3 All ER 1106
Re Js [1980] 1 All ER 1061
Morris v. Davies [1935 – 42] 3 All ER Rep. 271
Cotton v. Cotton [1954] 2 All ER 105
Poulett Peerage [1903] AC 395

(iii) Rebuttal of Presumption – Standard of Proof


Jagroop v. Singh
Estate of Princess Nina Aga Khan
S v. Mc C [1972] AC 24
F v. F [1968] 1 All ER 242
Blyth v. Blyth [1966] AC 643

3. Statutory Legitimacy
The Legitimacy Act, Cap. 46:02 has modified the common law rules by introducing
principles of statutory legitimacy. The Act provides, inter alia, that an illegitimate child (a
child born out of wedlock) is legitimated by the subsequent marriage of his parents.

The Adoption of Children Act also provides for the legitimation of an illegitimate or out of
wedlock child upon adoption.
4. Statutory Presumption/ Determination of Paternity/Parentage
The common law presumption of legitimacy is in effect the presumption of paternity in the
case of a legitimate child. The common law presumptions do not apply to the out of wedlock
child. To make provision for the determination of paternity of the out of wedlock child,
affiliation legislation and later Status of Children Legislation was enacted.

Status of Children legislation sets out presumptions in a number of circumstances -


(i) Presumption of paternity arising from marriage.
(ii) Presumption of paternity arising from acknowledgements.
(iii) Presumption of paternity arising from cohabitation.
(iv) Presumption of paternity arising from registration of Birth.
(v) Presumption of paternity arising from findings of Courts.
(vi) Presumption of parentage arising from use of fertilisation procedure.

Patrick Murray et al v. Verly Murray, Civil Appeal # 90/96 CA Guyana


Re Keith Chase Action # 57-M 1999, Unreported, Moore, J
Gaines v. W [1986] 1 All ER 189
Thompson v. Goodridge (1968) 12 WIR 103
Corfield v. Hodgson [1966] 2 All ER 203
H v. B 30 WIR 158
Duffus v. Williams 17 WIR 373
Jeffers v. Noel (Unreported) 15 June 1994, HC, T&T
Application of Garcia (Unreported) 11 October 1993, HC, T&T

5. Other provisions relating to the establishment of parentage


s. 21 and 22 Status of Children Act Guyana – The Court is empowered to make a
declaration of motherhood or Declaration of fatherhood once it is satisfied that a person is at
law the mother of father of a child.

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