The Gazette 1989

DECEMBER 1989

GAZETTE

Section 44 are effectively replaced by presumptions of paternity and non - pa t e r n i ty repectively at Section 46. Findings of parentage in guardianship or maintenance proceedings are to be accepted as prima facia evidence in subsequent proceedings. All these presumpt- ions are now rebuttable on the balance of probabilities. Section 47 give statutory recog- nition to the decision of the High Court in S-v-Sl 19837 IR 68 which abolished the old rule (known as the rule in Russell -v- Russell) whereby spouses could not give evidence which would tend to show that a child of one of them was illegitimate. Part IX of the Act changes the registration of births with regard to the registration of the father where the parents are unmarried. Before the Act, both unmarried parents had to attend at the registration office to sign the register. With the passing of the Act the position for unmarried parents is now the same as for married parents. The details for registration of a birth for both marital and non marital children may now be supplied to the Reg- istrar by a person who attended at the birth or a member of the staff of the hospital. The procedure set down in S -v- S (supra) for the registration of the father of the child in circumstances where the said father is not the husband of the mother (married to another) and where no presumpt- ion of non-paternity arises and all three are consenting thereto, was put on a statutory footing. Whereas before the decision in S -v- S, a Court declaration of paternity was necessary to place the real father on the register, now, where all three parties consent, the Registrar may record the real father on the register. Cases under Part V of the Act Re JGG, 12th June, 1 9 8 9, Gannon J., unreported. Facts: The testator died on the 4th of October 1988, a bachelor with- out parent, brother, sister or nephew leaving him surviving one lawful and only niece. The testator executed a Will on the 30th day of June 1977 leaving all the residue of REGISTRATION AND REREGISTRATION OF BIRTHS

The Law Reform Commission, following broadly the views of its English courterpart, recommended that it should be open to the mother, a man alleging that he is the father, the child and any person with a proper interest to take pro- ceedings seeking a declaration of parentage. The Commission wisely pointed out that the necessity for such a declaration would arise in the case where an executor or administrator had received prior information of the existence of a person who claimed to be a parent and would as such be concerned in the administration of the estate. It is probably true that most applications for declarations as to parenthood by putative fathers or by those claiming through them would be made in the course of proceedings seeking other relief e.g. a claim for a declaration of par- entage in order to establish suc- cession rights to a deceased child. The Probate Officer will always require a Court Order to establish the legal relationship between father and child, rebutting the pre- sumptions set out in Sections 4A(2) of the 1965 Act and 30 of the 1987 Act in situations where the father's name does not appear on the birth certificate. If such applicants were permitted to establish the relationship by Court declaration in the child's lifetime they would be able to avail of the blood tests denied them in suc- cession proceedings on the child's death. Obviously few wou ld have sympathy for a father who would delay seeking to establish his pater- nity until after the child's death. In other situations, however, a father may have perfectly good reasons for seeking a declaration of par- entage of a child. Likewise, he may wish to establish that the relation- ship between the child and himself does not exist. This right would be desirable where a false allegation of paternity has been made or a rebuttable presumption has arisen but is contested. Such a father has no right to seek a declaration of non-parentage under the Act, but must hope the child will make an application for a declaration under Section 35 which he could then successfully defend. It is submitted that in a situation where no relief is sought other than a declaration of parentage, a claim-

ant under the Act, not entitled to apply under Section 35 thereof, is entitled to apply to the High Court for such a declaration. The High Court has full and original jurisdiction to hear and determine all matters of justiciable contro- versy and provision is specifically made in Order 79 Rule 29 of the Superior Court Rules for the making of binding declarations whether any consequential relief is or could be claimed. The applicant must of course prove his locus standifor making the application to the satisfaction of the Court. Furthermore, as stated above, Section 34 of the Act specifically acknowledges that the jurisdiction conferred on the Circuit Court under Section 35 is in addition to other jurisdiction already in the Courts to make such declarations. BLOOD TESTS Part VII of the Act deals with blood tests. Section 38 of the Act em- powers the Court of its own motion or on application by any party to the proceedings to give a direction for the use of blood tests to assist the Court in determining questions of parentage in civil proceedings. The definition of blood tests is wide enough to avail of the major tech- nological developments in this field including DNA profiling. While blood tests were used before, the major innovation in the Act is to allow the Court, where a party refuses to give a blood sample, to draw what inferences it thinks appropriate from the refusal to give a sample (Section 42(1)). The Court may dismiss proceed- ings for a declaration of parentage if a party (obviously bringing the proceedings) refuses to comply with its direction (Section 42 (2)). Where a party who refuses to comply with said direction seeks to rely on a presumption of paternity in his favour the Court, notwith- standing that such presumption has not been rebutted, may dismiss his claim (Section 42(3)). PRESUMPT IONS AND EVIDENT IAL PROVISIONS Part VIII of the Act makes a number of significant changes in the law of evidence. The presumptions of legitimacy arising out of marriage and illegiti- macy arising out of divorce a mensa et thoro abolished by

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