Historically, a child of unmarried parents had an inferior legal status. The child was deemed illegitimate and was excluded from rights which would be available to a “legitimate” child whose parents were married. This policy of the common law was designed to promote marriage and penalise the bearing of children outside marriage.
The Legitimacy Act 1931 confirmed certain rights of non-marital children. Succession rights in respect of the child’s mother applied. A procedure existed for application for an affiliation order by which a father of a non-marital child might be declared to be such and made liable to contribute towards the child’s maintenance.
The modern law on the status of children is contained in the Status of Children Act 1987.
The Status of Children Act endeavours to remove the concept of illegitimacy and establish equality for all children, irrespective of whether their parents are married or not.
There remain certain significant distinctions, particularly in respect of the rights of the non-married father. The non-married father is not automatically the guardian of the child and must apply to be so appointed.
Where parents subsequently marry, under the Status of Children legislation, their children are legitimated.
General Treatment & Interpretation
The Status of Children Act provides that in the interpretation of legislation and laws, relationship is traced between a child and his father and mother, irrespective of whether the father and mother are married unless any indication to the contrary appears. This principle also applies to legal documents such as wills, deeds, etc. If a non-marital child is to be excluded from the benefit of a general clause referring to “my children” etc., this must be specified in the document concern.
An immediate effect of the legislation is that the Succession Act is to be interpreted as referring both to marital and non-marital children in relation to succession rights. This includes the fixed shares of children in intestacy and the right for children to apply for relief to court under section 117 of the Succession Act on the basis that the deceased parent has failed in his or her moral duty to make proper provision for the child in accordance with its means.
Presumptions of Parentage
Historically, there was a presumption that a child born to parents who were married to each was legitimate. It was very difficult to prove the contrary. The standard of proof required was very high.
The Status of Children Act provides the following presumptions. If a woman gives birth to a child during a marriage to which she is party or within 10 months of termination, the husband of the marriage is presumed to be the father of the child unless the contrary is proved on the balance of probability.
In the case of the married woman who is living apart from her husband, where a child is born more than 10 months after the date of separation, the husband is presumed not to be father unless the contrary is shown on the balance of probabilities. The date of separation is
- the date on which a decree of judicial separation was granted in relation to them,
- the date on which a deed of separation or separation agreement was entered into by them, or
- such other date as may be established by the woman.
Where the birth of a child is registered and a person is entered on the register as the father, he is presumed to be the father unless the contrary is shown on the balance of probabilities.
Formerly, at common law, it had been impermissible for a husband or wife to give evidence to prove that marital intercourse did or did not take place during any period. This rule was reversed by legislation.
The presumptions of parentage were amended in 2015. In the case of a mother who is married at the time a child is born or was married at the time the child was conceived, there is a rebuttable presumption in relation to parentage.
The husband of the woman is not presumed to be father if the child was born ten or more months after the date of separation. The presumption may be rebutted by taking into account the date on which the decree of judicial separation was issued or any other verbal evidence that may be given by the mother.
Declarations of Parentage
The courts have the power to declare parentage. This may occur in contested proceedings between the parents or the alleged parent. It may sometimes arise as an issue in proceedings between third parties, for example, in relation to succession. In the latter type of case, the parties may lack direct relevant knowledge.
Any person other than an adopted person may apply to the Circuit Court for a declaration that the person named in the application is his parent or that both are his parents.
In many cases, paternity will be admitted and accepted without dispute. In other cases, it may be disputed. It may arise as an issue in cases concerning maintenance, guardianship, or succession. The presumptions mentioned above will be the starting point. The position may be agreed upon by all parties, or a court order may be required.
Evidence of Parentage
Evidence of paternity, in the event of a dispute, may be that the parties were cohabiting and slept together at the relevant time. Other probative evidence may be offered.
Circumstantial evidence is not conclusive, The 1987 legislation provides for paternity tests by way of a blood test/sample and, laterally, a DNA test which is strongly probative.
The Child and Family Relationship 2015 widens the category of persons who may apply for a declaration of parentage. The use of DNA testing replaced blood testing.
The Court may order blood test/DNA samples to be taken either on its own initiative or on the application of a party. Consent is required for the taking of a blood test/sample. Parental consent or guardian consent is required for a minor.
The provisions in respect of blood tests / DNA are modernised. Courts may direct the use of DNA testing rather than blood testing to establish parentage. DNA testing can generally be undertaken with less invasive procedures than blood testing. Blood testing is still possible where the DNA testing is inconclusive.
The court may accept a minor as capable of consenting, although under 18 years. Where the parents or guardians in whose custody the child is, cannot agree, consent is not regarded as given.
Where a person is suffering from a mental disorder, the person whose control he or she is under may consent to the test. Where there is a failure to take a blood test/sample, the court may draw such inferences as are appropriate in the circumstances.
Applications for a declaration of paternity are made before the court in a private session.
Court orders may be made in respect of deceased parties. If necessary, it may be possible to obtain an order of exhumation.
A non-married father/partner does not acquire rights or duties to the children other than the limited rights that may apply by being in loco parentis, i.e., in place of the parent.
The father may apply to adopt the child, in which event the legal relationship of child and parent will exist by reason of adoption. The consent of the natural father would be required to adoption where he is the guardian of the child either by court order or agreement.
The matter of registration of birth is dealt with in a separate chapter. The maternity hospital of parents may register the birth. If the child’s parents are not married, the practice is to register the mother’s name only, in default of registration otherwise.
Procedures exist to register both names, which requires that both parents attend at the Registrar’s office. Alternatively, proof must be given of the father’s acknowledgement of paternity. Similarly, if the father attends, the mother must confirm paternity; otherwise, a court order is necessary”.
The Child and Family Relationship 2015 widens the category of persons who may apply for a declaration of parentage. The use of DNA testing directly replaced blood testing.
A person may apply for a declaration of parentage stating that the person or persons named in their application is or are the parents. The parties may be the person whose parentage is in question, persons alleging that he is the person’s parent, and a person alleging that he or she is not the person’s parent.
Anyone other than a person whose parentage is in question who makes an application for a declaration must put that person on notice of the application. The discretion of the Court to refuse to hear an application for declaration of parentage is removed. It is presumed to be in the best interests of the child to allow the Court to establish identity in an application brought by the child or any person claiming to be, or not to be the parent of the child.
The Court may declare that a person is, or two people are, the parents of a child. The Court has the power to make a declaration, on the basis of evidence provided, that a specified person is not the parent of the child concerned.
The definition of ‘blood test’ and ‘blood samples’ are amended by addition of definitions of ‘DNA test’ and ‘bodily sample’.
A ‘parent’ excludes a ‘donor’ in the case of assisted human reproduction. Testing to establish parentage is used only to the extent that the person tested provided a gamete that was used in the procedure leading to the child’s birth and is the child’s parent under the legislation, and not a donor.
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