2023 STATUS OF CHILDREN ACT 10
COMMONWEALTH OF DOMINICA
ARRANGEMENT OF SECTIONS
Section
PRELIMINARY
1. Short title and commencement. 2. Interpretation. 3. Application.
PART I
STATUS OF CHILDREN
4. Determination of relationship. 5. Presumptions of paternity. 6. Determination of paternity upon void marriage. 7. Instruments filed in the General Register Office. 8. Presumptions where child is born as a result of artificial
conception procedures.
PART II
PARENTAGE
9. Recognition of paternity for purposes of succession. 10. Declaration of parentage. 11. Parentage testing procedure. 12. Matters to be taken into account by Court in making
determination. 13. Reports of parentage testing procedure. 14. Approved laboratory. 15. Equal rights of father upon establishment of paternity.
51
2023 STATUS OF CHILDREN ACT 1052
PART III
DISPOSITION OF PROPERTY
16. Disposition of property before commencement of the Act.
17. Persons dealing with property after the commencement of this Act.
18. Protection of executors, administrators and trustees.
PART IV
MISCELLANEOUS
19. Hearings. 20. Existing rights. 21. Regulations. 22. Repeal and savings. 23. Existing law.
SCHEDULE
COMMONWEALTH OF DOMINICA
ACT NO. 10 OF 2023.
I Assent
CHARLES A. SAVARIN President
9th May, 2023
AN ACT TO PROVIDE FOR THE EQUAL STATUS OF CHILDREN, TO REMOVE ALL DISCRIMINATORY PROVISIONS IN THE LAWS RELATING TO A CHILD BORN OUT OF WEDLOCK AND TO PROVIDE FOR RELATED MATTERS.
(Gazetted 11th May, 2023.)
BE IT ENACTED by the Parliament of the Commonwealth of Dominica as follows:
PRELIMINARY
1. This Act may be cited as the —
STATUS OF CHILDREN ACT, 2023.
Short title.
LS
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2023 STATUS OF CHILDREN ACT 1054
2. In this Act—
“attorney-at-law” means a person who has been admitted to practice law in Dominica;
“child” includes a person who has attained the age of eighteen years;
“cohabitant” means a person who is living or has lived with a person of the opposite sex as a husband or wife although not legally married to that person;
“Court” means the Magistrate’s Court;
“General Register Office” means the Births’ and Deaths’ General Register Office referred to in section 3 of the Registration of Births and Deaths Act;
“marriage” includes—
(a) a void marriage; and
(b) a voidable marriage that has been annulled by a court;
“Minister” means the Minister responsible for legal affairs;
“parent” means a biological father or biological mother of a child as the circumstances require, and includes an adoptive mother or adoptive father;
“parentage testing procedure” includes—
(a) the taking of tissue fluid or other bodily sample from a person and the scientific examination of the sample; and
(b) any test carried out on a person involving the application of medical science; and
Interpretation.
Chap. 35:20.
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(c) any other prescribed medical procedure,
for the purpose of obtaining evidence with respect to parentage;
“Registrar General” means the Registrar General of Births and Deaths appointed under section 3 of the Registration of Births and Deaths Act.
3. This Act applies to a child, whether or not —
(a) the child was born in Dominica;
(b) the child was born before or after the commencement of this Act; or
(c) the parents of the child have ever been domiciled in Dominica.
PART I STATUS OF CHILDREN
4. (1) Subject to sections 16, 17 and 18, the legal distinction in the status 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) The rule of construction whereby in any instrument, in the absence of expression to the contrary, words of relationship signify only legitimate relationships, is abolished.
(3) For the purpose of construing any instrument the use, with reference to relationship of a person, of the words “legitimate” illegitimate”, “lawful” or “unlawful” shall not of itself prevent the relationship from being determined in accordance with subsection (1).
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
Chap. 35:20.
Application.
Determination of relationship.
Presumptions of paternity.
2023 STATUS OF CHILDREN ACT 1056
recognised in law to be, the biological father of a child if —
(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) judgement of nullity; or
(iii) divorce where the decree nisi was granted,
during the ten month period immediately preceding 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 biological father of the child;
(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 of competent jurisdiction to be the biological father or putative 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 an attorney-at-law or a Justice of the Peace or a registered medical practitioner or a minister of
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religion or a marriage officer or a midwife; but such an instrument; shall be of no effect unless it has been recorded in the General Register Office;
(g) the mother of the child or the person acknowledging that he is the biological father of the child, or both have signed and executed an instrument to this effect in the presence of an attorney at law, but that instrument shall be of no effect unless it is notarised and recorded in the General Register Office 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 law relating to the registration of births, 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, evidenced by a deed poll pertaining to a notice change of name; 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. For the purposes of section 5, where a man and a woman, in good faith go through a form of marriage that is void, they shall be deemed to be married for the period during which they cohabited, and the presumption referred to in section 5(1)(b) shall apply accordingly.
Determination of paternity upon void marriages.
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7. (1) An instrument referred to in section 5(1)(f) and (h) must, be filed in the General Register Office.
(2) The Registrar General shall cause records of all instruments and copies filed under subsection (1) to be made and kept in the General Register Office and shall, on request made by any person who the Registrar General is satisfied has a proper 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.
(3) If the Court makes a declaration under section 10 —
(a) the Court shall cause a copy of the declaration, to be filed in the General Register Office under this section; and
(b) on receipt of the declaration, the Registrar General shall amend the birth certificate of the child by inserting the name of the biological 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 General Register Office as if it were an instrument referred to in section 5.
8. (1) For the purposes of this Act, whether or not a child is biologically a child of the woman and of the man, the child is deemed to be their child, if —
(a) the child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to a man; and
(b) the procedure was carried out with the consent of both parties.
(2) 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
Instruments filed in the General Register Office.
Presumptions where child is born as a result of artificial conception procedures.
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is biologically a child of the woman, the child is deemed to be her child for the purposes of this Act.
(3) If a child is born to a woman as a result of the carrying out of an artificial conception procedure then, whether or not the child is biologically a child of the man, the child is deemed to be his child for the purposes of this Act.
(4) Subsection (1) applies to cohabitants as if —
(a) they were married to each other; and
(b) neither person were married to any other person at the time of the conception of the child.
(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.
PART II PARENTAGE
9. (1) Notwithstanding section 4(2), the relationship of father and child, and any other relationship traced in any degree through that relationship shall, for any purpose related to succession to property or to the construction of any will or testamentary disposition or of any instrument creating a trust or for the purpose of any law relating to succession, be recognised only if a circumstance referred to in section 5(1) exists and give rise to the presumption of paternity in respect of one father.
(2) Where, by reason of subsection (1) and section 5, the relationship of father and child is not recognised at the time the child is born, the occurrence of any act, event or conduct which enables the relationship and any relationship traced in any degree through it to be recognized shall not affect any estate, right or
Recognition of paternity for purposes of succession.
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interest in any real or personal property to which any person has become absolutely entitled, whether beneficially or otherwise before the act, event or conduct occurred.
(3) Where the event that enables a relationship to be recognised under subsection (1) and section 5 is a declaration made under section 10 after the death of the father, the declaration shall, for the purposes of subsection (2), be taken to have been made immediately before the death of the father, if the declaration is made in consequence of an application made before the death of the father, or within six months, or such further time as the Court upon application duly made in that behalf allows, after the death of the father.
10. (1) 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 proper 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 the 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 made to appear to the Court on application being made to it that new facts or circumstances have arisen that have not previously
Declaration of parentage.
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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, the Court may make an order revoking the declaration and 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, all persons whose interests are or may be affected by the declaration or revocation are represented before 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 or order made under this section shall be conclusive evidence of the matters contained in the declaration or order.
11. (1) In any proceedings in which the parentage of a person 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 the person or his or her representative; or
(c) on its own motion,
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 person.
(2) The Court, before issuing a direction under subsection (1), shall ensure that —
(a) the child to whom the direction relates —
(i) if sufficiently mature, has been counselled
Parentage testing procedure.
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about the effects of the parentage testing procedure; and
(ii) if twelve years of age or older, 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 as it considers necessary or desirable —
(i) to enable the parentage testing procedure to be carried out; or
(ii) to make the parentage testing procedure more effective and reliable,
including but not limited to, 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
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(b) issue 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
(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 direction in relation to the parentage testing procedure shall not be carried out in relation to the child unless a guardian or other person who has the care and protection or parental responsibility of the child consents to the parentage testing procedure or other direction in relation to the parentage testing procedure 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 direction in relation to the parentage testing procedure, that procedure or other direction in relation to the parentage testing procedure shall not be carried out in relation to that person under
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the direction unless the 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 properly carries out, or assists in the proper carrying out of, the parentage testing procedure or other direction in relation to the parentage testing procedure under this section is not liable in any civil or criminal action in relation to the parentage testing procedure or other direction in relation to the parentage testing procedure.
12. (1) Before making a determination under section 11, the Court may, if it is of the view that to do so would be in the best interest of the child, appoint a guardian for the child.
(2) In deciding whether to issue a direction under section 11 the Court shall —
(a) consider and determine all objections made by a party to the proceedings on account of medical, religious or other grounds; and
(b) if it determines that an objection is valid or relevant take the objection into account in arriving at its decision.
13. (1) The person responsible for carrying out a parentage testing procedure for the purpose of giving effect to a direction under section 11 shall provide the Court with a report in the prescribed form and in which the person shall state —
(a) the results of the parentage testing procedure;
(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
Matters to be taken into account by Court in making determination.
Reports of parentage testing procedure.
2023 STATUS OF CHILDREN ACT 10 65
(c) if that person in not so excluded, the value, if any, of the results in determining whether that person is the parent of the child.
(2) Where a report has been made 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 person who made the report a written statement explaining or amplifying any statement made in the report, and that statement shall not form part of the report made to the Court.
(3) A report made under subsection (1) may be received in evidence in any proceedings under this Act.
(4) 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
(c) of its own motion,
make an order requiring the person who made the report, 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.
14. (1) The Minister shall approve a laboratory or laboratories for the purpose of carrying out a parentage testing procedure under this Act.
(2) The Minister shall publish in the Gazette the name of any approved laboratory.
15. Where paternity is established under this Act, the father of the child shall —
Approved laboratories.
Equal rights of father upon establishment of paternity.
2023 STATUS OF CHILDREN ACT 1066
(a) be deemed to be a joint guardian of the child with the mother of the child;
(b) exercise parental rights and give effect to parental obligations in respect of the child jointly with the mother of the child; and
(c) have the same power to apply to a court in respect of any matter affecting or relating to the child as possessed by the mother of the child.
PART III DISPOSITION OF PROPERTY
16. (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 in the absence of clear words to the contrary, 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
Disposition of property before commencement of the Act.
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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.
17. 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.
18. (1) An action shall not lie against —
(a) an executor;
(b) an administrator; or
(c) the trustee under any instrument,in relation to any estate or property, by any person who could claim an interest in the estate or the property by reason only of this Act, to enforce any claim arising by reason of the executor, administrator or trustee—
(i) having made any distribution of the estate or of the property held on trust; or
(ii) having otherwise acted in the administration of the estate or property held on trust,
so as to disregard the claims where, 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
Persons dealing with property after the commencement of this Act.
Protection of executors, administrators and trustees.
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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
19. (1) Unless the Court otherwise orders, the hearing of an application made under this Act shall be in camera or closed court.
(2) A person shall not publish, whether by newspaper, or by radio or television, electronically 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 this Act without the authority of the Court before which the proceedings are taken.
(3) A person who contravenes subsection (2) is guilty of an offence and is liable on summary conviction, to a fine of five thousand dollars or to imprisonment for three months.
20. This Act does not affect rights vested before the commencement of the Act.
21. The Minister may make regulations with respect to the following:
(a) forms;
(b) the carrying out of parentage testing procedures under directions issued under section 11;
(c) the preparation of reports in relation to the information obtained as the result of the carrying out of medical procedures or other acts under directions issued under section 11;
Hearings.
Existing rights.
Regulations.
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(d) fees; and
(e) providing for such matters as are required or necessary for giving full effect to this Act and for its due administration.
22. (1) The Infants Protection Act is repealed.
(2) Notwithstanding the repeal of the Infants Protection Act any Regulations or Orders made under that Act shall remain in force and be construed with such changes as may be necessary to bring them in conformity with this Act until they are repealed by Regulations and Orders made under this Act.
23. The existing laws shall, as from the date of commencement of this Act, be construed with such adaptations as may be necessary to bring them into conformity with this Act.
Passed in the House of Assembly this 25th day of April, 2023.
DANIEL JAMES Clerk of the House of Assembly
Repeal and savings. Chap. 37:05..
Existing law.
DOMINICA Printed by the Government Printer at the Government Printery, Roseau
(Price $3.80 cents).