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GAZETTE
DECEMBER 1989
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
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.
REGISTRATION AND
REREGISTRATION OF
BIRTHS
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
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