Eastern Caribbean Supreme Court
  • About Us
    • Brief History of the Court
    • Court Overview
    • Meet the Chief Justice
    • Past Chief Justices
      • Sir Hugh Rawlins
      • Sir Brian George Keith Alleyne
      • His Lordship, the Hon. Justice Adrian Saunders
      • Hon. Sir Charles Michael Dennis Byron
      • Rt. Hon. Sir Vincent Floissac
      • Honourable Sir Lascelles Lister Robotham
      • More..
        • Hon. Neville Algernon Berridge
        • Sir Neville Peterkin
        • Sir Maurice Herbert Davis
        • Justice P. Cecil Lewis
        • Sir Allen Montgomery Lewis
    • Judicial Officers
      • Justices of Appeal
        • His Lordship, the Hon. Justice Davidson Kelvin Baptiste
        • His Lordship, the Hon. Justice Mario Michel
        • Her Ladyship, the Hon. Justice Gertel Thom
        • His Lordship, the Hon. Justice Paul Anthony Webster [Ag.]
        • His Lordship, the Hon. Justice Gerard Farara, KC
        • His Lordship, the Hon. Justice Trevor Ward, KC
      • High Court Judges
      • Masters
    • Court of Appeal Registry
    • Court Connected Mediation
      • Court-Connected Mediation Practice Direction Forms
      • Mediation Publications
    • More…
      • Career Opportunities
      • Legal Internship
      • Transcript Requests
      • Directory
  • Judgments
    • Privy Council
    • Caribbean Court of Justice
    • Court Of Appeal Judgments
    • High Court Judgments
    • Digests of Decisions
    • Country
      • Anguilla
      • Antigua & Barbuda
      • Grenada
      • Montserrat
      • Saint Kitts and Nevis
      • Saint lucia
      • Saint Vincent & The Grenadines
      • Territory of the Virgin Islands
    • Year
      • 1972 – 1990
        • 1972
        • 1973
        • 1975
        • 1987
        • 1989
        • 1990
      • 1991 – 2000
        • 1991
        • 1992
        • 1993
        • 1994
        • 1995
        • 1996
        • 1997
        • 1998
        • 1999
        • 2000
      • 2001 – 2010
        • 2001
        • 2002
        • 2003
        • 2004
        • 2005
        • 2006
        • 2007
        • 2008
        • 2009
        • 2010
      • 2011 – 2019
        • 2011
        • 2012
        • 2013
        • 2014
        • 2015
        • 2016
        • 2017
        • 2018
        • 2019
    • Judgment Focus
  • Sittings & Notices
    • Schedule of Sittings
    • Court of Appeal Sittings
    • Chamber Hearing (Appeals)
    • Case Management (Appeals)
    • High Court Sittings
    • Status Hearings
    • Special Sittings
    • Notices
  • Court Procedures & Rules
    • ECSC Court of Appeal Rules
    • ECSC (Sittings of the Court) Rules, 2014
    • Civil Procedure Rules [WEB]
    • ECSC Civil Procedure Rules
      • Civil Procedure Rules 2000 [Amendments to Nov 2015]
      • Civil Procedure (Amendment) Rules 2014
      • ECSC Civil Procedure (Amendment) (No.2) Rules
      • Civil Procedure Rules 2000 [Amendments to May 2014]
      • Civil Procedure (Amendment) Rules 2013
      • Civil Procedure (Amendment) Rules 2011
    • ECSC Criminal Procedure Rules
      • Criminal Procedure Rules SI No. 22 of 2015
    • ECSC Sentencing Guidelines
    • Non Contentious Probate Rules and Administration of Estates
    • Family Proceedings Rules
    • More..
      • Election Petition Rules
      • Legal Profession Disciplinary Procedure Rules (St. Lucia)
      • Code Of Judicial Conduct
      • Court Forms
        • Introduction of E-Filing
        • BVI Commercial Division E-Filing
        • Court-Connected Mediation Practice Direction Forms
      • Court Proceedings Fees
      • SILK Application Procedure
      • Practice Directions
      • Practice Notes
      • Video Conferencing Protocols
  • News & Publications
    • ECSC Media Gallery
    • Annual Reports
    • Appointments
    • Press Releases
    • Papers & Presentation
      • Opening of the Law Year Addresses
    • Tributes
  • E-Litigation
    • E-Litigation Portal
    • E-Litigation Instructional Videos
    • ECSC E-Litigation Portal User Information
    • Electronic Litigation Filing and Service Procedure Rules
    • Notices of Commencement
    • E-Litigation Publications
  • J.E.I
    • JEI History
    • Structure of JEI
    • JEI Chairman
    • Mandate, Objectives, Standards
    • Programmes Archive
      • Conferences
      • Programmes & Projects
      • Symposiums
      • Training
      • Workshops
    • Upcoming Activities
more
    • About Us
    • Meet the Chief Justice
    • Civil Procedure Rules
    • Mediation
    • Careers
  • Contact
  • Saved for Later
 Home  E-Litigation Portal
  •  Court Procedures And Rules
    • Civil Procedure Rules
    • Court Forms
    • Election Petition Rules
    • Practice Directions
  •  Judgments
    •  All
    •  Court of Appeal
    •  High Court
    •  Digest of Decisions
  •  Sittings
    •  All
    •  Court of Appeal
    •  High Court
  • Sign In
    
    Minimize Search Window
    •       {{item.title}} Filter By Category {{SelectedFilters.length}}x Categories 
    •       {{item.title}} {{selectedCountries.length}}x Countries Country 
    •       {{item.title}} Filter By Year {{selectedOptions.length}}x Options 
    
    Sorry can't find what you're looking for try adjusting your search terms
    Appeal
    {{doc._source.post_title}}
    Page {{indexVM.page}} of {{indexVM.pageCount}}
    pdf
    Home » Judgments » High Court Judgments » Wendy Hilda Carter nee Marsden v Michelle Amanda McCree

    1
    ST VINCENT AND THE GRENADINES
    IN THE HIGH COURT OF JUSTICE
    CIVIL SUIT NO. 43 OF 2000
    In the Matter of the Status of Children Act
    Chapter 180 of the 1990 Revised Laws
    of Saint Vincent and the Grenadines
    and
    In the Matter of Applications on behalf
    of Wendy Hilda Carter nee Marsden
    and
    Michelle Amanda McCree
    for Declarations of Status
    Appearances:
    Stanley K John for the Applicants
    Dr Kenneth John for the Opposant Advira Bennett
    – – – – – – – – – – – – – – – – – – – – – – – – – – – –
    2000: March 9, July 28, November 3
    – – – – – – – – – – – – – – – – – – – – – – – – – – – –
    DECISION
    [1] MITCHELL, J: These are two separate applications for declarations of status
    under the Status of Children Act, Cap 180 (hereinafter “the Act”) made on one
    originating summons issued on 25th January 2000, presumably because the
    alleged father was the same person. The applications are for declarations that the
    late Robert Milton Cato was the father of both applicants. The further application
    by both applicants is that the court find that the requirements of section 7(1) of the
    Act have been complied with.
    [2] Michelle Amanda McCree. This applicant was born in England on 31st January
    1967 and presently resides in Toronto, Canada. The evidence in support of the
    applicant consists of her own affidavit of 25 January 2000, and that of her mother
    Stella McCree, formerly of St Vincent but presently residing in Canada. There is
    2
    also an affidavit of Hermie Miller of Fair Hall in St Vincent, a clerk in the Chambers
    of Mr John exhibiting a copy of a Notice published in the Vincentian Newspaper on
    28th January to the effect that this application and that of the other applicant
    Wendy Hilda Carter will be made before the High Court, and giving two weeks for
    anyone to make objection. A summary of the evidence on behalf of this applicant
    is that the mother claims to have had an intimate relationship with the late Mr Cato
    in St Vincent prior to her departure for Canada in 1958. In 1963 she had gone to
    live in the United Kingdom. In 1966, while the mother was in England, she had
    been visited by the late Mr Cato, and the result was the birth of the applicant. The
    mother claims that the late Mr Cato sent her letters, telegrams, messages and
    money, and always acknowledged that the applicant was his daughter. I note in
    parenthesis that none of these documents referred to are exhibited. The evidence
    continues that the late Mr Cato’s name was not placed on the birth certificate
    because it was not deemed prudent to do so given his political profile in St
    Vincent. Indeed, the court is aware that the late Mr Cato went on to be the first
    Prime Minister of an independent Saint Vincent and the Grenadines. The
    applicant claims that the late Mr Cato frequently visited her and her mother in
    Canada, and on her visits to St Vincent in 1974 and 1991, and always
    acknowledged her as his daughter. There is no corroboration of this claim that
    would be acceptable in a Magistrates Court on affiliation proceedings.
    [3] Wendy Hilda Carter Nee Marsden. This applicant lives at Ashton under Lyne in
    Lancashire in England. She was born in that city on 24th October 1944 while her
    mother was married to George Marsden. George Marsden’s name is given on her
    birth certificate as her father. Both her mother and her husband have now died.
    The evidence in support of her application consists of her affidavit of 25th January
    2000, and two affidavits of Lucy Ann Cato of Ratho Mill, the widow of the late Mr
    Cato the one of 15th March and the other of 9 June 2000. Advira Bennet, the
    mother of two children sired by the late Mr Cato, filed an affidavit of 10th February
    2000 in opposition to her application. The evidence in support of the application
    can be summarised as follows. The applicant’s mother and her mother’s husband
    3
    were Caucasians. The late Mr Cato was a Black West Indian. The applicant was
    brought up as the daughter of George Marsden, but she was always aware of the
    distinctive physical differences in the racial characteristics of her two sisters and
    herself. After George Marsden’s death in on 12th March 1989, her mother told her
    that her natural father was a Mr Cato of St Vincent whom she had known briefly in
    England during the war as a member of the Canadian Armed Forces in England.
    Mr Marsden had known that she was not his daughter, but had gallantly accepted
    her as his in order to preserve the marriage. The applicant had then made
    enquiries in St Vincent and obtained Mr Cato’s address. She had written to Mr
    Cato in 1991 introducing herself to him. She had subsequently visited St Vincent
    and met Mr Cato and his wife, and had been introduced by them to other family
    members and friends as Mr Cato’s natural daughter. Mrs Cato’s two affidavits
    filed on behalf of this applicant confirm her story. The ground for the objection by
    Advira Bennett is not stated, she merely says she objects to the application and
    puts in a copy of the applicant’s birth certificate, but can be deduced to be that the
    applicant is the legitimate child of George Marsden and his wife.
    [4] The Law. The long title of the Act is, “An Act to remove the legal disabilities of
    children born out of wedlock and to provide for matters connected therewith or
    incidental thereto.” Section 6(1) of the Act provides under the heading
    Presumption regarding parenthood of child born during marriage as follows:
    A child born to a woman during her marriage, or within ten months
    after the marriage has been dissolved by death or otherwise shall,
    in the absence of evidence to the contrary, be presumed to be the
    child of its mother and her husband or former husband, as the
    case may be.
    [5] Section 7 of the Act, where relevant, under the heading Recognition of paternity
    required in cases of succession, etc, provides as follows:
    4
    (1) 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 which devolves after
    the commencement of this Act or to the construction of any will or
    other testamentary disposition or of any instrument creating a
    trust operating after such commencement, be recognised only if:
    (a) . . .
    (b) the paternity has been admitted by, or established
    during the lifetime of, the father (whether by one or more
    of the types of evidence specified by section 8 or
    otherwise):
    Provided that, . . .
    (2) In any case where by reason of subsection (1) the relationship
    of the father and child is not recognised for certain purposes at
    the time the child is born, the occurrence of any act, event or
    conduct which enables that relationship, and any other
    relationship traced in any degree through it, to be recognised shall
    not affect any estate, right or interest in any real or personal
    property to which ay person has become absolutely entitled,
    whether beneficially or otherwise, before the act, event or conduct
    occurred.
    [6] Section 8 of the Act under the heading Evidence of proof of paternity provides:
    (1) If pursuant to the provisions contained in the Registration of
    Births and Deaths Act, or under any other law, the name of the
    father of the child to whom the entry relates has been entered in
    the register of births (whether before or after the
    commencement of this Act) a certified copy of the entry made or
    given in accordance with any provision made by or under that
    5
    Act shall be prima facie evidence that the person named as the
    father is the father of the child.
    (2) The entry in the register kept by any minister of the Christian
    religion before the 29th June, 1867, and all copies and extracts
    therefrom duly certified as provided in the Registration of Births
    and Deaths Act, showing the name of the father of the child to
    whom the entry relates, shall be prima facie evidence that the
    person named as the father is the father of the child.
    (3) Any instrument signed by the mother of a child and by any
    person acknowledging that he is the father of the child shall, if
    executed as a deed by each of those persons in the presence
    of a notary public, commissioner for oaths, justice of the peace,
    registrar of the courts, registered medical practitioner, marriage
    officer, midwife or the head of a public educational
    establishment, be prima facie evidence that the person named
    as the father is the father of the child.
    (4) An affiliation order, within the meaning of any written law, made
    in any proceedings between the parties, shall be prima facie
    evidence whether or not between the same parties.
    (5) Subject to section 7(1), a declaration made under section 10
    shall, for all purposes, be conclusive proof of the matters
    contained in it.
    (6) An order made in any state outside Saint Vincent and the
    Grenadines declaring any person to be the father or putative
    father of a child, being an order to which this subsection applies
    pursuant to subsection (7) shall be prima facie evidence that
    such person is the father of the child.
    (7) The Minister may, by order, declare that subsection (6) shall
    apply with respect to an order made by any court or public
    authority of a state outside Saint Vincent and the Grenadines or
    by any specified court or public authority in any such state.
    6
    [7] Section 10 of the Act under the heading Declaration of paternity provides:
    (1) Any person who
    (1) being a woman, alleges that any named person is the
    father of her child;
    (2) alleges that the relationship of father and child exists
    between himself and any other person; or
    (3) being a person having a proper interest, wishes to have it
    determined whether the relationship of father and child exists
    between two named persons,
    may apply, in such manner as may be prescribed by rules of
    court, to the High Court for a declaration of paternity, and, if it is
    proved to the satisfaction of the court that the relationship exists,
    the court may make a declaration of paternity whether or not the
    father or the child or both of them are living or dead.
    (2) Where a declaration of paternity under subsection (1) is made
    after the death of the father or of the child, the Court may, at the
    same or any subsequent time, make a declaration determining for
    the purposes of section 7(1)(b), whether any of the requirements
    of that paragraph have been satisfied.
    [8] Section 17 of the Act under the heading Regulations generally provides as
    follows:
    (1) The Minister may make regulations for all or any of the
    following purposes:
    (a) prescribing fees and forms for the purposes of
    this Act;
    (b) providing for such matters as are contemplated
    by or necessary for giving full effect to this Act
    and for its due administration.
    7
    (2) . . .
    (3) . . .
    [9] The Minister has made no regulations under the Act, despite the passage of some
    20 years since the Act was passed into law. This is a grievous omission that
    causes the court to have to fall back on general principles of construction and
    interpretation, which may in certain instances have the unfortunate consequence
    of being viewed by some as not carrying into effect the undoubted enlightened
    intention of the Legislature in passing this Act. It is high time that the Minister
    corrected this omission.
    [10] The Procedure. The procedure followed in these two applications was to apply
    by originating summons as provided by Order 5 Rule 3 of the Rules of the
    Supreme Court. No parties are named in the summons. When the alleged father
    is alive, and affiliation proceedings are commenced under section 16 of the
    Maintenance Act Cap 171, (hereinafter “the Maintenance Act”) the mother
    applies by way of complaint for a summons by the Magistrate to be served on the
    man alleged by her to be the father of the child. He is given an opportunity to be
    heard and to either admit or deny the claim. The basic rule of natural justice is
    served in proceedings in the Magistrates Court. It has not been indicated whether
    or not Mr Cato died testate or intestate, and in consequence whether or not any
    Executor of his Will or Administrator of his Estate has been appointed. The finding
    by this court in these proceedings brought under the Act may have material
    consequences on the distribution of the estate of the deceased. Applications of
    this sort, though not necessarily these two particular applications, are not always
    made only for the sentimental reason of knowing who one’s father is, they are
    sometimes made for the cold hard reason of allowing one to participate in the
    estate of a deceased person. In a contested case, the court will hardly be in a
    position to make an order binding on the estate of a person if that estate is not
    represented in the suit. If the alleged father has no Executor or Administrator or
    other personal representative, then the usual application in civil proceedings in the
    8
    High Court will always have to be made under the provisions of Order 15 Rule 15
    for some person to be appointed to represent the estate of the alleged father for
    the purpose of the proceedings brought on behalf of the alleged child. There may
    not always, as in this case, be a widow or lawful child conveniently available to be
    appointed. It may be necessary to go further afield to a brother or sister or cousin
    to be appointed. There is no public trustee or public administrator in St Vincent
    who can be appointed. Even if there were, the human and financial resources of
    the legal departments of the government of this State are such that I cannot see
    the justice in appointing such a public official. It is far more practicable in our
    circumstances to make the family members of the parties bear the responsibility
    for the disposition of the estate of the deceased. The personal representative
    having been appointed and served with the proceedings, the deponents will attend
    the hearing to give any further evidence and be cross-examined on behalf of the
    alleged father and any other interested party. In the absence of any regulations
    made by the Minister to the contrary, it is clearly necessary in the interests of
    justice that in applications under the Act the deceased’s estate be made a party to
    the proceedings.
    [11] It appears from the file that the procedure has grown up in these matters of the
    proposed applicant placing an advertisement in a newspaper of the intended
    application at the time that the application is being filed in the High Court. This is
    not an acceptable alternative to having the estate of the alleged father made a
    party to these proceedings and serving the proceedings on that party. If, in a
    proper application for substituted service, the court is made aware that an alleged
    father is dead and has no personal representative in the country, nor any person
    who may properly be made a personal representative to represent the interests of
    the estate, then it is conceivable that the court may order the proceedings to be
    served on a representative of the estate not resident in the jurisdiction by
    publication in a newspaper or by some other appropriate form of substituted
    service. It is not acceptable for the proposed applicant unilaterally to publish a
    notice of an intended application in a newspaper. In a contested case under the
    9
    Act, the court must be satisfied that not only is the mother or the child the
    applicant, and the father or estate of the father the respondent, but that the
    proceedings have been properly served on him or on his personal representative if
    he is dead. The society at large has an interest in the proper, fair and just
    disposition of the estates of deceased persons. All persons who are claimants on
    the estate ought to be made aware of a particular claimant so that they can
    present their support or objection to the particular claim. For this reason, it is likely
    that the court may as part of its routine procedure order that an announcement of
    the claim by the claimant be published in a local or other newspaper. The
    publication of such a notice should await the order of the court and comply with
    any directions that the court may give. It is not appropriate or a satisfactory
    substitute for publication on the directions of the court for the claimant or anyone
    else to unilaterally take it upon themselves to publish a notice of the claim in a
    newspaper.
    [12] The Evidence. It has been submitted on behalf of the applicants that, unlike in
    the Maintenance Act, no corroboration is required in claims brought under the
    Status of Children Act. The familiar rule for corroboration in affiliation cases is
    found in section 18 of the Maintenance Act. It provides that
    (1) On hearing of a complaint under section 16, the court may
    adjudge the defendant to be the putative father of the child but
    shall not do so unless, if the mother be alive and of sound mind,
    she gives evidence and her evidence is corroborated in some
    material particular by other evidence to the satisfaction of the
    court.
    (2) Where the court has adjudged the defendant to be the putative
    father of the child it shall make an order, called a paternity
    order, to that effect.
    10
    A single woman making an application under section 16 of the Maintenance Act
    is required by section 17 to make an application for an affiliation order within 5
    years of the child’s birth or within 5 years of the father last supporting the child.
    One of the usual explanations for this and other similar time limits on bringing
    proceedings is the need to ensure that the dispute is brought to court while the
    memories of the witnesses are fresh, and before the testimony of possible
    witnesses disappears. No similar time limit is placed on the High Court in
    applications under the Status of Children Act. Indeed, the latter Act specifically
    omits any mention of a time limit to bring applications under it. The Maintenance
    Act was enacted on 27th December 1989. The Status of Children Act came into
    effect on 1st July 1980. They appear to have been two parts of a single reform
    effort in relation to the rights of children in St Vincent and the Grenadines. The
    two Acts contain no contradictory provisions, but rather appear to be part of a
    modern general scheme of provision for paternity orders and other rights relating
    to children born out of wedlock. Affiliation proceedings in the Magistrates Court
    are described by lawyers as “quasi criminal” proceedings. This is because,
    although the matter is a family matter and not a criminal matter, both the
    proceedings and the standard of proof in affiliation matters are of a criminal nature,
    in particular the forms for the complaint and the summons are the criminal forms
    and the mother has to prove beyond reasonable doubt to the Magistrate that the
    man is the father of her child. In a paternity application under the Act, the
    standard of proof is the civil standard of on a balance of probabilities. The
    standard of proof required in the Magistrates Court in affiliation proceedings is thus
    greater than the standard of proof required in the High Court in applications for
    paternity declarations. Corroboration is not a requirement under the Act, as it is in
    affiliation proceedings.
    [13] It has been submitted that the forms of evidence mentioned in section 8 as being
    prima facie evidence of paternity are not exclusive, and other lesser kinds of
    evidence will suffice, so that the evidence of the mother and child and others as to
    loving acts of acceptance of paternity by the father during his lifetime will suffice.
    11
    In support of this proposition, it has been submitted that section 7(1)(b) makes
    reference to “evidence specified in section 8 or otherwise.” Do the words “or
    otherwise” in section 7(1)(b) permit the court to find evidence of a lesser kind than
    those itemised in section 8? Or, does the Act require the High Court to look for
    types of evidence such as those itemised in section 8? Section 8(1) provides that
    if the name of the father has been entered on the birth certificate that shall be
    prima facie evidence that he is the father of the child. For the father’s name to get
    on the birth certificate, section 28 of the Registration of Births and Deaths Act,
    Cap 179, provides three alternative methods for the father to accept paternity.
    The first is that the father attends together with the mother at the time the
    registration of birth is being made and both jointly sign the form and the
    counterfoil, or, secondly, there may be a joint declaration in the prescribed form by
    the mother and the person claiming to be the father made in the presence of a
    notary public, justice of the peace, or other similar public officer, or, thirdly, one of
    the two parties may attend before the Registrar and request in writing the
    registration of the father’s name and must at the same time present a declaration
    by the other of the two parents in the form as above. This is a relatively strict form
    of procedure for a father to follow if he is to acknowledge paternity at the time of
    the registration of the birth of the child. And, where the father has taken such a
    solemn proceeding as that set out in this subsection and in the following
    subsections, the Act provides that proceeding taken by the father is only prima
    facie evidence, ie, the court may choose to find that there is other evidence which
    makes it more likely that the man was not the father for the purpose of a paternity
    order under the Act. Section 8(2) provides for the records kept by ministers of
    religion prior to 1867 (when presumably compulsory registration of births came
    into effect in St Vincent and the records of baptisms kept by ministers of religion
    ceased to be the only record of birth) to be prima facie evidence that the person
    named as the father is the father of the child. This would appear to be of historical
    interest only, but it is significant that the legislature chose a form of admission
    made on a solemn occasion such as the baptism of the child to be admissible.
    Section 8(3) refers to an instrument in the form of a deed signed by both the
    12
    mother and the father acknowledging that he is the father being admissible as
    prima facie evidence that he was the father. There can be few forms of
    acknowledgment more solemn and binding on a person than a deed “signed
    sealed and delivered” by him and registered in the Registry of Deeds. Section
    8(4) provides that an affiliation order made in the Magistrates Court is prima facie
    evidence of the paternity of the father in question for the purpose of the High Court
    making a paternity order under the Status of Children Act. It is significant that an
    affiliation order made against a man following the strict rules referred to above is
    yet only prima facie evidence in an application for a paternity order, and the High
    Court is permitted to find in the face of such an order that there is other evidence
    which causes it to decide that on a balance of probabilities the man against whom
    an affiliation order was made is not the father for the purpose of making a paternity
    order under the Act. Section 8(5) provides merely that a declaration of paternity
    made by the High Court under section 10 shall be conclusive proof of the matters
    contained in the order. Section 8(6) provides that an order made in certain foreign
    countries declared by the minister under section 8(7) that a man is either the father
    or putative father of the child in question shall be prima facie evidence in paternity
    proceedings under the Act that such person is the father of the child. The forms of
    evidence envisaged by section 8 as acceptable as prima facie evidence of proof of
    paternity are not light: the standard is heavy and weighty. We have referred to
    the procedure in the Magistrates Court on affiliation proceedings while the father is
    alive. Applications under the Status of Children Act are invariably made when
    the father is dead. There are alternative and much less expensive methods for a
    father to put on record his acceptance of paternity, or if he declines to accept
    paternity to be found by a court to be the putative father, while he is alive. Can the
    Legislature have meant by the words “or otherwise” that the type of evidence that
    will be acceptable to the court under section 8 is to be lesser when the father is not
    around to explain himself? Especially when the application will have serious
    consequences for the family of the deceased left behind? What rule of
    interpretation should the court apply to understand what the legislature meant by
    the words “or otherwise?” It seems that the proper and appropriate rule to apply to
    13
    the words “or otherwise” in cases of disputed paternity is the eiusdemi generis rule
    of interpretation. That is, the words “or otherwise” in section 7(1)(b) only make
    sense if they mean “of a similar type” to those itemised in section 8. Section 8
    would not have been limited, as it was by the Legislature, to forms of documentary
    admission by the alleged father and findings by a court if the applicant need only
    produce any lesser type of self-serving evidence. In disputed cases, the intention
    of the legislature appears to have been that only evidence of the type provided for
    by section 8 or similar types of evidence is to suffice to satisfy the court that the
    relationship of father and child was recognised by the alleged father. Although the
    standard of proof in the High Court in applications for paternity declarations is the
    civil standard of proof on a balance of probabilities, the Legislature has provided
    that the High Court must look for a higher level of evidence than is acceptable in
    the Magistrate’s Court in affiliation proceedings. Mere corroboration is not
    sufficient in applications under the Act as it is when applications are made under
    the Maintenance Act. The High Court is not seeking to determine whether or not
    the mother has proved that the child is the child of the alleged father, it is seeking
    to determine whether or not it is satisfied on a balance of probabilities that the
    father either admitted paternity during his lifetime, or that paternity was established
    during the lifetime of the father. It is within this context that corroboration becomes
    relevant. The more evidence of the type prescribed by the Legislature there is that
    supports the allegation of the mother and/or of the child of the admission of
    paternity or the establishment of the paternity, particularly in a disputed case, the
    better.
    [14] The opposant. What is the effect of the objection by Advira Bennett, the mother
    of two of the late Mr Cato’s children born out of wedlock? As she is not a party to
    the proceedings, does she have the right to enter into the dispute between the
    estate of the late Mr Cato and one of the two applicants? Does she have locus
    standi? Who are the proper parties to paternity proceedings under the Act? My
    view is that the alleged father or his personal representative if he is dead must be
    the principal defending party. Only the estate of the deceased and his personal
    14
    representatives stand in his place in matters of legal representation. I have
    mentioned above that there is no public trustee or other similar official in this State
    who can be made a party to the proceedings. Though the public has an interest in
    the just distribution of the estates of deceased persons, there are no public
    resources available to be expended on investigations into the merits of such
    claims. If the personal representative of the deceased alleged father has been
    properly served with the proceedings, and accepts in sworn testimony the claim of
    paternity, or there is evidence of the type required by the Act, that should be very
    strong evidence for a court to consider. If there is no widow or lawful child or other
    suitable personal representative surviving the deceased, it is for the applicant to
    apply to the court for some other suitable person to be made administrator for the
    purposes of the suit. The court will order personal service or service by
    publication in a newspaper or such other form of service in the particular case as it
    sees fit. All the dependants of the deceased father have locus standi, to object to
    the application or otherwise as the estate belongs to all of them. The objection of
    Advira Bennett, on behalf of her minority children, must be weighed along with all
    the other evidence before the court in determining the merits of the application.
    [15] Rebutting the presumption of legitimacy. There is the point, peculiar to this
    case and not of general application in paternity applications, whether the
    application of Wendy Hilda Carter should be allowed when the effect of granting
    the application would be to render her born out of wedlock. This was the
    presumed basis of the objection by Advira Bennett. Counsel for the applicant has
    referred the court to the words of section 6(1) of the Act that provide that evidence
    may be led that a husband was not the father of a child. He submitted that the Act
    provides no bar to an application the result of which will be to render the applicant
    having been born illegitimate. Counsel also produced the case of Burnaby v
    Baillie (1889) 42 Ch D 282 in which North J cited with approval at page 298 the
    dicta in Morris v Davies 12 PD 177 to the effect that, “There is the highest
    authority for saying that the presumption in favour of legitimacy may be rebutted
    by evidence.” Counsel also produced the case of Re: Hamer’s Estate, Public
    15
    Trustee v Attorney-General (1937) 1 All E R 130, where it was held upon a
    consideration of the evidence that the prima facie presumption of legitimacy
    arising from the birth certificate was displaced and the illegitimacy of the
    respondent was established. The court must conclude upon authority that there is
    no bar at common law to the application of Wendy Hilda Carter.
    [16] Conclusion. The application of Wendy Hilda Carter is supported and by the
    sworn written affidavits of the widow of the deceased, which support amounts at
    the very least to a declaration against interest that is binding on the estate. The
    affidavits in support by the widow are of a similar type of evidence of admission of
    paternity as those types set out in section 8 of the Act. The originating summons
    did not name the estate of the late Robert Milton Cato as a party. The court is,
    however, satisfied from the filing of the widow’s affidavits that the proceedings
    brought by Wendy Hilda Carter were served on the widow of the late Robert Milton
    Cato, and that the widow was a proper person to represent the estate in these
    proceedings for the purpose of binding the estate of the late Mr Cato. I am
    prepared to order that the court is for the purposes of section 7(1)(b) satisfied that
    the late Robert Milton Cato during his lifetime admitted that Wendy Hilda Carter
    was his daughter. The application of Michelle Amanda McCree is more
    problematic. In her case, there is no corroboration of any kind. The only evidence
    on file at this point is the self-serving evidence of the applicant and her mother.
    This would not be acceptable in the Magistrates Court in affiliation proceedings
    because of the statutory provision that governs in that court, nor does it amount to
    evidence of the type required by the Act for the purpose of High Court proceedings
    for a declaration of paternity. As her application has not met the procedural
    requirements, ie, is not supported by evidence of a type required by section 8; nor
    has the estate been made a party to the proceedings; nor is there any evidence of
    service on the widow or whoever else is the personal representative of the estate,
    the application on behalf of Michelle Amanda McCree is dismissed. Because her
    application has been dismissed in a preliminary way for purely procedural reasons
    and not after a hearing on the merits, she has liberty to come to the court again in
    16
    a fresh application under the correct procedure and with proper evidence as set
    out above.
    I D MITCHELL, QC
    High Court Judge

    /wendy-hilda-carter-nee-marsden-v-michelle-amanda-mccree/
     Prev
    LESLIE OWEN GORDON v VINCENT ANDREWS
    Next 
    CECIL MOORE v MAGGIE MOORE
    Eastern Caribbean Supreme Court

    2nd Floor Heraldine Rock Building
    Waterfront
    P.O. Box 1093
    Castries
    Saint Lucia
    T: +1 758 457 3600
    E: offices@eccourts.org

    • About Us
      • Court Overview
      • Career Opportunities
      • Directory
      • Privacy Policy
    • Judgments
      • Court Of Appeal
      • High Court
    • Sittings
      • Chamber Hearing
      • Court of Appeal
      • High Court
    • News & Updates
      • Appointments
      • Press Releases
    • Civil Procedure Rules
      • Court Forms
      • Practice Directions
    © 2023 Eastern Caribbean Supreme Court. All Rights Reserved

    Submit your email address and name to subscribe for email notifcations.

    [email-subscribers-advanced-form id="1"]
    Bookmark
    Remove Item
    Sign in to continue
    or

    Bookmarked Items
    •  Home
    • Judgments
    • Sittings
    •  News
    •  more