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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
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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
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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:
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(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
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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.
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[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.
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(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
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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
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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.
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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.
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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
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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
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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
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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
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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
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a fresh application under the correct procedure and with proper evidence as set
out above.
I D MITCHELL, QC
High Court Judge