UNIVERSITY OF GUYANA FAMILY LAW II –LAW 3202

FACULTY OF SOCIAL SCIENCES MS. ALEXIS DOWNES-AMSTERDAM

DEPARTMENT OF LAW LL.B (Hons.) UWI; LL.M (Merit) (Lond.)
TUTORIAL QUESTIONS
1. Keith and Lyn were married on June 5, 2009. They have two daughters, Malia, who was born on
May 15, 2008 and Nia, who was born on August 9, 2009. Lyn is also the mother of Orin, 16, from a
previous relationship with Pete. Pete, who contributes to Orin’s maintenance whenever he can, is a
member of the Church of Scientology and strongly and openly opposes corporal punishment. Lyn, a
devout Anglican considers corporal punishment “a necessary parenting tool.”
Lyn and Keith separated three months ago, primarily because of disagreements over parenting styles.
The children live with Lyn who wants to send Orin to live with her brother in the USA, saying Pete is
a “part-time father”. Both Orin and Pete have objected. Lyn also wants to raise the children as
Anglicans and have the “final say” with respect to the method of discipline of the children.
(i) Advise senior attorney in your firm on the parental rights and responsibilities of Keith, Lyn and
Pete with respect to the discipline and religious upbringing of the three children.
(ii) Advise Pete as to the likelihood of preventing Lyn from sending Orin out of the jurisdiction.

This question necessitates a discussion on the parental rights and responsibilities towards
children in family law. Before a substantive discussion can commence on the aforementioned, it
is most imperative to establish the paternity of the children involved. The general rule is that a
parent has several rights that he/she may exercise to fulfil their parental responsibility to their
children. In the case of mothers, there is an automatic parental responsibility.
As such the following issue must be determined:
Whether Keith can be considered a ‘parent’ for the purpose of asserting the parental
responsibilities and duties over Malia and Nia?
At common law, there is a presumption that a child born into a marriage is legitimate. This is
inclusive of the time of his conception or the time of his birth. The rebuttable presumption
espoused that the married woman’s husband was deemed the child’s father. However, the
common law presumption to legitimacy only applied to paternity in the case of a legitimate child.
As such, it made no provision for out-of-wedlock children. This beckoned statutory intervention
which has transformed the approach and has made provision for the determination of paternity of
the out of wedlock child.

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Section.10 of the Status of Children Legislation Cap. 46:05 Act deals with presumption
arising from marriage. It states inter alia that a man is presumed to be the father of the child
“where he was married to the mother of the child at the child’s birth and where he married the
mother of the child after the child’s birth and acknowledges that he is the father of the child.”
In the instant case, Keith marries Lyn June 5 th, 2009. Malia was born on May, 15th, 2008 while
Nia was born 2 months after the date of marriage. With respect to Nia, s.10(a) applies. It is clear
that Keith, at the time of her birth, was married to her mother. Although the birth was just 2
months after, the fact still stands that the child was born into a marriage. Thus, it is essential to
note that the presumption of the legitimacy of a child born during marriage is a presumption of
fact as established in Gardner v Gardner (1877) After open courtship and constant intercourse, a
man and woman (she being ultimately in an advanced state of pregnancy) hurried on their
marriage to prevent, or to mitigate, scandal, and in less than seven weeks after marriage she gave
birth to a child: Held the presumption of the husband’s paternity to that child was next to
insuperable, and the onus of establishing the husband’s denial of paternity lay on himself.
Therefore, in the absence of contrary evidence, Keith is the father of Nia.

In respect to Malia: The facts state that Malia was born 13 months before a marriage between her
mother and Keith. S. 10(c) of the Status of Children Act states that there is a presumption that a
man who marries the mother of a child after the child’s birth and acknowledges said child is the
father. It is contended that this seeks to legitimate the child by the subsequent marriage of their
parents from the date of the marriage. Once legitimated by the man’s act of marriage, it is
inferred that such man has acknowledged the child to be his. It is therefore apparent that
provision has made for Malia which therefore places her as the child of Keith. To further
substantiate this claim, reference is made again to the case of Gardner v. Gardner [1877] 2 AC
723 which established that by marrying the mother, the husband is prima facie taken to have
acknowledged the child as his.

With regard to Pete’s paternity, it is inferred from the fact pattern that he is the father of Orin
because it stated that he was an offspring from Lyn and Pete’s previous relationship.

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Additionally, according to the CGMA 2011, “parent unless the context otherwise implies,
means a person's mother or father or stepmother or stepfather and includes adoptive parents as
well as a person who has treated a child as a child of the family”. A parent in this context has a
number of duties and rights regarding the child/children and as this piece of legislation makes no
distinction between a child’s natural parent and stepparent, Keith would have been considered to
be Orin’s stepfather, by virtue of marriage. However, it must be acknowledged that Keith and
Lyn are separated and therefore Keith may not have any parental rights, but parental duties may
arise instead (Re Keith Chase 1999).

Parental Rights and Responsibilities of Keith, Lyn and Pete

In providing Senior Attorney with advice in relation to Keith, Lyn, and Pete’s parental right and
responsibilities with respect to discipline, it is imperative to first establish whether such a
parental right exists and whether it extends to step-parents. Also, whether Pete, who contributes
to his child’s maintenance whenever he can, has said parental right. Elias J in his review of R (on
the Application of Williamson) v Secretary of State for Education and Employment [2001],
posited that a person with parental responsibility, at common law, could lawfully chastise and
inflict reasonable corporal punishment upon the child. However, this right has been limited by
statute. Evidently, a parental right to discipline (with physical punishment) exists.
Many jurisdictions have legislation that allows a parent or guardian to administer reasonable
corporal punishment on a child if necessary, such as s.2 of the Families and Children Act of
Belize. This naturally raises the question of what may be considered “reasonable” punishment.
Reasonableness may be measured by a child’s age, cause of punishment, and as stated in the
Families and Children Act of Belize the maturity of the child. The case of A v UK [1998] may
provide guidance. In this case, a nine-year-old boy, was discovered to have numerous bruises
which indicated that he had been beaten with a garden cane on more than one occasion with
considerable force. The boy’s stepfather, was charged with assault occasioning actual bodily
harm. At trial, the stepfather successfully claimed the English law defence that the child’s
beating was reasonable chastisement. However, the matter was taken to the European Court of
Human Rights where they found that the beating of the boy was of sufficient severity to amount
to inhuman or degrading treatment under Article 3 of the European Convention on Human
Rights. Sufficient severity for Article 3 of the ECHR to apply depends on the circumstances of

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the case such as the nature, context, physical and mental effects of the ill treatment, its duration,
and the victim’s age, sex and state of health. Thus, there are general guides to be followed when
a parent administers physical punishment to ensure it does not result in unreasonable punishment
or abuse of the child. It follows that where chastisement goes beyond what is reasonable, it is
unlawful and is therefore barred. In such a case, Lyn would not have a right to discipline her
children in that manner unless
reasonable physical punishment is administered.
With respect to Keith’s parental rights to discipline, it is clear that he has a parental right to
reasonably administer physical punishment to his children, Nia and Malia. However, the
question remains whether this right extends to his stepson, Orin. Sutton London Borough
Council v Davis [1994] shows that the power to discipline a child may be delegated, however, it
can only be exercised by those in loco parentis (in the place of a parent) to the child as further
evidenced in R v Woods (1921). However, it is clear that Lyn and Keith have separated,
therefore, Keith may no longer be in loco parentis and as a result may not have parental right to
discipline Orin (stepson).
It is equally important to address Pete’s parental right to not have physical punishment be
administered to his son. It is also important to address our minds to the fact that Pete contributes
to his son’s maintenance whenever he can which suggests that his son is not under his care.
Making reference to the Families and Children Act of Belize, “any reasonable disciplinary
measures administered or undertaken by a parent or legal guardian to a child under the parent or
legal guardian’s care and control shall not constitute ill-treatment…” Therefore, since Orin is
under his mother’s care and control, Lyn has the right to administer said punishment regardless
of Pete’s reservation, unless the punishment goes beyond what is deemed reasonable and into the
realm of ill-treatment. Notably, in the event that Orin enters the care and control of Pete, that is,
if Pete applies to the court for custody of Orin and is successful, he would have the parental right
to determine how he wishes to discipline Orin.

Religious upbringing of the three Children

The right to the determination of the religious upbringing of a child, is a right which flows from
custody. Where dispute arises surrounding the religious upbringing of the child, the courts
primarily consider the welfare of the child with thought given to their age and commitment to a

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particular religion. Therefore, where a child has developed a certain belief or inclination towards
a particular religion, the court will be hesitant to allow the parent to make religious
determinations in conflict with that belief if it is satisfied that to do so would be to the detriment
of the child. In Stourton v Stourton, the Court of Appeal was convinced that to force a ten-year-
old with Protestant convictions to be raised in the ways of Roman Catholicism would be a 'great
danger' to his 'tranquility and health, his temporal happiness and... his spiritual welfare'.
However, where a child does not possess such strong beliefs, but the parents hold opposing
views on religious upbringing, the courts focus on which situation would be most beneficial to
welfare. In Re B & G (Minors) (Custody) [1985], a mother, a former scientologist, sought
custody of her two children from a former marriage, her ex-husband being a devoted
scientologist. The courts found that while the children were comfortable and thriving within the
custody and care of their father and stepmother, the dangers posed by the influence of
scientology were too great to continue the arrangement. It was the opinion of that court that as
scientology was infamous for its methods of indoctrination and its practices, it was deemed
immoral and socially obnoxious. Further, as it was not possible to truly guarantee that the
children would be able to be insulated from its influence, the risks outweighed the benefits and
therefore custody was granted to the mother. This latter aspect is contrasted with the case of Re
H (A Minor) (1981) where a mother, who was a devout Jehovah's Witness, was granted custody
of her five year old son, despite her religion's views against blood transfusion, as she agreed to
take reasonable steps to allow for the father's views on blood transfusion to be known to medical
professionals and respected. Again, the court considered the welfare of the child to be more
important than the rights and beliefs of the parent.
Considering these rules and judgements in light of the present scenario, the following may be
said; naturally, if custody is exercised by one parent solely, that parent would have the right to
determine the religious upbringing of the child or children. However, with respect to Malia and
Nia, Senior Counsel is advised that assuming Keith shares the same religious beliefs as Lyn,
there would be no dispute as to her right to raise them as Anglicans. Conversely, if Keith's
religious beliefs differ, the courts would consider which of the two could provide the better
situation for the welfare of the CHILDREN.
Further, with respect to Orin, Senior Counsel is advised that the courts will consider his welfare
firstly, as his parents have expressed differing religious views. It is noted that given the Courts’

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previous resisted the school of scientology, it would appear unlikely that custody would be
granted to Pete, and therefore, he would not be able to exercise the right of religious
determination. Additionally, the court will consider the reasonability of Lyn's exercise of
corporal punishment and once it does not venture into ill treatment, will likely conclude that the
right of religious determination would lay with Lyn.
Importantly, where any of these children have developed concrete beliefs with respect to the
religions of any of the two parents respectively, the court will seek to respect those opinions
where to do otherwise would be detrimental to the children's welfare. This position, as outlined
earlier in Re B & G, may be especially important with respect to Orin, who is closer to the age
of majority.

Pete’s ability to prevent Orin leaving the jurisdiction

Two issues must be considered here; (i) whether Lyn may unilaterally send Orin out of the
jurisdiction and; (ii) whether Orin’s wishes to remain in the jurisdiction carries any weight on the
issue.
According to s. 8 (3) of the Custody, Contact, Guardianship and Maintenance Act of
Guyana, ‘subject to any arrangements to be made between the parents or as directed by an order
of the Court, a parent who has a child residing with said parent, has the responsibilities and rights
in the best interest of the child.’ Furthermore, s. 8 (4) indicates that, ‘where the parents of a child
live separate and apart and the child lives with one of them with the express or implied consent
or acquiescence of the other, the right of the other parent to have the child reside with the parent
not the entitlement to access or contact, is suspended until an order of the Court otherwise
provides or the parents otherwise agree.’ As such, while Lyn has parental right, she requires
Pete’s consent to determine Orin’s residence.
In Re O [1962] 1W.L.R 724, the problem concerned a boy of six and a girl of five, the children
of a British woman and a Sudanese man. At the time of their marriage the parents had agreed to
make their home and raise their children in Sudan, but after five years the mother brought the
children to England and refused to return to Sudan. Penayeuick J ordered that the children be
committed to the care and control of the mother, being impressed with the great unhappiness
which the children’s removal from their mother, or from each other, would cause. The court of
appeal allowed the father’s appeal in part. Lord Evershed M.R., with whose judgement Upjohn

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and Diplock LJ briefly concurred, adopted the reasoning of Eve J in Re Thain (1926) Ch. 676,
that because the Act of 1925 does not make the children’s welfare the sole consideration, other
consideration must have been contemplated, of which “the wishes of an unimpeachable parent
undoubtedly stand first.” The right course therefore was that the boy should be committed to the
care and control of the father and should return to Sudan, and the girl who might prove less
adaptable, should remain with her mother. Therefore, Pete's wishes as an unimpeachable parent
may be considered in preventing Lyn from sending Orin to the United States under s. 3 of the
Custody, Contact, Guardianship and Maintenance Act of Guyana.
Further, the wishes of Orin may act as a bar to Lyn’s intended action. The Family Law Act 1975
(‘the Act’) sets out both primary and additional considerations when determining what is in the
child’s best interest. One of these considerations being the wishes and feelings of the child.
According to Justice Gilligan of the Ontario Supreme Court, “there can hardly be a feeling of
injustice greater than the feeling that one has not been heard in his own cause. [Thus] , is there
anything in the personality of a child that would make that feeling of injustice any less acute
simply because he is a child”. This consideration is usually dependent on the age and maturity of
the child, the nature of the decision to be made, and the Judge’s own views. Seeing that Orin is
16 years old, the requisite maturity and his understanding of the situation may be presented and
as such argued that as why his wishes should be taken into consideration.
In Williamson v Williamson [1986] 2 FLR 146, CA, following divorce, M was given custody of
the three children. After three years, custody of the eldest child (a boy then 13) was transferred to
F, and after a further six years the two younger girls (then 14 and 13) voted with their feet,
turning up at F’s home and refusing to go back to M. The Judge awarded formal custody to M
but day-to-day care and control to F, and F appealed. Allowing the appeal, the Court said split
orders of this sort are generally undesirable. The welfare officer recommended the girls be
brought up by F, and there was no reason to think the girls themselves would change their minds.
They gave cogent reasons for wanting to stay with F, and that was enough. Similarly, in M v M
(Custody appeal) [1987] 1 WLR 404, CA after a divorce, a 12-year-old girl G went to stay with
her father F and then expressed a wish to remain with him permanently, resisting even the
suggestion that her mother M should have access. M was granted interim custody, care and
control, but F’s appeal succeeded. The Judge had failed to take account of G’s adamant
opposition to such an order, which was significant despite G’s youth, and had been “plainly

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wrong” to order a handover within four weeks. Interim custody, care and control would be given
to F.
As pointed out by Butler-Sloss LJ the Court’s obligation is to merely consider the wishes and
feelings of the child, and are not bound to give effect to them, but to be better able to judge what
is in the best interest of the child in question. It is but one of a range of considerations for the
Court in making a parenting order, not the paramount one.
In summary, even though Pete may rely on the court taking into account Orin’s wishes he should
also be mindful that the court is not obligated to do so and will decide upon what is best for
Orin’s welfare. Senior Counsel is therefore advised of the foregoing.
1. Whether Pete is parent. S 10 Status of Children’s Act. Presumption of fact.
2. Parental rights/responsibilities of Pete
3. Whether step-parents have parental rights/ responsibilities (right to discipline) –
parental right to discipline can be delegated to those in loco parentis
4. Right to Discipline – what is reasonable, physical punishment and chastisement
5. Right to decide on the religious upbringing of the child – Turton v Turton (Spiritual
Welfare), Re B and G – Scientology and Re H
6. Whether Lyn could carry Orin out of the jurisdiction considering Orin’s wishes and
Pete’s objection – Re O – English-Sudanese – Wishes of an unimpeachable parent
Make reference to the jurisdiction used and stick to one jurisdiction throughout. How does
Guyana Legislation treat with the views of the child? Ault v Ault should be used. Orin is not an
adult but he is of age of discretion; consider cases that treat with that. Religious views is linked
to the society and the tolerance to the religious views.

2. Carlos and Donna have lived together for sixteen years but they have never married. During the
period of cohabitation Donna gave birth to Ed, now ten, and Amber, now fourteen. Ed has been
unhappy at home for two years because his parents, he says, are too strict with him. Carlos believes
in corporal punishment and frequently beats Ed. Donna forbids Ed from participating in many after-
school activities. Ed wants to ‘be freed’ from Donna and Carlos. He wishes to live with his elderly
grandparents, who wish to adopt him. Donna and Carlos object to the move and the adoption. Ed
says if he cannot ‘escape’ Donna and Carlos, he wants them to be ‘forced to change’.

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Amber has recently been diagnosed with a debilitating illness. She refuses the conventional
medication prescribed by her doctor, telling him that she will agree only to homeopathic treatment.
Carlos and Donna want to honour her wishes. They have decided that it would be kinder to let Amber
determine what is best. The doctor would like Amber to be given conventional medication before her
condition worsens.
Discuss
Introduction

The instant case invites a discussion of parental responsibilities which includes the rights and
duties of a parent. Notably, parental rights exist subject to the limitation of the best interest of the
child. The legal issues which arise are as follows. First, whether or not Donna and Carlos would
be deemed the parents of Amber and Ed under the Status of Children Act. Secondly, whether or
the frequent corporal punishment on Ed, by Carlos may be deemed excessive or unreasonable,
and an abuse of the parental right to discipline, such that its continuance would be detrimental to
Ed’s well-being. Thirdly, whether or not Donna’s refusal to permit Ed to attend some after-
school activities is in his best interest. Fourthly, whether or not Donna and Carlos reasonably
withheld consent to the adoption of Ed by his grandparents. Finally, whether or not the doctor
may be precluded from administering the proposed conventional medication to Amber, owing to
Amber’s refusal of the medication and Carlos and Donna’s agreement with her wishes.

Issue 1

The first issue presented in the question relates to the status of the children. In resolving this
issue, both the common law and statute will be taken into account.

At common law no child is legitimate unless his parents are married to each other at the time of
his conception or the time of his birth. Thus, there is a presumption at common law that a child
born into a marriage is legitimate. However, to make provision for the determination of paternity
of the out of wedlock child, affiliation legislation and later Status of Children Legislation was
enacted.

Section 12 of Guyana’s Status of Children Act 2009 provides:

“A man is presumed to be the father of a child where he was cohabiting with the mother of the
child in a relationship of some permanence at any time during the period beginning not earlier

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than three hundred and eight days and ending not less than one hundred and forty days before
the birth of the child.”

Therefore, since Donna is the mother of Ed and Amber, considering the number of years Carlos
and Donna lived together and the age of the children they would be legitimately presumed to be
the parents of the children. As such they possess certain parental duties, obligations and
responsibilities.

Issue 2

The second issue addresses the frequent corporal punishment on Ed by Carlos. At common law,
a parent or a person in loco parentis is entitled to administer physical punishment to
their children or children in their charge, who are of an age to understand its purpose, so long as
the punishment is reasonable and not excessive. Importantly, the common law was codified by
statute. The general principle is captured by the CCGMA at section 3 (2) (b), and states that “A
parent, in order to fulfill the parental responsibilities in relation to a child, has the right to
control, direct or guide, in a manner appropriate to the stage of development of the child, the
child's upbringing”. In this context, corporal punishment is lawful, to the extent that it is in
keeping with and not excessive in order to “control, direct or guide…the child’s upbringing.”

As in every other instance, the well-being of the child is of paramount importance. It follows
that, while a parent’s right to institute corporal punishment is secured, this right is only upheld so
far as it is not adverse to the well-being of the child. To illustrate, in the case of Halliwell v
Counsell1, the court affirmed the right to restrain the acts and conduct of the child and to inflict
correction on the child by personal or other chastisements to a reasonable degree. Further, in the
case of R v Derriveire2, where a father beat his son in the face, it was held by the court to be
excessive punishment. In the case of R v H3 where a father beat his son across the back with a
belt causing bruising, as in the aforementioned cases, the issue to be determined by the Courts
was not whether, the administration of corporal punishment by a parent or other persons, charged
with the care and control of a child was permissible, but, rather whether, the exercise of the said
punishment was of such a nature that it amounted to an unreasonable or excessive exercise of the
right to discipline. This was enunciated by Rose LJ:
1
(1878) 38 LT 176
2
[1969] 53 Cr. App 637
3
[2002] 1 Cr App R 59

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 “………., when they are considering the reasonableness or otherwise of the
chastisement, they must consider the nature and context of the defendant's
behavior, its duration, its physical and mental consequences in relation to
the child, the age of and personal characteristics of the child and the reasons
given by the defendant for administering punishment.”

In the instant case, the facts do not indicate the nature and context of the child's behavior or
reason for administering punishment. However, with the corporal punishment lasting for two
years, and being administered frequently, it may be seen as excessive. Further, in response to the
treatment being received, Ed, a 10-year-old, uses words such as “be freed” and “escape,” and
wishes for his parents to be forced to change. It is, therefore, a reasonable deduction that he is
suffering emotionally from this form of excessive punishment. Accordingly, the punishment in
question may not be deemed to have been administered in manner appropriate to Ed’s
upbringing. In addition, with regard to Ed’s physical well-being and emotional welfare, Carlos’
conduct may be considered contrary to the welfare of the child principle.

Issue 3

The third issue requires a discussion of the duty to educate and the emotional wellbeing of Ed. In
Guyana, the Education Act at article 13 highlights the duty of a parent to educate a child. It
states that: ‘it shall be the duty of the parent of every child to cause the child to receive efficient
elementary instruction in reading, writing and arithmetic, and if the parent fails to perform that
duty, he shall be liable to the orders and penalties provided by this Act’. This applies to children
between the ages of six and fifteen 4. Hence, the Education Act speaks to the formal education of
the child; whilst the Education Policy addresses the importance of co-curricular or after school
activities.

Notably, a child’s welfare is very important; in which not only the formal education is
considered, but that of the non-formal and informal education as well. Accordingly, there are
several relevant factors in determining the welfare of the child; one of which is the physical,
emotional and educational needs of the child. In fact, as was aforementioned, Article 3(2) (b) of
the CCGMA gives parents the right “to control, direct or guide, in a manner appropriate to the
stage of development of the child, the child's upbringing”.
4
Article 22 Cap 39:01

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In the Case Re D (A Child)5, the child in question suffered from Attention Deficit Hyperactivity
Disorder, along with other incapacities which affected his mental faculties, at the age of 14years
he was committed to a mental hospital for young people, by the consent of his parents. At the
said facility his liberty and freedoms were vastly restricted, to the extent that he was constantly
under the control and supervision of the matrons of the facility, he was not allowed to engage in
activities outside of those connected with his education instructions within the facility. Upon
reaching the age of 16years, and being transferred to another facility under the same restrictions,
the issue arose as to whether the restrictions imposed upon him was contrary to his right to
liberty and freedom enshrined under the Mental Capacity Act, which provided for the diminished
control by a parent of a child over the age of 16years. The Courts in its finding held that a
parent’s control over a child diminished as the child got older and the parent’s right to restrict the
liberty of a child or consent to its restriction, was only permissible to the extent that such
restriction was normal for a child of their age.

Applying law to fact, Donna has discharged her duty as a parent to educate Ed in accordance
with the standard laid out in the Education Act. Notwithstanding the aforementioned, the
educational policy recommends that a child participate in co-curricular activities. It follows that
Ed’s emotional needs and social development may require him to partake in after-school
activities. It is notable that Donna permits Ed to attend some of these activities. As such, as Ed
was only 10 years old, it is plausible to conclude that Donna’s restrictions were normal for a
child his age and appropriate for his upbringing. Therefore, not allowing Ed to participate in
some after-school activities may not contradict his emotional and educational needs.

Issue 4

This issue requires a discussion of the parental right to consent or refuse consent to the
adoption of a child. Accordingly, by virtue of section 10 (4)(a) of the Adoption Act of
Guyana, no adoption order shall be made in any case, except with the consent of every person or
body who is a parent or guardian of the child or who is liable by virtue of any order to contribute
to the maintenance of the child. On that note, as has been established above, Ed and Donna,
though they are not married, are Ed’s parents under the Status of Children Act. Therefore, Ed
and Donna have the right to refuse to consent to the adoption of Ed by his grandparents.

5
[2019] UKSC 42
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 The question which hereafter arises is whether the court can dispense with their consent
and proceed with the adoption. Section 11 (1) of the Adoption Act provides circumstances in
which the court will dispense with the consent required. This includes where a person whose
consent is required cannot be found or is incapable of giving his consent or that his consent is
unreasonably withheld. It follows that whether Donna and Carlos unreasonably withheld their
consent to the adoption of Ed must be determined. As espoused in Re E [1990], the court will
apply the test of the hypothetical reasonable parent at the time of the hearing. In the instant case,
Ed wishes to live with his grandparents who want to adopt him. In response, Ed’s parents have
refused to consent to both the move and the adoption. The question, therefore, is whether a
reasonable parent with full understanding of the reasons for the application and all the
considerations involved could withhold his agreement. Another case which is instructive on this
point is Re D [1977] where the father opposed adoption of a child by the mother and her new
husband. Lord Wilberforce stated that, “[In determining the reasonableness of the parent’s
decision, one must consider] how a father in the circumstances of the actual father, but
(hypothetically) endowed with a mind and temperament capable of making reasonable decisions,
would approach a complex question involving a judgment as to the present and as to the future
and the probable impact of these upon a child.”

In the instant case, the reasons surrounding the issue of adoption are related to the
treatment of Ed by Carlos and Donna. In particular, Carlos frequently disciplines Ed using
corporal punishment and Donna prevents Ed from attending some after-school activities. As
established, the corporal punishment used by Carlos may be deemed excessive, while Donna’s
refusal to allow Ed to partake in some after-school activities may not negatively impact Ed’s
emotional needs. In addition, a reasonable parent in the circumstances of Donna or Carlos may
take Ed’s age and maturity into account. With regard to Ed’s age, he is only 10 years old and
may not understand the strict impact of an adoption order. This is evident as he declares that he
wishes to merely live with his grandparents, as opposed to be adopted thereby severing ties with
Donna and Carlos. Moreover, Ed’s grandparents are described as elderly and may not be fit to
parent such a young child. The court may weigh these varying circumstances against each other
in order to determine whether an adoption order would be in the best interest of Ed, and,
accordingly, dispense with Carlos and Donna’s consent. Considering the circumstances, it is a

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reasonable deduction that Carlos and Donna reasonably withheld their consent. Therefore, they
exercised their parental right in conformity with the best interest of Ed.

Issue 5

At common law, parents can exercise their right to either refuse or consent to medical treatment
for a child which is limited by the courts’ discretion to decide whether the best interest of the
child is to receive the medical treatment or not. Presumably, children as minors may be incapable
of giving consent, as Stephen J. in Re Shonahan, ex parte Plummet6 stated that the law regards
minors as incapable of making responsible choices for themselves that it entrusts to others the
legal power to make those decisions and carry them out.

Considering whether Amber could consent or refuse the medical treatment proposed by the
Doctor, it is pivotal to note the court’s approach in the case of Gillick v West Norfolk [1985], as
one of the key issues for determination in that case was whether a child under the age of 16 can
give valid consent. The court held that adolescents under age 16 can consent to medical
treatment. However, in assessing whether a minor had sufficient understanding so as to make
them competent to give valid consent to medical treatment, the court took into consideration the
child’s understanding of the nature of their medical condition and the proposed treatment, the
risks and benefits, the life experience of the child and whether there was any fluctuation of the
child’s mental state. These considerations though not fixed formal rules, provide assistance to the
court in its determination on the issue of consent of minors. Considering this, where the court
may find Amber, being 14 years old, to be ‘Gillick competent’, then the refusal of consent to the
conventional medication may be deemed valid.

Notably, where the courts may deem Amber, as Gillick competent she cannot consent to just
about any form of medical treatment, as Re D (1976), evince that sterilisation of a child for non-
therapeutic reasons could not be sanctioned by a minor nor parent but only through an order of
the court. Hence, the application of the Gillick case has been narrowed to such an extent that
while a Gillick competent child may consent to medical treatment, they do not have an
overriding right to refuse. This means that treatment can be administered to children against their
wishes providing that consent is given by the parent or the court.

6
Re Shonahan ex parte Plummer [1980] 55 ALJR 71

14
The facts dispose that Amber is only open to consent to homeopathic treatment as opposed to the
conventional treatment prescribed by the doctor. Considering whether the doctor may be
precluded from administering the conventional medication to Amber, as in the circumstances
outlined in the instance case, it is important to note that Thorpe J In the case of Re W (A Minor)
(Medical Treatment: Court's Jurisdiction) [1993] CA seemingly refined the Gillick position that
a minor of any age who had sufficient maturity might consent to treatment but he could not
overrule consent given by the court. The court would take particular account of the minor's
wishes, the importance of which increased with his age and maturity but would override them
where his best interests so required.
Given Amber’s age, it is likely that the court would place weight on considering her wishes to
refuse the conventional medication, while opting for the homeopathic treatment to find that she
has sufficient maturity to refuse consent. However, even where Amber may be found to be
‘Gillick competent’, the court as it did in Re S (A Minor) (Medical Treatment) (1994) within its
ambit as the guardian of all children, would still possess the power to override Amber’s decision
to refuse the treatment, if the court decided that it was in her best interests to go ahead with the
treatment. However, the starting point for a court is to give effect to the patient’s wishes ‘unless
the balance was strongly to the contrary effect’.
Moreover, in considering that Amber is diagnosed with a debilitating illness and her parents’
refusal of the conventional medication due to honouring Amber’s wishes, the court also has the
power to override the parents’ refusal of medical treatment for their child, if the proposed
treatment would be in her best interest [See Re S (a minor) medical treatment) 1993]. Further,
the Child Protection Act Guyana under S19(1) also provides for the overriding of the parent’s
refusal to consent to medical treatment, where:
the Director or social worker believes a child to be in need of protective intervention because of
his parent’s refusal to obtain or permit essential medical, psychiatric, surgical or remedial
treatment that is recommended by a registered medical practitioner for the child, the director or
social worker may apply for an ex parte order authorizing the treatment.
It is therefore submitted that Amber and her parents’ refusal to consent to the conventional
medication will not preclude the doctor from administering the proposed medication. Even
where, in exercising their right to consent or refuse to consent to medical treatment, there is
refusal on the part of the parents to the use of conventional medication, section 19 of the Child

15
Protection Act of Guyana would empower the director or social worker to apply for an ex parte
order authorizing the treatment. The court, in these circumstances would operate in loco
parentis to determine what is in the best interest of Amber given that she is diagnosed with a
debilitating illness. The court would likely follow the precedent laid down in Re R (Wardship:
Medical Treatment (1991) to authorize the use of conventional medication for Amber especially
where the conventional medication, as suggested by the doctor, can impede her condition from
worsening.

1. Whether Carlos is Parent

2. Whether Carlos’ discipline is reasonable re Ed – s 3(2)b CCGMA, S 9 Criminal Offences
Act, S 9 of the Summary Jurisdiction Magistrates Act
3. Duty to educate Ed – S3 of CCGMA and parental restriction and control
4. Whether Donna or Carlos reasonably withhold consent to adoption. Consider Ed’s age and
maturity. Whether Grandparents are capable of taking care of Ed
5. Whether parent could refuse medical treatment or consent to it
Lenny L in Re McGrath.
Many activities – does not mean that she is totally preventing the child. Many suggests that
there were extra-curricular activities in excess. Child wants the parents to change and if they
cannot change then he would want to go with the grandparents. There was nothing to suggest
that the grandparents were too old; it may be considered but it is not definitive. Court is
supreme guardian

3. Tasha became bored with her husband Ravi Ram and started a relationship with Chris Tucker, a
wealthy attorney-at-law. Based on promises of marriage from Chris, Tasha changed her surname to
“Tucker”. Ravi was unaware of the name change. In April 2013, Tasha gives birth to Dylan and
registered him as Dylan Tuck. Although Tasha claims that Chris is Dylan’s father, no one was named
as Dylan’s father when the birth was registered. Chris denies that Dylan is his son, insisting that his
relationship with Tasha was not a long one and that Tasha is merely ‘a gold digger’. Ravi believes
Dylan is his son.
(i) Advise Tasha on the options available to her to obtain financial support for Dylan,
including the factors which the court would take into account in making an order for financial
support.

16
Children are unable to provide for themselves and therefore depend on those responsible to provide
for them. The custody, Contact, Guardianship and Maintenance Act provides for the maintenance of
children.
S 47 of this act provides for the classes of children to whom a duty to maintain is owed. These
include one’s own child, each child of the person’s spouse where that child was born before the
marriage and where the child resides with the couple as a family, each child of the person with whom
the person cohabits where that child was born before the cohabitation commenced and where that
child lives with the couple as a family. Duty to maintain is also owed to a child who is treated as a
child of the family and each child of the children of that person in the event of those children failing
to maintain them.
The extent of this duty is subject to the capabilities of the person who owes the duty to maintain and
several factors are considered in determining the quantum.

(ii) Advise Ravi, who wants to have Dylan’s surname changed to his, as to the likelihood of
obtaining an order of the court to change Dylan’s surname to his.

3. Tasha became bored with her husband Ravi Ram and started a relationship with Chris Tucker,
a wealthy attorney-at-law. Based on promises of marriage from Chris, Tasha changed her
surname to “Tucker”. Ravi was unaware of the name change. In April 2013, Tasha gives birth to
Dylan and registered him as Dylan Tuck. Although Tasha claims that Chris is Dylan’s father, no
one was named as Dylan’s father when the birth was registered. Chris denies that Dylan is his
son, insisting that his relationship with Tasha was not a long one and that Tasha is merely ‘a gold
digger’. Ravi believes Dylan is his son.

(i) Advise Tasha on the options available to her to obtain financial support for Dylan, including
the factors which the court would take into account in making an order for financial support.

(ii) Advise Ravi, who wants to have Dylan’s surname changed to his, as to the likelihood of
obtaining an order of the court to change Dylan’s surname to his.

Issues

The issues to be determined are:

1) Whether Ravi may be considered as Dylan’s father given the fact that Tasha’s
relationship with Chris;

2) Whether Tasha can make an order to the court for financial support from Chris;

17
3) Whether Ravi can obtain a name change for Dylan?

Issue 1: Whether Ravi may considered as Dylan’s father given the fact that Tasha’s relationship
with Chris;

Before advising Tasha on the availability to obtain financial support and the likelihood that Ravi
may obtain an order from the court to have Dylan’s surname to be changed to his, it should be
noted that the court would have to make a determination of the paternity of Dylan in order to
make the above orders. In this deliberation, the court would take the following into
consideration.

According to the law, there is a presumption that the husband of a married woman is the father of
her child. This can be seen under Section 10 (a) of the Status of children Act cap: 46:05. Thus,
it is automatically assumed that Ravi would be the father of Dylan because Tasha was still
married to Ravi at the time of Dylan’s birth. However, this presumption is rebuttal and the
burden of rebutting this presumption is placed on the person who wishes to have it displaced. In
this case, that burden falls on Tasha to prove that Ravi is not the father of Dylan. The fact
scenario given states that Ravi and Tasha are married but she is also in a relationship with Chris
who is denying that Dylan, is not his child. The presence of this extra marital relationship
suggests that there may have been adultery. In order to prove that Dylan is Chris’ child,
sufficient evidence to rebut the presumption must be furnished. First, that the parties had sexual
intercourse. and second, that the child is the issue of that intercourse.

The presumption can be rebutted to show that sexual intercourse was impossible due to
impotence or the physical absence of the parties. Tasha would have to prove that she and Ravi
were physically absent from each other for ten months. If this is proven, then the court may
consider this when determining the father of the child.

If there is no evidence, to rebut the presumption then the presumption stands. In Francis v
Francis, after a wife had committed adultery she and her husband still slept together and they
had marital intercourse at the material time when the child was conceived. The husband used
contraceptive sheaths during the relevant period and when the child was born the wife registered
the child's birth in her name leaving the name of the father blank. Both parties accepted the
probability that the child was the daughter of the adulterer and not of the husband. In summary
proceedings subsequently by the wife for desertion and wilful neglect to maintain, the justices
refused to make an order in the wife's favour for custody of the child, considering the child to be
illegitimate. On appeal, it was held that an order for custody should have been made in the wife’s
favour, for the evidence was not sufficient to rebut the presumption of legitimacy of a child born
in lawful wedlock.

18
Phillimore J noted that where a child is born in wedlock there is a presumption that it is a child
of the two spouses, and that is a presumption which is not lightly to be dispelled.

Further, Chris’s testimony as it relates to the length of the relationship he had with Tasha would
aid the court in determining who the father of Dylan is. It could be argued that, at the time of
their relationship, not much time had passed from her previous relationship and therefore the
presumption would still stand, that Dylan is the child of Ravi Ram. In the case of Knowles v
Knowles [1962] 1 All ER 659 it was held that the presumption was not rebutted because the
conception of the child took place within the normal gestation period which was between the 9th
of June and the 23rd of June. Tasha would have to prove that during June of 2012(9 months
prior), she had no intercourse with Ravi, as she was bored with the marriage, and did indeed have
intercourse with Chris Tucker only.

Standard of Proof

At common law, the standard of proof for rebutting the presumption stated above is the same as
that for adultery. This can be seen in the case of Cotton v Cotton. It was stated that when the
legitimacy of a child is disputed on the ground that the husband was not the father, the question
cannot be decided on a mere balance of possibilities. The evidence repelling the presumption of
legitimacy must be strong, distinct, satisfactory, and conclusive. However, at section 16 (1) of
the Status of Children Act the standard of proof is on a balance of probabilities. In Jagroop v
Singh, the magistrate (as well as the Full Court) had regarded the proceedings as a criminal
matter requiring the very high standard of proof beyond reasonable doubt. It was submitted on
appeal that affiliation proceedings were civil proceedings and that the standard of proof which
rested on an applicant was proof on a balance of probabilities.

Under section 30 (1) of the Status of Children Act it states:

“In any proceedings where the parentage of a child is in issue, the Court may make an order
requiring a parentage testing procedure to be carried out for the purpose of obtaining
information to assist in determining of the parentage of the child.”

In determining the paternity of Dylan, the court may order a Parentage testing (blood test) to
gather information to assist the court in its deliberations. In F v F, the husband and wife were
married, and he left her sometime after. A child was conceived and samples of the blood of the
husband, the wife and the child had been taken twice. These showed that the child's blood
contained the Willis “C” factor, which was not present in the blood of the husband or of the wife.
On the medical evidence based on these samples the child was not the child of the husband but
there was a possibility, too remote to be of practical significance, that the Willis “C” factor had
appeared in the child's blood as the result of a mutation. The wife admitted that the child was her
child. It was accepted by the parties that the standard of proof of adultery by the wife, where the
consequence of proof would be to bastardise.

19
In light of the foregoing, the different approaches the courts took in the aforementioned cases
may be looked at in turn to determine the best solution to the fact scenario presented.

ii) Whether Tasha can make an order to the court for financial provision for Dylan?

Children are unable to care for themselves and therefore depend on those responsible to maintain
them. This would mean that not only biological parents are liable but those that are in loco
parentis with the child may also be liable. However, there is no civil duty at common law on a
parent to maintain his legitimate child; it is a mere moral obligation. Statute however provides
for maintenance of the child.

The Custody, Contact, Guardianship and Maintenance Act (CCGMA), which repealed the
Maintenance Act in so far as it relates to maintenance of children, provides for the maintenance
of children. Section 47 of this Act provides for the classes of children to whom a duty to
maintain is owed. These include inter alia one’s own child and a child treated as a child of the
family. Parents of the child have a duty to maintain but where this is in dispute, as in Dylan’s
case, the court would have to determine the matter of the parentage before they consider any
application for maintenance.

This was illustrated in the case of Cooke v Cooke where the husband deserted the wife on a
reasonable belief that she had committed adultery and there was doubt as to whether the
respondent was the father of the children. The court remitted the matter for a re-hearing where
the paternity of the child would be a material issue to be determined.

In light of this, whoever the court determines Dylan’s father would be liable to maintain Dylan.
Tasha would be able to claim from the father of the child once it is decided by the court. It does
not matter if he accepts the child as his.

However, the court can still find that someone who is not the parent is liable to maintain the
child. In determining whether someone would be liable under this class, several factors are
considered by the court. S 50 (2) of the CCGMA provides:

(a) Whether that person had assumed responsibility for the maintenance of the child and, if so,
the extent to which and the basis on which that responsibility was assumed and the length of the
period during which that responsibility was met;

(b) Whether the person did so knowing that the child was not the child of that person; and

(c) The liability of any other person to maintain the child.

These factors were considered in making a maintenance order in the case of Day v Day where
the respondent had assumed responsibility for the expenses of the applicant’s children from
another relationship, for a period of four years prior to the marriage to the time when the
relationship turned sour some six weeks after the marriage. The court awarded maintenance to

20
the wife for the children on grounds that the respondent had treated the children as his own,
knowing that they were not his for over four years and he was therefore bound to contribute to
their financial support.

If the court finds that Ravi is the father of Dylan under this section Tasha would only be able to
claim for maintenance from Ravi. If the court finds that Chris is the father of Dylan then Tasha
can claim for maintenance from Chris. In the instance that Chris is found to be the father, Tasha
can still claim for maintenance from Ravi as he acknowledged the child as his.

The extent of the duty to maintain is subject to the capabilities of the person who owes the duty
to maintain and several factors are considered in determining the quantum. These are listed in s
50(1) of the CCGMA. In this case the court would consider:

- the income, earning capacity, property and other financial resources of Tasha or Chris or Ravi,
depending on who is adjudged to be the father, has or is likely to have in the foreseeable future;

- the financial needs, obligations and responsibilities Tasha or Chris or Ravi has or is likely to
have in the foreseeable future;

- the financial needs of the Dylan;

- the income, earning capacity, if any, property and other financial resources of the Dylan;

- Special needs of the Dylan;

- the manner in which the Dylan was being or is expected to be educated or trained.

- and where the person is not the parent the court would have regard to the financial resources or
obligation of any other person in whose favour it proposes to make the order.

(iii) Whether Ravi can make an order for Dylan’s last name to be replaced with his surname

In the instance where Tasha fails to rebut this presumption, as stated above, the court will take
the following into consideration when reviewing Ravi’s application for an order to change
Dylan’s surname to his. The court will consider Ravi’s parental right to name the child. Parental
rights, also known as parental responsibilities and duties, are those rights which a parent has over
the child. The reason behind parental rights is given by Stephen J. in Re Shonahan, ex parte
Plummer [1980] 55 ALJR 71,75 who states that it is because the law regards minors as
incapable of making responsible choices for themselves that it entrusts to others the legal power
to make those decisions and carry them out. Thus, parents have the right to custody, care, and
control of their children, which allows the parent to exercise absolute control of the child. This
includes the naming of the child by both parents. It can then be concluded, under the
circumstances outlined above, Ravi has parental rights, as can be seen under section 3 (2) of the
Custody, Contact, Guardianship and Maintenance Act 2011, that the court may consider when
reviewing his application for such an order.
21
The courts may also consider the welfare of the child. This concept was developed specifically
for the protection of children, and through the passage of time, equity adopted the view that the
welfare of the child is the “paramount consideration” in most cases. In the case of Re McGrath
[1893] 1 Ch 143 at 148, Lindley LJ stated

“…the welfare of the child is not to be measured in money only, nor by physical comfort only.
The word welfare must be taken in its widest sense. The moral and religious welfare of a child
must be considered as well as its physical well-being. Nor can the ties of affection be
disregarded.”

It is with this in mind, that one can understand the reasoning of Kaye J in the case of G v P
[1977] VR 44 (Sup. Ct). In this case, X was the putative father in question who had been
registered at birth under X’s name. The mother later married P and wished the child adopt P’s
surname. On learning of her plans, X applied to the court for an order that the child should retain
X’s surname. In its deliberations the court considered the provisions of the status of children
legislation and concluded that it was in the best interest of the child to retain X’s surname. The
learned judge’s reasoning as to why it was important for the child to retain her father’s surname
was given as follows:

“it is important that the child should retain a warm and full relationship with her father… I
conclude that she goes to him willingly and enjoys doing so. Nothing should be done which
might undermine her willingness to do so. No doubt the strength of her relationship with the
applicant will depend in part upon her continued recognition of him as her father. By retaining
her surname, an important and meaningful bond between them will be maintained. The need for
her to have a close and loving relationship with him might influence both the control and
direction which he, as her father, could give her as well as her readiness to accept his parental
guidance. Furthermore, the maintenance of a loving relationship between them might affect the
strength of her claim upon her father’s bounty.”

In consideration of all things stated above, Ravi would have a high chance of being able to obtain
an order from the court that the child’s surname be changed from Tuck to Ram.

In the instance where Tasha is successful in displacing the presumption of Ravi being Dylan’s
father, the court will take the following into consideration when reviewing Ravi’s application for
an order to change Dylan’s surname to his. As has been stated before, the right to name the child
falls on the parents, as described under Section 2 of the CCGMA, of that child. This right comes
with the rights of custody, care, and control of that child. It should be noted, however, that these
rights are subject to scrutiny by the state, and more specifically by the court of law. Due to the
welfare principle, the interest of the child is much more important than those of the parents. In
other words, there are legal limits to the exercise of parental rights. Lord Esher M.R. stated in R
v Gyngall [1893] 2 QB 232 at 241-42 stated:

22
“The court is placed in a position by reason of the prerogative power of the Crown to act as a
supreme parent of the child, and must exercise that jurisdiction in the manner in which a wise,
affectionate, and careful parent would act for the welfare of the child…The court must exercise
this jurisdiction with great care, and can only act when it is shown that either the conduct of the
parent, or the description of person he is, or the position in which he is placed, is such as to
render it not merely better, but- I will not say ‘essential’, but- clearly right for the welfare of the
child in some very serious and important respect that the parent’s rights should be suspended or
superseded; but…where it is so shown, the court will exercise its jurisdiction accordingly.”

There are various specified instances in which the rights of the parent in relation to the child will
be challenged by a third party, by the state, by one parent against the other or even by the child
himself, and in appropriate cases the court will interfere to regulate, vary, alter, or even take
these rights away from the parent(s) or guardians(s) in whom they are vested.

In reviewing Ravi’s application, the court may take into consideration whether Ravi has
acknowledged the child as prescribed under Section 19 of the status of Children Act 46:05. The
court may also take into consideration the welfare of the child.

Though it can be shown that Chris does not want to play an active role in the Child’s life, if the
court rules that he is the putative father, it must be then proven that it would be in the best
interest of the child to have his surname changed to Ravi’s surname. In the case of D v B (child
Surname) [1979], the court had allowed for the child’s surname to be changed from the putative
father’s surname to that of the Mother’s current husband surname. The Court believed it to be in
the best interest of the child to be known by the surname of the family unit.

In the scenario given, Tasha and Ravi are not the picture of an effective family unit. It may
appear that Tasha had intentions of leaving Ravi for Chris due to promises of marriage from him.
The court may deem this to be an unhealthy environment for the care of a child, as the
relationship between Tasha and Ravi may also be taken into consideration.

In analyzing all things stated above, Ravi would have a low chance of being able to obtain an
order from the court for Dylan’s surname to be changed from Tuck to Ram.

If you mention blood tests can be used, consider when courts can order blood tests and all
other matters relating to blood tests. Consider what is meant by acknowledging the person
as child – s 19 of Status of Children Act. Blood test does not establish paternity, it
eliminates persons. Consider that the blood test is only ordered where it is in best interest
of the child.

23
4. Jacqui married Hamed in June 2012. In January 2012, a child Rae was born. Later that year,
Derrick, Jacqui’s five-year-old son from a previous marriage, came to live with them. In 2018, bored
with the marriage, Hamed began an affair with his secretary, Landa and in December of that year, he
moved out of the matrimonial home and went to live with Landa.
Jacqui, depressed and lonely, began an affair with Ali, her next-door neighbour. In June 2019, Jacqui
gave birth to Jali. Hamed who had previously been maintaining Rae and Derrick, now refuses to
maintain any of the children. Ali has never supported Jali, and in fact claims that Jali is not his child.
Derrick was born when Jacqui was married to Abraham, a mathematics teacher, who spent most of
his free time talking of mathematical equations. Jacqui had an affair with Felix but two months later
after discovering she was pregnant, ended the affair.
Although Abraham was surprised that Jacqui had conceived a child, Abraham accepted his doctor’s
opinion that conception was possible without penetration as Abraham was suffering from premature
ejaculation. Abraham and Jacqui later divorced.
Jacqui wants maintenance for the children and comes to you for advice. Advise Jacqui.

The scenario raises the critical consideration of paternity when seeking to enforce maintenance
for a child and as such the following issues will be dealt with under a determination of the
prevailing circumstances using applicable presumption of paternity in law.
A. WHETHER HAMED’S REFUSAL TO MAINTAIN RAE; A CHILD BORN
PRIOR HIS MARRIAGE, CAN BE JUSTIFIED?

The Status of Children Act, Cap 46:05 sets out certain presumptions in relation to paternity. As
such, if any presumption is applicable and the parent-child relationship is established from these
presumptions, there is a duty to maintain. According to section 5(1), a person is the child of his
natural parents, and his status as their child is independent of whether he is born in or out of
wedlock. The obligation to support a child is not dependent upon marital status of the parent, but
purely upon the status of being the parent. According to the Act, a presumption of paternity will
arise from marriage and acknowledgement of mother of child after its birth under section 10(c).
This is further expounded in section 19(3) which states that acknowledgement of paternity may
occur where a person consistently performs certain prescribed acts with respect to a child or has
in writing confirm his parentage of that child. Given Rae was six months old when Hamed
married Jacqui it is presumed he would have undertaken certain acts of father figure to that child

24
including maintenance or if he had signed the birth registration, this will satisfy
acknowledgement. Though distinct from the scenario, the case of Gardner v Gardner can
provide guidance as the courts upheld that where a man marries a woman in a pregnant state, a
presumption arises in favour of paternity since it is taken as a positive act of acknowledging the
child as his. Additionally, the presumption of paternity also applies if Hamed and Jacqui was
cohabiting after the decree of divorce from her previous marriage, but the relationship must have
had some degree of permanence at any time during the beginning of not earlier than 380 days
and ending not less 140 days before the birth of the child.
Consequently, Rae was born in January 2012 to his parents Jacqui and Hamed who later married
that same year in June which therefore means that Rae was born out of wedlock. Hamed
however, did not deny paternity of Rae (according to the facts) but refused to maintain him
possibly owing to Jacqui affair with their neighbour Ali. Jacqui who desires to have help in the
maintenance of Rae can seek to enforce Hamed’s duty to maintain under (CCGMA) 2011, which
defines a "father" in relation to a child born out of wedlock, as the man who qualifies as father
under the laws dealing with the status of children which relates to the applicable presumption
that places Hamed as the father being liable to maintain his child under section 47 at this
juncture.
B. : Whether Hamed can rightfully refuse to maintain Derrick, Jacqui’s five year old
son?
The second issue to be discussed is whether Hamed can rightfully refuse to maintain Derrick,
Jacqui’s five-year-old son from a previous marriage. This issue invites a discussion on the legal
obligation of support between a stepparent and stepchild. At common law, a husband has no
obligation to support the children of his wife by a previous marriage, however, a stepparent may
assume a stepchild support obligation by coming within a statutory obligation. When this is done
the stepparent and the child are said to be in loco parentis and the step-parent assumes the status
and obligation of a parent without formal adoption. Additionally, the rights duties and liabilities
are similar as if that stepparent were the natural parent. Under section 47 (1) (c) the Custody,
Contact, Guardianship and Maintenance Act 2011 provides that each person has an obligation
to the extent of the person’s capabilities to maintain each child of the person with whom the
person cohabits where such child was born prior to the commencement of the cohabitation and
resides with them as part of the family.

25
This section, therefore, imposes the duty to provide maintenance on persons who have parental
rights. Parental rights embody a person whose responsibility is to take care of that child as long
as the child is treated as part of the family. According to section 2 of the Maintenance Act a
“child of the family" means a child who is treated in a manner that a child would normally be
treated by a parent including the provision of financial and emotional support. Importantly, the
obligation to support a child is not dependent upon the marital status of the parent, but purely
upon the status of being the parent. In Guyana, blood relationship is not necessary to create
obligations as per the case of Re Keith Chase (1999).
Following this, we observe in the case Carron v Carron1, the husband married the wife and set
up the household with her and her two children from two previous relations. The parties and the
children lived together for 4 years after which the marriage of the parties broke down. In divorce
proceedings the wife applied for maintenance for the two children from the husband. The judge
at first instance held that as there were existing maintenance orders in force in respect of the
children, the husband had not fully accepted them and they were not children of the family. The
wife appealed and it was held that the judge at first stance had erred in the test of acceptance
since the children, living with the parties for 4 years, could not be said that they had not been
treated as children of the family.
In the application of law to facts, Derrick, Jacqui’s five (5) year old son, moves into the
matrimonial home in the latter part of 2012 and is maintained by Hamed until mid-2019. From
all indications, Derrick was treated as a child of the family for upwards of six years of him living
with Jacqui and Hamedd. Accordingly, section 47 (c), may impose a duty to maintain Derrick on
Hamed. However, the court will have regard to all the circumstances as set out in sections 50 (1)
which includes the financial needs, the way the child is expected to be educated or trained among
other factors. The court will take a step further under 50 (2) and consider that Hamed had
assumed responsibility for the maintenance of Derrick for six years with the understanding that
he was not his biological child. The court may also look to the financial needs, obligations and
responsibilities of Abraham, a Mathematics teacher, to maintain Derrick, being presumably his
natural father. Jacqui is therefore advised that she may seek maintenance from Hamedd for
Derrick however, the likelihood of her succeeding will be dependent on the court in the
consideration of all the aforementioned considerations.

26
 C. - Whether Hamedd's refusal to maintain Jali, a child born after his absence from
the matrimonial home can be justified?

(i) Whether Ali can be held liable for maintenance?

The presumption that a husband is the father of the child reflected in the maxim ‘pater est quern
nuptiae demonstrant’ exists even where the circumstances show that the parties were living
apart. This was discussed by Wrangham J in Knowles v Knowles (1962). Here he stated that “the
presumption that a child conceived during wedlock is a legitimate child of the husband applies
just as much whether the husband and wife are living together in the ordinary way or whether
they are separated by agreement, or by deed, or simply separated”. The presumption, however,
ceases to operate if the parties are separated under an order of the court, such as a decree of
judicial separation. Wrangham J further explains that “so long as the law contemplates the
spouses as performing their marital duties to each other, so long will it contemplate that a
married woman, if she bears a child, will be bearing it as a result of intercourse with her
husband only”.
Notably, this presumption can be rebutted, and the burden of rebuttal resides upon the person
seeking to displace the presumption, i.e., he who asserts must prove. This was explained by Sir
James Mansfield CJ in his judgment for the Banbury Peerage Case (). Here he noted that, “in
every case where a child is born in lawful wedlock, the husband not being separated from his
wife by a sentence of divorce, sexual intercourse will be presumed to have taken place between
the husband and wife until that presumption is rebutted by satisfactory evidence to the contrary
and that by the laws of nature, the husband could not be the father of the child”. Thus, if the
husband can prove with sufficient evidence that there was an absence of sexual intercourse or
contact between him and his wife at the relevant or possible time when conception is declared to
have taken place, then the presumption can be rebutted.
Where in the circumstances of a case, the parties were separated and at the time of conception
the wife committed adultery, the presumption that her husband is the father of her child will still
arise. This was discussed by the House of Lords in Russell v Russell where, Lord Finlay noted
that “there is a strong presumption that the child of a married woman was begotten by her
husband. This presumption…may be rebutted by evidence. The fact that the wife had immoral
relations with other men is not of itself sufficient to displace the presumption of legitimacy…non

27
access by the husband at the time when the child must have been begotten must further be
proved”. Thus, mere evidence of adultery is insufficient without more to rebut the presumption.
According to the facts of the current scenario, Hamedd left the matrimonial home in December
of 2018 after beginning an affair. Subsequently, Jacqui began an affair with Ali, her next-door
neighbor. Jacqui’s third son, Jali, was then born in June of 2019. Hamed refuses to maintain any
of the children. Similarly, in Knowles v Knowles, on 22 May 1957, a decree nisi was granted to
the husband, who had left the matrimonial home but evidence showed that the husband and wife
were having sexual intercourse in July 1957. It was held that the evidence as to the date of
conception was nicely balanced but, having regard to the presumption of legitimacy, the date of
conception would be found to have been between 9 June and 23 June 1957, and the husband
would be found to be the father.
Therefore, although Hamedd had left the matrimonial home and Jacqui had begun an affair with
Ali, the presumption that Hamed is the father of Jali still applies. As it relates to Ali’s
assumption of being the father, the scenario provides that the affair of Jacqui and Ali began in
December 2018 and could have ended in June of 2019 when Jali was born. This alludes that Jali
would’ve been conceived in August of 2018 which points to Hamed as the father being with the
normal 10 months gestation period. As a result, it is possible that Ali is indeed not the father of
Jali and as such is not required to maintain the child, Jali. In Northrop v Northrop, where a
husband that he had been guilty of wilful neglect to provide reasonable maintenance for herself
and for an infant child of the marriage. The court made an order for periodical payment for the
child and considered a reasonable sum by way of supplement to the wife’s own resources so as
to enable her properly to provide for the needs of the child. Therefore, Jacqui is still under the
statutory duty of maintenance to her children and should continue to do so and can enforce
Hamed’s duty on the ground of his failure to maintain the child under CCGMA.
D. Whether Abraham can be absolved of his duty to maintain Derrick?
i (i) Whether Abraham is liable to maintain Rae?
In relation to Abraham being liable for maintenance in relation to Derrick, the presumption of a
husband being the father is still applicable and the mere evidence of Jacqui adulterous conduct
with Felix is not sufficient to displace the presumption which takes authority in the Status of
Children Act. However, being a rebuttable presumption and the circumstances that prevails in his
marriage leaves doubt and is hereby addressed. Noteworthy, the common law position of proving

28
beyond a reasonable doubt has been displaced by statute and the provision of section 16(1) of
Status of Children Act, a rebuttable presumption is rebuttable by proof on a balance of
probabilities. Abraham may try to place reliance on his premature ejaculation medical status to
question paternity however, the law deals with these cases in the context known as fecundation
ab extra which means pregnancy is still possible without penetration which is sanction in the
scenario as well. Supporting this proposition after placing reliance on medical expert opinion, we
see in Snow v Snow, where after a marriage ceremony, between a man and a woman, there was
imperfect intercourse, and the woman was still impregnated ab extra. As such, these arguments
are easily displaced following the authorities cited and another important argument that can be
raised is the parties’ disposition towards each other in which reliance is made on Felix spending
most of his free time talking about mathematical equations. This can be displaced because on the
balance of probabilities ‘most’ is not ‘all’ and opportunities for conception still exist even if
adultery is added. If Abraham can prove Felix and Jacqui intimate affair was around 10 months
prior 2007 correlating with Derrick’s birth who is now five years, then it can cast serious doubt
on paternity coupled with the other less weighty arguments aforementioned. At this juncture,
Jacqui can seek maintenance under the CCGMA to impose the statutory for Abraham to maintain
the Derrick being the presumptive father and if a dispute about parentage arises the court can still
make a maintenance order pursuant to section 50 sub3(a) that allows the court to presume
paternity in the circumstance if there was no finding to the contrary. Therefore, Abraham under
the prevailing circumstance Abraham is liable to maintain his child and can later seek an
annulment under the Status of Children which will be judged on the balance of probabilities to be
absolved of maintenance.
Further, there appears two conflicting presumptions in relation to the birth of Rae, a child born
after the dissolution of marriage between Abraham and Jacqui and subsequently born prior the
marriage of Hamed and Jacqui respectively. This is so because the presumption of a husband
being the father of a child applies posthumously if Rae was born within the normal gestation
period after a decree of divorce. In Knowles v Knowles Wrangham J noted that in such a case
where the child could have been conceived before or after a dissolution of marriage, the
presumption of legitimacy operated in favour that conception took place whilst the marriage was
still subsisting. More so, in Re Overbury the issue of conflicting presumption like this case at
hand was examined and Harman J made the resolution that in the absence of evidence to the

29
contrary, that it ought to be presumed that the mother has not committed adultery so that there
should be the presumption that the child is the legitimate issue of the first husband. Similarly, if
it can prove that Rae was conceived prior to a decree of dissolution between Abraham and Jacqui
or within the 10 months gestation period after such was granted then the presumption of
Abraham being the father will apply posthumously. Notably, in Preston Jones v Preston Jones,
the court made that the longer the period deviates from the normal gestation period, the more
easily the presumption is rebutted. As such if the decree of divorce is far-fetched from the 10
months period or such longer period allowed by the court before the child’s birth. Therefore, the
presumption of Hamed being the father by virtue of any cohabitation with Jacqui with some
degree of permanence provided that the days does not conflict with the days of the posthumous
presumption or acknowledgement made by marriage and prescribe acts to the child confirming
parentage as discussed earlier may likely to appease the courts. As such, under section 17 SCA
the court will take the prevailing presumption which is likely to favor Hamed should the
circumstances convince the courts. Since there is no evidence that Abraham assumed
responsibility of Rae, it is submitted that Abraham will not be liable to maintain subject to any
finding made by the courts in the resolve of the conflicting presumptions.

Whether Hamed is liable to maintain the child from previous marriage of partner.
- Whether Hamed can refuse to maintain Derek, Jacqui’s 5 year old son, his step son.
- Whether Hamed’s refusal to maintain Jali is justified and whether Ali would be liable to
maintain the child.
- Whether Abram is liable to maintain Derek and whether he is liable to maintain Ray.

5. Amy married Ben two years ago after her marriage to Charles ended in divorce. Soon after her
marriage to Ben, Amy gave birth to Fay. Amy’s two children, Diana and Edward, aged eight and six
respectively, also lived with Amy and Ben.
As time went by, Amy became increasingly bad-tempered with Ben and the children, although she
was never physically violent. Amy joined a religious cult and became highly critical of the influence
Ben’s contempt for any religious creed may have on the children. Amy frequently criticised Ben in
the presence of the children, becoming hysterical if Ben denied her criticisms.

30
During the course of a heated argument, Ben slapped Amy. Amy told Ben she was no longer
prepared to allow him to corrupt the children and, against Ben’s wishes, Amy left the home, taking
the children with her. They are all now living with Amy’s parents in a cramped apartment.
Ben is very fond of the children and has been pleading with Amy to return them. Diana and Edward
view Ben as their father as they have had little contact with their birth father, Charles, even before
the divorce.
Advise Ben who wishes to apply for custody of the three children.

GROUP: 1
QUESTION: 5
Introduction

This question necessitates a discussion on the area of Custody in Family Law.

The concept of custody has been defined by s.2 of the Custody, Contact Guardianship and
Maintenance Act, Guyana as “parental rights in relation to and responsibilities for a child.”
Sachs L.J. explained in Hewer v. Bryant [1970] that custody can be considered in a wide and
narrow sense. In its wide meaning custody was almost the equivalent of 'guardianship', which
embraced a 'bundle of powers', such as the power to control the child's education, religious
upbringing and the management of his property, until the child attained his majority or, in the
case of a female child, until marriage. In its narrow sense, custody refers to the actual possession
of the child’s person or the power of the parent or guardian to exercise physical care and control
over the child. It is important to note that at common law, the father was in law superior to the
mother and was therefore entitled to the legal custody of his in-wedlock child/children while the
mother was entitled to the custody of the out of wedlock child/children. Further, the father’s
rights were protected by the courts as against the mother, but in the normal course of events, the
mother became entitled to custody if the father predeceased her. 7 Today, pursuant to s.8 (2)
CCGMA the entitlement to custody vests in both parents and guardians formally appointed.
In custody related disputes, the Act establishes that the court will have regard to the best interests
of the child in determining various orders. To this end, Justice Basdeo Persad-Maharaj in Gopee
v Gopee espoused that “the Courts do not operate on any rights of either parents to custody, but

7
Zanifa McDowell, Elements of Child Law in the Commonwealth Caribbean (The University of the West Indies
Press, 2000) 164

31
on the right of the child or children to be placed in an environment most conducive to their
welfare.” In light of this, the following issues regarding Ben’s application for custody must be
examined.

● Whether Ben can be considered the father of Fay for the purpose of asserting custody
over her?
There is a presumption at common law that a child born into a marriage is legitimate. This
included at the time of conception or the time of birth. There is as rebuttable presumption
espoused that the married woman’s husband was deemed the child’s father. However, common
law presumptions to legitimacy only applied to paternity in the case of a legitimate child. As
such, it made no provision for out-of-wedlock children. This beckoned statutory intervention
which has made provision for the determination of paternity of the out of wedlock child.
By virtue of s.10 (a) of the State of Children Legislation Act Cap. 46:05, a man is presumed to
be the father of the child “where he was married to the mother of the child at the child’s birth”
In the instant case, it is stated that soon after Amy’s marriage to Ben, Fay was born. On that
account s.10 (a) will apply to Fay. This owing to the fact that Ben, at the time of her birth, was
married to her mother.

● Whether Ben would be entitled to custody over his stepchildren considering the
definition of a “parent” under the CCGMA?
By virtue of the s.2 of the Custody, Contact, Guardianship and Maintenance Act (Guyana),
a “Parent unless the context otherwise implies, means a person's mother or father or stepmother
or stepfather and includes adoptive parents as well as a person who has treated a child as a
child of the family.” A Child under the said section “means a person under the age of eighteen
years, whether born in or out of wedlock who has never been married and includes - (a) a
stepchild; (b) a child adopted by law; (c) a child of the family, except that in the case where a
person has special needs, that person shall be considered a child under this Act regardless of the
person's age.”
The Act further states that a “person entitled to custody includes the mother or father (whether
natural or adoptive) the person who acknowledges a child as the child of the family; and a
person appointed by the Court to serve as guardian of the child.” Ergo, considering the

32
conceptualization of a parent, child and a person entitled to custody, it would be logical to
conclude that Ben, the stepfather of his stepchildren who by reasonable implication
acknowledged them as children of the family, is entitled to custody under the CCGMA.

 Whether Ben’s past conduct/behaviour may prevent him from attaining custody of the
children
In providing Ben with legally sound advice it is necessary to address his past conduct and
whether such conduct would be viewed by the court as him being an impeachable parent and
therefore bars him from gaining custody of the children irrespective of the bond between Ben
and the children.
In addressing the issue of the impeachable parent, attention ought to be placed on the ruling in
Re L (1962). In this case, the mother had an affair and moved out of the matrimonial home. The
break-up of the home was in no way due to the father’s conduct. The mother refused to return,
but advanced no reason for her refusal other than her fancy or passion for the other man, and
appeared to have little consciousness of duties to her husband and her children to maintain a
home for them. The court ruled that in determining the question to which parent the care and
control of an infant ward of court should be committed, the infant’s welfare was the first and
paramount consideration, yet it was not the sole consideration, and where one spouse alone was
responsible for the break-up of the matrimonial home, consideration should also be given to the
claims of the other spouse.
However, today, the prior conduct of a person is irrelevant to the determination of a custody
application unless the conduct is relevant to the person's ability to parent the child. Per Ormrod
L.J. in S. (B. D.) v. S. (D. J.)(1977), the phrase "unimpeachable parent" is a most misleading
one. It cannot mean a parent who is above criticism because there is no such thing. It might mean
a parent against whom no matrimonial offence has been proved but if so, it adds nothing and is
now outmoded. Where a parent is trying to recover custody from a stranger, the concept of
unimpeachability may have some place but as between parents it acquires an antithetical flavour
and is a dangerous finding to try to make. Bearing this in mind, it is crucial to address our minds
to Justice Maharaj’s reasoning in Gopee v Gopee, where he explained that, it is clear today that
even an unimpeachable parent may be denied custody sought as the golden thread or principle
concern of the court is not the parent and what they deserve, but the welfare of the child,

33
however, if the conduct of the parent is bad and affects the welfare of the child, it will be taken
into account. Witnessing the courts’ new approach on the issue, an excellent case to examine is
Re K (minors), [1977]. In this case, a couple was married for 10 years, the father was an
Anglican clergyman and the mother was a teacher of religion. The wife admitted to her husband
that she had committed adultery and intended to leave him and take the children to live with the
other man. It was held that the consideration of justice between the parents and that of the wishes
of an unimpeachable parent could not be set against the welfare of the children, which was the
first and paramount consideration under the Guardianship of Minors Act 1971, s 1. The material
welfare of the children, having regard to the fact that they were very young, required that they
stayed with their mother who was able to offer them a satisfactory home with the other man.
It is evident that the courts have moved from the initial position of favouring the unimpeachable
parent and has cemented its focus on the welfare of the child being paramount, only considering
past conduct if it directly interferes with the children’s best interest. Therefore, given that Ben’s
past conduct has not been shown to directly affect the children, it may not prevent him from
gaining custody of the children especially given his bond to them and theirs to him.

 Whether Amy’s behaviour can aid Ben in obtaining custody of the children.
On the effect of Amy’s behaviour, it is important to continue to keep in mind that the
child’s welfare is the “paramount consideration” in most cases concerning the child’s
upbringing. As noted by Lord MacDermott in J v C [1970] AC 668 this is “a process whereby,
when all the relevant facts, relationships, claims and wishes of parents, risks, choice is an author
circumstances are taken into account and weighed, the course will be followed will be that which
is most in the interests of the child's welfare as that term is now to be understood. That is the first
consideration because of its first important and the paramount consideration because it rules
upon or determines the course to be followed”.
The Custody, Contact Guardianship and Maintenance Act 2011 provide that the Court
shall have regards to the best interest of the child in making its decisions. With consideration of
Ben’s situation, attention should be placed at section 10 (2) (g) and (h), which highlights that the
courts shall grant custody to the parent upon considering “the emotional wellbeing of the parent,
the willingness of the parent to facilitate contact with the other parent” and “ the need to protect
the child from abuse or harm”. Ben wishes of obtaining custody of the children can be aided by

34
this section of the act whereby he can indicate that Amy’s behaviour towards him in front of the
children can indicate that she is lacking in her emotional wellbeing and that this behaviour can
cause harm to the children
Further, aside from Amy’s behaviour, her beliefs can aid Ben in obtaining custody of the
children. As seen in Re B and G(Minors)(Custody)[1985] 1 WLUK 9, where following the
divorce of the mother (M) and father (F), two Scientologists, the court awarded the custody of
the children to F. Eventually, however, M took the children to the United States of America and
left her role as a Scientologist. Nonetheless, F discovered their whereabouts and brought them
back to the United Kingdom. Consequently, M contended that if the children remained with F, a
Scientologist, their upbringing would be affected significantly. the court decided that
Scientology was corrupt and dangerous. Therefore, the judge concluded that it was not in the
best interests of the children to remain with F. As a result, F appealed against this decision.
However, the judge dismissed the appeal and granted custody in favour of M. It was decided that
the judge came to these conclusions having assessed the risks and the best interests of the
children.The court did not grant custody to the parent with beliefs that were dangerous the
children. As such, custody may be granted to Ben if the Amy’s religious belief is viewed by the
court as dangerous to the children.
Notably , in Re Mc Grath [1893] 1 Ch 143 @ 148 , in Lindly LJ said “the welfare of the
child is not to be measured in money only, nor by physical comfort only. The word welfare must
be taken in it widest sense. The moral and religious welfare of a child must be considered as well
as its physical well- being. Nor can ties of affection be disregarded.”
As such , once Ben can provide that Amy’s belief can affect the the moral and religious
welfare of the children the court may consider this factor and grant in his favour.
 Whether other considerations would affect Ben’s application for custody?
With regard to welfare, courts also consider factors stemming from the children and their living
circumstances. In the present scenario, two factors will be examined, namely: (i) that the courts
aim to preserve the status quo where to do otherwise would adversely impact the standard of
living and wellbeing of the children; and (ii) the age and sex of the children.
Maintaining the Status Quo: In the case Clarke v Corey (1971) 18 WIR 70, under somewhat
similar circumstances, a mother of two illegitimate children of whom the appellant is the
admitted father applied by originating summons for custody under the provisions of the

35
Guardianship and Custody of Children Law [Jamaica]. The evidence before the Master
disclosed that ‘the two children, a boy aged eight and a girl aged four, had been in the de facto
custody of the father. The wife of the father become very fond of and deeply attached to them.
Each occupied their own room in a large, well-furnished and well-appointed house. They are
happy and healthy having settled very comfortably in their father’s home. They attended school
regularly and were both making excellent progress. Their attendance at Sunday school was very
regular. Their mother is aware of these facts and does not dispute the eminently favourable
circumstances in which the children have been living but nevertheless sought custody. She had
been engaged to a police constable. The marriage was fixed for 28 March 1970. It was her
intention to adopt the children after her marriage (with her future husband’s consent) but she was
required to have their custody prior to adoption. The children would have ample accommodation
in the house in which she and her future husband planned to live. This house was near to a good
Roman Catholic School and church and the children would have a proper educational and
religious upbringing. Up to June 1970, the marriage had not taken place. The prospect of a stable
home with adequate accommodation for the children and the status of adoption had disappeared.
She had no income, and herself with the two children would be required to share a room in the
already overcrowded home of her parents. She admitted that this would be quite inconvenient
and uncomfortable. Having stated the correct principles to be applied to that factual situation the
Master then proceeded to exercise his discretion, by awarding custody to the mother, on an
entirely wrong premise. It is clear that, inter alia, he gave no thought to the welfare of the
children while the mother waited for a marriage and an adoption that might never take place. On
appeal by the father against the Master’s order it was argued on behalf of the mother that since
the mother of an illegitimate child was the only person with a legal right to its custody she could
not be deprived thereof unless the court was satisfied, having regard to the welfare of the child,
that she was not a fit person to have custody. On appeal the welfare of children overrode the
rights of the mother and there was no evidence before Master that welfare of children required
removal from the de facto custody of the father. It was held: that the effect of the Master’s order,
if allowed to stand, would be to remove the children from a suitable, comfortable and stable
home in which their material and spiritual needs were being satisfactorily provided for, into a
home in which there was no adequate accommodation and in which there could be no
comfortable life for them. In addition their future welfare, if allowed to live with their mother,

36
was quite uncertain and it was clearly not in their interests to remove them from the home of
their father into the custody of their mother.
Thus in relation to Diana and Edward given the fact that the children resided with their mother
and father (Ben) for the past two years of their young lives in the comfort of their home, and
Amy in her haste to leave uprooted and placed them in a less than desirable environment clearly
inadequate to accommodate them all; the courts may show a preference for retaining the status
quo as they are usually reluctant to make an order which, in the absence of factors improving the
child’s welfare, will involve a change of home. This position was also taken in Allington v.
Allington [1985] FLR 586. The same conclusion may be met for Fay as pursuant to s. 15 of the
Infancy Act Cap 46:01, where parents are living apart, the courts may make an order having
regard to these aforementioned factors.
With regard to age and sex: In the case of C v C (Minors: custody) 1988 2 FLR 291 on appeal
it was held that following the divorce of their parents, young brothers and sisters should,
wherever possible, be brought up together in the same household so that they are an emotional
support to each other in the break-up of the family unit. Unless there were strong factors to
warrant so doing, an order giving custody of one child to one parent whilst giving custody of
another child to another parent should not be made. The recorder had erred in principle failing to
consider the boy's best interest in the long term in being brought up by his mother in the same
household as his sister as against the advantages and disadvantages of being brought up on his
own with the father. The question of access, however generous or successful, was not a substitute
for the important and wider consideration of the siblings' welfare in being brought up
together. Further in Cossey v Cossey (1980) an appeal against the Order of the Deputy Circuit
Judge, was made when he split the custody of the two girls concerned, directing that the father
should have custody of a little girl of 8 years of age, and the mother the custody of her sister, 10
½ years of age. The Court is faced with the situation where these two very young girls, so close
in age have been split. The younger girl did express her wish to reside with the father but the
cases that have come before the Court, show only too well that children of those very tender
years are apt to express their wishes upon no truly reasonable ground. Furthermore, to split these
children carries with it the danger that the child that remains with the mother will be isolated, or
even estranged, from the father, affected probably by the view that the father thinks more of her
sister than he does of herself. That is another unhappy situation that could result from an Order to

37
split the custody or children such as these. But, for children so close in age as this, it is
paramount that the Court pay particular attention to the danger that they will grow up on
divergent paths if at this stage of their lives one is brought up by father and one by mother.
With the foregoing in mind it is likely that the court will consider that the best interest of the
children, given their closeness in age, would be to remain together, and giving the
aforementioned living conditions, prior comfort and the fact that the children consider and take
Ben as their father it might be in their best interest to be placed with the parent that is capable of
maintaining a level of normalcy that they have been accustomed too.
Ben is advised accordingly.

Whether Ben’s past conduct would prevent him from parental rights. Consider that the
welfare of the child is paramount to the claim of any unimpeachable parent.
S 10 (2) g CCGMA – Ben’s claim
Maintaining the status quo (Allington): consider the cramped apartment. Consider that
maintenance can be ordered to improve the cramped condition.
Consider the weight of the slap as opposed to the welfare of child AND the societal reaction in
2021.
There was no justification for Infancy act being used in the question. The new act CCGMA
should be used.
Age and Sex – C v C.
Zero in on the aspect of the case that you are relying on. Reference was made to the mother
and the cult – Ben may be contemptuous of any religious creed. His opinion then on the religion
may be unreasonable. Balance where society is not with that one slap. Discuss the position back
in the day vs now (Re L – welfare of the child in relation to that). Consider that society would
frown on the assault in 2021. The slap cannot be overlooked. There are cases where the parent
guilty of violence may still be the better parent and in the welfare of the child that violence may
be overlooked.
Consider motherr’s domestic violence: nagging, hysterical if she cannot have her way.

6. Oliver and Penny lived together for eight years, during which time two children, Abigail, now
aged six, and Bella, now aged four, were born. There is a very strong bond between Oliver and the
two children as Oliver works from home and has spent a considerable amount of time with them.

38
Penny is a successful journalist, travelling all over the world to cover assignments. Penny recently
met and fell in love with Jimmy, an out-of-work drummer, who has an ambition to hitchhike
throughout the world. Penny announced to Oliver her plans to join Jimmy and to take the children
with her. She also told Oliver that whilst Abigail is his daughter, Bella is as a result of an affair she
had with a fellow journalist, Nate.
Oliver is distraught at the prospect of losing Abigail and Bella, both of whom he loves very much.
Oliver does not believe Penny’s story that Bella is not his child. He has also stated that even if it is
true, it will not change the way he feels about Bella.
Advise Oliver, who wishes to apply for custody of Abigail and Bella.

Introduction
The instant case requires a discussion of custody of children. The legal issues to be
addressed are as follows. First, whether or not Oliver can be deemed the parent of Abigail and
Bella under the Status of Children Act. Secondly, whether or not Oliver is entitled to the
custody of Abigail and Bella taking the welfare of the child principle into account. In particular,
there will be a discussion of where the welfare of more than one child is concerned, preference
for the status quo, age and sex of the children, keeping siblings together, the personality and
character of the parties, long term prospects for the child and the physical, emotional and
educational needs of the child. Thirdly, whether or not Oliver is entitled to the custody of
Abigail and Bella into account taking the specific guidelines outlined in the Custody, Contact,
Guardianship and Maintenance Act.
Issue One
The first issue requires a discussion of the status of children. The facts of the instant case
state that Oliver and Penny lived together for eight years, during which time two children,
Abigail, now aged six, and Bella, now aged four, were born. Accordingly, section 12 of the
Status of Children Act stipulates that,
“A man is presumed to be the father of a child where he was cohabiting with the mother
of the child in a relationship of some permanence at any time during the period beginning not
earlier than three hundred and eight days and ending not less than three hundred and forty days
before the birth of the child.”
Applying law to fact, Oliver may be presumed to be the father of both Abigail and Bella by
virtue of section 12 as he was cohabiting with Penny in a relationship of permanence during a
period not less than 340 days before the respective births of the children. With regard to Bella,
Penny has informed Oliver that she is the result of an affair. Section 16(2) of the Status of
Children Act provides that the presumption of paternity captured at section 12 is rebuttable, and

39
section 16(1) further states that it is rebuttable by proof on a balance of probabilities. In the
Application of Garcia, Justice Shah emphasized that the burden of proof was more than a 51
percent chance of establishing paternity. The court accepted that both parties had shared some
degree of intimacy at the appropriate time, and made an order that the relationship of father and
child existed between the man and the child. In the instant case, Penny merely states that she had
an affair with a fellow journalist but does not provide evidence to indicate that a relationship of
intimacy of which Bella is the product existed. Therefore, the presumption that Oliver is the
father of Bella is not rebutted.
In Hewer v Bryant, Sachs LJ provided a distinction between custody in the narrow sense
and custody in the broad sense. In the broad sense, it is more the decision making and in the
narrow sense, it is the physical possession and the exercise of physical care and control. Section
8(2) of the Act provides that the mother and father of a child are equally entitled to the custody
of the child. Oliver is hereby advised that this notwithstanding, in conformity with section 3(1)
of the CCGMA, the Court will have regard to the best interest of the child when making its
decision.
Issue Two
The second issue calls for a discussion of the welfare of the child principle. The Court in
determining the best interest of a child takes a number of considerations into account.
(i) Where the welfare of two or more children is called into question
Firstly, where the welfare of two or more children is called into question, the welfare of
each must be taken into account. Accordingly, in Re T and E, where two children are the
‘subject of the proceedings’ then the court is permitted to balance the interests of them. In order
to balance these interests the Court will have regard to: keeping the siblings together, the age and
sex of the child, and the physical, emotional and educational well-being of the children.
Therefore, in the instant case, the welfare of Abigail and the welfare of Bella will each be taken
into account.
(ii) Preference for the status quo
Secondly, the Court will take the preference for the status quo into account. Notably, in
certain situations the Court will refuse to make a custody order to disrupt the state of affairs of a
child. In the instant case Penny plans to hitchhike throughout the world with Jimmy while Oliver
works from home and he has a strong bond with the two children. In Allington v Allington a
wife left her husband to live with another man. The mother and father came to an agreement that
their two year daughter would live with the father at the matrimonial home but would be
frequently looked after by the mother. The court held that the question to be asked, especially in
view of the continuing bond between the daughter and the mother, is whether there was any
feature of the present situation which made it inappropriate for the mother to continue to bring up
her daughter as she had done before she left the father. Despite the father’s successful efforts to
look after the daughter, there was no such feature; accordingly, the mother would be awarded the
care and control of the daughter, with reasonable access for the father.

40
 Applying law to fact, it is necessary to take into account the bond between the parents
and the children and anything in the present circumstances that would make Penny getting
custody inappropriate. Accordingly, Oliver who works from home has a strong bond with both
children whom he loves very much and taking the children who are very young hitchhiking
throughout the world may be dangerous for them and as such a custody order may be made in
favour of Oliver.
(iii)Special Relationship between one parent and child.
At this juncture, it is apt to discuss the special relationship between one parent and child.
The parent-child relationship is of great importance as it nurtures the physical, emotional and
social development of the child. This lays the foundation for the child’s personality, life choices
and overall behaviour. The closeness of a child to a parent is an important factor.
In the case of Re B8, it was established that a child of tender age need not be given to the
mother as a rule. The child (4 years old boy) was given to the father upon appeal. The court
considered the special relationship between the parent and the child. Further, in Frazier v
Romney9, the court awarded the father custody after it was found that he demonstrated a strong
emotional attachment to the children and seemed capable of maternal care. Similarly, the facts of
the instant case indicate that Oliver shares a very close relationship to both Abigail and Bella.
(iv) Conduct of the Parent
In the determination of custody matters the conduct of the parent will be relevant to the
extent that it interferes with his/her ability to be parent, as espoused in the case of Coleman v
Coleman by Georges J. The case of Batson v. Batson illustrates that such conduct would clearly
have to be conduct of such a grave character so as to outrage persons of normal sensibilities.
Notably, the question of the moral conduct of the parent is considered in light of what is
in the best interest of the child and not as a basis for punishment of that parent. Thus, while the
courts are reluctant to award custody of a child to a parent who is guilty of conduct which will
expose the child to moral corruption by example and encouragement, it does not follow that the
unimpeachable parent/s will automatically be awarded custody. This was exemplified in the case
of J v C (1970) A.C. 668 where court deemed the conduct of natural parents as unquestionable,
however awarding them custody would not have served the best interest of the child, as such
custody was granted to the foster parents.
In light of the foregoing, it is submitted that even though the children spend majority of
their time in the physical custody of Oliver, while Penny travels the world for work, Penny’s
periodic absence from the children would not have relinquished her right to custody. Notably,
Oliver’s conduct is prima facie unquestionable, however it does not follow that he will
automatically be awarded custody, as the paramount consideration for the court is the welfare of
the child/children. Penny’s affair with Nate, during the course of her relationship with Oliver,
toppled with the fact that she recently fell in love with another man, Jimmy, indicates
promiscuity on her part. Nevertheless, this conduct would only be considered as important by the

8
[1962] 1 All ER 872
9
(1987)

41
court where it affects her ability to properly cater for the welfare of the child. As such, it is a
plausible deduction that Penny’s promiscuity did not amount to conduct so grave so as to
disqualify her form raising a child. Notwithstanding the aforementioned, in awarding custody the
court will consider Penny’s frequent absence and the seemingly strong bond that exists between
Oliver and the children. In the best interest of each child, it is submitted that the court will be
more inclined to grant custody to Oliver, a loving and caring father as opposed to Penny a “child-
minder”.
(v) Future Prospects
Another factor the court will take into account is the future prospects of the child. This
was highlighted in the case of Balram v Balram, custody was awarded to the mother of the
child, since she was better able to facilitate the long-term prospects of the child, particularly in
terms of finance, as opposed to the father, who was a habitual drinker and often neglected the
academic and financial needs of the child.
Notably, the welfare of a child is not to be measured by money, nor by physical comfort
only but must be taken in its widest sense. Thus, the court in Clarke v Carey (1971) placed
emphasis on maintaining the status quo of the children and providing them with proper
accommodation, educational and spiritual needs as well as love and affection, with a view to
ensuring the best interest of the child. The Court hypothetically examined the prospects of each
child in question and decided their prospects with the mother would have been uncertain, given
that she was unemployed, had no income, and lived in a crowded home, but their prospects with
the father seemed more prosperous, considering that, whilst in his physical custody, the children
were attending school, made significant progress, and each had their own room.
The facts of the instant case reveal that in the custody of Oliver each child is more likely
to thrive academically, socially and economically as the environment provides love and stability.
Conversely, Penny who recently met and fell in love with Jimmy, an out-of-work drummer, is
planning to go hitchhiking throughout the world with him. Evidently the prospects of each child
in the custody of the mother will be uncertain and unstable. Hitchhiking around the world will
surely disrupt their academic and social progression. In considering the best interest of each
child, it is submitted that the court would be reluctant to remove the girls from the stable
environment which they enjoy in the custody of Oliver.
(vi) Keeping the siblings together.
Moreover, the courts would have regard to the question of whether any proposed custody
order would disrupt the existing sibling relationship between Abigail and Bella. Where the
family contains two or more children, the courts generally see a need to keep the siblings
together, rather than make orders which separate them. This principle is illustrated in C v. C
(1988) where on divorce, initially the father was awarded custody of the boy and the mother
given the girl, with each parent given access to the other child. The mother appealed successfully
and was awarded custody of both children. The court held that following the divorce of the
parents, young siblings where possible should be brought up together in the same household so
that there is an emotional support to each other in the breakup of the family unit, unless there
were strong factors to warrant contrary arrangements. This case exemplified the importance that

42
the court gives to sibling relationships in determining custody and what is in the best interest of
the child. In Adams v Adams [1984], in awarding custody of the daughter as well to the father
who already had custody of the son, the judge had considered the advantages to the daughter of
being with her mother as she approached puberty. But, the judge had decided these were
outweighed by her distress at being separated from the brother and remaining in the same
household would allow them to comfort each other and stabilize the close bond they share as
brother and sister.
Applying law to fact, given that Abigail and Bella are both ages six and four respectively,
in considering the best interest of both siblings, it seems plausible that the court would not
separate the siblings. The court may hold the view that it is best that they should stay together for
the sake of the emotional support they can give one another.
(vii) The age and sex of the Child
Another consideration of the court is the age and sex of the child. The general principle
was that the mother should have care and control of the young children, particularly the young
girls10 or those who for some other reason especially need a mother’s care, while older boys
should be placed with their father. 11 The case of Austin v. Austin (1865) 55 ER 634 states
that“no thing and no person and no combination of them can with regard to child of tender
years supply the place of the mother and no extent of kindness on the part of any other person
can supply that place.” This position has been changed, but the father still has the uphill task to
get the custody of the child of tender years. However, as discussed above, in Frazier v. Romney
(1987) the father was awarded custody after the court found that he had demonstrated a strong
emotional attachment to the children and seemed capable of offering maternal care. However, Re
A (A Minor) (Custody) [1991] evinces that while it was natural for young children to be with
mothers, when it comes to dispute, it was a consideration and not a presumption. Additionally,
where young children remained throughout with the mother, the unbroken relationship of the
mother and child would be difficult to displace, unless the mother was unsuitable to care for the
child.
Granted that the instant case concerns custody of two female minor children, it seems
plausible that the court may consider the tender age doctrine and the advantages of the girls
being with their mother, especially as they approach puberty. However, as was aforementioned,
where custody is disputed, this would merely be a consideration and not a presumption in the
eyes of the Court such that it would also be plausible for Oliver to be awarded custody. The facts
dispose that Oliver loves both children equally and despite the revelations by Penny, he does not
intend to treat Bella differently. Hence, where the court may regard Oliver as demonstrating a
strong emotional attachment to the children and seem capable of offering maternal care, the
courts may consider awarding custody.
(viii) Physical, emotional and educational needs
The physical, emotional and educational needs of a child are very important as children
need a safe environment, emotional support and access to educational facilities. In Re K
10
See Re F (1969) 2 All E.R. 766, 769.
11
But there is no principle to this effect: Re C. (A.), [1970] 1 All E.R. 309, C.A.

43
 (Residence order) the parties were married in India and shortly after the union the parties
relocated to England with their son where they resided together. The mother of the wife later
visited England at which time she largely took over parental responsibility from the mother of
the child. Later the child was taken by his mother and grandmother to India. The boy was only
returned to the father under a Court order. Both parties made applications to have the child reside
with them, both stating that they would remain in England providing for access of the other
parent. The Court noted that while both homes could provide for the physical needs of the child,
the father could better provide for his emotional needs, which was best served by having access
to both parents, which the Court found could not be guaranteed should a residence order be
granted to the mother whom was found to be untrustworthy and unreliable.
In applying law to fact, the Court will take into account the fact that Oliver provides a
stable environment and could provide for both Abigail’s and Bella’s emotional needs best since
both parents could have access as well as educational needs. However, if Penny was granted
custody since she plans to hitchhike throughout the world access by Oliver would be likely be
infrequent and the girls would not be able to attend school as they should.

Issue Three
In addition to the aforementioned general guidelines that the courts will consider where custody
is concerned, the CCGMA at section 10 outlines specific guidelines that are applicable. Section
10(1) mandates that the merits of a custody application shall be determined on the basis of the
best interest of the child. The specific guidelines outlined at section 10(2) relevant to the facts of
the instant case will be examined.
a) the love, affection and emotional ties between the child and each person entitled to claiming
custody, other members of the family and persons involved in the care and upbringing of the
child.
The facts of the instant case clearly indicate that Oliver and both children have a special bond as
he works from home. This is not to say that Penny does not have an emotional tie with Abigail
and Bella. However, it is a plausible deduction that the love, affection and emotional ties
between Abigail and Oliver, and Bella and Oliver are stronger.

b) the ability and willingness of each person seeking custody to provide the child with guidance,
education and necessities;
It is unlikely that Penny will be able to educate these quite young children while hitchhiking
around the world. They will not be able to provide a stable home or even enroll them into
schools permanently.

c) plan proposed for the care and upbringing of the child;

The facts of the instant case suggests that Oliver may have a more secure and steady plan to care
for Abigail and Bella, while Penny’s proposed plan is clearly stated as taking them to hitchhike
around the world with her new unemployed boyfriend.

44
d) the permanence and stability of the family unit with which it is proposed that the child will live;
As mentioned, Penny may not afford the children a stable home and Jimmy is merely her
boyfriend who holds no presumable degree of permanency in her life. Contrastingly, with Oliver,
both Abigail and Bella will be in a family unit of permanence and stability.

Conclusion
In light of the foregoing considerations, Oliver is advised that the Court will grant a custody
order in his favour for Abigail and Bella since it is in their best. However, while Oliver may be
the better parent for the purpose of decision-making and day to day activities, the Court may
grant a contact order to Penny under section 77(2)(e) of the CCGMA so that she can maintain
personal relations with the children.

Despite any change in the position that mothers do not get the children anymore, it is an
uphill task to award custody to the father. Fraser v Romney.
One single act of promiscuity is not relevant in the ability to parenting.
Oliver’s parenting rights in relation to Bella – on what basis would he be seeking custody of
Bella if he is not the father.

7. Nina and Rob lived together for eight years, during which time their children, Tara, now aged six,
and John, now aged four, were born. Nina and Rob’s relationship began to deteriorate last year, and
they agreed to separate.
Nina moved out of the home she shared with Rob, taking Tara and John with her. Rob was a frequent
visitor to see Nina and the children. The relationship was amicable until Nina formed a relationship
with Brad, a handsome young mechanic. Rob was very jealous, and one night he went to Nina’s
house and stabbed Brad. Rob was sentenced to two years imprisonment. Whilst Rob was in prison,
Nina allowed Tara to visit him on three occasions. Nina however refused to allow John to visit Rob,
saying he was too young.
Shortly after Rob’s release from prison, Rob wrote Nina a letter demanding his parental rights. Nina
replied telling Rob that she has decided to move on with her life and that she and Brad plan to adopt
the children after their (Nina and Brad’s) marriage. Nina also received a letter from Rob’s mother
asking to see the children at weekends.
Advise Rob.
Whether Rob could have custody of the children considering his conduct and the welfare of the
children.

45
The Custody, Contact, Guardianship and Maintenance Act defines custody as parental rights in
relation to and responsibilities for a child. While custody is a right afforded to parents, it is the
rights of the children to be put in an environment that is conducive to their upbringing and
welfare that is recognized. This was considered the golden thread running through custody cases
by Basdeo-Panday Maharaj J.12

At common law, where a child is born out of wedlock, it was a regarded as a child of no one. The
legal position of the mother of an illegitimate child was the same as the position of both parents
combined with respect to their legitimate children. This means that the mother had prima facie
right to custody of illegitimate child as against the father. The father of such child had practically
no rights in relation to the child. Thus, the mother alone in law could exercise parental
responsibility for the child. On the other hand, at common law, the father had an almost absolute
right to custody to a child born in wedlock.

Statutory intervention equalized the rights of both parents and the provisions apply
equally to children born in wedlock as well as those born out of wedlock, per definition of ‘child’
in s 2 of the Custody, Contact, Guardianship and Maintenance Act.

There is not a fixed set of circumstances to be considered in determining what is in the best
interest of the welfare of the child and each case is determined based on its merits.

Rob’s Conduct

The old position as laid down by Re L13 is that consideration was given to the claims of the party
with unimpeachable character. On the contrary, the case of S v S14 established that the best
interest of the child was paramount in custody matters and the wishes of any parent, whether
impeachable or not was to yield to the best interest of the child.

Rob has not had the best record as it relates to impeachability but the child’s best interests should
not be compromised because of this. It is important that the children are allowed to maintain
relationship with their father. Considering that Rob’s behavior stemmed from jealousy of Brad’s
and Nina’s relationship and the fact that there is nothing to indicate that Rob is abusive or has

12
Gopee v Gopee (unreported) 2 March 1993, HC T&T (no. 19 of 1991)
13
[1962] 3 All ER 1
14
[1977] 1 All ER 656

46
aggressive tendencies that would make him capable of harming the children, it is highly unlikely
that Rob would be denied his rights.

Section 8 (1) of the CCGMA provides that a child shall have the right to know both of his
parents and that the mother and the father of a child are equally entitled to the custody of the
child.

The courts would go to lengths to maintain this relationship between parents and children as seen
in C v C15 which concerned the conduct of parents which may have caused or have the potential
to cause damage though unintentionally. In this case, the father was guilty of conduct with such
potential to harm the child but he did not realize the impact that such behavior would have on the
child. The court instead of denying access altogether, ordered supervised visits.

Flowing from this it is important to recall that Tara was taken frequently to visit Rob while he
was in prison and it could be reasonably assumed that Tara and Rob formed a close relationship
from this and therefore John should be afforded the opportunity to form the same bond. Rob’s
past conduct may not be sufficient to deny him custodial rights if it would not be adverse to the
best interests of the children.

➢ Whether Rob is entitled to any parental rights;

Right to custody

Section 3 (1) of the Custody, Guardianship and Maintenance Act provides that the court shall
have regard to the best interests of the child in making its decisions.

In order to fulfill the parental responsibilities, the parent has the right to regulate the child’s
residence, right to control, direct or guide the child’s upbringing and the right to maintain
personal relations and direct contact.

Pursuant to section 7 of the CCGMA, a parent may make an application for custody or access to
a child. Hewer v Bryant delved into the two senses in which custody is known: the broad sense
which connotes a bundle of rights and powers over children, including decision making and in
the narrow sense which relates to physical possession of the child and the care and control of the
child. Custody may be split so that one parent has custody in the narrow sense and the other has

15
[1988] 1 FLR 462

47
custody in the broad sense often because one parent is more suited for an aspect of custody or the
child’s welfare. Further, pursuant to section 8(6): Custody includes the right to visit the child and
to make inquiries and to be informed about matters in the child’s life. In Dipper v Dipper16 both
parents were adjudged to have custody of the children even though the mother had care and
control of them. Ormrod and Cumming-Bruce LL.J reasoned “that it is wrong to suggest that
parent with custody has the right to control the child’s education, religion, or other major
matters in their lives.” Further, it was acknowledged neither parent has pre-emptive rights over
the other.

S 8(5) of CCGMA further cements the importance of maintaining relationships with both parents
by providing that parents should encourage and support the child’s relationship with the other
parent.

In the courts determination of what is in the best interest of the child, it will consider all the
needs and circumstances of the child as listed in s10 (2) of the CCGMA.

In light of the aforementioned, due to the legislation listed above, Rob as the natural parent of
the children, has a right to custody and/or access to Tara and John and can apply to the court
for such an order. It was noted in Dipper v Dipper that the husband was concerned about the
wife’s conduct and whether it will have an effect on her parenting. However, this was not the
case and both parties were given custody jointly.

➢ Whether Nina and Brad would be able to adopt without Rob’s consent
A parent has a right to consent or refuse consent to the adoption of the child. The law provides
that no order be made except with the consent of every person or body who is a parent or
guardian of the infant as in S. 10 (4) (a) of the Adoption of Children Act cap 46:04. The court
may refuse to make an adoption order subject to section 19 of the Adoption of Children Act
except with the consent of: (c) a father of a child born out of wedlock, (e) every person who is
liable by virtue of an order or an agreement to maintain the child, inter alia.
However the courts may dispense with the consent of a person required at section 19. (see
Section 20 of the Adoption of Children Act).

16
[1980] 3 W.L.R

48
According to Lord Diplock in Re C: “The consent is one which will affect the whole future of
the parent for he or she will cease to be a parent as far as the child is concerned. Just as one is
looking at the whole future of the parent, one must look at the whole future of the child”.
In Re E, two parties described as having limited intelligence parented two children but were
unable to cater to the needs of them and they were placed in foster care. The daughter was
attached to her mother and found it difficult to adjust to the new environment and the potential
adoptive parents suggested it was best for both children, especially the daughter to not have
contact with the parents. However, the parents refused. In deciding whether the mother and
father reasonably withheld their consent, the court applied the test of whether the hypothetical
reasonable parent with full understanding of the reasons for the application and all the
considerations involved could withhold consent in the given circumstances. The answer was yes
and it was held that consent was not reasonably withheld. Though the judge decided that it was
in the best interest of the child to be adopted, the court also took into account the fact that the
mother was still interested in her children and to cut all ties between them would evoke a feeling
of injustice.
Contrastingly in the case Re F where a child was neglected and gravely assaulted by the mother
and her partner, the court found that it would not be in the best interest of the child to have
contact with the mother during childhood and that “adoption would be the most appropriate
course for his welfare.” It was held that it was in the best interest of the child to be adopted
because the child was negatively affected when the mother visited.
In applying the law to the fact, Rob may refuse consent to the adoption of the children because
he seemed to be interested in maintaining communication and contact with his children based on
his conduct outside of his relationship with Nina. A parent’s course of dealings with the other
parent or other individuals does not determine his ability to parent his/her child. Prior to being
imprisoned, he frequently visited them and upon his release he demanded his parental rights.
Additionally, Nina’s decision to not allow John to visit Rob while he was still imprisoned may
have been in his best interest because of the environment. However, when the father is out of
prison, he should be allowed to visit and form the relationship with the father.
His isolated incident may not preclude him from his parental right to withhold consent to the
adoption as it does not reflect his parenting. Conclusively, Rob may be entitled the right to

49
consent or refuse consent to the adoption of the children based on the legislation and case law
provided above.
Consent would not be required if Rob has not performed his natural or legal duties or is
incapable of giving his consent or is acting unreasonably as per S. 11 (1) (a) (b) and (c) of the
Adoption of Children Act. Rob may withhold consent from Nina, on the ground that his son
was barred from seeing him and if the adoption order is made they would be unable to see him at
all due to the effects of that order as his rights would cease to exist.

➢ Whether Rob’s mother has any right of visitation to the children

As stated above, once the parentage of the child in question can be identified, the law places
parental rights or parental responsibilities and duties on the parents over that child. These rights
include those listed under section 3 (2) of the Custody, Contact, Guardianship and
Maintenance Act 2011 and the actual possession of the child’s person and/or the physical care
and control of the child. Thus, the parents (whether natural or adoptive) of the child have the
right to custody, access and contact of that child.

In the scenario given, it can be seen that Nina has custody, care and control over Tara and Jhon.
Therefore, in order for Rob’s mother to be able to have access to the children, she must get
permission from Nina, whose parental rights allows her to determine who may have access to the
children. In the instance where the request for visitation to the children by Rob’s mother was
denied, she can make an application for an order by the court which grants her visitation to the
children despite Nina’s wishes.

In any dispute affecting a child, the first and paramount consideration is the welfare of the child,
a principle rigidly upheld by the court in its role on behalf of the state as parens patriae. This can
be seen in the case of Re O’Hara [1900] IR 232 at 235, where Holmes LJ stated:

“…A jurisdiction resting on the paternal authority of the Crown by virtue of which it can
supersede the natural guardianship of a parent, and can place a child in such custody as seems
most calculated to promote its welfare.”

Due to this discretion, the court may make an order to grant custody not only to a parent or
parents of the child, but it may also make an order in favor of a relative such as a grandparent or
an aunt or uncle. (Additional Case: Re De Jhonge)

50
Under section 2 of the Custody, Contact. Guardianship and Maintenance Act describes a
person entitled to custody as:

“includes the mother or father (whether natural or adoptive) the person who acknowledges a
child as the child of the family; and a person appointed by the Court to serve as guardian of the
child.”

Section 7 of the CCGMA allows for individuals with this right, as described under section 2, to
apply to the court for an order in relation to custody or access to the child.

In order for Rob’s mother to obtain an order from the court to grant her access to the children,
she must prove to the court that she falls under the category of a person entitled to custody as
described under section 2 of the CCGMA. She must prove that she has acknowledged Tara and
Jhon as children of her family.

Section 12(3) of the CCGMA also requires that in determining the application made by Rob’s
mother, the court must consider the best interests of the children. Thus, Rob’s mother needs to
prove to the court that it would be in the best interest of Tara and Jhon to visit or be visited by
her. This can be seen in the case of Balraj v Dewar (Unreported) 30 June 1994, HC T&T,
where it was held that it was in the best interest of the child to live with her father and siblings
but Mr. and Mrs. H- the couple who had taken the child as a child of the family- was allowed by
the court to have access to her for a year.

Based on the case law above, there would need to be some form of a relationship between Tara,
Jhon and Rob’s mother. In most cases, like the one stated above, the applicant who is requesting
custody or access and does not have any parental responsibilities, need to show that there was
some form of custody of the child or care and control of the child in order to fall under Section 2
of the CCGMA. In the scenario given, there was no indication of such a relationship between
Tara, Jhon and Rob’s mother.

Consider the adoption application: long term prospects of the child, whether the relationship
between Brad and Nina would affect the decision of the court: consider age of the children and
how well young children adopt, bearing in mind that one child maintained contact with the
parent. Should the order be delayed until they are married. Consider the family unit and
stability and whether that would be in the interest of the children.

51
Rob’s mother: consider that it is the right of the rights of the children and not the grandparent.

8. Carol has three children, a daughter Andra aged 4, Jack aged 10 and Ben aged three weeks. She
has been in constant contact with her social worker Rosie since she gave birth to Andra. Carol has
often discussed the possibility of having the children adopted because she does not believe she can be
a good single mother.
After the birth of Ben, Carol suffered an acute form of post-natal depression including some
psychotic symptoms. She now tells Rosie that Ben is “the spawn of the devil and deserving of
punishment”. Carol’s home is filthy and Andra and Jack look very thin and undernourished.
When Rosie tells Carol that she Rosie wishes to adopt the children, Carol agrees. On being told by
Rosie what rights she would forfeit if the children were adopted, Carol changed her mind about the
adoption. Rosie, who is attached to the children, is devastated and insists that Carol should not be
allowed to go back on her word. Peter, Jack’s father says he does not want a stranger to raise his son.
While Mark, Andra and Ben’s father, feels the children will be better off with Rosie.
Discuss

Issue 1 - Whether Rosie is an eligible applicant for an adoption?

When assessing whether Rosie would be an eligible applicant to adopt, there are several legal
requirements that must be established. As it relates to Guyana, section 17 of the Adoption of
Children Act 2009 provides that firstly, the applicant should have attained the age of 18 years
and is not older than 65 years. Additionally, the age difference between the child and the
applicant should not be more than 50 years or less than 17 years. Secondly, the first requirement
of a certain age shall not apply where the applicant is the mother or father of the child. Thirdly,
an adoption order shall not be made in respect of a child unless or in the case of a joint
application, one of the applicants is at least eighteen years older than the child. Lastly, the Court
may dispense the age requirement in cases where the adoption formalizes an existing relationship
by a stepparent, a relative or other special circumstances.

In addition to satisfying the statutory age requirement, applicants are also subject to certain
restrictions regarding their citizenship, domicile and residential status. Section 13 of the
Adoption Act of 2009 states that an application for adoption can be made by a Guyanese
national resident in Guyana; a Guyanese national resident outside Guyana; a former Guyanese

52
national who has acquired the citizenship of another country; or a non-Guyanese. See the case of
Re Delapenha [1986].

Legislation also dictates that where a joint application is made, the applicant must be married.
There is nothing however, which prevents the court from granting an order in favor of a married
couple who separated after the application for the adoption was made. For example, in the case
of Re W.M (adoption: non-partial) [1997], a married couple separated following the adoption
application and the child continued to live with the female applicant but had regular contact with
the male applicant. The court held that there was no specific provision which barred the making
of an adoption order in favor of a separated couple jointly, although under s 13 (3) of the
Adoption Act 1976, the court had to be satisfied that the local authority had had sufficient
opportunity to see the child with both applicants together in the home environment, which the
social workers had been able to do between the making of the application and the applicant`s
separation. Therefore, in light of the above mentioned cases and legislation it is possible for
Rosie to be an eligible applicant to adopt the children once she has fulfilled the necessary
requirements of the maximum and minimum age difference, the domicile and residency
requirement. If Rosie, is married the consent of her spouse would be required as well to form a
joint application.

Issue 2 – Whether Andra, Jack & Ben are eligible for adoption?

The process of adoption allows the parental rights and responsibilities to the adopters and
thereby nullifying those rights and responsibilities that was entrusted to the prior person. As it
relates to who may be adopted, it usually turns on age, citizenship, residency and marital status.

According to section 16 of the Adoption Act a person may adopt a child who is under the age of
eighteen years; has never been married; and resides in Guyana. Taking into consideration the
aforementioned section, it is seen that all three children are minors, and have not been married,
and if it is further determined that they are residents of Guyana, they may be eligible for adoption
under the Act.

Further, the Courts may consider a child of 12 years and older of being mature enough to consent
their adoption (Section 18 (4)). Moreover, as it relates to Jack aged 10, his consent may still be
taken into consideration by virtue of section 18 (5) which states that where a child is 12 years

53
and below, if the Courts consider them to be of a sufficient maturity to form a view and fully
understands the process, their consent to the adoption is considered. If it is determined that Jack
has that level of maturity his consent may be taken into consideration for his adoption.

As it relates to Ben, aged 3 weeks, adoption may not be possible by virtue of section 21(4) which
states, that a document signifying a mother’s consent is ineffective unless, according to
subsection (a) it was executed at least six weeks after the child’s birth. The Courts will have the
aforementioned coupled Ben’s age as to whether he may be adopted.

Issue 3a. - Whether Carol’s initial consent to the adoption agreement can stand?

Though legal adoption is a relatively new concept, it is well guarded with stringent procedures
and prohibitions to protect the child in question. Consequently, the Adoption Act of Guyana
establishes an adoption board that oversees the process working hand in hand with the courts to
facilitate the procedure. According to section 4(1) ‘it shall not be lawful for any person other
than the Board to make arrangements for the adoption of a child.' Therefore, all arrangements for
adoption are legally recognized through the adoption and informal arrangements are deemed
unlawful. As such, where Rosie makes the proposal to Carol to adopt the three children then it
gives rise to an informal arrangement which is void under law which makes Rosie argument for
not allowing Carol go back on her word unenforceable. Additionally, under section 12(3) any
document signifying consent of the mother shall not be admissible unless the child is 6 weeks old
at the execution of the document. Though the provision speaks to a document containing
signature, it can be seen that consent of adoption to a child under 6 weeks old is invalid for the
reason that mothers in the post natal period is presumed to be ill informed to make decisions in
this regard. Likewise, Carol’s initial consent to the adoption agreement in relation to Ben who is
3 weeks old will not be valid and though the court in exceptional circumstances can give an
exception to such, it is rather unlikely in this case since Carol remarks of Ben being “the spawn
of the devil and deserving of punishment” supports the notion her decision was ill-informed
which may be related to post natal stress. Moreover, the courts recognize that consent must be
freely given and can be withdrawn at any time before an adoption is made. In the case AB v.
Social Welfare Officer, where a mother had initially consented to an adoption was able to have
the order rescind since she did not understand the far reaching effects of adoption. Likewise,
where Carol withdrew her consent upon the understanding that her rights will be forfeited, even

54
if it was a formal process it will be effective enough to bar the process unless the courts decided
for some valuable reason like the best interest of the child to dispense for the need of her consent
to the process. As such it is submitted, Carol’s initial consent to the adoption agreement will
stand on all circumstances considered under the law.

b. Whether the court can dispense with Carol’s consent to the adoption?

Where the need arises, the court can dispense with the consent of a parent and grant an adoption
order. The ability to do so is vested in the court by virtue of Section 20 (1) of the Adoption of
Children Act 2009. As per this provision, the court has the authority to dispense with the consent
required where in the circumstances, it is found that the parent/guardian required to give consent:
cannot be found or is incapable of giving consent, is unreasonably withholding consent, has
persistently failed without reasonable cause to discharge the parental duties with respect to their
child, has abandoned, neglected or persistently ill-treated their child or has exposed the child to
unnecessary risks.

The discretion of the court to dispense with the consent will thus be satisfied if the child’s natural
parent(s) has persistently failed without reasonable cause to discharge their obligations. As
determined by the court in Re P (Infants) 1962, such obligations include, “the natural and
moral duty of a parent to show affection, care and interest towards their children and the
common law or statutory duty to maintain the child financially”. In this case, a mother left her
two illegitimate children and took no further interest in them. She later refused to consent to their
adoption. The court held that her consent could be dispensed as she was in serious breach of both
her natural and moral duty to show affection, care and interest for her children and her legal duty
to maintain them financially. The question of what constitutes ‘persistent failure’ was discussed
by Sir George Baker in Re D (Minors) 1973. Here he declared that, “the failure envisaged…
must be of such gravity, so complete, so convincingly proved, that there can be no advantage to
the child in keeping continuous contact with the natural parent”. In the instant scenario, it is
revealed that Carol’s children, Andra and Jack looked very thin and undernourished. This
strongly suggests that Carol has failed to fulfil her duties as their mother, i.e., to maintain them
and ensure that they are well fed and healthy. The fact that this has persisted to the extent that
both children have such a poor health status that they appear thin, can be deemed reasonable
grounds upon which the court can dispense with Carol’s consent to their adoption. Additionally,

55
the court will also take into consideration the fact that she also failed to provide proper and
suitable living conditions for her children, given that her home is described as filthy.

Moreover, as mentioned in the current scenario, Carol initially agreed to allow Rosie to adopt her
children, but later changed her mind and refused to agree to their adoption. This raises the
question of whether she is unreasonably withholding consent. The principles upon which a Court
will approach this question was discussed in the case Re W (An Infant) 1971. In this case, Lord
Hailsham dictated that, “…the test is reasonableness and not anything else. It is not culpability,
indifference, or a failure to discharge parental duties. It is reasonableness in the totality of the
circumstances. But although welfare per se is not the test, the fact that a reasonable parent does
not pay regard to the welfare of his child must enter into the question of reasonableness as a
relevant factor”. Thus, given the fact that Carol neglected the care and welfare of her children,
the court is likely to consider her refusal to consent unreasonable and dispense with it
accordingly. This position can be supported by the court’s approach in the case Re L (Adoption:
Parental Agreement) 1987. In this case, prior to being fostered by the applicants, the child had
an unstable home life and there were anxieties about her development. This however changed
significantly after she went to live with the foster parents. The foster parents later brought an
application for her adoption which the natural mother refused. The court was asked to dispense
with her refusal. In delivering its judgment, the court found that the natural mother was
withholding her refusal unreasonably, and that since the future of the child would be best
promoted by her remaining with the foster parents and being adopted by them, the mother’s
agreement would be dispensed with. Similarly, in the instant case, the court is likely to find that
the children’s interest will be best served by dispensing with their mother’s consent and allowing
their adoption. This decision, of course will be made after giving due regard to all the
circumstances of the case.

Issue 4 - Whether Peter’s decision to withhold consent is reasonable.

At common law for a child born out of wedlock the parental responsibility devolved on the
mother. On the other hand, if there are applicable presumptions of paternity the responsibility is
imposed on the father of the child born out of wedlock as well.

Among the varying rights and duties of the parent is the discrete right to consent or refuse to
consent to adoption. General principle dictates that an adoption order cannot be made without the

56
consent of the parents or guardians or any person liable by virtue of a maintenance order or
agreement. Upon establishment of parentage, section 19 (1) (c) of the Adoption of Children
Act 2009 highlights, the need for consent to adoption by the father of a child born out of
wedlock. Without such consent an adoption order shall not be made. However in some cases the
courts can dispense with the parent’s consent. Section 20(1)(a)(ii) of the said Act states that the
court may dispense with the consent if it is satisfied that the person whose consent is required is
withholding consent unreasonably. Consent is key especially due to the gravity of the
consequences of adoption, an adoption order which extinguishes the parental rights,
responsibility and the relationship between a child and his/her natural parent, as was established
in Secretary of State for Social services v S (1983). It is evident that the parent has a legally
enforceable right to consent or refuse to consent but this is not an absolute right. Given the
circumstances of the instant case the ground of unreasonable withholding of consent will be
discussed further. Where a parent unreasonably withholds consent the court will dispense with
their consent. This is determined based on an objective test highlighted by Re W [1971] and the
question ‘would a reasonable parent, placed in the situation of the particular parent, withhold
agreement?’ should be answered in the affirmative in order for the consent to stand.
Additionally, it is to be judged at the date of the hearing and to be considered with reference to
all the circumstances of the case, although the welfare of the child is not the sole consideration, it
is a factor of great importance. If the welfare of the child necessitates that a parent’s right be
suspended the Court will act accordingly, as was established in the case Re KD Ward
(Termination of Access) [1988]. Moreover, in Hitchcock v W B and Others [1952], it was
held in determining whether consent was unreasonably withheld, that the test was not the welfare
of the child, but the attitude of the father, i.e., whether the father was unreasonable. As a father,
in withholding his consent; if a father had an honest desire to keep his child, and could contribute
to his upkeep, he could not be said to be withholding his consent unreasonably.

Generally, paternity must be established in first instance but it must be noted that it is expressly
stated that Peter is Jack’s father. There is, therefore, no need to refer to a presumption with the
aim of establishing the status of the child. In light of this, assuming but not conceding that Peter
is Jack’s father, Peter bears a parental responsibility which encompasses a coalition of rights and
duties directed towards his child. Specifically, Peter has the right to refuse to consent to Jack’s
adoption which he chose to exercise in these circumstances. However, he has to do so within

57
reason based on an objective standard. Peter is barred by law from unreasonably withholding
consent to adoption. In the instant case Jack’s living standards with his mother is deplorable and
he appears to be malnourished. Furthermore, due to pregnancy his mother’s mental capacity has
been impaired which could result in less than optimum judgment and parenting. In determining
unreasonableness, the court will examine Peter’s refusal against a reasonable parent in a similar
situation. A reasonable parent in this situation would be concerned for the welfare of the child
since their current living situation can impair the child’s physical health as well as their
psychological well-being. Peter’s reason to refuse consent to adoption is that he is against Jack
being in the care of a stranger. Based on the facts, he shows no interest in exercising his right to
custody. It would appear then that he simply wants to maintain parental rights but not raise Jack.
It can therefore be concluded that he is withholding consent unreasonably.

Issue 5- Whether Mark’s agreement to the adoption procedure is required?

Before a man can proclaim any rights over a child born out of wedlock he must first establish his
paternity. A father "in relation to a child born out of wedlock, is defined by the Custody,
Contact, Guardianship and Maintenance Act (CCGMA) 2011 as the man who qualifies as
father under the laws dealing with the status of children; the man who has been adjudged to be
the father of the child by a Court of competent jurisdiction; or the man who has acknowledged
the child to be his. Mark has acknowledged that Andra and Ben are his, nevertheless, to
determine if his agreement to the adoption process is required is based on his involvement in his
children’s lives. According to the Adoption Act 2009 s 19 (1) subject to section 20, an adoption
order shall not be made, except with the consent of (c) the father of a child born out of wedlock.
This was also highlighted in the case Hoye v Neely (1992), which held that the consent of a
father whose child was born out of wedlock is required as a prerequisite to the adoption.
However, the court can dispense his consent in relation s 20 (1) of the Adoption Act, on the
grounds that he has persistently failed without reasonable cause to discharge the parental duties
in relation to the child; has abandoned, neglected or persistently ill-treated the child; or has
exposed the child to unnecessary risks. Mark’s children are very thin, undernourished and ill-
treated. Where was he to establish parental responsibility and ensure proper maintenance and
care for his children? With this information the courts may still dispense consent with or without
his consent.

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Guidelines courts take into consideration should the necessary preconditions be satisfied.

While acknowledging that in custody cases, the first and paramount consideration is the welfare
of the child as elucidated in the case R v Gyngall, it is to be noted that welfare of the child is not
the exclusive consideration. In addition to general considerations, the Court is specifically
required to consider all the needs and circumstances of the child. In the instant case, the court is
likely to consider:

(a) the love, affection and emotional ties between the children particularly given their ages or
between each person claiming the children.
(b) The length of time the child has lived in the place where he is habitually resident;
(c) the ability and willingness of each person seeking custody of the child to provide him with
guidance, education, and the necessities of life, and to meet any special needs the child may
have;
(d) Plans proposed for the care and upbringing of the child;
(e) The permanence and stability of the family unit with which it is proposed that the child will
live;
(f) The relationship by blood or adoption between the child and each person who is a party to the
application.
(g) The emotional well-being of the parent, the willingness of the parent to facilitate contact with
the other parent;
(h) The need to protect the child from abuse or harm;
(i) any other relevant factor.
Here ends our submissions.
Whether Rosie can adopt – qualification for application
Whether Andra, Jack and Ben are eligible for adoption – below 18, had not been married and
are residents of Guyana. Address consent of 12 year olds and below 12.
Whether Carol’s initial consent to the adoption can stand – Address the Adoption Board and
arrangements done outside of the Adoption Board. Consider Carol’s statement and when
consent can be withdrawn.

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Whether the court can dispense of Carol’s consent to make the order – where parent cannot be
found, where consent is unreasonably withheld, where parents fails to discharge obligations
without cause, etc
Consider the welfare considerations in adoption.
There is question with the treatment of Mark: look at the possibility of dispensing with his
consent and what the court would consider when dispensing with his consent if they do so.
Mark said that the children are better off with Rosie, that does not mean that he wants to
terminate his parental responsibilities (Re Brady). Is it a case where he is not objecting to them
being with Rosie or is he agreeing to an adoption?
An adoption order is far reaching. It is not easily made. The fact that the children are
malnourished and living in impoverished arrangements, the parent is not blamed. Many facts
were read into the question. Treat with enquiry or making an inquiry into adoption of a child
and the parent agreeing is not making arrangement for adoption. It is merely an expression of
desire. It must be considered whether the consent given to the enquiry is consent to adoption or
not. Mere inquiry would not amount to arrangements outside of the Adoption Board thereby
amounting to a criminal offence.

9. What legal implications arise from the following matters and how might they be resolved?
(a) Peter who claims to be the father of Paul wishes to have a say in the child’s upbringing and wants
the Court to grant him the appropriate order. One reason why Peter seeks the order is because he
suffers from a rare genetic disorder but the child's mother Joanie refuses to have medical tests on
Paul. She wants Peter to play no part in Paul's life as she is about to marry John.
(b) David who is separated from his wife Carla would like to have access to his child Eve and is
seeking an order. Carla, with whom Eve lives, has made it clear that she will in no circumstances
accede to David's wishes because of David's conduct towards her during their marriage.
(c) Iqbal and Selima, who have been caring for Anton, have been told by the Adoption Board that the
Anton's mother wants him to be adopted, but not by them. Iqbal and Selima want to continue caring
for Anton, particularly because he regards them as "mom and dad".
Recall that some treated as a child relates to a marriage or a child of a marriage that was not
his.

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Al’s mother being in a better position and the entire estate is left to her. Compare her position
with Edward who is mute, Mia who is 2 and the others who are dependent. Consider also able-
bodied adult.
Bad conduct or behavior society may frown upon in relation to the mother – court would
consider any other matter. – likelihood of Victoria to maintain the children would be
considered.

10. Victoria and Al have been living together for sixteen years during which time three children,
Edward, aged 14, Alice, aged 10, and Mia, age 2 years, were born. Victoria and Al were separated
after Mia made certain remarks which Victoria construed as being allegations of sexual abuse against
Al. Al vigorously denied that anything improper occurred between himself and Mia. Al believed that
Victoria was simply looking for an excuse to leave him. Victoria moved into a large house owned by
Priya, her lesbian lover. Victoria took the children with her. Al continued to maintain Edward who is
mute, Alice and Mia.
Al was unhappy with the children being with Victoria and decided to apply for custody of the
children. Whilst compiling documents to support his custody application, Al discovered that Edward
was not his child. Al committed suicide shortly after. His entire estate was left to his mother.
Advise as to Edward, Alice and Mia as to whether they are able to claim for financial provision
from Al’s estate.

Central to this question is a discussion on devolution of property. There is the general notion that testators
are free to dispose of their estate to whomever they choose. However, the Family and Dependants
Provision Act 1990 impinges on testamentary freedom by allowing certain classes of persons to apply for
provision from the deceased’s estate on the ground that the will or the application of the rules of intestacy
did not make reasonable financial provision for them. Before a substantive discussion of the claims of the
parties can commence, it is most imperative to establish the pre-conditions to jurisdiction. Al is treated to
have died testate. This is a reasonable deduction since the facts stated that his estate was ‘left for his
mother.’ Secondly, since there is no provision to the contrary in the facts, Al will be considered to have
died domiciled in Guyana. All parties are advised that pursuant to s.6 of the FDPA, an application for a
financial provision order is required to be made, except with the permission of the court, one year from
the date on which the grant of representation was first taken out. In Re Freeman [1984], it was stated that
time began to run from the date on which effective or valid representation was first taken out. In the

61
present case, where Al is presumed to have died testate, time will begin to run when the will is probated.
The parties are therefore petitioning the court to vary Al’s will to make provisions for them. After
carefully examining the facts, the issues which arise are as follows:

● Since Edward is not the child of Al, whether he can be considered a proper applicant within

the meaning of s.3(1) FDPA 1990 and thus, whether he has a claim to a share in Al’s estate;

● Whether no reasonable financial provision was made for Edward having specific regard to the

various guidelines?;

● Whether Alice and Mia being Al’s children would entitle them to claim for financial provision

from Al’s estate.

The first issue pertains to the eligibility of Edward to make a claim under the FDPA. Section 3(1)
provides that the child of the deceased, any person treated as the child of the deceased and any person
maintained by the deceased may make a claim where the deceased’s estate is not such as to make
reasonable financial provision for the applicant. In the instant case, Edward who was born out of a 16-
year cohabiting relationship but was discovered by the deceased to not have been his natural son. This
material fact has eliminated the category of child of the deceased. The second possible category is a
person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at
any time a party, was treated by the D as a child of the family in relation to that marriage. It is clear that,
this category requires the child to be treated as part of the family in relation to a marriage. This provision
does not extend to cohabiting relationships. Therefore, S.3(1)d of the FDPA is most applicable. Here, any
person who was immediately before the death of the deceased was being maintained wholly or partly by
him/her may make a claim. According to s.3(3) FDPA 1990, a person shall be treated as being
maintained by the deceased, either wholly or partly, if the deceased, otherwise than for full valuable
consideration, was making a substantial contribution in money or money's worth towards the
reasonable needs of that person.

Thus, it is submitted that the maintenance of that person by the deceased during the latter’s lifetime could
result in an obligation that maintenance be continued after the deceased’s death. Re Coventry (1979)
stated maintenance does not mean just enough to get by but does not mean anything unreasonably
desirable or suited for one’s general benefit/welfare. This must be determined on a case by case basis.
Maintenance was seen in Re Wilkinson, where the applicant cared for the deceased sister who provided
her with free board, lodging and paid all her household expenses since the detriments suffered by her did

62
not constitute a full valuable requital. Maintenance must be immediately before death and that the words
were not to be construed literally. ‘Immediately before’ regards to the general arrangement for
maintenance in place at the time of death per Re Beaumont. In the instant case, Al maintained Edward,
who is mute from birth for the 14 years up until and just before his untimely death and even after Victoria
removed him from the family home. This maintenance must be a substantial contribution in money or
money's worth towards the reasonable needs of that person. The fact pattern did not state how Al
maintained Edward but it is a plausible deduction that maintenance in regard to a person who is a minor
and had an added disability may have been “the provision of money or property in respect of a child,
provision for that child's education” as defined by the CCGMA. It is contended therefore, that the
maintenance of Edward during Al’s lifetime imposes an obligation that maintenance be continued after
death. All things considered; it is advised that Edward may be a proper applicant within s.3(1)(d) of the
FDPA.

In addressing the second issue, if the applicant is to succeed in a claim under the FDPA, he is required
to satisfy the Court that as a result of the will or the application of the rules of intestacy, reasonable
financial provision was not made for him. This is the sole ground of an application, but there are two
stages to the application. Ergo, the Court has to first decide whether it is satisfied that the disposition of
the deceased’s estate failed to make reasonable financial provision for the applicant as established in the
case of Re Goodwin [1968] 3 All ER 12. Megarry J. stated that: “The question is simply whether the will
or disposition has made reasonable provision, and not whether it was unreasonable on the part of the
deceased to have made no provision or no larger provision for the dependent.” In Millward v. Shenton
[1972] 2 All ER1025, the testatrix made a will in which she left all her property to charity. X, one of her
children was an invalid and incapable of maintaining himself; living entirely on state assistance. The
courts applied the he foregoing principle and he was therefore entitled to claim from her estate.

. In determining whether no reasonable financial provision has been made the courts employ the
following general guidelines. The obligations and responsibilities which the deceased had towards
any applicant or beneficiary: From the facts of the instant case, it is evident that Al, believed Edward to
be his child for 14 years but immediately before his death found out that he was not. Al, nevertheless
assumed the responsibility of caring for Edward. Re Callaghan (1984) and Re Pearce (1998) stress the
need for some special moral obligation to the applicant by the deceased. Ergo, he discharged these moral
responsibilities and obligations that a biological parent would towards a child. Thus, there was an
assumption of the responsibility towards Edward and reasonable financial provision should be made for
him. On the other hand, the courts will also consider the claims of Alice and Mia who are younger than
Edward and are Al’s biological children who he maintained and discharged parental responsibilities

63
towards during his lifetime. Despite this, it is plausible that the courts may still give recognition to
Edward’s claim on the account that Al assumed responsibility in caring for Edward as he did his
biological children.

Secondly, the means of the applicant, any other applicant and any beneficiary, now and in
the foreseeable future may be considered. Re Collins [1990], states that the court must have
regards to the financial resources and needs of the applicant in the foreseeable future. Not only
is Edward a minor, unable to provide for himself but he has the added disadvantage of being
mute. Assuming that Edward is domiciled in Guyana where the social culture is not as tolerant as
it should be to such persons, it would be difficult for him to get a proper job even after attaining
majority. The courts will also compare the means of the other applicants, Alice and Mia, who are
currently younger than Edward and unable to provide for themselves. However, they stand a
better chance at attaining an education and a job in the future. Al’s mother is also in a better
position to maintain herself than Edward. Physical or mental disability of the applicant or
beneficiary is taken into account by the court. In Blake v Campbell, the court noted that the
applicant suffered from serious medical conditions which would therefore restrict her ability to
secure a job. In the instant case, Edward is mute and may require extra care and attention from
his other siblings (in terms of schooling, special needs care etc.). Taking this matter into account
the court may be inclined to rule that no reasonable financial provision was made for Edward
given his condition.

Furthermore, it must now be determined whether the courts will exercise their discretion to
make an order of reasonable financial provision. It has been determined that no reasonable
financial provision was made for Edward having regard to the responsibilities discharged by the
deceased to him and his disability which may impair his means currently and in the foreseeable
future. Along with these guidelines, the courts will consider the extent to which, the basis upon
and length the deceased assumed responsibility for the maintenance of the applicant per s.5(4)
FDPA. In the instant case, Al assumed parent-like responsibility to maintain Edward as he
believed him to be his child. It turned out that he was not but this does take away from the fact
that cared for Edward accordingly immediately before his death. Further, the responsibility for
maintenance was exercised for 14yrs and even after Victoria removed Edward from the family
home. It is contended that the courts will consider this specific and aforementioned general

64
guidelines to rule that indeed no reasonable financial provision was made and may utilize its
discretion to make an order for financial provision for Edward.

At this juncture, the third issue will be addressed. In order for Alice and Mia to be able to claim
from Al’s estate, it must first be established that they would be a proper applicants. Section 3(1)
of the FDPA provides that, as noted earlier, the child of the deceased… may make a claim where
there is failure to make reasonable financial provision for the applicant. Section .2 (5) of the
FDPA provides that ‘any reference to a "child" shall include a child … born out of wedlock.’ In
the present scenario, Alice and Mia are presumed to be children of Al, having been born from his
sixteen (16) years relationship with Victoria, as evidence has not been adduced to prove
otherwise. Therefore Alice and Mia would be proper applicants under s.3 of the FDPA.

Next, it must be considered whether there was failure to make reasonable financial provision for
Alice and Mia. In Re Debenham [1986], the applicant was raised by her grandparents after her
mother, the deceased, severed contact with her after birth. The mother left the applicant a legacy
of just £200 prompting her to apply for provision from her mother’s estate which was valued at
£172,000. The court held that despite separating herself for a long time, the mother had a moral
obligation to help the applicant and as the amount left was insufficient, there was failure to make
reasonable provision. In the present scenario, Al had sustained his relationship with Alice and
Mia, his ten and two year old daughters, respectively, maintaining them until his death in line
with his perceived moral obligation.

Considering the guidelines: (i) the obligations and responsibility the deceased had toward the
applicant/s. In Re Jennings deceased [1994] 3 All ER 27 the Court of Appeal held that
obligations for the purposes of s 3(1)(d) of the Inheritance (Provision for Family and
Dependants) Act 1975 only referred to obligations which the deceased had immediately before
his death and not, say, to neglected obligations during the childhood of the applicant. Al had
undertaken to continue to maintain Alice and Mia even after they were not longer living with
him and up to the time of his death; and (ii) the means of the applicant and any other applicant:
like the other child, Alice and Mia are underage and unmarried, both lacking the means to
acquire work and of obtaining sufficient support otherwise. Given that only Al is noted as
provided maintenance to Alice and Mia and given the moral obligation owed to them, it is

65
concluded that there was a failure to make reasonable financial provision, as nothing was made
available for the their benefit.

Finally, it must be considered whether the court should exercise its discretion in awarding
financial provision to Alice and Mia. Again, given consideration of the age of Alice and Mia,
their inability to work and the lack of indication that they are maintained to a significant extent
by their mother, it is asserted that the court would them award reasonable financial provision.

Consequently, Edward, Alice, and Mia, all fall within categories of persons entitled to make a
claim for reasonable financial provisions under the Act. Notably, as evident throughout this
paper, there are compelling circumstances for the order to be granted for all three applicants.
However, the courts will take into consideration when exercising their discretionon whether or
not to grant the order of reasonable financial provisions for Edward, Alice, and Mia ,the fact that
all three children are minors, the fact that Edward has a disability, and the fact that Al maintained
all the children up until the time of his death.

Another Response for Q10

Introduction
The instant case invites a discussion of devolution of property. The legal issues to be
resolved are as follows. First, whether Edward may apply for financial provision. Secondly,
whether Edward has satisfied the sole ground for an application of financial provision under the
FDPA. Thirdly, whether Mia and Alice may apply for financial provision. Fourthly, whether Mia
and Alice have each satisfied the sole ground for an application of financial provision under the
FDPA.
Preliminary Issues: Testamentary Freedom and Preconditions to Jurisdiction
Under the laws of Guyana, a testator remains free, despite the Family and Dependents
Provision Act, to leave their estate to whomever they choose. The Act does not curtail
testamentary freedom. As such, a spouse or a child or a person being maintained has no right to
receive property under a will. This notwithstanding, the court has the power under the FDPA to
order that financial provision be made out of the estate of the deceased for certain categories of
persons. This power exists whether the person dies intestate or testate, but it is not automatic.
Notably, in the instant case the facts state that Al’s entire estate was left to his mother. It is a
plausible deduction therefore that Al died testate.
In order for a claim to be brought under the FDPA, there are certain preconditions that
must be established. First, the deceased must have died after the commencement of the Act.

66
Secondly, the person must have died domiciled in Guyana. Thirdly, an application must be
brought no later than 1 year of the valid grant of representation, that is, probate or letters of
administration. Finally, an applicant must satisfy the court that he or she falls within one of the
categories of applicants laid out in the FDPA. The facts of the instant case do not suggest that
there is an issue relating to the first 3 requirements. However, a discussion of the fourth
precondition is the point of departure for the first legal issue.
Issue One
The first issue addresses whether Edward may apply for financial provision under the
FDPA. The three relevant categories, according to section 3(1) of the FDPA are; (i) a child of
the deceased; (ii) a person treated as a child of the family by the deceased; and (iii) a person
maintained by the deceased.
In the instant case, the facts clearly state that Edward is not Al’s child. Therefore, Edward
cannot make a claim as a child of the deceased under section 3(1)(b). Further, Al and Victoria
cohabited for a prolonged period but they were not married. Accordingly, the second category
allows an application by a person, other than a child of the deceased, who was treated by the
deceased as a child of the family in relation to a marriage for which the deceased was at any time
a party to. Since there was no marriage, Edward cannot apply under section 3(1)(c).
The question of whether or not Edward can make an application under section 3(1)(d), as
a person who immediately before the death of the deceased was being maintained either wholly
or partly by the deceased arises. In Jelley v Illife, the court stated that it has to consider “whether
the deceased, otherwise than for valuable consideration, was in fact making a substantial
contribution in money or money’s worth towards the reasonable needs of the plaintiff on a
settled basis or arrangement which either was still in force immediately before the deceased’s
death or would have lasted until her death but for the approach of death and the consequent
inability of either party to continue to carry out the arrangement.” The facts of the instant case
indicate that Al continued to maintain Edward after Victoria moved in with Priya, and the facts
suggest the maintenance of Edward subsisted until Al committed suicide. Therefore, it is
submitted that Edward can make a claim for reasonable financial provision as a person who was
being maintained by Al immediately before his death.
Issue Two
This issue seeks to address whether Edward has satisfied the sole ground for application of
financial provision under the FDPA. Where an applicant wishes to establish that reasonable
financial provision was not made for him/her due to the disposition of the deceased’s estate,
there is a sole ground which must be established, which has two stages. At stage one, the court
has to determine whether or not there was a failure to make reasonable financial provision. At
stage two, where the court is satisfied that there was a failure to make reasonable financial
provision, then the court has to determine whether in the exercise of their discretion it will make
an order for financial provision.

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Stage 1
The Act contains general and specific guidelines for the court to consider:

1. The means of the applicant, any other applicant and any beneficiary, now and in the
foreseeable future.
In the case of Re Collins at the time of the hearing the girl was unemployed and receiving
social security benefit. The evidence showed that there was no reasonable provision for
the girl as a result of the intestacy. This case illustrated that the Court would have regard
to the circumstance whereby a person is unemployed and is dependent on the deceased
for maintenance.
Edward aged 14 is a minor and will more than likely be unable to find work for now and
the near future. Edward is also mute, this disability may not disallow him from finding
work in the future, but it is likely that he would not be able to find a very high or even
average paying job. Edward as an applicant must be compared to the beneficiary and
other applicants by the court. Also, as in the aforementioned case, where the applicant
received maintenance for the time of her unemployment, it would be reasonable that
Edward receive maintenance for his forceable time of unemployment.

2. The obligations and responsibilities which the deceased had towards any applicant or
beneficiary.
In Jelley v. Iliffe the Court of Appeal expressed that the fact of maintenance in itself
raises a presumption that the deceased has assumed responsibility for the applicant. In the
instant case, Al was maintaining Edwards up until his death.

3. The size and nature of the net estate.

The court will look at the size of the estate.

4. Any physical or mental disability of the applicant or beneficiary.

As seen in Re Coventry and other cases, the courts will not look sympathetically upon the
applications of adult able-bodied claimants who are capable of earning their own living,
whether they are male or female.

Given that Edward is mute, this must be considered since he would not be leveled with
the future prospects of the other applicants. The courts will also weigh the physical and
mental state of Al’s mother who is the beneficiary, when in judgment.

5. Any other matter including the conduct (whether good or bad) of any person.

However, other than the General guidelines, the court will look at specific guidelines falling in
the ambient of the application made under section 3(1)(d) of the FDPA. This guideline is under
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Section 5 (1)(4)- the court will have regard to the extent to which and the basis upon which the
deceased assumed responsibility for the maintenance of the applicant and to the length of time
for which the deceased discharged that responsibility.

In conclusion the court will look at the general guidelines and will also direct itself to the
specific guidelines and may determine under the specific guidelines that maintenance was done
at the time, because the deceased was under the guise that Edwards was his child. Based on this,
the court may find that there was not a failure to make reasonable financial provision.

Issue Three
This issue speaks of whether Alice and Mia may apply for financial provision. At common law
no child is legitimate unless his parents are married to each other at the time of his conception or
the time of his birth. Thus, a presumption at common law that a child born into a marriage is
legitimate. However, to make provision for the determination of paternity of the out of wedlock
child, affiliation legislation and later Status of Children Legislation was enacted.
Section 12 of Guyana’s Status of Children Act 2009 provides:
“A man is presumed to be the father of a child where he was cohabiting with the mother
of the child in a relationship of some permanence at any time during the period
beginning not earlier than three hundred and eight days and ending not less one hundred
and forty days before the birth of the child.”
Applying law to fact, Al will be presumed to be the father of both Alice and Mia by virtue of
section 12 as he was cohabiting with Victoria in a relationship of permanence during a period
not less than 340 days before the respective births of the children. Having established that Alice
and Mia would be presumed to be Al’s children, Section 3(1)(b) and (d) states that“person may
apply to the Court for an order under section 4 on the grounds that the disposition of the
deceased's estate effected by his will or the law relating to intestacy, or the combination of his
will and that law, is not such as to make reasonable financial provision for the applicant.”
Additionally, Debenham, re [1986]17 and Goodchild, Re, Goodchild v Goodchild [1997]18both
held that where a testator was guilty of a breach of moral obligation owed by a parent towards
his child, leaving the child in straitened financial circumstances, the court had to ensure that
adequate provision was made for the child out of the estate, having regard to the child’s need for
maintenance and support. Additionally, Beaumont, Re, Martin v Midland Bank Trust Co Ltd
[1980]19 held that a person maintained by the deceased can bring financial provision from a
deceased's estate under the act by virtue of being maintained by the defendant.

17
1 FLR 404, [1986] Fam Law 101
18
3 All ER 63, [1997] 1 WLR 1216
19
Ch 444, [1980] 1 All ER 266

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Therefore, applying both statute and common law provisions both Alice and Mia being children
of the deceased would be able to make a claim for financial provision under the Family and
Dependents Act.

Whether Mia and Alice have each satisfied the sole ground for an application of financial
provision under the FDPA.
Firstly, the Court has to decide whether it is satisfied that upon the disposition of Al’s estate, Al
failed to make reasonable financial provision for Mia and Alice.
As previously mentioned, there are general guidelines that the court would consider in
determining whether there was a failure to make reasonable financial provision. Guided by the
precedent set out in Re Collins, the court will have regard to the means of the applicants (Mia
and Alice). The facts dispose that both Mia and Alice are ages 2 and 10 respectively. Granted
that they are both minors, it is a plausible deduction that they will be unable to provide
financially for themselves at the time of the application and in the near foreseeable future.
Additionally, the court will have recourse to the obligations and responsibilities that Al would
have had towards Mia and Alice. In Re Callaghen [1984] the judge stated in his judgement that
the fact that the plaintiff was being maintained by his stepfather directly before his death in
deciding to buy (house) was a reasonable requirement to grant him maintenance with respect to
financial provisions as the plaintiff could not have possibly come up with the capital.
In addition to the aforementioned general guidelines, the court will further consider the manner
in which the applicant was being or might have expected to be educated or trained, by virtue of
section 5(3) of the FDPA.
Given the fact that Mia and Alice are Al’s children who were immediately before Al’s death was
being maintained wholly by the deceased, and considering the precedent set out in Re
Callaghen, it is submitted that there was a failure on the part of Al to make reasonable provision
for Mia and Alice.
As such, where the court finds that Al would have failed to make reasonable provision for Mia
and Alice, the court will then decide whether or not to exercise its discretion to make an order
considering the aforementioned guidelines.
Under the FDPA, s. 4 (1) provides that where an application or an order is made under this
section, the Court is satisfied that the will or law relating to intestacy, is not such as to make
reasonable financial provision for the applicant, may make, under s. 4 (1)(a) an order for the

70
making to the applicant out of the net estate of the deceased of such periodical payments and for
such term as may be specified in the order.
Applying the law to facts, upon an application made by Mia and Alice, the Court may,
considering the aforementioned under s. 4(1)(a) of the FDPA, make reasonable financial
provision for the applicants Mia and Alice.
Edward as someone treated as a child of the deceased.
Remember that guidelines are not decisive.
Duty to maintain minors.
Bad conduct or behavior society may frown upon in relation to the mother – court would
consider any other matter. – likelihood of Victoria to maintain the children would be
considered.

11. After a relatively short period of cohabitation between Austin and Bridget came to an end in
much bitterness, Bridget married Chad. Bridget gave birth to a son Dean soon after. Austin was
unaware of the birth of Dean.
Emma, who was separated from her husband, later moved in with Austin. Emma’s daughter, Fay,
remained with her father who was awarded custody. Fay however spent holidays with Emma and
Austin. Austin regarded Fay as his daughter and showered her with presents. Fay would refer to
Austin as “Dad” whenever she visited.
Austin and Emma separated when Emma fell gravely ill. Emma however permitted Fay to maintain
contact with Austin as Fay was fond of him. Austin continued to shower Fay with presents and
would refer to her as “Daddy’s little princess”. Emma died three years ago leaving 60% of her estate
to Austin and the remainder to Fay.
Whilst Emma was hospitalized, Austin discovered that her nurse Steve was Bridget’s son. Bridget
had never mentioned him to Austin. Steve went to live with Austin who offered him a place to stay.
Austin would boast to his friends about Steve, referring to him as his big son. Austin also paid
Steve’s tuition fees at the University as Steve was heavily in debt.
Austin married Geeta shortly after Emma’s death and the following year Geeta gave birth to twins
Hank and Ian. Hank was diagnosed as suffering from a mental abnormality due to a birth defect and
requires special attention. Both Hank and Ian were put up for adoption by Geeta and Austin. Austin
died in March last year leaving his entire estate to Geeta. Ian was adopted last November.

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Advise as to Steve 28, Dean 18, Fay 15, Hank and Ian’s claim for financial provision from
Austin’s estate.

This question seeks to discuss mainly, the topic of maintenance, those who can be maintained
and the time limit to apply for financial provision under the The Family and Dependants
Provision Act. These among other areas, are highlighted in the issues of whether Steve, Dean,
Fay, Hank and Ian can be considered a child of Austin and whether each of them can make a
claim for financial provision under Austin's Estate. The issues are as follows:

WHETHER STEVE, A 28 YEAR OLD MAINTAINED BY THE DECEASED, CAN MAKE A CLAIM ON THE
DECEASED ESTATE.

To begin, a person may apply to the court even where the person died testate for an order on the
grounds that the will of the deceased’s estate did not make reasonable financial provision for the
applicant. This may seem to be encroaching on testamentary freedom but it is to be noted that
‘reasonable financial provision’ means such financial provision as would be reasonable having
regard to all circumstances of the case and the court, in its discretion is entitled to decide that
what is reasonable is in fact, no provision at all. To assess this, the courts apply a two-stage test
to determine firstly, whether the disposition of the deceased’s estate failed to make reasonable
financial provision for the applicant and secondly, if it is found that the decease did fail to make
provision, whether the court, in its discretion will make an order for such financial provision.
During the application of the two stage test the courts consider both general and specific
guidelines.

Accordingly, the most applicable category for Steve to claim would be to claim he was a person
maintained by the deceased either wholly or partly as contemplated by section 3 (1) (d) and that
by Austin’s will, there was a failure to make reasonable financial provision. Section 3 (3) further
added a person shall be treated as being maintained by the deceased if otherwise than for full
valuable consideration was making a substantial contribution in money or money’s worth
towards the reasonable needs of that person.

In this regard it must be determined whether Austin’s act of offering a place to stay and paying
tuition can be tantamount to maintenance provided by him to Steve. Goff LJ in Re Coventry

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articulated that while the act does not define what maintenance is, a limited definition must not
be place on the word and it depends on the facts of the case. Following this guidance however, it
is submitted what can amount to maintenance must be substantial and it is observed in Rees v
Newbery and the Institute of Cancer Research, where the deceased had provided the applicant
with a flat in London at a low rent in the absence of intimate relationship; this was found to be
maintenance provided by the deceased. Even so, in Churchill v Roach, the courts reasoned that
it does not need to be shown that but for the financial assistant the claimant would have been in
dire poverty. Thus, given the nature of the gifts, this may very well create a state of dependency
by the ‘heavily indebted’ student Steve. Additionally, the courts must be satisfied, that the
deceased had provided maintenance without full and valuable consideration which poses much
difficulty for the courts to determine especially where the applicant and deceased shared an
intimate relationship. Normally the courts balances what the deceased was contributing as
against what the applicant was contributing, and if the applicant made greater or equal
contribution, the claim would be struck out as noted in by Stephenson LJ in Jelley v Illife. This
illustrated in Harrison v Gill, where the deceased provided lodging for the applicant and in
return housework was done. The court held that what the deceased provided was over and
beyond what the applicant provided and thus there was no valuable consideration. Furthermore,
the court has to be satisfied this maintenance lasted immediately prior the death of the deceased
as stipulated in the section. Persons can lose maintenance provisions where prior to death, the
deceased had stopped maintenance as was seen in the case of Kourky v Lusher, where the
deceased and the applicant had lived together for about ten years and in the last few days before
death, they had parted in circumstances which suggested the that the separation would be
permanent; the court ruled that an application for provision from the estate failed because the
deceased had abandoned his assumption of financial responsibility for the applicant. From the
facts, the factual existence of maintenance immediately prior is still evident. Thus, from this
reasoning and analogy, Steve may be a successful applicant as being a person maintained by the
deceased as contemplated by section 3 of the FDPA.

WHETHER DEAN CAN BE CONSIDERED AS THE CHILD OF THE DECEASED AND THEREFORE
ENTITLED TO FINANCIAL PROVISION UNDER THE FDPA

The Family and Dependants Provision Act of Guyana (FDPA), encroaches on the principles of
testamentary freedom and allows certain classes of persons to apply to the court for provision

73
from the estate of the deceased. To apply, the applicant must first fulfil at least one of the eligible
categories before the preconditions of the court’s jurisdiction are examined and the sole ground
on which the application should be made. There are four categories of persons that may apply,
however for the purposes of this issue the focus will be on the provision for a child of the
deceased as per Section 3(1) (b). Generally, the age of the child is not a determining factor for
eligibility, but the court may seek to take into consideration the relationship between the
deceased and applicant. In order to ascertain whether the potential applicant is a child of the
deceased, the paternity of the applicant must be addressed. Section 12 of the Status of Children
Act, states that a man is presumed to be the father of a child where he was cohabiting with the
mother of the child in a relationship of permanence at any time during the period beginning not
earlier than three hundred and eight days and ending not less than one hundred and forty days
before the birth of the child. In the instant case, after a period of cohabitation between Austin and
Bridget came to an end, Bridget married Chad, subsequent to which she gave birth to a son. The
facts does not specify the exact time period within which Austin and Bridget’s cohabitation
lasted. It does however mention that it lasted for a ‘relatively short’ period. Such a time span is
unlikely to satisfy the requirement for the paternity presumption specified in Section 12.
Therefore, the presumption of paternity arising from cohabitation will not apply to the fact
scenario.

A man is presumed to be the father of a child if he was married to the mother of the child at the
time of the child’s birth by virtue of Section 10. When a child is born into a marriage irrespective
of how soon after the marriage the child is born, by marrying the mother the husband is prima
facie taken to have acknowledged the child as his. According to the fact pattern, Bridget’s son
Dean was born a short period after her marriage to Chad. Chad will thus be presumed to be the
child’s father. This reasoning can be supported by the court’s decision in Gardner v Gardner
1877. In this case, seven weeks after her marriage, a woman gave birth to a child. The court held
that irrespective of the fact that she became pregnant before her marriage; her husband was the
father of her child. It can thus be concluded that Chad will be presumed to be the father of Dean
and not Austin. Dean will thus be unable to apply for financial provision from Austin’s estate.

WHETHER FAY CAN CLAIM FINANCIAL PROVISION FROM THE REMAINDER OF THE DECEASED ESTATE?

74
 The main issue that arises in terms of Fay and Austin’s estate is the fact that the estate
which was left mostly to Austin and the remainder to Fay has now been left entirely to Austin’s
wife upon his death. According to the Custody, Contact, Guardianship and Maintenance Act
2011 of Guyana (CCGMA) a ‘child’ is a person under the age of eighteen years. As provided in
the instant scenario it is provided that Fay is 15 years old and is under the custody of her father.
Therefore, it is presumed that Fay may not be knowledgeable about court proceedings relating to
the estate, however, this depends on the maturity of the child. As such it would be best for her
father to accompany Fay in making a claim for financial provision from Austin’s estate.

Generally, before Fay can make a claim for financial provision from Austin’s estate it
must be established that she is an eligible applicant specified in the Family and Dependents
Provision Act 1990 of Guyana (FDPA). Secondly, if Fay is an eligible applicant she must apply
within the time limit and it must be established that the deceased died domiciled in Guyana. In
this case Fay is the child of Emma, the deceased, who initially left 40% of the property for Fay.
Further, it can be said that Austin did maintain Fay for a while however, it is presumed that that
maintenance ended when Emma died and Austin discovered Bridget’s son Steve.

At hindsight it may seem that Fay is unable to claim financial provision of Austin’s estate
since one of the general criteria’s of being maintained immediately before the death of the
deceased, either wholly or partly, as provided for in s 3(d) of the FDPA is not applicable.
However, the fact that Fay and Austin were originally awarded Emma’s estate jointly there
would be some form of interest by the Court.

As it relates to the time limit requirement, s 6 of the FDPA states that an application for
an order under the Act shall not, except with the permission of the Court, be made for after the
end of the period of one year from the date on which representation with respect to the estate of
the deceased is first taken out. Therefore, Fay is required to make a claim for financial provision
within the period of one year from the date on which representation with respect to the estate of
the deceased is first taken out. However, if this requirement is not met the Court has the
discretion to allow the claim to be heard. In the case of Re Salmon [1981] Ch 167, it was
established that, although the words "except with the permission of the court" were neutral and
gave no guidance as to any principles on which the jurisdiction was to be exercised, certain
guidelines could be identified; that those guidelines showed that the discretion of the court,

75
though unfettered, was to be exercised judicially, and that the onus lay on the plaintiff to
establish sufficient grounds for taking the case out of a time-limit which was not merely
procedural but was substantive and imposed by the Act; that for that purpose it was material to
consider how promptly and in what circumstances the extension was sought, whether any
negotiations had been commenced within the time limit, whether the estate had been distributed
before any claim had been made or notified, and whether a refusal to extend the time would
leave the applicant without redress against anybody; and that those guidelines, although not
exhaustive, were sufficient for the present case.

Additionally, in the case of Re C [1995] 2 FLR 24, the court permitted a claim on behalf
of the deceased's illegitimate 8 year old child to be brought 18 months out of time because the
delay was caused by the child's mother who knew of the deceased death immediately The
various trust funds were not yet constituted and the estate itself remained unadministered when
the child made a claim against the deceased's estate. In this case the court felt that to deny the
application would cause the child to suffer at the result of another's fault, which would be a
substantial injustice to the child. Therefore, as aforementioned, if Fay is unable to make the
general requirement of bringing proceedings before one year of the date on which representation
with respect to the estate of the deceased is first taken out, it may be possible for the Courts to
still allow her claim to be made.

In addressing the main issue of the estate being granted to Austin’s wife even though the
estate was initially jointly awarded to Austin and Fay. S 12 of the FDPA includes an anti-
avoidance provision which allows the Court to review the deceased's inter vivos dealings with his
property which were intended to defeat applications for reasonable provision. The court has
various powers, including the power to order a ‘donee’ of property disposed, to transfer that
property to the applicant or to provide such sums in lieu thereof. The property subject to such an
order includes property held on a joint tenancy or joint account. Further, this joint tenancy or
joint account is governed under s 11(1) of the FDPA which provides that ‘Where a deceased
person was immediately before his death beneficially entitled to a joint tenancy of any property,
then, if before the end of the period of one year from the date on which representation with
respect to the estate of the deceased was first taken out, an application is made for an order under
section 4, the Court for the purpose of facilitating the making of financial provision for the

76
applicant under this Act may order that the deceased's severable share of that property, at the
value thereof immediately before his death, shall, to such extent as appears to the Court to be just
in all the circumstances of the case, be treated for the purposes of this Act as part of the net estate
of the deceased.’ For example, in the case of Re Dawkins [1986] 2 FLR 36, the deceased had
transferred the matrimonial home to the daughter of his previous marriage. He also left his entire
estate to the defendant. The plaintiff, his widow, applied for a financial provision order. It
appeared to the court that, when the deceased had transferred the house to the defendant, his
intention, even if not his sole intention, had been to prevent an order for financial provision being
made.

It is submitted that Fay could possibly claim financial provision from Austin’s estate on
the main grounds that the estate was awarded to both Austin and herself relying on the Act and
the cases of Re C and Re Dawkins. The Court can decide what order is to be made to Fay
whether such may be to order the property disposed, to transfer that property to her or to provide
such sums in lieu thereof. However, it is to be noted that Austin does have testamentary freedom
to leave his estate to his wife but what provisions were made for Fay seeing that she also was
initially awarded the remainder of the estate. Also, the Court has the final say as to the financial
provision that would or would not be awarded to Fay.

WHETHER IAN AND HANK ARE PROPER APPLICANT TO MAKE A CLAIM ON THE DECEASED
ESTATE

Concerning this issue, the presumption of the husband being the father of child conceived during
marriage will arise as per section 10 the Status of Children Act. This will place both Ian and
Hank as the Austin’s children under the aforementioned act and by extension the FDPA
recognizes a child of the deceased as a proper applicant under section 3(1) subsection b.
However, it is noted Hank was adopted after the death of Austin which will see the ‘severing
effects’ of an adoption order taking place to severe Hank position as a child of the deceased.
Reason being, in law once an adoption order is issued, the child will no longer be regarded as
child of his former parents but rather child of the adopters affording them parental rights and
responsibilities that was previously exercised by the former. Nonetheless, Hank may rely on the
provision that recognizes a person maintained by the deceased either wholly or partly

77
immediately prior his death under section 3(1) subsection d. According to subsection 3 of the
said provision, ‘a person shall be treated as maintained by the deceased either wholly or partly, if
the deceased, otherwise than for full valuable consideration, was making substantial contribution
in money or money’s worth towards the reasonable needs of the that person. There is unlikely to
be issue for the court to find Austin was not making substantial contribution towards Hank since
parents are obliged to maintain their child according to their capabilities and nothing in the
scenario suggests otherwise. More so, since Hank was adopted a few months after his father
death, the provision requiring immediately prior will also be satisfied. Thus, Ian will be making a
claim as a child of the deceased whilst Hank being adopted can make claim as person maintained
by the deceased immediately prior his death.

Considering whether there was a failure to make reasonable financial provision for the Ian and
Hank, this will be determined by such financial provision as it would be reasonable in all
circumstances of the case for the application to receive for their maintenance. The courts will
then have regard in the case of Ian, the manner of which he was being or expected to educate or
trained and for Hank, the courts will consider whether Austin had assumed responsibility for his
maintenance and if so, the extent of which and the basis upon the deceased assumed that
responsibility and the time for which the deceased discharged that responsibility under section
5(3) and subsection (3a) respectively. It is then submitted that the courts will likely find there
was a failure by Austin to make reasonable financial provision and by considering the general
factor of any mental or physical disability of the child he may be given priority over the rest of
applicants. This was seen in the case of Re Jennings where an adult child claim for failure to
make reasonable financial provision failed since the courts considered him to be comfortably off.
Likewise, in Re Coventry, the well able-bodied applicant was not able to convince the courts
there was a failure to make reasonable financial provision on his behalf as compared to an aged
spouse. On the other hand, the courts may find that there was no failure to make reasonable
financial provision for Hank since they have to consider addition to the aforementioned factors
for a person maintained by the deceased, pursuant to section 5(3) subsection c, the liability of
any other person to maintain the applicant. Given that he was adopted, his adoptive parents will
have the duty to maintain, and this may very well be place him in a comfortably off position.

78
Therefore, the relevant parties are advised and should make a their application within one year
following the death of Austin though the courts may make exception where the situation
warrants.

Talk about testamentary freedom. Talk about pre-conditions.

Go into detail with parentage for Dean and wherever relevant.
Fay – what the court can take into account. Consider the nature of the estate – a big portion of
the estate came from Fay’s mother’s estate.
The court would consider the state of affairs as at the date of the hearing – at the time of the
hearing Ian was not a child of the deceased. It should not be considered that Ian was not
adopted yet at death of deceased.
The money being left to Geeta may be reasonable provision for Hank.
Consider that the court frowns (not disqualifies) on claim by able-bodied adult males.
Consider Steve’s tuition was being paid.

SECTION B
1. ‘The best person to raise a child is the natural parent. It matters not whether the parent is wise or
foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health is not
endangered.’ (Lord Templeman in Re KD (1988))
Would it be a more accurate statement of the judiciary’s approach to custody disputes if the
word ‘parent’ were replaced with ‘mother’?
INTRO: This question necessitates a discussion on the topic of custody specifically posing the
question of whether it can be asserted that a truer reflection of the judiciary’s approach to
custody is one which favours the mother instead of either natural parent as the best person to care
and raise for the child. In order to assess this statement, this essay will venture to examine the
position of the court on custody with to regard to common law and statutory intervention before
providing a conclusion.
A parent has a right to the physical possession of his or her child. Guyana and many other
Commonwealth countries adopted the English common law system’s consideration on the right
to custody of the child. The common law approach was generally that the father was considered
to be the sole guardian of a legitimate child as he was better equipped to instruct or facilitate the
upbringing of the child and was in a better position to take care of the child financially. This was
in regard to both sexes of children and this right to custody was absolute against the mother. This
was seen in Re Agar Ellis – where Cotton LJ espoused that

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 “the Court holds this principle… that by birth, a child is subject to his father… The court
should not but in extreme cases, interfere with the discretion of the father but leave him
the responsibility of exercising that power which nature has given to him by birth of the
child.”
Here, H was an Anglican and W a Catholic. H sought to raise the three surviving children of the
marriage as Protestants but W nevertheless arranged for them to be instructed on Roman
Catholicism in secret. When the children were about 9, 11 and 12, they refused to go with H to
the Anglican Church. H (with the support of the court) then took the children away from W,
refused to let them practice their Catholic faith, and insisted that all communications between
them and W go through him. When the middle child, C, reached 16 she applied to the court to be
allowed to choose her own religion and to spend a holiday with her mother. H agreed to her
attending Catholic services but adamantly refused to her going to W. Affirming the lower court’s
decision and rejecting C’s application, Cotton LJ’s judgement affirmed that as long as a father is
not at fault, no court has power to interfere with his common law right to control the education
and residence of his children.
However, with the rise of the Industrial Revolution, more fathers began leaving their farms and
villages for work, leaving mothers behind to take care of the kids. This is where the image of
fathers as wage earners and mothers as caregivers began to emerge and influence custody
decisions. Resultantly, the ‘Tender Years Doctrine’ was introduced where it established the
position that younger children in particular, needed a maternal touch to which the mother was
better and naturally suited to care for such children as illustrated in the cases of Thornhill v.
Thornhill (1977) and Stephenson v. Stephenson and Johnson (1980-83). In Stephenson v.
Stephenson and Johnson (1980-83) a female child of three years was given to the mother as the
court held that the special relationship and bond between a very young child and his or her
mother could rarely be duplicated by the father. The ‘tender years doctrine’ was not codified
until 1839 in Justice ‘Talford’s Act’ which allowed the Chancery Courts to award custody to the
mother if the children were under seven years of age. In 1873, Parliament extended the age to 16
under the Custody of Infants Act which continued to presume that in a child’s early years, they
are best cared for by the mother. It modified the presumption of paternal preference by
postulating that the mother should be the preferred caregiver, particularly when the child was
young.
Eventual challenges to preference based on parental sex were on the grounds that the sex of the
parent does not necessarily determine who the better caretaker is and that the maternal preference
discriminates against fathers. In due course, there was the imposition of the ‘Welfare Principle’
(what is in the best interest of the child) which is the current approach of the judiciary in
deciding custody disputes. Factors taken into consideration, such as the capabilities of the parent
to provide, reveal that an objective approach is taken for the most part in this assessment. Either
parent, not just the mother could be granted custody, as established in May v. May (1986), where
the court held that it was in the children's best interests to be in the care and control of their
father. The court looked at the fact that from an educational point of view in particular, the father

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was able to stimulate the children, and also in the area of discipline, the father was more suitable
than the mother.
Later, by virtue of statutory intervention, entitlement in custody was vested in parents and
guardians appointed by the courts, with absolute consideration of the welfare of the child. In
Guyana, the Custody, Contact, Guardianship and Maintenance Act 2011 expressly provides
at s. 3 (1) that,
“The Court shall have regard to the best interest of the child in making its decisions”
As such, given the statutory intervention, it is evident that the court does not favor either parent
but rather, must consider the welfare of the child. Lindley LJ in Re McGrath [1893] 1 Ch 143 at
148 stated that,
“the welfare of the child is not to be measured in money only, nor by physical comfort
only. The word welfare must be taken in its widest sense. The moral and religious
welfare of a child must be considered as well as its physical wellbeing. Nor can ties of
affection be disregarded.”
Therefore, the all-around welfare of the child is assessed, including the moral and religious
aspects as illustrated in the case of Re B & G (Minors) (Custody), where the mother was
granted custody over the father of the children, after the court condemned the latter parent’s
engagement with the practice of Scientology. Even though the father had been with the children
for five years preceding the application, the court weighed in upon the disadvantages and risks
posed by the exposure to the practice in which the mother was engaged. Similarly, in the
Trinidadian case of Quesnel v Quesnel, custody was given to the grandmother, with access to
both parents, after it was ascertained that the mother exposed the child to morally unacceptable
behaviour and harmful influences. Likewise, in Batson v Batson, the courts awarded custody to
the mother after it was found that the father exposed the child to the smoking of marijuana.

With regard to physical wellbeing, in Jane v Jane, sole custody was granted to the father and
care and control to the mother in the circumstances in which it was necessary for the child to
have a blood transfusion. Due to her religious beliefs, the mother did not consent to the
procedure to be carried out for the benefit of the child’s wellbeing. The blood transfusion was a
matter of extreme urgency and it was important for the father to be in a position to authorise the
transfusion without the delay that may have arisen from the withholding of consent by the
mother.
Further, emotional wellbeing and ties of affection were considered in Re P (Residence order:
child’s welfare) (1999), where the courts considered the age of a child and the emotional
attachment to her foster parents and refused to grant custody to the actual parents of the said
child. Even though the possible emotional harm was an important factor, given that the child had
grown to such an age, emotional ties and bonds had already been created with the foster parents.

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In an international context, the doctrine of the best interest of the child is a widely recognized
principle with regard to child rights and protection. This applies not only to disputes concerning
custody but other family affairs such guardianship, maintenance and adoption and has been
codified in other contexts, for example through the 1924 Geneva Declaration on the Rights of the
Child and the 1959 United Nations (UN) Declaration on the Rights of the Child.
To further highlight the paramount nature of the welfare doctrine, it is necessary to acknowledge
that the court, according to Fitzgibbon LJ, acting as a wise parent is not bound to sacrifice the
child’s welfare to the fetish of parental authority. Further, Justice Maharaj in Gopey v Gopey,
made the seminal point that even an unimpeachable parent may be denied custody sought as the
golden threat or principle concern of the court is not the parent and what they deserve, but the
welfare of the child.
Moreover, Zanifa Mc Dowell, author of ‘Elements of Child Law in the Commonwealth
Caribbean’ posits that it now appears, having regard to the welfare principle, that there is no
presumption of law in favour of a child's parents or even an unimpeachable parent. This is as a
result of the ruling in J v C, where a Spanish couple had gone to the UK in search of work and
the wife discovered that she was pregnant and gave birth while in the UK. The parents allowed
for the baby to be placed into foster care because the mother became unwell: upon return to the
Spain the baby became ill and had to be returned to the foster parents in the UK. The parents
returned sometime later after improved economic conditions and wished to have their child
returned to them. The couple then went to Germany in search of work and later returned to Spain
after successfully improving their economic condition. They then wished to have their son
returned to them. The House of Lords held that even if the parents were unimpeachable, the
child's welfare required that he stay with the foster parents.
This is to be contrasted with the Guyanese case of Re Husbands in which the court had to decide
a custody issue between the mother of the child and the child's paternal grandmother, the court
ruled in favour of the mother. Crane J., citing dicta of Fitzgibbon LJ in Re O'Ham stated:
Where a parent is of blameless life, and is able and willing to provide for the child's
material and moral necessities . . . the court is, in my opinion, judicially bound to act on
what is equally a law of nature and of society, and to hold (in the words of Lord Esher in
R. v. Gyngall (1893)) that 'the best place for a child is with its parent'.
The court’s focus on the best interest principle is apparent in Clark v Clarey where the court
found that the welfare of children would be better served if they remained with their father as
there was no real advantage in removing them and placing them with the mother, who was
considered to have a superior right because the mother of an illegitimate child was the only
person with a legal right to its custody she could not be deprived thereof unless the court was
satisfied, having regard to the welfare of the child, that she was not a fit person to have custody.
It has been made sufficiently evident that current judiciary’s view in granting custody in custody
disputes does not focus solely on the suitability of a particular parent but on the paramountcy of
the child’s welfare. Thus, the mother should not replace the parent in the quote as either mother
or father or any other person considered a parent or a person entitled to custody as defined by the

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s.2 of the CCGMA 2011 (this includes a stepmother, stepfather, adoptive, the person who
acknowledges a child as the child of the family and a person appointed by the Court to serve as
guardian of the child) can be the best person to care for a child as it is all dependent on the
specific nature of the custody dispute and the child’s welfare which is considered on a case by
case basis. Therefore, while it may argued that the best place for a child to be raised is with their
parent, this is subjected to assessment of the child’s best interest. Thus, regardless of whether it
is mother or father, the courts will assess every situation to ascertain the child’s best interest and
not necessarily always place the child with a specific parent without merit. Even in the
aforementioned Stephenson v. Stephenson and Johnson [1980-83], where a female child of three
years was given to the mother, Summerfield CJ commented that,
“In all cases the paramount consideration is the welfare of the child and the court must
look at the whole background of the child's life and on all the circumstances of the
case…”
Against this background, this conclusion, with regard to the stimulus, asserts that it would not be
a more accurate statement of the judiciary’s approach to custody disputes if the word ‘parent’
were replaced with ‘mother’.
The statute does not translate to the court’s approach. The statute would be parliamentary
approach not the court’s approach.
Whether, despite what is said about preference, there is still a preference to the mother.
Mere citing on instances where the mother was not preferred does not show the court’s
approach.
Quesnel, Batson would not help. The fact that persons who are not parents could have custody
was already covered by the case.

2. The Status of Children Act, Guyana, is undoubtedly a most welcome enactment but should not be
viewed as a panacea. Discrimination has not been abolished in its entirety. In varying degrees,
aspects of discrimination are retained by the Act and in other pieces of legislation, making of the
Status of Children Act “a flirtatious maiden, promising much more than she intends to deliver”.
Discuss.

Introduction

This question requires a discussion of the status of children. In order to achieve this end, the
following will be examined. First, the historical background of the status of a child. Secondly, an
examination of the advantages of the enactment of the Status of children Act of Guyana. Thirdly,

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an evaluation of whether there are deficiencies of the status of children act and deficiencies of
other Acts with regards to discrimination of children born out of wedlock.

Historical Background

Before statutory intervention, rights of a child were entirely attributed to the legitimacy of
that child. A legal relationship between the parent and the child was based not simply on the fact
of parenthood but upon the concept of legitimacy which was to be determined by reference to the
existence of a valid marriage of the parents. It followed that words such as issue, children or
descendants were construed as applying to legitimate children only unless there was a clear
intention to the contrary (this was established in Hill v Crook). As in Syndall v Castings Ltd20 it
was held that an illegitimate daughter could not benefit under the discretionary trust; as the word
‘descendant’ should be construed as meaning descendant in the legitimate line, unless the
context or surrounding circumstances showed a contrary intention. Accordingly, where a
contrary intention could not be proven the illegitimate child could not benefit under the trust.

At common law, there were presumptions that a child born into a marriage was legitimate and
was therefore afforded certain rights under the law. However, once a child was deemed to be
illegitimate or born out of wedlock then that child, under the common law, was not given any
rights and deemed to be a child of no one.

Statutory Intervention

Due to the discriminatory nature of the common law which was further incorporated into statute,
there was an incessant need for statutory intervention to remedy the perceived shortcomings. As
such, a series of statutory amendments were published. This includes the following.

The Legitimacy Act Cap 46:02, under section II, was amended by substituting “illegitimate”
with “person born out of wedlock.” Further, this Act provides for an illegitimate child to become
legitimated by the marriage of his parents. For the most part, the Legitimacy Act is of little value
now given the Status of Children Act.

In addition, on May 5, 1983, The Official Gazette Legal Supplement (Removal of

Discrimination) was published, releasing a number of amendments made towards Acts that held
discriminatory views towards children born out of wedlock. The amendments are as follows:
20
[1966] 3 All ER 770

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The Evidence Act, Cap. 5:03, under section 61 (2) referred to such children as “bastard child”
but this was amended to “child born out of wedlock.”

The Civil Law of Guyana Act. Cap. 6:01, s. 5 (7) stated that children born out of wedlock shall
not have the same rights as those born within; however upon being amended, the Act then stated
that ‘no regard shall be had to whether any person is born in wedlock or out of wedlock and a
person born out of wedlock shall be entitled to the same rights under this section as a person born
in wedlock.’

The Maintenance Act Cap 45:03, s. 2 (1), (2), (3), made provisions for “children” in general,
prior to these amendments, which implied children born in wedlock. Upon being amended, this
was changed from being just “children” to “children whether born in wedlock or not,” and this
followed throughout the Act.

Another important effect of legislative reform is gleaned by an examination of the

Custody, Contact, Guardianship and Maintenance Act. The CCGMA provides that parental
rights are enjoyed equally by both the mother and father of the child. On this note, the definition
of “child” under the CCGMA extends to include both a child born in wedlock and a child born
out of wedlock. In so doing, the CCGMA changes the previous common law position that only
the mother of a child who was born out of wedlock was responsible for the upbringing of the
child.

Advantages of the Status of Children Act of Guyana

The enactment of the Status of Children Act of Guyana can be seen as an acknowledgement of
the injustice and inequality caused by the common law distinction made between legitimate and
illegitimate children. As was aforementioned, the common law presumptions did not apply to the
out of wedlock child. Lord Herschell in Bernardo v. McHugh21 referred to the common law
position in this way:

“…there was in former times a disposition to carry out rigorously to its logical conclusion the
doctrine that an illegitimate child was filius nullius, and to hold that no one possessed in
relation to it the full parental rights which the law recognises in the case of legitimate
offspring.”
21
[1891] A.C. 388, 398

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Accordingly, to make provisions for the determination of paternity of the out of wedlock child,
the Act was introduced. The Status of Children Act in its preamble sets out to repeal and re-
enact the provisions of the Children Born Out of Wedlock (Removal of Discrimination) Act
to provide for presumptions of parentage and parentage testing procedures, to effect of the law
generally and for related purposes. As such, the Act has abolished the rule in Hill v Crook22
which generally connotes that the word "children" in a will shall primâ facie mean legitimate
children. Notably, the enacted legislation has taken a commendable step towards narrowing the
great chasm in the law that separated the child born in wedlock from the child born out of
wedlock. By virtue of section 4(1) of the Act, the status, rights, privileges and obligations of a
child born out of wedlock are identical in all respects to those of a child born in wedlock.
Additionally, the Act sets out that all distinctions between the status of a child born in wedlock
and a child born out of wedlock are abolished and the relationship of parent and child shall be
determined in accordance with section 5, and section 15 of the Act.

Moreover, at common law, the legitimate child’s paternity was established at law from birth
under the maxim pate rest quem nuptial demonstrant, a presumption rebuttable only upon proof
beyond reasonable doubt. The child born out of wedlock did not have the benefit of any
presumption of paternity nor was there any procedure by which paternity could be established.
Effectively therefore that child was in law without a father.

In establishing parentage, the Act has modified the common law rules by introducing several
presumptions of paternity arising from marriage, acknowledgement, cohabitation, registration of
birth, finding of Courts, use of fertilization procedures and, inter alia, rebuttal of these parentage
presumptions.

Further, the Act applies to a child born before of after its commencement.

Deficiencies of the Status of Children Act of Guyana

If the status of children is a matter of policy, then no consideration of legislation to

implement equality can be considered without regard to the various normative instruments which
have clearly influenced the movement both nationally and internationally, towards this

22
(1873) LR 6 HL 265

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equalization of which, the status of children legislation are a part. These are international
conventions and national constitutions.

The specific international convention which has influenced the change of policy towards children
born out of wedlock is the United Nation Convention on the Rights of the Child. Article 2 of the
Convention, provides for the protection of a child against all forms of discrimination or
punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s
parents, legal guardians, or family members. This article by extension is enshrined in the
Constitution of the Cooperative Republic of Guyana at Article 40.

Article 40(1) of Chapter III of the Constitution provides for the fundamental rights and freedoms
of individuals. It enacts that everyone (including children) is entitled to the “basic right to a
happy, creative and productive life, free from hunger, ignorance and want”. The provision of
human and fundamental rights as constitutional rights allows persons including children to seek
redress directly to the courts.

However, constitutional ideals are not immune to the conserving forces that operate to restrict
the clear shift to a new paradigm relation to children. The efficacy of the clause in guaranteeing
equality to the status of children therefore hinges on, judicial attitude on the subject matter. It is
contended that the Status of Children Act of Guyana is progressive and it is a step in the right
direction for Guyana. It is notable that while the Act is commendable, it falls on the shoulders of
the court to make sense of the legislation. Further, while the Act purports to abolish all
distinctions between children born in wedlock and children born out of wedlock, Demerieux
stated that, “So long as marriage is the legal framework within which children are produced,
there will be some distinction in law between the legitimate and illegitimate child and, as a
consequence, it seems that the fundamental right considered cannot impose an obligation on the
State to remove all distinction between [the two].”

Recommendations

According to Zanifa, “In view of the current trend amongst many legislatures of the
region to award equal legal rights to both in- and out-of-wedlock children, it is thus
recommended that countries which have not yet done so, abolish the unnatural yet firmly held

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fiction that an out-of wedlock child is merely the offspring of its mother. There is no real basis
for legally discriminating against a child.”

Conclusion

The traditional rule is that rights of children depend upon the circumstances of their birth
and the status of the child as being legitimate or illegitimate. At common law, neither the father
nor the mother was liable to maintain an illegitimate child. Later, the common law recognized
the position of the mother for purposes such as custody, maintenance and succession. This was
highlighted in Re C (an infant) by Lord Evershed, M.R. who stated that, “As the child was
illegitimate, according to the common law of the land, the mother was, and is, the person
responsible for the upbringing of the child.” Statutory provisions were developed for the
legitimation of an illegitimate child where his parents marry after his birth, the registration of
putative fathers and the maintenance of an illegitimate child by the putative father. Further, under
the Status of Children Act of Guyana, the common law position has been drastically changed.
The enactment of the legislation demonstrates the modern sensitivity of the law to social reality.
Section 5(3) of the Act states that all distinctions between the status of the child born in wedlock
and a child born out of wedlock are abolished, while section 4(1) provides that all children are of
equal status. Despite the advantages, the Status of Children Act of Guyana has not abolished
discrimination in its entirety as its interpretation depends on judicial reaction. However, while
the Status of Children Act should not be seen as panacea, the rights of the child born out of
wedlock have been greatly enhanced and the fact of reform is beyond dispute.

Status of children Act.

Hill v Crook
Legitimacy act is of little importance considering we have the Status of Children Act and the
Elimination of Discrimination Act – Civil Law act of Guyana, Maintenance Act and the
CCGMA and parental rights (mother had illegitimate child). S 40 of the Constitution – all
children are equal, however, the efficacy of this is dependent on the approach of the judiciary.
The status of the children act offered much more than it delivered. Removal of discrimination
act was repealed and reenacted.
Children Born out of wedlock sought to change the principle. There are presumptions that are
linked to cohabitation for a certain period – what happens if that time was not to that length of

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time – What happens to those children? (presumption when there is a marriage, presumption
when parents are cohabiting for some time as opposed to child born to parents who were not
cohabiting.
Abolition distinction in certain areas.

3. Parental right is not a legal concept. Parents do not have rights to children but merely
responsibilities towards them. Any current recognition of the concept is based on an incorrect
interpretation of the law. Discuss.

Introduction

Historically, child rearing and the exercise of parental rights were presumed to be matters
of private interest. Children lack full legal capacity and they have various incapacities and
disabilities because of their lack of physical and psychological maturity as seen in the case Re
Shonahan which establishes that it is because of this, that power is entrusted onto others to make
decisions and care for the children. This power is entrusted to parents because as Blackstone
noted, the most universal relationship in nature is that between parent and child.

Andrew Bainham in his paper ‘The Privatisation of the Public Interest in Children,’
iterated that the private nature of family in ancient times has limited state intervention. He noted
that both parents and children respectively are afforded constitutional rights which are not to be
breached. Further, the European Convention on Human Rights, Article 8 (1) protects the
individual’s right to ‘respect for his private and family life, his home and his correspondence.’
The case of Re Agar-Ellis illustrates the reluctance of the courts to intervene in the exercise of
parental rights. The court stated that by birth a child is subject to the father and it is in the best
interest of the child that the court does not intervene in the father’s exercise of parental rights
except in extreme circumstances. The reasoning behind this position is that it would safeguard
the relationship between the parent and child by having the parent exercise the power which
nature has given him by birth of the child. However, case law and legislation have shown that the
courts are more inclined to always consider the best interest of the child. The Children Act 1989
of the U.K. introduced the concept of parental responsibility and replaced the former concept of
parental rights. The term parental responsibilities has replaced the more confusing ‘rights and
duties’ so that the term covers both rights and duties. This can be attributed to the societal
changes and laws relating to adoption, custody and responsibilities of the parents in general.

As the Welfare principle developed, the court was more willing to intervene as the
supreme guardian where it is in the best interest of the welfare of the child. This power of the
court to act as the Supreme Guardian of the child was described by Lord Esher MR in the case of
Re Gyngall where it states that the court must act like a wise, affectionate and caring parent

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would in the welfare of the child. It was also stated that the court must be very cautious with the
exercise of the jurisdiction to intervene and that parental rights should only be superseded or
suspended if the natural parent’s conduct, or who he is or the position he is in is not better for or
not right for the welfare of the child.

In light of the above, they are instances where the courts would intervene with the
exercise of parental rights these would include the welfare and protection of the child, the
adoption of the child, the age of majority and custody of the child.

J M Eekelaar in ‘What are parental rights’, 89 LQR 210 (1973) expressed that ‘Parental
rights’ is a loose way of describing the conglomeration of rights, powers, liberties and (perhaps
duties which a parent has with respect to his child… parental claims have no independent weight
but are relevant only as evidence as to what course is best for the child.

The Custody, Guardianship and Maintenance Act in s.3 (2) highlights the parental rights
which a parent has toward the child, in order fulfill their parental responsibilities. These include
the right to regulate the child’s residence; to control, direct or guide, in a manner appropriate to
the stage of the development of the child, the child’s upbringing and to maintain personal
relations and direct contact with the child on a regular basis. Other common law rights include
but are not limited to the right to name the child, right to determine the child’s religion and
education, right to discipline the child and the right to decide medical treatment.

Parental rights may be challenged by the court, a third party, another parent or the child. There
are certain circumstances in which the court may intervene to regulate, vary, alter or even
suspend parental rights.

The term welfare is not defined in any statute nor is there a prescribed list of things to be
considered when assessing how best to serve the child’s welfare. Lindley LJ’s in Re McGrath
[1893] 1 Ch 143 at 148, give a definition of this principle that is mostly relied on as it is viewed
as the best description: “…the welfare of the child is not to be measured in money only, nor by
physical comfort only. The word welfare must be taken in its widest sense. The moral and
religious welfare of a child must be considered as well as its physical well-being. Nor can the ties
of affection be disregarded.” The Custody, Guardianship and Maintenance Act stipulate that the
parent of a child has certain rights and duties over his or her child. Notably, a third party may
have rights over a child in which case he/she may not be the natural parent.

This welfare of the child principle as it is called, is the paramount consideration in most cases
concerning the child’s upbringing. This principle is reflected in section 3(1) of the CCGMA
which provides that the court shall have regard to the best interest of the child in making its
decisions. Further s 4(1) provides that the fact that a person has parental rights and
responsibilities shall not entitle that person to act in a way which is incompatible with a court
order relating to the child or the child’s property.

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 The right to discipline the child is not absolute; it depends on the reasonableness of the
discipline. By law, Children ought to be protected from moral and physical harm. The basis of
this concept is that one who assumes responsibility for a dependent child who lacks the moral
and psychological maturity to make decisions for them should carry out those responsibilities in
the best interest of the child. This protection is offered against a parent or a guardian. This
protection fetters parental rights by rendering certain actions by the parent, criminal, e.g. If the
parent exercises the right to chastise the child but does this unreasonably, the parent may be
criminally liable R v. Derriviere 53 Cr. App Rep.637 where a father was sentenced to 6 months
in prison for assaulting his 12 year old son causing actual bodily harm. The father had struck the
child several times in the face causing bruising on the face and bleeding in the mouth and he
banged the child’s head into the wall as punishment for deliberate disobedience.

A Parent has the right to regulate the child’s whereabouts, to control direct or guide the
child in a manner that he thinks fit. However, this right begins to ceases at the and age of
majority. In the case of Gillick v West-Norfolk and Wisbech Area Healthy Authority [1985]
the House of Lords held that a child acquired the capacity to have lawful dealings, including the
capacity to consent to receiving such medical advice, even if the child was still within his or her
minority provided of course that the child has the requisite emotional maturity and understanding
necessary to enter into the particular transaction in question. Lord Denning in the case of Hewer
v Bryant has summarized this position stating that the legal right of a parent ends on the child’s
eighteenth birthday and even up until then it is a dwindling right which the courts are reluctant to
enforce against the wishes of the child: ‘It starts with a right of control and ends with little more
than advice.

It has then been put forward that this case, in undermining parental control over their children,
represents the destruction of the concept of parental rights which had been replaced with the
concept of parental responsibility. However, Dickens posits that “as minors come to achieve
maturity and to exercise autonomy, this may be seen not as a limitation or defeat of parental
control, but as a successful discharge of parental responsibility.”

An adoption order gives parental responsibilities for the child to the adopters and extinguishes
the parental responsibilities, absolutely, which any person had for the child immediately before
the making of the order and may contain such terms and conditions as the Court thinks fit. Hall
in his paper ‘the Waning of Parental rights’ has suggested that the requirement of consent of the
natural parents before an adoption order is made, weakens the argument that adoption is a fetter
on parental rights. However, there are circumstances under which the consent may be dispelled
which are listed in s. 20 of the Adoption of Children Act, Cap 46:04, in Guyana. For instance
where the parent cannot be found or is incapable of giving consent, where the parent has
absconded responsibilities or where the parent is unreasonably withholding consent, where the
parent has abandoned neglected or ill-treated the child or exposed the child to unnecessary risk.

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As a general rule, no adoption order may be made without the consent of the parents or guardians
or any person liable by virtue of an order or agreement to contribute to the maintenance of the
child. In Re M., AN INFANT. [Plaint. No. K. 968.] - [1955] 2 Q.B. 479 the court dispensed
with the right to consent of the biological father because he absconded his parental duty.

However, in Re E (MINORS) (ADOPTION: PARENTAL AGREEMENT) - [1990] 2

FLR 397 The court concluded that the mother's decision to withhold her agreement to free the
children for adoption came within the broad band of decisions which could be regarded as
reasonable notwithstanding that the effect of that decision would be to prevent the adoption of
the children. The court dismissed the appeal applying the test of the hypothetical reasonable
parent at the time of the hearing, the court, had to consider whether a hypothetical reasonable
parent, with full understanding of the reasons for the application and all the considerations
involved could withhold his agreement. Dillon LJ in his dissent noted that the parental right to
access the child should not have been dispensed with considering that at some time this right
could have been exercised without prejudice to the wellbeing of the child.

There are several instances where the court may fetter the right to custody. Bromley noted that
under Section 1 of the Custody of Children Act 1891, the court may refuse to grant custody to a
parent who had abandoned or deserted his or her child or who has otherwise so conducted
himself or herself that the court should refuse to enforce the right to custody. He expressed that
the parent’s conduct must be so grave and if he voluntarily assigned the custody of his children
to another because he thought at the time that that was the best thing that he could do for them,
he may successfully claim them back again unless this would be contrary to their welfare. As in
the case of Re E.

In the cases Re O’Hara and Re Mathieson this issue was addressed. In Re O’Hara it was held
that the mother was not acting capriciously in demanding back her daughter; the latter’s position
would not be materially altered by the change and she would have the advantage of her mother’s
affection and greater security if the appellant were to die during her infancy, thus her parental
right to custody was maintained. Contrastingly, in Re Mathieson, the parents of a boy aged two
had permitted him to live with his father’s brother on account of the child’s poor health and the
bad conditions in which the parents were living in a tenement. The boy remained with his uncle
continuously for seven years except for a period of six weeks, and he had grown considerably
stronger. When the father attempted to regain custody, the Court of Appeal held that the boy was
to remain in the physical care of his uncle with whom his parents had voluntarily placed him.
The court reasoned that to revoke the arrangement would be injurious to the child and would
amount to “an act of great cruelty in which the court would not involve itself.”

Another factor that the court will take into account in fettering the right to custody is the
financial standing of the parent. Financial instability is not the only reason for depriving a parent
of custody of his child. However, if there is a better option which would improve the child’s
welfare overall, this option may be relied on. Bromley expressed that the mere fact that another

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claimant to custody is in a position to give the child a better start in life does not automatically
give him a prior claim, for this totally disregards the whole relationship of the parent and child
(R v Gyngall). As in the case of R v Clarke, a parents’ right to custody may be superseded if the
claim is not made bona fide and the threat that the parent may attempt to remove the child from
the jurisdiction, and thus the protection, of the court.

The courts have taken the position that in a case where the child is young or sickly, the child
should be in the mother’s care. However, if the child is old enough to express its own wishes, the
court will interview them, not so that it can give effect to their wishes, but to be better able to
judge what is best for their welfare. Per Fitzgibbon L.J in Re O’Hara, “the wishes of a child of
tender age must not be permitted…to subvert the whole law of the family, or to prevail against
the desire and authority of the parent, unless the welfare of child cannot otherwise be secured.”
This suggests that the parents’ right must be considered as well. However, The court may waive
the views of the child if it perceives that the child may be parroting the views of either parent.
See the case Singh v Khan.

As stated above, at common law, the father had an absolute right to the custody of a legitimate
child. This rule has been modified by legislation and the mother and father both have equal rights
to their child. Sir Baliol Brett M.R in Re Plomley noted that the court “has no right to interfere
with the sacred right of a father over his own child” in the absence of a charge of immorality of
conduct.

The courts have been decisive in the past about whether the parental rights should be considered
above the welfare of the child principle. In R v Gyngall, the welfare of the child principal was
the paramount consideration. J.C Hall noted that there was a reversion shortly after the position
in the aforementioned case to the previous stance with the case R v New. In this case, a mother
had given up her daughter to foster care and wanted custody of her some years after. She had
intentions of sending her to a Church of England Home (where no one would be allowed to visit
her for the first two years of her residence). The Counsel for the foster-parents expressed that the
welfare of the child should be of paramount importance. However, the Court decided in favour
of the mother.

The best interest of the child will also be considered in cases where the courts are determining
which parent should have physical custody of the child. For example, the courts would be less
inclined to send a child with a parent he/she has an aversion towards. In the case Mozley Stark v
Mozley Stark and Hitchins, Cozens-Hardy M.R stated that “the benefit and interest of the
infant is the paramount consideration and not the punishment of the guilty spouse.”

Other cases such as J v C have solidified the principle that the best interest of the child comes
first in most, if not all custody disputes. In the instant case the court held in favour of the foster
parents and stated that despite the natural parents of the child being ‘unimpeachable’, the move

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to Spain would have been harmful to the child. As a result, the child remained with the foster
parents.

The instant case overruled the decision in Re Carroll and it laid to rest the clashes between the
welfare principle and parental rights. It seems that parental rights may be trumped even in the
case of strangers, thus causing the welfare principle to stand. As Lord McDermitt puts it, “while
there is no rule of law that the rights and wishes of unimpeachable parents must prevail over all
other considerations, such rights and wishes….can be capable of ministering to the total welfare
of the child in a special way, and must therefore preponderate in many cases.”

Conclusively, in the past, individuals were at liberty to exercise their rights in a way that
was unique to them, in the upbringing of their children. For example, right to domestic services
of a child. It is evident from the cases above, that due to the long-standing term, ‘parental rights’,
the courts for decades have been indecisive with regard to whether the best interest of the child
should be considered first and foremost. Moreover, parental rights have not been completely
dispensed with. However, it is often encroached by the welfare principle and enforced by the
courts because the courts stand as guardians of children to protect their best interest.

Parents have legal, moral, psychological and physical rights to the child, because if there is no
right, then anyone can exercise a claim to that child and to impose whatever values they want to
without contention by the parent.

Dickens in his paper ‘The Modern Functions and Limits of Parental Rights’ defined a right
as referring to a parental discretion to act in a way that others have a correlative duty to permit
and a duty not to preventing where ‘others’ include officers of different levels of government,
including the courts and quasi-public child protection and welfare agencies. Mc Dowell,
therefore, suggests that it is no longer proper to speak of a ‘right’ as the courts can, for the
welfare of the child, interfere with, suspend or supersede these rights regardless of the rights and
wishes of the parents

The welfare of the child is of paramount consideration in the following instances. Courts do not
operate on any rights of either parents to custody, but on the right of the child or children to be
placed in an environment most conducive to their welfare. The court ought to make an order in
the best interest of the children involved. In other words, this court must consider what is best for
the benefit of the child and not the benefit of the parents. – According to justice Basdeo Persad-
Maharaj in Gopee v Gopee (unreported) 2 MArch 1993, HC, T&T (no 19 of 1991) The welfare
of the child is paramount to the rights of parents and this is the golden thread which runs through
custody cases according to the justice. Thus, if the court deems that enforcing parental rights
which parents have in order to fulfill their responsibilities to the child, as can be seen in some of
the cases mentioned above, it is considered to be in the best interest of the child. Though parental
rights are not absolute and can be fettered by court in some way, this does not mean that the
concept has no meaning. As stated in section 3 (2) of the CCGMA, a parent has rights that serves

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them to fulfill their responsibilities to their child. It can then be concluded that parental rights fall
under the term parental responsibilities. These legal concepts are not separate but do work
together, hence making the legal concept of ‘parental right’ recognizable.

Ultimately, it is the writer’s opinion that the terminology ‘parental right’ may be accepted as a
bearing legality based on the fact that it is portrayed in current law within Guyana's jurisdiction.
Furthermore, it can be surmised that in some instances, officers of the court may seek to use the
terms right and responsibility interchangeably, and as such, create room for discussion as to
whether or not the actual concept of parental right has any legality.

Court can dispense with parental consent in adoption but that is not a total elimination of rights
as that is only in certain circumstances so the rights still remain.

Responsibility is a broad term – talk about the duties. Are the ‘rights’ still in existence?

The body did not add up to the conclusion.

4. The law relating to children, as interpreted and applied by the Courts, draws the correct balance
between, on the one hand, protecting the rights and interests of the child and, on the other, protecting
the rights and interests of the child’s parents.
Discuss

This essay seeks to discuss parental rights to custody, the determination of religious upbringing
and discipline, the right to consent and refuse to adoption and the right to consent to medical
treatment, marriage and domestic services of the child. In accordance with the aforementioned,
this essay also seeks to highlight the general principles in regards to parental rights and the
interests of the child.

Parental Rights To Custody

One of the most fundamental right that flows from parents’ responsibility towards a child, is the
right to custody. Lord Justice Sacks in Hewer v Bryant explained that custody may be in the
broad sense that covers the bundle rights and powers over the children vested in a parent or
guardian and terminates at the age of majority or marriage. Further, custody in the narrow sense
is the exercise of care and control as well as physical possession along with the day-to-day
upbringing of the child. At common law, it appears to be no distinction between the two since it
was the father was entitled to custody once the child the child was born in wedlock which meant
that total care and decision making rested on the father. The mother’s right was limited in

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wedlock as she was simply entitled to respect while out wedlock total custody was vested to her,
and this was only shared to the father once he acknowledges the child. Following legislative
changes, entitlement to custody is expanded beyond presumptive natural parent whether born in
or out of wedlock. According to the Custody, Contact, Guardian, and Maintenance Act persons
entitled to custody includes the mother or father (whether natural or adoptive) the person who
acknowledges a child as the child of the family; and a person appointed by the Court to serve as
guardian of the child. Further while section 8 states a child shall have the right to know both of
his parents, it is evident that the same act according to section 3 mandates the court to have
regard to the controversial concept of the “best interests of the child” in making its decision
regarding custody. Therefore, the court as the supreme guardian controls the entitlement to
custody in its capacity as the supreme guardian and over the years family law decisions have
witnessed some of the most questionable custody arrangements. In some cases, courts have
awarded custody in the narrow sense to one party and broader sense to another to fulfill the best
interest of the child. In Clarke v Clarey though the children were born out of wedlock, the court
decided the best interest of the child would be better served by granting custody to the father.
This decision may be hard to reconcile since instead of depriving the mother custody in the
narrow sense, a maintenance order could have been made. On the contrary, the mother still had
access to the children, and this may be the courts way of balancing the right to custody of the
parents in alignment with the best interest of the child principle. Even so, on its face a rather
harsh decision was made in Re KD (termination of access) where a teenage mother access to her
child was terminated by the courts because of her unfavorable character. Lord Oliver defended
this decision by noting “the first and paramount consideration is the welfare of the child and the
parent’s rights a claim to access was subservient to the child’s welfare.” While the decision in
this case can be reasonably justified, it shows how overarching the rights of the child in the
parameters of ‘welfare or best interests’ can be over the rights of parent who may be a threat to
achievement of that interest. In fact, in Gopee v Gopee Justice Basteo Maharaj confirmed “the
courts do not operate on any rights of either parents to custody but on the right of the child or
children to be placed in an environment most conducive to their welfare.” As such in some cases,
the courts may take full custody of the child irrespective of the parents wish to be entitle to
custody which demonstrates there is a over balance between the parents right as measured with
the rights of the child. It means therefore, the rights or properly construed as best interest of the

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child, as interpreted and applied by the courts is one that is superior to any parental right or
rather claim since the courts do not operate any right their right. As such in the context of
custody there is evidently no equal balance of the rights of parents over the rights of the child.

The right to consent and refuse consent of adoption

Additionally, parents have the right to consent or refuse consent to the adoption of the
child. Adoption is the process whereby a court extinguishes the parental links between a child
and his natural parents and creates analogous links between him and the adopters. This is
provided for at s 17 of the Adoption of Children Act of Guyana which states, ‘Upon an
adoption order being made, all rights, duties, obligations and liabilities of the parent or parents,
guardian or guardians of the adopted child, in relation to the future custody, maintenance and
education of the adopted child, including all rights to appoint a guardian or to consent or give
notice of dissent of marriage shall be extinguished, and all such rights, duties, obligations and
liabilities shall vest in and be exercisable by and enforceable against the adopter as though the
adopted child was a child born to the adopter in lawful wedlock, and in respect of the same
matters and in respect of the liability of a child to maintain its parents the adopted child shall
stand to the adopter exclusively in the position of a child born to the adopter in lawful
wedlock…’

Also s 10(4)(a) of the Adoption Act of Guyana 1998 provides, ‘Subject to section 11,
the adoption order shall not be made in any case, except with the consent of every person or
body who is a parent or guardian of the child or who is liable by virtue of any order or agreement
to contribute to the maintenance of the child; and on the application of one of two spouses,
except with the consent of the other spouse. According to s 11 of the Adoption Act, the court
may dispense with any consent required by s 10(4)(a) if it is satisfied that in the case of a parent
or guardian of the child, that he has abandoned, neglected or persistently ill-treated the child; in
the case of a person liable by virtue of an order or agreement to contribute to the maintenance of
the child, that he has persistently neglected or refused so to contribute; and in any case, that the
person whose consent is required cannot be found or is incapable of giving his consent or that his
consent is unreasonably withheld.

For example, in the case of Re F [1982] 1 All ER 321, a child was ill-treated and
neglected by his mother and the man she subsequently married. He was admitted to hospital and

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on discharge placed with experienced foster-parents, with whom he remained. The mother and
stepfather were sentenced to borstal training and imprisonment after pleading guilty to offences
relating to the child, and, after a series of interim orders, a final order was made committing the
child to the care of the local authority. The foster-parents sought to adopt the child but the
mother refused her consent and the child was made a ward of court. It was held she had not
unreasonably withheld her consent and she was given access to the child. On appeal by the
foster-parents, there was no evidence that indicated it would be in the child’s interests for an
order for access to be made, therefore the order would be set aside. According to the Court, the
first question to be considered in making an adoption order was the welfare of the child and in
applying the objective test of whether parental agreement to adoption had been unreasonably
withheld, namely whether in all the circumstances a reasonable parent would have refused his or
her agreement to adoption, the court was required to have regard to the practical consequences to
the child of making or refusing to make an adoption order.

Moreover, in Re D [1977] 1 All ER 145 it was held ‘When considering whether a refusal
was unreasonable, the court had to ask whether the decision actually made by the father in this
individual circumstances was, by an objective standard, reasonable or unreasonable.’ That
involved considering how a father in the circumstances of the actual father, but (hypothetically)
endowed with a mind and temperament capable of making reasonable decisions, would approach
a complex question involving a judgment as to the present and as to the future and the probable
impact of these on a child. All the circumstances had to be borne in mind.’

Generally, the consent of the parents are required to be filed in the court, but the court
may dispense with the requirement for consent in certain situations. Exactly how far the courts
are prepared to go in mitigating parental rights in favour of the child's best interest and welfare is
illustrated through the adoption cases which indicate that they are prepared to sever parental
rights completely and permanently if in the interest of the child. Legally, the parent has to live
with this, and can do nothing to reverse such a decision, once appeals are exhausted. This is but
one illustration of the erosion of parental rights by the welfare principle. In addition, even in a
case where consent has been given, the court will not make an order unless the person giving the
consent understands the nature and effect of giving such consent. In Guyana, for example, s
13(1) (a) of the Adoption Act provides that: The court before making an adoption order shall be

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satisfied . . . that every person whose consent is necessary under this act and whose consent is
not dispensed with has consented to and understands the nature and effect of the adoption order
for which application is made, in particular in the case of any parent understands that the effect
of the adoption order will be permanently to deprive him or her of his or her parental rights.

The case of A.B. v. The Social Welfare Officer (1960-61) 3 WIR 420, illustrates the point that
even if a parent consents to an adoption of his child, the court will refuse to accept it as a valid
consent if the parent fails to appreciate the legal consequences of an adoption order. In this case,
the paternal grandmother of two out-of-wedlock children applied to adopt them. The children's
natural mother wished to emigrate to Canada and wished to have the children adopted in order to
qualify for entry into Canada. The children lived with the grandmother who was the mother's
neighbour. The mother saw the children regularly and expressed an intention to send money for
their upkeep if she did go to Canada. The Social Welfare Officer refused to give permission for
the grandmother to adopt them and she appealed to the Supreme Court. The court held that it had
to be satisfied that the natural parents genuinely desired to permanently surrender their children
to another person. Since the mother intended to send money for the children, she was held not to
have appreciated the legal implications of adoption. The court therefore held that in the
circumstances, it was not in the children's interest to be adopted.

The Religious Upbringing of the Child

On the basis of the Welfare of the Child Principle, as was noted by Lindley LJ, in Re McGrath
1893, in determining what is in the best interests of the child, one factor the court will take into
consideration is the moral and religious welfare of the child. Historically, the welfare of the child
was not a paramount consideration. Instead, the father of a legitimate child had absolute rights to
determine their child’s upbringing. This included the right to determine their child’s religion
Thus, for instance, in Re Agar Ellis 1883, the court upheld the right of a father to determine the
religious upbringing of a sixteen-year old child. This decision was made in spite of the child’s
preference and age at the time. Later however, this father-driven position was changed and the
court took responsibility for determining what was best for the welfare of the child. In doing so,
the court will first give regard to the maintenance of the status quo, i.e., they will start with trying
to preserve whatever the position is at the time and will seldom make an order which, in the
absence of factors improving the child’s welfare, will involve a change of circumstances. The

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court will also consider the effect a change is likely to have on the child’s future. In Wright v
Wright, the father was a Jehovah’s Witness and the mother was a member of the Church of
England. The mother left home, taking the daughter with her. She was granted custody and the
father sought access. The father’s application was refused. It was said that he wanted to
indoctrinate the child with his beliefs. The court held that it would be too much of confusion for
the child, because the two religions seemingly conflicted. When considering the welfare of the
child, the court will also take into account the risk of harm, i.e., whether the child has suffered
any harm or is likely to suffer harm. In Re B and G 1985, the court contended that Scientology is
immoral, socially obnoxious, corrupt, sinister and dangerous, aiming to capture and brainwash
impressionable, young people. Therefore, the judge concluded that it was not in the best interests
of the children to remain with their father. Thus, despite their preference for the status quo, the
judge, having assessed the risks and best interests of the children, granted custody in favour of
their mother.

In finalizing their decision, the court will give weight to the Parental Responsibility, rights and
duties. As a parent, an individual has the right to determine the religious upbringing of their
child. They can insist that a child participate in or be withdrawn from religious instruction.
However, where this parental right seems to be collide with what the court deems to be in the
best interests of the child, the court’s determination will prevail. In fact, the parental rights are
bestowed upon the parents to the extent that they promote the welfare of the child. A case which
called for the court’s discretion in this manner was Jane v Jane 1983. In this case, the mother
was a Jehovah’s Witness as a result of which the father feared that the child would be at risk if
the need for a blood transfusion ever arose as the mother would refuse to allow the child to
receive a transfusion on conscientious grounds. The court held that it was essential that the
husband should be able to authorise a blood transfusion if the need arose, without delay involved
in an application to the court. Consequently, in an aim to safeguard the interests of the child, the
court made a decision to grant sole custody to the father.

In sum, with respect to a child’s religious upbringing, the court will give due regard to a parent’s
right to decide the religious beliefs of their child, The court will also accord strict consideration
to the best interests and welfare of the child. They will essentially balance the two. Where, the

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parent’s right operates against the child’s best interests, the court will disregard the parental right
and rule in favour of the welfare of the child, i.e., protecting their rights and interests.

The right to consent or refuse to consent to marriage and right to domestic services

Generally, the parents or guardian of a child has a right to consent or refuse to consent to
marriage if the child is below the age of majority. Section 31(1) of the marriage Act Cap 45:01
states where either of the parties not being a widower or widow or a divorced person under the
age of 18 years old, no marriage shall take place between them until the consent of the
appropriate person or persons specified in schedule two has been first obtained. However in
exercising this right if it is found that the parent is improperly refusing consent, a party to the
marriage can make an application for leave to marry to the Chief Justice, who can then judicially
declare after examination that the marriage is proper and may be solemnized forthwith by virtue
of section 33. Additionally, according to section 32(2) if a female under the age of 16 years
becomes pregnant or is delivered of a child she can petition to the high court for permission to
marry the father who may not necessarily be a person under aged. Such situations show that
despite the parents having the right to consent to marriage this right can be overruled by the court
based on the particular circumstances and the interest or welfare of the child in question can
triumph the parental right.

Furthermore, there is also the parental right to the domestic services of the child and the parents
actually have a right to demand that their children do chores, for instance. However this right is
limited to children who are unmarried and under eighteen and is old and capable enough of
rendering the particular assistance. If a parent chooses to exercise this right on a child that is not
capable enough of rendering the particular assistance such actions may be considered as
maltreatment which can be defined according to the World health organization as physical and/or
emotional ill-treatment, negligence inter alia which can result in actual or potential harm to the
child’s health, survival and development inter alia.

Moreover, included in the parent’s responsibility is the right to refuse to consent or to grant
consent to medical treatment. If there is a question before the court concerning this issue the best
interest of the child is the paramount consideration. This was highlighted in the case Re T
(Wardship: Medical Treatment) 1997 where T was born with a life-threatening liver defect

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which necessitated a liver transplant. The mother denied it considering the painstaking effects of
the surgery as such M refused to grant consent. The court in first instance considering the
medical evidence that the surgery had a good chance ruled that her refusal was unreasonable. On
appeal, it was ruling that it was in T’s best interest that decisions were left to his parents noted
that it was not a question of whether the mother’s decision was unreasonable but whether it was
in the best interests of the child. The court in this instance gave effect to the parent’s decision but
only because it was pursuant to the best interest of the child. Arguably, the parent’s rights are
subject to the welfare of the child.

Naturally, the court would consider the child’s wishes given the requisite circumstances. Gillick
v West Norfolk and Wisbech AHA [1986] sets out the standard for the extent to which a
minor’s consent to medical treatment will stand. Notably, once the situation fits the Gillick
standard parental responsibility cannot override the child’s consent. However, the court in its
inherent jurisdiction can override both the parent, child and medical professional in their
protective responsibility, Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) 1992
which could further undermine the parental responsibility

GENERAL PRINCIPLES highlighted in the CCGMA

3. (1) The Court shall have regard to the best interests of the child in making its decisions.

(2) A parent, in order to fulfil the parental responsibilities in relation to a child, has the right-

(a) to have the child living with the parent or otherwise to regulate the child's residence;

(b) to control, direct or guide, in a manner appropriate to the stage of development of the
child, the child's upbringing;

(c) if the child is not living with the parent, to maintain personal relations and direct
contact with the child on a regular basis.

(3) Subject to subsection (2), where two or more persons have a parental right in respect of a
child, each of them may exercise that right without the consent of the other or, as the case
maybe, of any of the others.

(4) Subject to a court order, no person shall be entitled to remove a child habitually resident in
Guyana from, or to keep any such child outside Guyana, without the consent of a person who

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 has parental rights except that, where both the child's parents are persons so described, the
consent required for removal or retention of the child, shall be from both.

(5) The rights mentioned in subsection (2) are in this Act referred to as parental rights" and a
parent, or a person acting on the parent's behalf, shall have the right to institute or to defend,
any proceedings in respect of those rights.

(6) This section is without prejudice to any other rights enjoyed by a parent which are similar
to parental rights under this Act or any other law.

(7) Parental responsibilities shall include the responsibilities of persons exercising parental
rights to provide for the upbringing, education and general welfare of a child.

(8) Parental responsibilities and parental rights may be exercisable by either parent without the
other.

4.(1) The fact that a person has parental responsibilities and parental rights in relation to a child
shall not entitle that person to act in a way which would be incompatible with a court order
relating to the child or the child's property, or an incompatible direction made under this Act.

(2)A person who has parental responsibilities and parental rights in relation to a child shall not
give up those responsibilities or rights to anyone else but may temporarily arrange for some or
all of them to be fulfilled or exercised on the person's behalf by a person who already has
parental responsibilities or parental rights in relation to the child concerned or by any other
person.

(3) The making of an arrangement under subsection (2) shall not affect any liability arising
from a failure to fulfilll parental responsibilities.

We understand that the court tries to strike the balance. Consider whether that balance is right.
Are they correctly balancing the need to protect the rights and interest of the child as opposed to
the rights and interests of the parent.

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