Re C (A Child)

• Jurisdiction: Bermuda
• Judgment Date: 09 November 2012
• Date: 09 November 2012
• Docket Number: Appellate Jurisdiction 2011 No 47
• Court: Supreme Court (Bermuda)

2012 Bda LR 88

In The Supreme Court of Bermuda

Appellate Jurisdiction 2011 No 47

In the Matter of the Children Act 1998

Re C (A Child)

Ms V Pearman for the Appellant

Mr L Mussenden for the Respondent

The following cases were referred to in the judgment:

Re H (Paternity: Blood)FLR[1996] 2 FLR 65

Re M (a minor); W v MBDLR[2009] Bda LR 22

Paternity — Power to order blood tests — Jurisdiction of Family and Magistrates' Courts

JUDGMENT ofKawaley CJ

Introductory

1. By Notice of Appeal dated August 29, 2011, the Appellants, the married parents of the Child (‘C’) appealed the decision of the Family Court (Worshipful Nicole Stoneham and Panel) on August 26, 2011 requiring them to submit to blood tests to determine the paternity of C whom the Respondent claimed to be the father of.

2. The Appeal Record was not completed until in or about July 2012 for reasons which were not clear. Unexplained, the delay appears to be an unacceptable one, leaving the parties in limbo in relation to a sensitive issue for far too long.

3. I allowed the appeal and set aside the impugned decision (awarding costs to the Appellants) on two grounds. The first ground, and the primary basis of the appeal, was that the statutory scheme did not empower the Court to order blood tests at all. It merely permitted the Court to grant leave for the blood tests to be taken and, in the event of any party refusing to submit to the tests, the Court would proceed to consider the application for a paternity declaration drawing such inferences as it considered to be appropriate.

4. The second ground, which was identified by the Bench in the course of the hearing of the appeal, although it had clearly been previously raised by counsel in the Court below, was an even more fundamental jurisdictional point. This was that that the statutory scheme conferred exclusive jurisdiction on the Supreme Court rather than the Magistrates' Court/Family Court in respect of applications for paternity declarations. It was common ground that it has been the established practice of the Family Court (possibly pre-dating the Learned Magistrate's comparatively recent appointment) to entertain such applications in the face of the statutory provisions which made it unarguably clear that this Court alone was empowered to adjudicate such applications.

5. This gave rise to a need to not simply articulate the comparatively straightforward reasons for allowing the appeal. In addition, this Court was clearly required to give some considered guidance as to how it would deal with similar appeals in respect of past or pending paternity applications before the Family Court; and, if it all possible, obviate or substantially reduce the need for any appeals at all.

The statutory framework

6 The first statutory provision in the suite of provisions in Part IIA of the Children Act 1998 (as amended in 2002) under the sub-heading ‘ESTABLISHMENT OF PARENTAGE’ is section 18E which provides as follows:

‘Declaration of parentage

18E (1) Any person having an interest may apply to the Supreme Court (in this Part referred to as...