C.B. v. C.A.M TT 2005 HC 14

Citation:           TT 2005 HC 14

Title:                 C.B. v. C.A.M.

Country:           Trinidad and Tobago

Court:               High Court

Suit no.:           H.C.A. 1228 of 2003

Judge(s):          Jones, J.

Date:                January 28, 2005

Subject:           Family law

Subsubject:      Paternity – Declaration – DNA testing – Surname – Applicant applying for order inter alia that relationship between and child does not exist – Applicant signing register of births as father – Applicant later having DNA swab samples tested indicating a 0% possibility that he was father – Whether declaration to be made – Status of Children Act, s. 10 – Guidelines regarding making of declaration – Order that relationship of father and child did not exist and that child’s surname to be changed to that of mother.

 

Appearances:

Ms. Allyson Ramkerrysingh for the applicant.

Ms. Anuusha Panday for the respondent

Ms. Charles for the Registrar — General

 

JONES, J:

 

1. This is a very unfortunate case the effect of which, if I find for the applicant, will be to render a young child fatherless.

End of Page 1]

2. The application is by way of an originating summons dated the 2^nd May, 2003 by which the applicant C.B. (hereinafter called ” the applicant”), who was on the 26^th March, 2002 registered as the father of C.A.B., a child born on the 4^th February, 2002 (hereinafter called “the child”) seeks an order that:

(i)         The relationship of father and child does not exist between him and the child.

(ii)         The Registrar-General be directed to delete his name appearing as father in the birth certificate and be directed to re-register the birth of the said child and

(iii)        The child’s surname be changed from that of the applicant to that of the Mother.

The Facts

3. According to the applicant he had been engaged in an extra marital affair with C.A.M. (hereinafter called “the mother”) the respondent herein, during the period 1998 to 2002. Sometime in the year 2001 the mother informed him that she was pregnant for him. According to the applicant throughout the pregnancy and upon the child’s birth he assumed parental responsibility for the child. After the birth of the child the applicant accompanied the mother to register the birth and signed the register as father. It must be noted that the applicant’s name was also placed on the register as informant with the word “father” inscribed thereunder.

[End of Page 2]

4. Several months later he confessed the affair and the existence of the child to his wife whom he says at that time reminded him of the fact that in their attempts to have a child they had visited many specialists and done many tests each of which, he claimed, confirmed his inability to have a child.
5. Eventually he was able to persuade the mother to attend a medical laboratory with the child where blood samples were taken for the purpose of ascertaining the paternity of the child. The testing done was not Deoxyribonucleic (hereinafter called “D.N.A”.) testing. The report concluded that the applicant was the father of the child. The applicant claims that the behaviour of the tester caused him some concern and on the receipt of the report he observed that some attempt had been made to change a finding by the use of correcting fluid. Upon questioning the tester he was told that there had been a typographical error. He was also advised by the tester that where two men of a similar race and similar blood type took blood tests for paternity it could result in both men being considered possible fathers of the child and was advised to conduct a DNA test for a conclusive result.
6. According to the applicant he obtained the child from the mother by deception and took him to a laboratory in San Fernando where swab samples were taken from them both and sent abroad for testing. The results of the tests were dated the 22^nd November 2002 and stated that there was a 0% possibility that the applicant was the father of the child. Armed with these results the applicant brought this action.

[End of Page 3]

7. Also placed before the Court was the applicant’s explanation as to why he was unable to provide any confirmatory evidence as to his medical condition. According to him both doctors who had treated him some 20 years ago had since migrated and the records of an operation done in an attempt to correct the problem had since been destroyed. He however annexed a copy of the results of a sperm test done in August 2002, which revealed a lower than average sperm count.
8. Pursuant to an order made by consent the parties agreed to have DNA testing done at the St. Clair Medical Centre in Port of Spain. Testing was in fact done but not at the said medical center. The results of the said test, a notarized copy of which were put before the Court, were confirmatory of the results obtained in the first DNA test, that is that there was a 0% possibility that the child was the applicant’s.
9. According to the mother the child is the applicant’s child and the application before the Court is as a result of the pressure being brought to bear on the applicant by his wife. She claims that up to the 23^rd February, 2004, after the filing of his application, the applicant still visited the child and treated the child as his own. The applicant accepts the fact that at least up to July, 2003 he continued to visit the child and have a relationship with him and states that it is his intention to continue to be a significant presence in the child’s life but wishes the determination of the Court so that the parameters of the relationship could be established.
10. The only other relevant evidence before the Court was that of the taking of the samples used for the DNA testing. On the affidavits deposed to on this point [End of Page 4] it was clear that the sample taken from the applicant was not taken in the presence of the mother. In those circumstances the Court required the presence of the sampler to confirm the manner of the taking of the samples and to verify the chain of conduct of the samples from the taking to delivery to the tester.
11. The sampler in giving her evidence stated the general procedure followed in obtaining samples, which in this case were of saliva, securing and sending same to the tester. The tester in this case was Identigene of Houston Texas and the samples usually conveyed to them by Federal Express. According to the sampler, the samples were normally taken in the presence of both parties, secured and labeled and would be usually collected the same day or the day after they were obtained and delivered to the tester within 18 hours of collection. The results would usually be received within 2 to 3 weeks of delivery, during which time, according to the sampler, she would be in constant communication with the laboratory.
12. According to the sampler the only deviation from the usual procedure in this case was that the sample taken from the applicant was not taken in the presence of the mother. It must be noted however that the test results reveal that although the samples were collected on the 14^th January, 2004 they were not received by the laboratory until the 5^th February, 2004. This is despite the evidence of the sampler that she received an acknowledgement of receipt from the laboratory in Texas about 2 -3 days afterwards and some 2 weeks afterwards received an update that the results would be sent in 5 working days.

[End of Page 5]

The Issues

13. This judgment proceeds on the assumption that the application before the Court is really one to determine whether the applicant is the biological father of the child. This judgment does not presume to determine whether the child is a child of the family as defined by the Family Law (Guardianship of Minors) Act, Chap 46:08 since the Court’s jurisdiction under that act has not been invoked in these proceedings.
14. The issues to be determined by this Court are therefore

(i)         Does the Court have the jurisdiction to deal with the application?

(ii)         Is the applicant the biological father of the said child?

(iii)        If not, does the Court have the power to direct that his name be removed from the relevant records in the Registrar-General’s department or direct that the Registrar-General re-register the birth?

(iv)        If so, ought the Court to do so in circumstances where such an order would most likely render the child fatherless and where as in this particular case the child has had the benefit of a father albeit for a short period of time?

(v)        Can the Court on this application order that the child’s name be changed to the surname of the mother? and

(vi)        If so ought the Court to do so?

[End of Page 6]

Jurisdiction

15. The first issue to be determined is whether I have the jurisdiction to make such an order under the Act. The Status of Children Act, Chap 46:07 (hereinafter called “the Act”) provides that the following persons may apply for a declaration of paternity and if it is proved to the satisfaction of the Court that the relationship exists the Court may make a paternity order

(i)         being a woman alleges that any named person is the father of her child;

(ii)         alleges that the relationship of father and child exists between himself and any other person;

(iii)        alleges that he is the father of an unborn child; or

(iv)        being a person having a proper interest in the result wishes to have it determined whether the relationship of father and child exists between two named persons.

Attorney for the applicants submits that it is under the last limb of the section that this application is brought.

16. The Act purports to be an act to remove the legal disabilities of children born out of wedlock. It would seem that a literal meaning of section 10(d) of the Act allows a Court, on an application of any person having a proper interest to determine whether the relationship of father and child exists between two named persons for a declaration of paternity, to make such a declaration. It follows that the Court also has the power to refuse to make such a declaration.

[End of Page 7]

17. In this case there can be no doubt that the applicant is a person having a proper interest in the result and that the two named persons are the applicant and the child. The Court has in the past on the application of a third party, in circumstances where there is a named father on the birth certificate, made a declaration that that applicant is the father of the child. The effect of such a declaration has been to facilitate the removal of the name of the original person entered on the register as father and to substitute the name of the applicant.
18. Is it that the Court can have no jurisdiction simply because the application is not one for a declaration of paternity but rather one for “non-paternity” as it were? I think not. Further, it must be that if the Court has the jurisdiction to make an order for paternity it must have the jurisdiction to make an order that an applicant is not the father of a child. In the circumstances I hold that I do have the jurisdiction to make a declaration that the relationship of father and child does not exist between C.B and C.A.B.

Is the applicant the biological father of the child?

19. It is clear on the evidence before the Court that once I accept the results of the DNA test I must find that the applicant is not the biological father of the child. Despite the fact that the Act regulates the taking and testing of blood samples it does not provide for either the testing of bodily samples other than blood or for DNA testing.

[End of Page 8]

20. The Deoxyribonucleic Acid (DNA) Identification Act, 2000 although passed in Parliament was not, at the time of the order made by consent, proclaimed.

There seems to be however no prohibition on the Court receiving the results of such tests where, as in this case, the test was conducted by consent.

21. A finding of paternity is a factual question for the judge and the result of any scientific testing is but one of the facts to be considered by the Court in arriving at its finding, albeit given the state of the art, a highly persuasive and objective piece of evidence since according to the scientific learning such testing is 99.9% accurate.
22. This Court is not bound to accept the results of the test however. To this end the manner of the taking of the samples and the chain of conduct of the samples from their taking to testing is a factual issue relevant to accepting or rejecting the results. If I find that the manner in which the samples were taken could lead to a contamination of the samples or of the results, deliberate or otherwise, then it is, to my mind, open to me to reject the results. In assessing this I must bear in mind that there are no regulations in place in this jurisdiction covering the manner in which samples are to be taken.
23. The Court is therefore left with the evidence of the sampler as to the usual practice. With respect to the two apparent deviations in procedure i.e. the failure to take the samples in the presence of both parties and the certification by the tester as to the receipt of the samples, I can find no assistance from regulations in [End of Page 9] other jurisdictions or case law on the point. Nor do the Blood Tests (Evidence of Paternity) Regulations, 1983 assist in this regard.
24. In the instant case to find a contamination of the samples would mean rejecting the evidence of the sampler that she in fact took the sample from the applicant and that it was this sample that was secured and sent to the laboratory for testing. The evidence of the sampler was straightforward and not shaken in any way by the cross-examination. Neither was it at any time suggested that the sample identified by her as the applicants was in fact not his. In the circumstances, despite my discomfort with the fact that the sample from the applicant was not taken in the presence of the mother, I cannot on the evidence before me make such a finding of fact. Neither have I been able to ascertain whether the lapse of time between the taking of the samples and the testing of them can affect the results in any way. According to the sampler the “swabs” last 10 years. I can only assume that what is meant by this statement is that the samples are valid for that period of time.
25. Unfortunately in my deliberation as to whether or not to accept the results the question of the best interest of the child is not a consideration. If the issue before me were whether or not to order the DNA test the question of the best interest of the child would, to my mind, be of utmost importance and in the circumstances of such an order having the effect of rendering the child without a father and of the applicant having treated the child as his for a relatively substantial portion of the child’s life I would have declined to order such a test despite the authorities which state that the right of the child to know the truth is in [End of Page 10] the child’s best interest. Unfortunately the order for the DNA testing was made by consent and is not an issue for me.
26. In all the circumstances and given the evidence before me it is with great reluctance that I accept the said DNA results and hold that the applicant is not the biological father of the child.

Does the Court have the power to direct the removal of the applicant’s name from the birth certificate or direct the re-registration of the birth?

27. The third issue to be determined is whether the Court has the power to direct the Registrar General to remove the name of a person registered as a father on a birth certificate or to direct that the birth be reregistered.
28. With respect to re-registration, the Births and Deaths Registration Act, Chap. 44:01 (hereinafter called “the Registration Act”) provides by section 21(2) that re- registration of a birth can only be done in the following circumstances:

(i)         If on the registration of the birth of the child the name of no person has been entered in the register as the father and certain conditions are met and

(ii)         If at any time after the registration of the birth of a child whose father’s name is not registered the Registrar General is satisfied that a paternity order in respect of the child has been made by the Court or that the child’s parents were married after the registration.

[End of Page 11]

29. Paternity order is not defined by the Act but by section 8(2) of the Act we are referred to the Family Law (Guardianship of Minors, Domicile and Maintenance) Act, chap 46:08 for such a definition. That Act defines a paternity order as “an order of the Court declaring a man to be the father of an minor whether born or unborn.”
30. In the instant case therefore since on the registration of the birth of the child the applicant was entered in the register as the father neither of the circumstances for re-registration outlined in the Registration Act apply. In the circumstances there cannot be a re-registration of the birth of the child.
31. The only other provision that allows for any change to be made to the register is section 36 of the Registration Act which provides that with respect to the correction of errors in registers of births and deaths no alteration shall be made except as authorized by the Registration Act and only in circumstances where a clerical error has been made or an error of fact or substance has occurred. With respect to an error of fact or substance this may only be corrected by entry in the margin, without changing the original entry, upon the fulfilling of certain conditions set out in the section, in this case subsection 36 (c).
32. It would seem therefore that even if the entry of the applicant’s name on the register can be said to be an error in fact or substance, there is no power to remove the applicant’s name from the register and such correction, if possible, will only be made by an insertion of the corrected fact in the margin of the relevant register upon the satisfying of the conditions contained in the Registration Act.

[End of Page 12]

33. It must be noted here that although section 21(3) of the Registration Act allows for the Registrar-General to authorize the entry in the register of the father’s name and such other particulars relating to the father as are supplied to him this is only in circumstances where there has been non registration of the father’s name and there is either a paternity order in respect of that child or the parents were married after registration. Neither of these circumstances apply nor is the application one to insert the name of a father but rather to remove the name of a person whose name has been inserted on the register as father.
34. It would seem to me therefore that this Court has no jurisdiction to direct the Registrar-General to delete the applicant’s name appearing as father under column 5 of the birth certificate entered in the register of births and deaths for the year 2002 or to direct the Registrar to re- register the birth of the child.

Change of name

35. In the circumstances the only question left for my determination is whether this Court has the jurisdiction to order that the child’s surname be changed from that of the applicant to that of the mother.

Section 5 of the Family Law (Guardian of Minors, Domicile and Maintenance), Ch.46:08, as amended, provides that:

“(1) subject to subsections (2) and (3), the father or mother of a minor or a stranger may apply to the High Court to change a given name or the surname of that minor.

[End of Page 13]

1. Where an application is made under subsection (1)-
2. by the mother or father, the consent of the other parent must first be obtained; or
3. by the stranger, the consent of both parents must first be obtained.

(3) notwithstanding subsection(2), the Court may on an application made under subsection(1), dispense with the consent of the father or of the mother in the case where the mother or father is dead or cannot be found or, in any other case, as it sees fit”.

36. In the instant application therefore the Court does have the jurisdiction to order that the surname of the child be changed upon an application by a stranger even in the absence of the consent of the mother. The word “stranger” is defined in that act to mean “a person who, being neither the mother nor father of a minor, has in the opinion of the Court a sufficient interest in the minor”. The question is of course, given my finding that the applicant is not the biological father of the child, does the applicant have a sufficient interest in the minor and if he does is it in the best interest of the child to change his surname from that of the applicant’s to that of the mother’s?

At the end of the day it is the child’s welfare that is of paramount importance to my deliberation on this question. What is the reality of the situation? The effect of this judgment is that the applicant is not the father of the child and even if the child does fall into the category of child of the family as defined by the Family Law (Guardianship of Minors, Domicile and Maintenance) Act the reality of [End of Page 14] the present situation is that the child will not be a part of any family unit containing the applicant.

37. Whatever the Court’s view as to the actions of the adults in this matter this Court cannot allow the child to be confused any more that is absolutely necessary given the circumstances of this case. In my opinion it is in the child’s best interest that his surname be changed from that of the applicant to that of the mother and in the circumstances of the evidence and, in particular that evidence showing the applicant’s continued contact with the child even after the receipt by him of the first DNA test results, I find that the applicant has a sufficient interest in the minor to make such an application and I will make the appropriate order in the circumstances.
38. In all the circumstances of the case I declare that the relationship of father and child does not exist between the applicant and the child and order that the surname of the child be changed from that of the applicant to that of the mother. Each party is to bear their own costs.

Dated this 28th day of January 2005

…………………………

Judith A. D. Jones

Judge

Page 15 of 15