Question

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.

Answer
Introduction
Historically, the law drew a clear distinction between children born into a legally recognized
marriage and those who were born outside of such a union. This distinction was significant
because the law did not recognize children born outside of a valid marriage. Such a child was
considered filius nullius and had no rights of inheritance or maintenance, and the father of such a
child had no automatic right to custody or any other parental right flowing therefrom. Thus,
although all children require special care and protection as a result of their inherent physical and
mental vulnerabilities, some children were way more vulnerable than others because of the
circumstances surrounding their conception and birth.
In the Commonwealth Caribbean, it is worth noting that being born out of wedlock is historically
a common phenomenon and today remains the same, so that classification of children as
illegitimate and the legal consequences flowing therefrom would surely disenfranchise a wide
cross section of children. Subsequently, the UK Law Commission in reviewing the position of
the law on the status of children remarked that “it is morally wrong for the law to discriminate
against a child because of the nature of his parentage. Furthermore, the label " illegitimate child "
is offensive and unkind so that, prima facie, it appears desirable to abolish that status altogether”.
Consequently, several jurisdictions have enacted Status of Children Legislation aimed to
removing the discrimination between children born in and out of wedlock, out of an awareness of
the social realities in these jurisdictions and the detrimental effects of the old position on children
and families. This legislative reform contributes significantly to filling some of the inadequacies
of the common law, and realistically, and again, represents a recognition by the law of the social
realities. In spite of this, however, the laws have not completely removed discrimination on the
grounds of legitimacy. There still remain a number of grey areas regarding the rights of children
born out of wedlock and the parents of such children. This essay whether the legal reforms have
in fact delivered on their promise to remove discrimination, or whether there is still much work
to do in this regard.
Explanation of the law on status of children
The Status of Children Act (No. 19 of 2009) Guyana which was developed to repeal and re-enact
the provisions of the Children Born Out of Wedlock (Removal of Discrimination) Act, defines a
‘child’ as anyone born in or out of wedlock and is under the age of 18. This is buttressed by
article 30 of the Constitution, which makes it illegal to discriminate against any child on the
basis of their being born out of wedlock.
The Act abolishes the old common law rules of construction regarding wills, where the word
child is now expanded to include children born out of wedlock. The effect of this provision is
that on the death of a parent, the out-of-wedlock child of that parent is entitled to take equally as
any other child. The child can now take where in former cases he would have been excluded, as
for example where the words "child", "issue", "heir" or "dependent" would have been held to
refer only to legitimate children.
A recognized shortcoming of the Act, however, is its position on retrospective inheritance rights.
At section 6, it is provided that the Act will apply to a will or other instrument executed prior to
the Act coming into effect (1983); however, at sub-section 2, if that instrument appears to
exclude illegitimate children then the definition of child will be limited to only legitimate
children.
This is illustrated by the decision in Re Schuler's Estate, Setram v. Powell & Another, where
A died intestate in 1982 and was survived by a brother and a sister. A, also had an out-of-
wedlock child, S and the issue was whether S was entitled to A's estate due to the abolition of the
distinction between legitimate and illegitimate children in the Trinidad and Tobago Status of
Children Act 1981. It was held that since the act was brought into force in March 1983, it did not
affect the rights which became vested before its commencement. Therefore, A's brother and
sister were entitled to his estate and S was held not to be A's next of kin so that S was entitled to
nothing.
The Act also makes provisions for the establishment of parentage through presumptions of
paternity arising from marriage, acknowledgement, cohabitation, registration of birth or the
findings of a court. These provisions are valuable for establishing the paternity of child.
However, where the out-of-wedlock child is concerned, a number of questions still remain
regarding the legal consequences for the father of that child whose parenthood is determined
through one of the presumptions. That is, whether such a father automatically has all of the rights
of the father of child born into a marriage.
The case of G v. P for example, decided that the putative father of a child, had the right to insist
that the surname of the child in question not be changed. In this case X was the putative father of
a child who had been registered at birth under X's name. The mother subsequently married P and
wished the child to adopt P's surname. X applied to the court for an order that the child should
retain X's surname.
In the recent Trinidadian decision given in The Application of Sharon Lee however, the local
court arrived at a different conclusion as it had failed to take note of the existence and effect of
the Status of Children Act 1981, and in effect held by implication that although there was a
declaration of paternity in favour of the putative father, he had no right to insist that the child
bear his name.
In McM v. C (No. I)44 the court dealt with the issue of the residence of a child born out of
wedlock, and held that the mother no longer had the unilateral right to change the residence of
the child without the consent of the putative father. In this case X was the putative father of the
child in question. The mother had formed a relationship with D and removed the child to another
city to reside. On the issue of whether the mother had the right to do this, the court looked at the
provisions of the Children (Equality of Status) Act and the Status of Children Act (Vic. Aust.)
and ruled that the rights and obligations of the mother and father of an ex-nuptial child had been
equated to the rights and obligations of the parents of a legitimate child so that the mother could
not unilaterally change the ordinary residence of the child unless the putative father consented.
In a number of cases, it has been established that the putative father now has parental rights and
rights relating to custody vis-à-vis his child, as was held in the Trinidad case of Durity v.
Benjamin where
custody of a little girl was given to the putative father as against the mother.

In Corey v. Griffin the ex-nuptial child in question was in the custody of the mother. The
putative father applied for access under the Infants' Custody and Settlements Act. Previously,
this Act was held to apply only to in-wedlock children, and the issue was whether a putative
father could apply under it in view of the Children (Equality of Status) Act 1977. It was held that
in so far as the latter Act made the ex-nuptial child the legal child of its putative father, it also
altered the status of the putative father so that the putative father could apply under the
provisions of the Infants' Act.

In Douglas v. Longano the ex-nuptial child had been in the custody of its mother. The putative
father applied for access, allegedly, under the Marriage Act. The issue was whether the Marriage
Act applied to both nuptial and ex-nuptial children having regard to the Status of Children Act. It
was held that the father's application could succeed as the latter Act empowered the court to
make applications in respect of both classes of children.