Date01 December 2003
Citation(2003) 15 SAcLJ 399
Published date01 December 2003

Re A (an infant) 1

I Introduction

1 Re A (an infant) raises two important issues. First, it raises the question of whether section 114 of the Evidence Act2 is still relevant in the light of modern scientific methods of testing paternity. Second, it highlights the complicated circumstances under which a court must determine issues relating to children. In Re A, the wife (hereafter referred to as “W”) married the husband (hereafter referred to as “H”) in June 1994. Within a year or so, there were difficulties in the marriage. The parties started to quarrel frequently and W often stayed with her mother in order to avoid H. In 1996, W began an intimate relationship with a third party (hereafter called “T”). On 12 February 1997, ‘A’ was born. In March 1999, H forcibly took A away after a quarrel. W alleged that sometime in early 1999, she had told H that the child was not his. W obtained a court order on 9 June 1999 granting her custody of the child and also consented to giving access to H in that order. H had exercised his right of access fortnightly since the order. On 21 August 2000, W obtained the results of a DNA test, which reported that H was not A’s biological father. W then applied to the district court to rescind the June 1999 order on the ground that H should not be given any right of access to A. The district judge affirmed the 1999 orders, defining access to H to be given fortnightly on Fridays from 6pm to Sundays at 6pm. W appealed against the order for access. The High Court allowed the appeal and held that H should not be given access to A.

II Presumption and proof of paternity

2 Section 114 of the Evidence Act3 provides that:

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

3 The note preceding Section 114 reads: “Birth during marriage conclusive proof of legitimacy”. Section 114 assists a child in proving who his father is, and in establishing the child’s legitimate status. The presumption establishes, as conclusive proof, that the child is the child of his mother’s husband. The common law rule of legitimacy is that a child is legitimate only if his parents were validly married at the time he was conceived or born.4 Section 114 draws on this rule and presumes that if a child is born when his mother is validly married, he is a child of the marriage and is legitimate. The effect of this evidentiary presumption is not only to protect a child’s legitimate status, it also creates an almost irrebuttable presumption of paternity since it establishes that the child is “the son of that man”. Section 4(3) of the Evidence Act5 provides that:

“When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.”

4 Thus, when a child can prove that he “was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried”, the court ought to regard as proved, the fact that he is “the legitimate son of that man”. Despite this fact being described as conclusively proved, there is one type of evidence which section 114 itself permits to disprove the fact. Proof that “the parties to the marriage had no access

to each other at any time when he could have been begotten” may be used to rebut the presumption. It becomes important then, to determine what sort of facts may constitute such evidence. The natural and literal reading suggests that this requires evidence of physical separation, such as where the parties were in different countries and had no opportunity of physical access to each other.6 Even if a wider interpretation of the phrase is adopted, that is, that the parties did not have any sexual contact whether or not they had the opportunity, the interpretation is unlikely to be able to accommodate DNA tests as evidence of “no access”.

5 The evidentiary presumption was applied in Re Khoo Thean Tek’s Settlements.7 In this case, Petronella married Gaudoin in 1847. Before 1854 she cohabited with the settlor. On 22 January 1854, she gave birth to the appellant Khoo Hun Tee. There was no evidence before the court showing that the marriage between Petronella and Gaudoin had been dissolved by death or otherwise. It was held that

“it is very difficult for the appellant to discharge the onus of proving that the parties to the marriage, Gaudoin and Petronella had no access to each other in the year 1853. As far as the evidence goes, this may or may not have been the case but it is clear that that onus has not been discharged, and we are therefore bound to presume that Hun Tee was the legitimate son of Gaudoin and Petronella. If that is so, evidence pointing to the fact that he was the natural son of the Settlor is not admissible; for, by Section 4 of the Evidence Ordinance, when one fact is declared by the Ordinance to be conclusive proof of another the Court shall on proof of one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it.”8

6 Thus the appellant, Khoo Hun Tee, was precluded from claiming that he was the son of the settlor, with whom his mother cohabited, since the presumption inevitably led to the result that he was Gaudoin’s son.

7 No reference is made to section 114 in Re A (an infant).9 The child, A, was born when her mother, W, was married to H. The presumption in section 114 should have led to the conclusion that A is the child of H. As the parties still lived together at the time that A was likely to have been conceived, there is no evidence that they “had no access to each other”. In fact, it appears from the judgment that H had thought that A was his child. W allegedly informed him that A was not his child some two years after A’s birth. If the presumption had been applied, the...

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