CHAPTER
133
AFFILIATION PROCEEDINGS |
ARRANGEMENT OF
SECTIONS |
SECTION |
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Commencement of affiliation proceedings. |
Time for application for summons. |
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Powers of court on hearing of application. |
Persons entitled to payments under affiliation
order. |
Duration of affiliation order. |
Continuance of payments in certain cases. |
Power to vary, revive or revoke affiliation
order. |
Effect of order under Chapter 90. |
Enforcement of affiliation order. |
Prohibition of committal more than once in
respect of same arrears. |
Effect of committal on arrears. |
Right of access of putative father. |
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|
Duty of putative father to notify change of
address. |
Power to prohibit putative father leaving
Bahamas. |
Attachment of earnings or pension to satisfy
affiliation order. |
Misconduct of guardian of child. |
Affiliation proceedings to be heard separately
from other business of the court. |
|
CHAPTER 133 |
AFFILIATION
PROCEEDINGS |
An Act to
amend and consolidate the law relating to the maintenance of children born out
of wedlock. | 13 of 1978 |
[Assent 24th
November, 1978]
[Commencement 7th March, 1979] |
1. This Act may be cited as the Affiliation Proceedings
Act. | Short title. |
2. (1) In this Act- | Interpretation. |
"child"
means a child born out of wedlock |
"court"
means a magistrate's court; |
"district"
has the same meaning as in the Magistrates Act; |
"single
woman" includes a married woman who is reduced to the condition of a
single woman by widowhood or otherwise. |
3. (1) Subject to this Act, a single woman who is with
child, or who has been delivered of a child, may apply to the court for a
summons to be served on the man alleged by her to be the father of the child. | Commencement of affiliation proceedings. |
(2) An application
under subsection (I) may be made by a woman who was a single woman at the date
of the birth of the child, whether or not she is a single woman at the time of
the application. |
4. (1) An application under section 3 where the
applicant has been delivered of a child, may be made- | Time for application for summons. |
(a) at any time
within
three years from the child's birth; or |
(b) at any
subsequent time, upon proof that the man alleged to be the father of the child
has within the three years next after the birth, paid money or given money's
worth for the maintenance of the child; or |
(c) at any time
within twelve months after the return to The Bahamas of the man alleged to be
the father of the child, upon proof that he ceased to reside in The Bahamas
within
the three years next after the birth of the child. |
(2) A single woman
who has been delivered of a child may, upon proof that- |
(a) before the
birth of such child she was a party to a marriage which would have been valid
but for the provisions of an Act of Parliament whereby the marriage is made
void on account of her, or the other party to the marriage, being under the age
of fifteen; and |
(b) the other
party to that marriage had access to her within twelve months before the birth, |
make at any
time an application under section 3 against that party notwithstanding that he
may not within the three years next after the birth have
paid money or given money's worth for the child's maintenance. |
5. A court shall have power to make an affiliation
order under this Act against the putative father of the child notwithstanding
that the mother was domiciled abroad at the date of the child's birth and that
the child was born abroad. | Child born abroad. |
6. (1) An application under section 3- | Venue and procedure. |
(a) shall be
made to a court in the district in which the mother of the child resides; |
(b) if made
before the birth of the child, shall be substantiated on oath, |
and the
court which, under the summons, is to hear the application shall be a court for
the said district. |
(2) If a
magistrate to whom an application under section 3 has been made dies, or ceases
to be a magistrate, or is unable to act, the summons may be issued by any other
magistrate acting in the same district. |
7. (1) On the hearing of any application under section
3, the court may adjudge the defendant to be the putative father of the child
but shall not do so, in a case where evidence is given by the mother, unless
her evidence is corroborated in some material particular by other evidence to
the court's satisfaction. | Powers of court on hearing of application. |
(2) Where the
court has adjudged the defendant to be the putative father of the child, it may
also, if it thinks fit in all the circumstances of the case, make an order
against him (referred to in this Act as an "affiliation order") for
the payment by him of- |
(a) a sum of money weekly and, if the court sees fit, in
addition a lump sum payable at such times as the court may determine for the
maintenance and education of the child; |
(b) the
expenses incidental to the birth of the child; and |
(c) if the
child has died before the making of the order, the child's funeral expenses. |
(3) Where an
application under section 3 is made before, or within four
months after, the birth of the child, any weekly sum ordered to be paid under
paragraph (a) of subsection (2) may, if the court thinks fit, be calculated
from the date of the birth. |
8. (1) Subject to this section and to section 54 of the
Children and Young Persons (Administration of Justice) Act, the person entitled
to any payments to be made under an affiliation order shall be the child's
mother and the order shall make provision accordingly. | Persons entitled to payments under affiliation order. |
(2) An affiliation
order may on the application of a person other than the child's mother who for
the time being has the custody of the child, either legally or by any
arrangement approved by the court, be made or varied by a court so as to
entitle that person to any payments to be made under the order. |
(3) Where an
affiliation order provides for the child's mother to be entitled to any
payments to be made under the order, the payments shall be due under the order
in respect of such time and so long as she is living and of sound mind and is
not in prison, and, if the mother dies or is of unsound mind or is in prison, a
court may from time to time appoint some person (with his consent) to have the
custody of the child, and a person so appointed as guardian under this
subsection, is entitled to any payments to be made under the affiliation order
and may make application for the recovery of any payments due thereunder in the
same manner as the mother might have done. |
(4) A court may
revoke an appointment made under subsection (3) and appoint another person
thereunder in place of the person formerly appointed. |
(5) An affiliation
order shall provide for the payments to be made thereunder to the court or to
the person for the time being entitled thereto in accordance with this section. |
9. Subject to this Act, an affiliation order shall not,
except for the purpose of recovering money previously due under the order, be
of any force or validity after the child has attained the age of eighteen years
or has died. | Duration of affiliation order. |
10. (1) The power under section 11 to vary or revive
an affiliation order shall, notwithstanding anything contained in section 9,
include a power to vary or revive it in accordance with this section. | Continuance of payments in certain cases. |
(2)
If, on the application of the child's mother, it appears to the court that the
child is or will be engaged in a course of education or training after
attaining the age of eighteen years, and that it is expedient for that purpose
for payments to be made under the order after the child attains that age, then,
subject to subsections (3) and (4), the court may by order direct that payments
shall be so made for such period, not exceeding four years from the date of the
order, as may be specified in the order. |
(3) Subject to
subsection (4), the period specified in an order made by virtue of subsections
(1) and (2), may from time to time be extended by a subsequent order so made,
but shall not in any case extend beyond the date when the child attains the age
of twenty-two. |
(4)
Notwithstanding anything in subsections (1), (2) and (3) or in any order made
by virtue of this section, an affiliation order shall not operate after the
child has attained the age of eighteen- |
(a) so as to
require payments thereunder to be made either- |
(i) in
respect of any period during which the child is detained in a place of
detention or an industrial school under an order of a court made under section
50(d) of the Children and Young
Persons (Administration of Justice) Act; or |
(ii) subject
to subsection (5), in respect of any period during which the child is in the
care of an institution or of a person by virtue of an order made by any court
under section 50(e) of the Children and Young Persons (Administration of Justice) Act in
respect of the child; or |
(b) so as to
entitle any person other than the child's mother to the payments. |
(5) Subparagraph
(ii) of paragraph (a) of subsection (4) shall not apply to any part of such a
period as is therein mentioned during which the child is permitted to reside
with his mother. |
(6) Any reference
in this section to a child's mother shall be taken as including a reference to
any person for the time being having the custody of the child, either legally
or by any arrangement approved by the court, except that it shall not be taken
as referring to any institution or person to whose care the child is committed
by an order under the Children and Young Persons (Administration of Justice)
Act. |
11. Subject to this Act, where a court has made an
affiliation order, the court may, on the application of the person entitled to
payments under the order or the person liable to make payments under the order,
vary, revive or revoke the order. | Power to vary revive or revoke affiliation order. |
12. The making of an order under section 54 of the
Children and Young Persons (Administration of Justice) Act with respect to an
affiliation order, shall not extend the duration of that affiliation order and
that affiliation order shall not in any case remain in force (except for the
purpose of recovery of arrears) after the order for the committal of the child
or young person to the care of a person or institution under section 50(d) or
50(e) of that Act has ceased to be in force: | Effect of order under Ch. 97. |
Provided that
where an affiliation order would but for this section have remained in force,
the mother may apply to a court having jurisdiction in the district where she
is residing for an order that the affiliation order shall be revived and that
payments thereunder until the expiration thereof may be made to the applicant
at such rate as in the opinion of the court may be proper, and where the court
makes such an order, any power to vary, revoke or again revive the affiliation
order or any part thereof which would, but for this section, be vested in the
court which originally made the affiliation order, shall be exercisable only by
the court which made the order under this section. |
13. (1) Where default is made in paying any sum
ordered to be paid by an affiliation order, the court shall not enforce payment
of the sum under section 46 of the Magistrates Act except by an
order made on the application of the person entitled to the payments under the
affiliation order. | Enforcement of order. |
(2) An application
under this section shall be made not earlier than the fifteenth day after the
making of the order for the enforcement of which it is made, but subject to
this, an application may be made at any time notwithstanding anything contained
in any Act. |
(3) Where at the
time and place appointed for the hearing or adjourned hearing of an application
under this section the applicant appears but the defendant does not, the court
may proceed in his absence: |
Provided that the
court shall not begin to hear the application in his absence unless either it is
proved to the satisfaction of the court on oath, or in such other manner as may
be prescribed, that the summons was served on him within what appears to the
court to be a reasonable time before the hearing or adjourned hearing, or the
defendant has appeared on a previous occasion to answer the application. |
(4) If an
application under this section is substantiated on oath, any magistrate acting
for the district as a court having jurisdiction to hear the application may
issue a warrant for the defendant's arrest whether or not a summons has been
previously issued. |
(5) A court shall
not impose imprisonment in respect of a default to which this section relates
unless the court has inquired in the presence of the defendant whether the
default was due to the defendant's wilful refusal or culpable neglect, and
shall not impose imprisonment as aforesaid it if is of opinion that the default
was not so due; and without prejudice to the foregoing provisions of this
subsection, a court shall not impose imprisonment as aforesaid- |
(a) in a case
in which the court has power to make an attachment of earnings order under
section 21, unless the court is of opinion that it is inappropriate to make
such an order; |
(b) in any
case, in the absence of the defendant. |
(6) Notwithstanding
anything in any other Act, the period for which a defendant may be committed to
prison under a warrant of commitment issued in pursuance of an application
under this section shall not exceed six weeks. |
(7) The
imprisonment or other detention of a defendant under a warrant of commitment
issued as aforesaid shall not operate to discharge a defendant from his
liability to pay the sum in respect of which the warrant was issued. |
(8) Subsections
(6) and (7) shall have effect in relation to a warrant of commitment issued on
or before the date on which this Act comes into operation in pursuance of an
application made under section 46 of the Magistrates Act for the
enforcement of payment under an affiliation order as these subsections have
effect in relation to a warrant of commitment issued in pursuance of an
application made under this section after that date. |
(9) Where an order
made under section 54 of the Children and Young Persons (Administration of
Justice) Act with respect to an affiliation order is in force, the powers
relating to the enforcement of affiliation orders conferred upon a court by
this section may be exercised by the court making such order or the court
having jurisdiction in the district where the person liable for the time being
resides. |
14. Where a defendant is imprisoned or otherwise
detained under an order or warrant of commitment issued in respect of his
failure to pay a sum due under an affiliation order, then, notwithstanding
anything in this Act, no such order or warrant shall thereafter be issued in
respect of that sum or any part thereof. | Prohibition of committal more than once in respect of
same arrears. |
15. Where a person is committed to custody for failure
to pay a sum due under an affiliation order, then, unless the court otherwise
directs, no arrears shall accrue under the order while he is in custody. | Effect of committal on arrears. |
16. (1) The court may, on application of the person
adjudged to be the putative father of the child under section 7, make such
order as it thinks fit regarding the right of access of the putative father to
the child. | Right of access of putative father. |
(2) In making an
order under subsection (1), the court shall have regard to- |
(a) the welfare
of the child; |
(b) the conduct
of the putative father; |
(c) the wishes
of the mother, and putative father, |
and may
alter, vary or discharge such order on the application of the mother, the
putative father or any person who has the custody of the child either legally
or under any arrangement approved by the court. |
17. On hearing an application for the enforcement,
revocation, revival, variation or discharge of an affiliation order the court
may remit the whole or any part of the sum due under the order. | Power to remit arrears. |
18. An appeal shall lie to the Supreme Court from the
making of an order under this Act, or from any refusal of a court to make such
an order or from the revocation, revival or variation by a court of such an
order, in accordance with theMagistrates Act relating to appeals from
decisions of magistrates' courts. | Appeal. |
19. (1) A person against whom an affiliation order has
been made shall, if he changes his address and he is required to make any
payments under the order (including payments of costs), give notice of the change
to the court or the any person to whom he is required under the order to make
such payments. | Duty of putative father to notify change of address. |
(2) Any person who
fails without reasonable excuse to give a notice which he is required to give
under this section, is guilty of an offence and liable on summary conviction to
a fine not exceeding twenty dollars. |
20. (1) If the court makes an order under this Act,
and it is made to appear that the putative father is about to leave The Bahamas
and has not made adequate provision for the payment of any sums ordered to be
paid during his absence, the court may, if it thinks it expedient so to do,
order that such putative father shall not leave The Bahamas. | Power to prohibit putative father leaving Bahamas. |
(2) Any putative
father against whom an order has been made under this section who leaves or
attempts to leave The Bahamas before such order ceases to be operative, or is
revoked, is guilty of an offence and liable, on summary conviction, to a fine
not exceeding seventy five dollars or to imprisonment for a term not exceeding
six months. |
(3) Any peace
officer may arrest without warrant and bring before a court any putative father
who is subject to an order made under this section and- |
(a) who has
left The Bahamas and is found again within The Bahamas; |
(b) whom such
peace officer has reason to suspect of attempting to leave The Bahamas. |
21. (1) Where an affiliation order has been made
against a person and there is payable to him any pension or income which is
capable of being attached, a court may- | Attachment of earnings or pension to satisfy
affiliation order. |
(a) after
giving the person an opportunity of being heard; and |
(b) upon being
satisfied that the person has without reasonable cause failed to make any
payments which he is required by the order to make, |
order the
pension or income to be attached as to the weekly amount payable under the
affiliation order, or as to any lesser amount, and the amount attached to be
paid to the person named by the court. |
(2) An order under
this section shall be authority to the person by whom the pension or income is
payable to make the payment in accordance with the order, and the receipt of
the person to whom the payment is ordered to be made shall be a good discharge
to the payor. |
22. If any person appointed under section 8(3) to have
the custody of the child- | Misconduct of guardian of child. |
(a) misapplies
any money paid by the putative father for the child's support; or |
(b) withholds
proper nourishment from, or otherwise abuses or maltreats, the child, |
he is guilty
of an offence and liable on summary conviction to a fine not exceeding fifty
dollars. |
23. (1) The business of a court shall, so far as is
consistent with the due dispatch of business, be arranged in such manner as may
be necessary for separating the hearing and determination of applications under
this Act from other business. | Affiliation proceedings to be heard separately from
other business of the court. |
(2) No person
shall be present during the hearing and determination by a court of any
application under this Act except- |
(a) members and
officers of the court; |
(b) parties to
the case before the court, counsel and attorneys and witnesses and other
persons directly concerned in the case; |
(c) counsel and
attorneys in attendance for other cases; |
(d) any other
person whom the court may permit to be present. |
(3) During the
taking, in any application under this Act, of any evidence which, in the
opinion of the court, is of an intimate or indecent character, the court may,
if it thinks it necessary in the interest of the administration of justice or
of public decency, direct that all persons, not being members or officers of
the court or parties to the case their counsel and attorneys or other persons
directly concerned in the case, be excluded from the court during the taking of
that evidence. |
(4) The powers
conferred on a court by this section shall be in addition and without prejudice
to any other powers of the court to hear proceedings in camera. |
(5) Nothing
contained in this section shall affect the exercise by the court of the power
to direct what witnesses shall be excluded from the court until they are called
for examination. |
24. (1) The Illegitimates Act is
repealed. | Repeal and saving. |
(2) Any
application, order, appointment or other thing made or having effect for the
purposes of the Act repealed by this section and pending or in force immediately
before the commencement of this Act shall be deemed to have been made under or
for the purposes of the corresponding enactment in this Act and any proceedings
or other thing begun under the Act so repealed may be continued under this Act
as if begun thereunder. |