Dear Mrs Macaulay,
I have a daughter who will be two years old next month. When she was born I registered her in another man's name, because her dad, who is living in America, was verbally abusive and showed no interest in her. I then decided to do the right thing. A DNA test was done through the Family Court, which proved that the person on the birth certificate isn't the dad, and the certificate was changed.
I related all this information to the real dad. The court says I have to make an application for the biological dad, and he needs to be here in Jamaica for his name to go on the birth certificate. He has not showed up. Can a lawyer represent the biological dad in court? Can his name go on the birth certificate without him being here in Jamaica? He wants the child to have his name, but I don't know why he won't come and resolve the matter. He has taken very good care of her every month since she was born.
Your letter makes me sad and at the same time it makes me quite irritated to hear that a child's registration of birth -- which is a legal imperative -- was botched.
It is her right to have a name from birth, and to know and be cared for by her family. These are fundamental human rights to which your child is entitled, because Jamaica is obligated to uphold the provisions of the Convention on the Rights of the Child which it ratified many years ago. It really upsets me when children's human and legal rights are breached or ignored by one or both of their parents, the very persons who have primary responsibility for the safety and well being of their children.
If the biological father has taken such good care of his daughter since she was born, why did you not get him to do a sworn declaration acknowledging his paternity before she was one year old? Or, better still, why did you not give his name when you registered your daughter's birth since you say "since she was born" he has taken very good care of her?
The consequences of such acts by a parent or both are generally troublesome for them because they then have to take steps to unravel the mess their act created. They are also sometimes dire for the child. When you have given your child a certain surname and sometimes even the first name, and this has to be changed, your child is the one who suffers the embarrassment of explaining such a change of name to her friends and others. They sometimes even feel a sense of shame about their circumstance.
The court was completely right to advise you that you have to apply for a declaration of the paternity of the biological father. I do not understand though, why you were told that he had to be present in court for such a declaration to be made. I say this because orders and declarations are made every day in our courts when the defendant has chosen not to answer documentarily or not to appear in person. The only requirement of the law, in such circumstances, is for the judge to be convinced by cogent believable evidence, that the application and affidavit in support were served on the defendant according to law. Perhaps you misunderstood. They may have been referring the fact that for such applications, it is always better for both parties to be present.
Perhaps you can assure the dad that he will only need to be present for a very short time for the whole process to be completed. In fact, the order can be made on a Monday, the test can be done on the Tuesday, and the results obtained between three to five days later. So when the court makes the order for the DNA test, you and he can ask that the next date set be within a fortnight of that first date.
On this next date, once the result is positive that the biological father is, to the accepted percentage, defined as the father, the declaration of paternity would be made and with the production of a certified copy of it at the Records Office, the necessary rectification of your daughter's birth certificate can be effected.
If this does not work out, then you should note also that the DNA test can be done abroad, as the specimen taken from your daughter can be sent to the place her biological father resides and the sealed results can be sent directly to the court. If at the hearing he does not attend or he has sent a duly sworn affidavit before a notary public admitting to the fact the he is the father, I see no reason why a declaration cannot be made in his absence. You say that he wants his name to be in your daughter's birth certificate, surely he will be prepared to go to this extent for his child. This to my mind would be what would prove that he will take good care of her as a true father should.
You must pursue this matter for your daughter's sake as you both have wronged her.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver. com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5.