Children Amendment Act 2002
CHILDREN AMENDMENT ACT 2002

1

BERMUDA
2002 : 36

CHILDREN AMENDMENT ACT 2002

[Date of Assent: 30 December 2002]

[Operative Date: 19 January 2004]

ARRANGEMENT OF SECTIONS

1 Citation
2 Amendment of section 2 of principal Act
3 Insertion of new Part IIA in principal Act
4 Amendment of section 35 of principal Act
5 Insertion of new Parts IVA and IVB in principal Act
6 Repeal of Legitimacy Act 1933
7 Repeal of Affiliation Act 1976
8 Amendments to other statutory provisions
9 Commencement

WHEREAS it is expedient to amend the Children Act 1998 to
remove any distinction in law between children born inside or outside
marriage, to make provision for the determination of parentage, to reform
the law governing custody of and access to children, to revise the law
relating to the obligation of parents to support their children and to
make changes to other enactments for connected purposes:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

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Citation
1 This Act which amends the Children Act 1998 ("the principal
Act") may be cited as the Children Amendment Act 2002.

Amendment of section 2 of principal Act
2 Section 2 of the principal Act is amended 

(a) by designating the existing section as subsection (1) by
deleting paragraph (b) of the definition of "family
proceedings" and substituting the following

"(b) under Parts II, IV, IVA or IVB of this Act;"

and by deleting paragraph (c)(v) of that definition;

(b) by adding the following 

"(2) In interpreting this Act the court shall give effect to the
principle of gender equality and recognize that both fathers
and mothers play critical roles in the development of
children and each should have liberal access to their
children notwithstanding with whom the children live.".

Insertion of new Part IIA in principal Act
3 The principal Act is amended by inserting after Part II the
following as Part IIA —

"PART IIA
STATUS OF CHILDREN

EQUAL STATUS OF CHILDREN

Abolition of distinction between legitimate and illegitimate children
18A (1) Subject to subsection (2), for all purposes of the law of
Bermuda a person is the child of his natural parents and his status as
their child is independent of whether he is born inside or outside
marriage.

(2) Where an adoption order has been made under the
Adoption of Children Act 1963 or the law of any other jurisdiction, the
child is in law the child of the adopting parents as if they were the
natural parents.

(3) Kindred relationships shall be determined according to the
relationships described in subsection (1) or (2).

(4) Any distinction between the status of a child born inside
marriage and a child born outside marriage is abolished and the

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relationship of parent and child and kindred relationship flowing from
that relationship shall be determined in accordance with this section.

(5) This section applies in respect of every person whether born
before or after this Act comes into force and whether born in Bermuda or
not and whether or not his father or mother has ever been domiciled in
Bermuda.

Rule of construction
18B (1) For the purpose of construing an instrument or statutory
provision, a reference to a person or group or class of persons described
in terms of relationship to another person by blood or marriage shall be
construed to refer to and include a person who comes within the
description by reason of the relationship of parent and child as
determined under section 18A.

(2) The use of the words "legitimate" or "lawful" shall not
prevent the relationship being determined in accordance with section
18A.

Application
18C This Part applies to —

(a) any statutory provision made before, on or after the day
this Part comes into operation; and

(b) any instrument made on or after the day this Part comes
into operation,

but does not affect —

(c) any instrument made before this Part comes into
operation; and

(d) a disposition of property made before this Part comes
into operaton.

Purpose
18D The purpose of this Part is to ensure that the rights of a child are
not affected by the fact that his parents were not married.

ESTABLISHMENT OF PARENTAGE

Declaration of parentage
18E (1) Any person having an interest may apply to the Supreme
Court (in this Part referred to as the "court") for a declaration that a male
person is recognized in law to be the father of a child or that a female
person is the mother of a child.

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(2) Where the court finds that a presumption of paternity exists
under section 18I, the court shall make a declaratory order confirming
that the paternity is recognized in law unless it is established, on the
balance of probabilities, that the presumed father is not the father of the
child.

(3) Where the court finds on the balance of probabilities that
the relationship of mother and child has been established, the court may
make a declaratory order to that effect.

(4) Subject to section 18G, an order made under this section
shall be recognized and have effect for all purposes.

Declaration of paternity where no presumption
18F (1) Where there is no person recognized in law under section
18I to be the father of a child, any person may apply to the court for a
declaration that a male person is his father, or any male person may
apply to the court for a declaration that a person is his child.

(2) An application shall not be made under subsection (1)
unless both the persons whose relationship is sought to be established
are living.

(3) Where the court finds on the balance of probabilities that
the relationship of father and child has been established, the court may
make a declaratory order to that effect and, subject to section 18G, the
order shall be recognized for all purposes.

Reopening issue on new evidence
18G (1) Where a declaration has been made under section 18E or
18F and evidence becomes available that was not available at the
previous hearing, the court may, upon application, discharge or vary the
order and make such other orders or give such directions as the court
considers appropriate.

Admissibility in evidence of acknowledgment against interest
18H A written acknowledgment of parentage that is admitted in
evidence in any civil proceeding against the interest of the person making
the acknowledgment is prima facie proof of the fact.

Presumption of paternity
18I (1) Unless the contrary is proven on a balance of probabilities,
there is a presumption that a male person is, and he shall be recognized
in law to be, the father of a child in any one of the following
circumstances —

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(a) the person is married to the mother of the child at the
time of the birth of the child;

(b) the person was married to the mother of the child by a
marriage that was terminated by death or judgment of
nullity within 300 days before the birth of the child or by
divorce where the divorce was granted within 300 days
before the birth of the child;

(c) the person marries the mother of the child after the birth
of the child and acknowledges that he is the natural
father;

(d) the person was cohabiting with the mother of the child
at the time of the birth of the child or the child is born
within 300 days after they ceased to cohabit;

(e) the person has certified the child's birth as the child's
father under the Registration (Births and Deaths) Act
1949;

(f) the person has been found or recognized in his lifetime
by a court in Bermuda to be the father of the child.

(2) For the purpose of subsection (1), where a man and woman
go through a form of marriage with each other, in good faith, that is void
and cohabit, they shall be deemed to be married during the time they
cohabit and the marriage shall be deemed to be terminated when they
cease to cohabit.

(3) Where circumstances exist that give rise to a presumption
or presumptions of paternity by more than one person under subsection
(1), no presumption shall be made as to paternity and no person is
recognized in law to be the father.

Blood tests
18J (1) Upon the application of a party in a civil proceeding in
which the court is called upon to determine the parentage of a child, the
court may give the party leave to obtain blood tests of such persons as
are named in the order granting leave and to submit the results in
evidence.

(2) Leave under subsection (1) may be given subject to such
terms and conditions as the court thinks proper.

(3) Where leave is given under subsection (1) and a person
named therein refuses to submit to the blood test, the court may draw
such inferences as it thinks appropriate.

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(4) Notwithstanding subsection (3), the court may compel a
person to submit to a blood test where the court considers it necessary to
do so to protect health of a child.

(5) Where a person named in an order granting leave under
subsection (1) is not capable of consenting to having a blood test taken,
the consent shall be deemed to be sufficient —

(a) where the person is a minor of the age of sixteen years or
more, if the minor consents;

(b) where the person is a minor under the age of sixteen
years, if the person having the charge of the minor
consents; and

(c) where the person is without capacity for any reason
other than minority, if the person having his charge
consents and a legally qualified medical practitioner
certifies that the giving of a blood sample would not be
prejudicial to his proper care and treatment.

(6) In this section and section 18K a reference to a blood test
includes a test of any sample of bodily fluid or bodily tissue taken for the
purpose of determining paternity or maternity.

Regulations for blood tests
18K (1) The Minister may make regulations governing blood tests
for which leave is given by a court under section 18J including —

(a) the method of taking blood samples and the handling,
transportation and storage thereof;

(b) the conditions under which a blood sample may be
tested;

(c) designating persons or facilities or classes thereof who
are authorized to conduct blood tests for the purposes of
section 18J;

(d) prescribing procedures respecting the admission of
reports of blood tests in evidence;

(e) prescribing forms for the purpose of section 18J and this
section and providing for their use.

(2) Regulations under subsection (1) shall be subject to the
negative resolution procedure.

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Filing of court decisions respecting parentage
18L (1) The Registrar of the Supreme Court and the clerk of the
magistrates' court shall furnish the Registrar-General with a certified
copy of each order or judgment of the court that confirms or makes a
finding of parentage and the Registrar-General shall file the order or
judgment.

(2) Upon application and upon payment of the fee prescribed
under the Government Fees Act 1965, any person may inspect an order
or judgment filed under subsection (1) and obtain a certified copy thereof
from the Registrar-General.

Amendment of register
18M Nothing in this Act shall be construed to require the Registrar-
General to amend a registration showing parentage other than in
recognition of an order made under section 18E.

RECOGNITION OF OVERSEAS DETERMINATION OF PARENTAGE

Interpretation
18N In sections 18O to 18S —

"overseas declaratory order" means an order in the nature of
a declaration provided for in section 18E but made by a
court outside Bermuda;

"overseas finding of parentage" means a judicial finding of
parentage that is made incidentally in the determination
of another issue by a court outside Bermuda and that is
not an overseas declaratory order.

Recognition of orders made outside Bermuda
18O An overseas declaratory order that was made outside Bermuda
shall be recognized and have the same effect as if made in Bermuda if —

(a) at the time the proceeding was commenced or the order
was made, either parent was domiciled —

(i) in the territorial jurisdiction of the court making the
order, or

(ii) in a territorial jurisdiction in which the order is
recognized;

(b) the court that made the order would have had
jurisdiction to do so under the rules that are applicable
in Bermuda;

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(c) the child was habitually resident in the territorial
jurisdiction of the court making the order at the time the
proceeding was commenced or the order was made; or

(d) the child or either parent had a real and substantial
connection with the territorial jurisdiction in which the
order was made at the time the proceeding was
commenced or the order was made.

Exceptions
18P A court may decline to recognize an overseas declaratory order
and may make a declaratory order under this Act where —

(a) new evidence that was not available at the hearing
becomes available; or

(b) the court is satisfied that the overseas declaratory order
was obtained by fraud or duress.

Filing with Registrar-General
18Q (1) A copy of an overseas declaratory order, certified under the
seal of the court that made it, may be filed in the office of the Registrar-
General but the copy shall be accompanied by —

(a) the opinion of a lawyer in Bermuda that the declaratory
order is entitled to recognition under the law of
Bermuda;

(b) a sworn statement by a lawyer or public official in the
overseas territorial jurisdiction as to the effect of the
declaratory order; and

(c) such translation, verified by affidavit, as the Registrar-
General requires.

(2) Upon the filing of an overseas declaratory order under this
section, the Registrar-General shall amend the register of births
accordingly, but where the overseas declaratory order contradicts
parentage found by an order already filed, the Registrar-General shall
restore the original record and disregard that order and previous orders.

(3) The Registrar-General is not liable for any consequences
resulting from filing under this section material that is apparently
regular on its face.

Findings of parentage outside Bermuda
18R An overseas finding of parentage that is made outside Bermuda
by a court that has jurisdiction to determine the matter in which the

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finding was made as determined by the conflict of laws rules of Bermuda
shall be recognized and have the same effect as if made in Bermuda
under the same circumstances.

Application
18S Sections 18N to 18R apply to overseas declaratory orders and
findings of parentage whether made before or after this Part comes into
force.".

Amendment of section 35 of principal Act
4 Section 35(6) of the principal Act is amended by inserting after
paragraph (f) the following 

"(f.1) under Part IVA (custody jurisdiction and access);".

Insertion of new Parts IVA and IVB in principal Act
5 The principal Act is amended by inserting after Part IV the
following as Parts IVA and IVB: —

"PART IVA
CUSTODY JURISDICTION AND ACCESS

INTERPRETATION

Definitions
36A In this Part —

"overseas order" means an order, or that part of an order of
an overseas tribunal that grants to a person custody of
or access to a child;

"overseas tribunal" means a court or tribunal outside
Bermuda that has jurisdiction to grant to a person
custody of or access to a child;

"parent" in relation to a child, means the father or mother of
the child whether or not they are or have been married
to each other.

Purposes
36B The purposes of this Part are —

(a) to ensure that applications to the court in respect of
custody of, incidents of custody of and access to,
children will be determined on the basis of the welfare of
the children;

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(b) to recognize that the concurrent exercise of jurisdiction
by judicial tribunals of more than one state or territory
in respect of the custody of the same child ought to be
avoided, and to make provision so that the courts of
Bermuda will, unless there are exceptional
circumstances, refrain from exercising or decline
jurisdiction in cases where it is more appropriate for the
matter to be determined by a tribunal having jurisdiction
in another place with which the child has a closer
connection; and

(c) to provide for the more effective enforcement of custody
and access orders and for the recognition and
enforcement of custody and access orders made outside
Bermuda.

CUSTODY AND ACCESS

Persons entitled to custody
36C (1) Except as otherwise ordered by a court, the father and the
mother of a child have parental responsibility for the child, are joint
guardians of the child and are equally entitled to custody of the child.

(2) A person entitled to custody of a child has the rights and
responsibilities of a parent in respect of the person of the child, including
—

(a) the right to care and control of the child;

(b) the right to direct the education and moral and religious
training of the child.

(3) Where more than one person is entitled to custody of a
child, any one of them may exercise the rights and accept the
responsibilities of a parent on behalf of them in respect of the child.

(4) Where the parents of a child live separate and apart and the
child lives with one of them with the consent of the other of them, the
right of the other to exercise the entitlement to custody and the incidents
of custody, but not the entitlement to access, is suspended until a
separation agreement or order otherwise provides.

(5) The entitlement to access to a child includes the right to
make reasonable inquiries and to be given information as to the health,
education and welfare of a child.

(6) The entitlement to custody of or access to a child terminates
on the marriage of the child.

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(7) Any entitlement to custody or access or incidents of custody
under this section is subject to alteration by an order of the court or by
separation agreement.

Application for order
36D (1) A parent of a child or any other person may apply to a court
for an order respecting custody of or access to the child or determining
any aspect of the incidents of custody of or access to the child.

(2) On an application under this section, the court may require
the Director to cause an investigation to be made and to report to the
court on all matters relating to the custody, maintenance and education
of the child.

Assessment
36E (1) The court before which an application is brought in respect
of custody of or access to a child, by order, may appoint a person who
has technical or professional skill to assess and report to the court on
the needs of the child and the ability and willingness of the parties or
any of them to satisfy the needs of the child.

(2) An order may be made under subsection (1) on or before the
hearing of the application in respect of custody of or access to the child
and with or without a request by a party to the application.

(3) The court shall, if possible, appoint a person agreed upon
by the parties, but if the parties do not agree the court shall choose and
appoint the person.

(4) The court shall not appoint a person under subsection (1)
unless the person has consented to make the assessment and to report
to the court within the period of time specified by the court.

(5) In an order under subsection (1), the court may require the
parties, the child and any other person who has been given notice of the
proposed order, or any of them, to attend for assessment by the person
appointed by the order.

(6) Where a person ordered under this section to attend for
assessment refuses to attend or to undergo the assessment, the court
may draw such inferences in respect of the ability and willingness of any
person to satisfy the needs of the child as the court considers
appropriate.

(7) The person appointed under subsection (1) shall file his
report with the registrar or clerk of the court.

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(8) The registrar or clerk of the court shall give a copy of the
report to each of the parties and to counsel, if any, representing the
child.

(9) The report mentioned in subsection (7) is admissible in
evidence in the application.

(10) Any of the parties, and counsel, if any, representing the
child, may require the person appointed under subsection (1) to attend
as a witness at the hearing of the application.

(11) Upon motion, the court by order may give such directions in
respect of the assessment as the court considers appropriate.

(12) The appointment of a person under subsection (1) does not
prevent the parties or counsel representing the child from submitting
other expert evidence as to the needs of the child and the ability and
willingness of the parties or any of them to satisfy the needs of the child.

Powers of court
36F (1) The court to which an application is made under section
36D —

(a) by order may grant the custody of or access to the child
to one or more persons;

(b) by order may determine any aspect of the incidents of
the right to custody or access; and

(c) may make such additional order as the court considers
necessary and proper in the circumstances.

(2) Where the court is satisfied that a parent has failed to
comply with an order granting access to the other parent, the court
may 

(a) impose conditions on the order to ensure that access is
enjoyed;

(b) require the parents to submit to mediation of the
matters in dispute by a children's officer or other person
appointed by the court; or

(c) require that rights of access conferred by the order be
monitored or supervised by a children's officer.

(3) The court may vary an order where there has been a
material change in circumstances that affects or is likely to affect the
welfare of the child or where the court is satisfied that a parent has
abused a right of custody or access conferred by an order.

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Effect of divorce proceedings
36G Where a petition for divorce is presented under the Matrimonial
Causes Act 1974, any application under this Part in respect of custody of
or access to a child that has not been determined is stayed except by
leave of the court.

PROCEDURE

Application
36H (1) An application under this Part may be made in the same
proceeding and in the same manner as a complaint under the
Matrimonial Proceedings (Magistrates' Courts) Act 1974 or in another
proceeding.

(2) An application under this Part may be an original
application or for the variation of an order previously given or to
supersede an order of an overseas tribunal.

(3) The parties to an application under this Part in respect of a
child shall include —

(a) the mother and the father of the child;

(b) a person who has demonstrated a settled intention to
treat the child as a child of his or her family;

(c) a person who had the actual care and upbringing of the
child immediately before the application; and

(d) any other person whose presence as a party is necessary
to determine the matters in issue.

(4) Where, in an application under this Part, it appears to the
court that it is necessary or desirable for the welfare of the child to have
other matters first or simultaneously determined, the court may direct
that the application stand over until such other proceedings are brought
or determined as the court considers appropriate.

Evidence of child
36I (1) In considering an application under this Part, a court where
possible shall take into consideration the views and preferences of the
child to the extent that the child is able to express them.

(2) The court may interview the child to determine the views
and preferences of the child.

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Closed hearings
36J The court may exclude the public from a hearing, or any part
thereof, where, in the opinion of the presiding judge, the desirability of
protecting against the consequences of possible disclosure of intimate
financial or personal matters outweighs the desirability of holding the
hearing in public and the court by order may prohibit the publication of
any matter connected with the application or given in evidence at the
hearing.

Consent orders
36K (1) Upon the consent of the parties in an application under this
Part the court may make any order that the court is otherwise
empowered to make by this Part, subject to the duty of the court to have
regard to the welfare of the child.

(2) Any matter provided for in this Part and in a parental
agreement or separation agreement may be incorporated in an order
made under this Part.

JURISDICTION

Jurisdiction
36L (1) A court shall only exercise its jurisdiction to make an order
for custody of or access to a child where —

(a) the child is habitually resident in Bermuda at the
commencement of the application for the order; or

(b) although the child is not habitually resident in
Bermuda, the court is satisfied —

(i) that the child is physically present in Bermuda at
the commencement of the application for the order,

(ii) that substantial evidence concerning the welfare of
the child is available in Bermuda,

(iii) that no application for custody of or access to the
child is pending before an overseas tribunal in
another place where the child is habitually resident,

(iv) that no overseas order in respect of custody of or
access to the child has been recognized by a court
in Bermuda,

(v) that the child has a real and substantial connection
with Bermuda, and

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(vi) that, on the balance of convenience, it is
appropriate for jurisdiction to be exercised in
Bermuda.

(2) A child is habitually resident in the place where he
resided —

(a) with both parents;

(b) where the parents are living separate and apart, with
one parent under a separation agreement or with the
consent or implied consent of the other or under a court
order; or

(c) with a person other than a parent on a permanent basis
for a significant period of time,

whichever last occurred.

(3) The removal or withholding of a child without the consent of
the person having custody of the child does not alter the habitual
residence of the child unless there has been acquiescence or undue
delay in commencing due process by the person from whom the child is
removed or withheld.

Serious harm to child
36M Notwithstanding sections 36L and 36P, a court may exercise its
jurisdiction to make or to vary an order in respect of the custody of or
access to a child where —

(a) the child is physically present in Bermuda; and

(b) the court is satisfied that the child would, on the balance
of probabilities, suffer serious harm if —

(i) the child remains in the custody of the person
legally entitled to custody of the child,

(ii) the child is returned to the custody of the person
legally entitled to custody of the child, or

(iii) the child is removed from Bermuda.

Declining jurisdiction
36N A court having jurisdiction in respect of custody or access may
decline to exercise its jurisdiction where it is of the opinion that it is more
appropriate for jurisdiction to be exercised outside Bermuda.

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OVERSEAS ORDERS

Interim powers of court
36O Upon application, a court —

(a) that is satisfied that a child has been wrongfully
removed to or is being wrongfully retained in Bermuda;
or

(b) that may not exercise jurisdiction under section 36L or
that has declined jurisdiction under section 36N or 36Q,

may do any one or more of the following —

(c) make such interim order in respect of custody or access
as the court considers is appropriate for the welfare of
the child.

(d) stay the application subject to —

(i) the condition that a party to the application
promptly commence or proceed expeditiously with a
similar proceeding before an overseas tribunal; or

(ii) such other conditions as the court considers
appropriate;

(e) order a party to return the child to such a place as the
court considers appropriate and, in the discretion of the
court, order payment of the cost of the reasonable travel
and other expenses of the child and any parties to or
witnesses at the hearing of the application.

Enforcement of overseas orders
36P (1) Upon application by any person in whose favour an order
for the custody of or access to a child has been made by an overseas
tribunal, a court shall recognize the order unless the court is satisfied
that —

(a) the respondent was not given reasonable notice of the
commencement of the proceeding in which the order was
made;

(b) the respondent was not given an opportunity to be heard
by the overseas tribunal before the order was made;

(c) the law of the place in which the order was made did not
require the tribunal to have regard to the welfare or best
interests of the child;

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(d) the order of the overseas tribunal is contrary to public
policy in Bermuda; or

(e) in accordance with section 36L, the overseas tribunal
would not have jurisdiction if it were a court in
Bermuda.

(2) An order made by an overseas tribunal that is recognized by
a court shall be deemed to be an order of the court and enforceable as
such.

(3) A court presented with conflicting orders made by overseas
tribunals for the custody of or access to a child that, but for the conflict,
would be recognized and enforced by the court under subsection (1),
shall recognize and enforce the order that appears to the court to be
most in accord with the welfare of the child.

(4) A court that has recognized an overseas order may make
such further orders as the court considers necessary to give effect to the
order.

Superseding order, material change in circumstances
36Q (1) Upon application, a court by order may supersede an
overseas order in respect of custody of or access to a child where the
court is satisfied that there has been a material change in circumstances
that affects or is likely to affect the welfare of the child, and —

(a) the child is habitually resident in Bermuda at the
commencement of the application for the order; or

(b) although the child is not habitually resident in
Bermuda, the court is satisfied that —

(i) the child is physically present in Bermuda at the
commencement of the application for the order,

(ii) the child no longer has a real and substantial
connection with the place where the overseas order
was made,

(iii) substantial evidence concerning the welfare of the
child is available in Bermuda,

(iv) the child has a real and substantial connection with
Bermuda, and

(v) on the balance of convenience, it is appropriate for
jurisdiction to be exercised in Bermuda.

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(2) A court may decline to exercise its jurisdiction under this
section where it is of the opinion that it is more appropriate for
jurisdiction to be exercised outside Bermuda.

Superseding order, serious harm
36R Upon application, a court by order may supersede an overseas
order in respect of custody of or access to a child if the court is satisfied
that the child would, on the balance of probability, suffer serious harm if
the child —

(a) remains in the custody of the person legally entitled to
custody of the child;

(b) is returned to the custody of the person entitled to
custody of the child; or

(c) is removed from Bermuda.

ENFORCEMENT

Order restraining harassment
36S Upon application, a court may make an order restraining any
person from molesting, annoying or harassing the applicant or a child in
the lawful custody of the applicant and may require the respondent to
enter into such recognizance, with or without sureties, or to post such
bond as the court considers appropriate.

Order where child unlawfully withheld
36T (1) Where a court is satisfied upon application by a person in
whose favour an order has been made for custody of or access to a child
that there are reasonable and probable grounds for believing that any
person is unlawfully withholding the child from the applicant, the court
by order may authorize the applicant or someone on behalf of the
applicant to apprehend the child for the purpose of giving effect to the
rights of the applicant to custody or access, as the case may be.

(2) Where a court is satisfied upon application that there are
reasonable and probable grounds for believing that —

(a) any person is unlawfully withholding a child from a
person entitled to custody of or access to the child;

(b) a person who is prohibited by court order or separation
agreement from removing a child from Bermuda
proposes to remove the child or have the child removed
from Bermuda; or

CHILDREN AMENDMENT ACT 2002

19

(c) a person who is entitled to access to a child proposes to
remove the child or to have the child removed from
Bermuda and that the child is not likely to return,

the court by order may direct the Provost Marshall General or a police
officer, or both, to locate, apprehend and deliver the child to the person
named in the order.

(3) An order may be made under subsection (2) upon an
application without notice where the court is satisfied that it is necessary
that action be taken without delay.

(4) The Provost Marshall General or police officer directed to act
by an order under subsection (2) shall do all things reasonably able to be
done to locate, apprehend and deliver the child in accordance with the
order.

(5) For the purpose of locating and apprehending a child in
accordance with an order under subsection (2), the Provost Marshall
General or police officer may enter and search any place where he has
reasonable and probable grounds for believing that the child may be with
such assistance and such force as are reasonable in the circumstances.

(6) An entry or a search referred to in subsection (5) shall be
made only between sunrise and sunset unless the court, in the order,
authorizes entry and search at another time.

(7) An order made under subsection (2) expires six months
after the day on which it was made, unless the order specifically provides
otherwise.

(8) An application under subsection (1) or (2) may be made in
an application for custody or access or at any other time.

Application to prevent unlawful removal of child
36U (1) Where a court, upon application, is satisfied upon
reasonable and probable grounds that a person prohibited by court order
or separation agreement from removing a child from Bermuda proposes
to remove the child from Bermuda, the court in order to prevent the
removal of the child from Bermuda may make an order under subsection
(3).

(2) Where a court, upon application, is satisfied upon
reasonable and probable grounds that a person entitled to access to a
child proposes to remove the child from Bermuda and is not likely to
return the child to Bermuda, the court in order to secure the prompt,
safe return of the child to Bermuda may make an order under
subsection (3).

CHILDREN AMENDMENT ACT 2002

20

(3) An order mentioned in subsection (1) or (2) may require a
person to do any one of more of the following —

(a) transfer specific property to a named trustee to be held
subject to the terms and conditions specified in the
order;

(b) where payments have been ordered for the support of
the child, make the payments to a specified trustee
subject to the terms and conditions specified in the
order;

(c) post a bond, with or without sureties, payable to the
applicant in such amount as the court considers
appropriate;

(d) deliver the person's passport, the child's passport and
any other travel documents of either of them that the
court may specify to the court or to an individual or
body specified by the court.

(4) In an order under paragraph (a) of subsection (3), the court
may specify terms and conditions for the return or the disposition of the
property as the court considers appropriate.

(5) A court or an individual or body specified by the court in an
order under paragraph (d) of subsection (3) shall hold a passport or
travel document delivered in accordance with the order in safekeeping in
accordance with any directions set out in the order.

(6) In an order under subsection (3), a court may give such
directions in respect of the safekeeping of the property, payments,
passports or travel documents as the court considers appropriate.

Further evidence
36V (1) Where a court is of the opinion that it is necessary to
receive further evidence from a place outside Bermuda before making a
decision, the court may send to the Attorney-General, Minister of Justice
or similar officer of the place outside Bermuda such supporting material
as may be necessary together with a request —

(a) that the Attorney-General, Minister of Justice or similar
officer take such action as may be necessary in order to
require a named person to attend before the proper
tribunal in that place and produce or give evidence in
respect of the subject-matter of the application; and

CHILDREN AMENDMENT ACT 2002

21

(b) that the Attorney-General, Minister of Justice or similar
officer or the tribunal send to the court a certified copy
of the evidence produced or given before the tribunal.

(2) A court that acts under subsection (1) may assess the cost
of so acting against one or more of the parties to the application or may
deal with such cost as costs in the cause.

Referral to court
36W (1) Where the Attorney-General receives from an overseas
tribunal a request similar to that referred to in section 36V and such
supporting material as may be necessary, it is the duty of the Attorney-
General to refer the request and the material to the proper court.

(2) A court to which a request is referred by the Attorney-
General under subsection (1) shall require the person named in the
request to attend before the court and produce or give evidence in
accordance with the request.

Information as to address
36X (1) Where, upon application to a court, it appears to the court
that for the purpose of —

(a) bringing an application in respect of custody or access;
or

(b) the enforcement of an order for custody or access,

the proposed applicant or person in whose favour the order is made has
need to learn or confirm the whereabouts of the proposed respondent or
person against whom the order referred to in paragraph (b) is made, the
court may order any person or public authority to provide the court with
such particulars of the address of the proposed respondent or person
against whom the order referred to in paragraph (b) is made as are
contained in the records in the custody of the person or public authority,
and the person or public authority shall give the court such particulars
as are contained in the records and the court may then give the
particulars to such person as the court considers appropriate.

(2) The giving of information in accordance with an order under
subsection (1) shall be deemed for all purposes not to be a contravention
of any Act or regulation or any common law rule of confidentially.

Court may take notice of foreign law
36Y For the purposes of an application under this Act, a court may
take notice, without requiring formal proof, of the law of a jurisdiction
outside Bermuda and of a decision of an overseas tribunal.

CHILDREN AMENDMENT ACT 2002

22

APPLICATION TO CHILDREN IN CARE OF DIRECTOR

Application
36Z This Part does not apply in respect of a child who has been
ordered by the court to be committed permanently to the care of the
Director pursuant to Part IV or the enforcement of any equivalent order
made by an overseas tribunal.

PART IVB
SUPPORT OBLIGATIONS

36.1A In this Part

"clerk" means the clerk of the court;

"court" means the Family Court;

"dependant" means a person to whom another has an obligation
to provide support under this Part.

Obligation of parent to support child
36.1B (1) Every parent has an obligation, to the extent the parent is
capable of doing so, to provide support, in accordance with need, for his
or her child who is unmarried and is under the age of eighteen years or,
if eighteen years of age or over, is enrolled in a full-time program of
education or is unable, by reason of illness, disability or other cause, to
withdraw from the charge of his or her parents or to obtain the
necessaries of life.

(2) The obligation under subsection (1) does not extend to a
child who is sixteen years of age or older and has withdrawn from
parental control.

Order for support
36.1C (1) A court may, on application, order a person to provide
support for his or her dependants and determine the amount of support.

(2) An application for an order for the support of a dependant
may be made by the dependant or the dependant's parent.

(3) In making an order under this section in respect of a child
the court shall

(a) recognize that the parents have a joint financial
responsibility to maintain the child; and

(b) apportion that obligation between the parents according
to their relative abilities to contribute to the performance
of their obligations.

CHILDREN AMENDMENT ACT 2002

23

(4) In determining the amount of payments to be made under
an order in respect of a child the court shall consider all the
circumstances of the case including

(a) the mother's and father's current assets and means;

(b) the assets and means that the mother and father are
likely to have in the future;

(c) the mother's capacity to provide support for the child;

(d) the father's capacity to provide support for the child;

(e) the mother's and father's age and physical and mental
health;

(f) the needs of the child;

(g) the measures available for the mother or father to
become able to provide for the support of the child and
the length of time and cost involved to enable the mother
or father to take those measures;

(h) any legal obligation of the mother or father to provide
support for another person;

(i) the desirability of the mother or father remaining at
home to care for the child.

(5) In an application for support under this Part the court may
make a determination of paternity pursuant to Part IIA.

Powers of court
36.1D (1) In an application under section 36.1C, the court may make
an interim or final order

(a) requiring that an amount be paid periodically, whether
annually or otherwise and whether for an indefinite or
limited period, or until the happening of a specified
event;

(b) requiring that a lump sum be paid or held in trust;

(c) requiring that some or all of the money payable under
the order be paid into court or to another appropriate
person or agency for the dependant's benefit;

(d) requiring that support be paid in respect of any period
before the date of the order;

(e) requiring payment of expenses in respect of a child's
prenatal care and birth;

CHILDREN AMENDMENT ACT 2002

24

(f) requiring the securing of payment under the order, by a
charge on property or otherwise.

(2) An order for support binds the estate of the person having
the support obligation unless the order provides otherwise.

(3) In an order made under subsection (1)(a), the court may
provide that the amount payable shall be increased annually on the
order's anniversary date by the indexing factor as defined in subsection
(4).

(4) The indexing factor for a given month is the percentage
change in the Consumer Price Index for Bermuda for prices of all items
since the same month of the previous year, as published by the
Department of Statistics.

Variation of order
36.1E (1) A dependant or respondent named in an order made under
this Part may apply to the court for variation of the order.

(2) If the court is satisfied that there has been a material
change in the dependant's or respondent's circumstances or that
evidence not available on the previous hearing has become available, the
court may discharge, vary or suspend a term of the order, prospectively
or retroactively, relieve the respondent from the payment of part or all
the arrears and make any other order under section 36.1D that the court
considers appropriate in the circumstances.

(3) No application for variation shall be made within six months
after the making of the order for support or the disposition of another
application for variation in respect of the same order, except by leave of
the court.

Financial statement
36.1F (1) In an application under section 36.1C or 36.1E, each party
shall serve on the other and file with the court a financial statement
verified by oath in such form as the court may direct.

Parental agreement for support
36.1G If a man and woman who are not married to each other enter
into an agreement for

(a) the payment of the expenses of a child's prenatal care
and birth;

(b) support for the child; or

(c) funeral expenses for the child or mother,

CHILDREN AMENDMENT ACT 2002

25

on the application of either of them the court may incorporate the
agreement in an order and the order shall have effect as if it were an
order of the court under section 36.1D.

Order for return by employer
36.1H (1) In a application under section 36.1C or 36.1E, the court
may order the employer of a party to the application to make a written
return to the court showing the party's wages or other remuneration
during the preceding tweleve months.

(2) A return purporting to be signed by the employer may be
received in evidence as proof, in the absence of evidence to the contrary,
of its contents.

Order restraining harassment
36.1I (1) On application, a court may make an interim or final order
restraining the respondent from molesting, annoying or harassing the
applicant or children in the applicant's lawful custody, or from
communicating with the applicant or children, except as the order
provides, and may require the respondent to enter into such
recognizance as the court considers appropriate.

(2) A person who contravenes a restraining order is guilty of an
offence and upon summary conviction is liable 

(a) in the case of a first offence, to a fine of not more than
$5,000 or to imprisonment for a term of not more than
three months, or to both; and

(b) in the case of a second or subsequent offence, to a fine
of not more than $10,000 or to imprisonment for a term
of not more than two years, or to both.

(3) A police officer may arrest without warrant a person the
police officer believes on reasonable and probable grounds to have
contravened a restraining order.

Application for custody
36.1J The court may direct that an application for support be deferred
until an application for custody under Part IVA has been determined.

Administration of payments
36.1K (1) Where the court makes an order under this Part it shall
direct that all payments under the order shall be made to the clerk.

CHILDREN AMENDMENT ACT 2002

26

(2) It shall be the duty of the clerk to pay forthwith to the
person entitled thereto the sums directed to be paid under the order or
such part thereof as he receives.

(3) The clerk shall monitor payments directed to be paid and
payments received under an order and shall advise the court when any
payment to be made is 7 days in arrears and the court may issue a
warrant for the payor to be arrested and brought before the court.

(4) Any person who has been ordered under this Part to make a
payment to the clerk and fails, without reasonable excuse, to notify the
clerk of his change of address is guilty of an offence and is liable on
summary conviction to a fine of $1,000.

Enforcement
36.1L Where any person who has been ordered to make a payment
under the Part fails without reasonable cause to comply with the order,
the court may, after giving the person an opportunity to be heard, do one
or more of the following

(a) enforce payment by issuing a warrant for distress and
sale of his goods;

(b) attach any pension income, salary or wages payable to
him or garnishee debts owing to him by a third party;

(c) require him to surrender his passport or other
documents enabling him to travel outside Bermuda;

(d) after having considered all sanctions other than
imprisonment that are reasonable in the circumstances
and after being satisfied that the person has wilfully
refused to make payments under the order, impose a
term of imprisonment.

(2) Where the court imposes a term of imprisonment it shall

(a) in the first instance, imprison him for a period of one
week and impose a requirement that he undergo such
counselling as the court may direct;

(b) in the case of a continuing wilful refusal to make
payments, imprison him for a period of three months.

(3) The court may direct that a term of imprisonment be served
intermittently.

CHILDREN AMENDMENT ACT 2002

27

Saving of other Acts relating to support and maintenance
36.1M Nothing in this Part shall be construed to abrogate or derogate
from the provisions of

(a) Part IV of the Matrimonial Causes Act 1974 in relation to
financial provision for a child of the family;

(b) section 3(1)(g) of the Matrimonial Proceedings
(Magistrates' Courts) Act 1974 in relation to the
maintenance of a child of the family;

(c) section 12(2) of the Minors Act 1950 in relation to the
maintentance of a minor; or

(d) the Maintenance Orders (Recipiocal Enforcement) Act
1974 in relation to the reciprocal enforcement of
maintenance orders in relation to a child.

Repeal of Legitimacy Act 1933
6 The Legitimacy Act 1933 is repealed.

Repeal of Affiliation Act 1976
7 The Affiliation Act 1976 is repealed.

Amendments to other statutory provisions
8 The statutory provisions set out in the Schedule are amended to
the extent set out in that Schedule.

Commencement
9 This Act comes into operation on such day as the Minister
responsible for child and family services may appoint by notice published
in the Gazette.

SCHEDULE (section 8)

AMENDMENTS

1 The Adoption of Children Act 1963 is amended —

(a) in the definition of "relative" in section 1, in paragraph
(a) by deleting "born in lawful wedlock" and by deleting
paragraph (b);

(b) in section 14 —

(i) in subsection (1), by deleting "in lawful wedlock"
where it twice occurs,

CHILDREN AMENDMENT ACT 2002

28

(ii) in the proviso to subsection (1), by deleting "lawful"
where it twice occurs,

(iii) in subsection (2), by deleting "born in lawful
wedlock",

(iv) in subsection (3)(iii), by deleting "born in lawful
wedlock",

(v) in subsection (4), by deleting all the words
preceding "dies" and substituting "Without
prejudice to subsection (2), where the natural
parent of a child";

(c) in section 15(1) and (2), by deleting "who is illegitimate";

(d) in the heading to section 20 by deleting "legitimation
on"

(e) in section 20(1), by deleting "Where any person adopted
by his father or mother alone has subsequently become
a legitimated person on the marriage of his father and
mother" and substitute "Where, subsequent to the
adoption of any person by his father or mother alone, his
father and mother marry each other".

2 The Adoption Rules 1964 are amended —

(a) in the First Schedule —

(i) in Form 6, in item 31 by deleting "(if the infant is
legitimate)" and by deleting item 32,

(ii) by deleting paragraph (5) of Forms 12 and 13;

(b) in paragraph 19 of Form 1 of the First Schedule by
deleting the word "putative";

(c) in the Second Schedule, by deleting paragraph 9.

3 The Bermuda Immigration and Protection Act 1956 is
amended —

(a) in section 16(2)(a), by deleting "legitimate or legitimated";

(b) by deleting sections 16(2)(b) and (2A);

(c) by deleting section 18(4);

(d) by deleting paragraphs (d) and (e) of section 20D(2) and
substituting the following:

"or

CHILDREN AMENDMENT ACT 2002

29

(d) a brother or sister or half-brother or half-sister
born out of wedlock.";

(e) by deleting section 20E(2) and substituting the following:

"(2) In this section "child" means

(a) a child whether born within or outside that
person's marriage;

(b) a step-child born within an earlier marriage
of that person's spouse or former spouse; or

(c) a child who has been adopted by that
person in a manner recognised by law.";

(f) in section 22(1))(d), by deleting "or child born out of
wedlock";

(g) by deleting subsections (7) and (8) of section 31B;

(h) in section 104(c), by deleting "(including in the case of a
woman, her child born out of wedlock)";

(i) by deleting the note to paragraph 2A of the First
Schedule A.

4 The Bermuda Status by Birth or Grant Register Act 1992 is
amended in Part A of the Second Schedule by deleting paragraph (d)(ii) of
both X's case and Y's case and substituting the following:

in X's case —

"(ii) X's natural parents married each other after X's birth;";

and in Y's case —

"(ii) Y's natural parents married each other after Y's birth;"

5 The Court Fees and Expenses Rules 1972 are amended in
paragraph 3 of the First Schedule by deleting "Affiliation Act 1976" and
substituting "Part IVB of the Children Act 1998".

6 The Criminal Code Act 1907 is amended in section 203 by
deleting ", or, in the case of an illegitimate child, is its mother or claimed
to be its father".

7 The Criminal Injuries Compensation Act 1973 is amended in
section 1(1) —

(a) in the definition of "child" by deleting ",illegitimate child";

CHILDREN AMENDMENT ACT 2002

30

(b) in the definition of "relative" by deleting "and, in respect
of an illegitimate victim, includes his or her mother,
father, brother, sister, half-brother or half-sister".

8 The Fatal Injuries (Actions for Damages) Act 1949 is amended —

(a) by deleting section 1(3)(b);

(b) by deleting section 2A(2)(b) and substituting the
following:

"(b) of his parents where the deceased was a minor who
was never married".

9 The Government Fees Regulations 1976 are amended by deleting
Head 33.

10 The Interpretation Act 1951 is amended in section 7(1) by
inserting in the appropriate alphabetical place the following:

"parent" in relation to a child means the biological mother or
father of the child except that where an adoption order
has been made, "parent" means the adopting parent.

11 The Life Insurance Act 1978 is amended in section 8(a) by
deleting "including illegitimate children or grandchildren".

12 The Magistrates Act 1948 is amended by deleting section 27(1)(a)
and substituting the following 

"(a) the payment of sums payable under an order made
under Part IVB of the Children Act 1998;".

13 The Maintenance Orders (Reciprocal Enforcement) Act 1974 is
amended by deleting section 7(3) and substituting the following

"(3) An order which by virtue of this section is enforceable by a
magistrates' court shall be enforceable as if were an order made
under Part IV B of the Children Act 1998.".

14 The Magistrates' Court (Matrimonial Proceedings) Rules 1974 are
amended in Rule 10(2) by deleting —

"The father of an illegitimate child shall not be treated as a
parent of that child for the purpose of subparagraph (b) unless
he has been adjudged by a court to be the father of that child.".

15 The Marriage Act 1944 is amended in the headings of the Third
Schedule by deleting "LEGITIMATE" and "ILLEGITIMATE" and
substituting "BORN INSIDE MARRIAGE" and "BORN OUTSIDE
MARRIAGE" respectively.

16 The Matrimonial Causes Act 1974 is amended —

CHILDREN AMENDMENT ACT 2002

31

(a) in section 1, in the definition of "child" by deleting
"illegitimate or";

(b) in section 44A 

(i) in subsection (1), by deleting "an affiliation order is
enforced under section 17 of the Affiliation Act
1976" and substitute "and order is enforced under
section 36.1L of the Children Act 1998:'

(ii) by deleting subsection (2).

(c) in the heading to section 48 by deleting the words "of
legitimacy etc.";

(d) in section 48(1), by deleting the words "on his legitimacy
or" and "that he is the legitimate child of his parents, or";

(e) by deleting section 48(2).

17 The Matrimonial Proceedings (Magistrates' Courts) Act 1974 is
amended —

(a) in section 1

(i) in the definition of "child" by deleting "illegitimate
or";

(ii) by deleting the definition of "collecting officer" and
substituting the following 

""collecting officer" means the clerk of the court;";

(b) in section 5(6), by deleting the proviso.

(c) in section 13(1), by deleting "section 17 of the Affiliation
Act 1976" and substituting "section 36.1L of the
Children Act 1998";

(d) by deleting section 13(2).

18 The Mental Health Act 1968 is amended in section 8(2) by
deleting ",and an illegitimate person shall be treated as the legitimate
child of his mother".

19 The Merchant Shipping (Official Log Books) Regulations 1991 are
amended in item 32(b)(iv) of the Schedule by deleting "illegitimate" and
substituting "born outside marriage".

20 The Merchant Shipping (Returns of Births and Deaths)
Regulations 1980 are amended in paragraph 3 of the First Schedule by
deleting "illegitimate" and substituting "born outside marriage".

CHILDREN AMENDMENT ACT 2002

32

21 The Ministers and Members of the Legislature (Salaries and
Pensions) Act 1975 is amended in section 1 in the definition of "child" by
deleting ",stepchild and a child born out of wedlock" and substituting
"and a stepchild".

22 The Minors Act 1950 is amended by deleting section 9.

23 The Non-Contentious Probate Rules 1974 are amended by
deleting Rule 20(7).

24 The Public Health Act 1949 is amended in section 108 by
deleting the definition of "parent" and substituting the following

""parent" in relation to a child, includes the person for the time
being having the custody of the child;".

25 The Public Service Superannuation Act 1981 is amended in
section 2(1) in the definition of "child" by deleting ", stepchild and
illegitimate child" and substituting "and stepchild".

26 The Registrar-General (Recording of Documents) Act 1955 is
amended in section 9(7) by deleting the definition of "parent".

27 The Registration (Births and Deaths) Act 1949 is amended —

(a) in section 8 —

(i) in subsection (1)(b), by deleting "illegitimate" and
substituting "born outside marriage";

(ii) in subsection (1)(c), by deleting "an illegitimate
child" and substituting "a child born outside
marriage".

(b) in section 9 —

(i) in the heading, by deleting "illegitimate child" and
substituting "child born outside marriage",

(ii) in subsections (1) and (2), by deleting "an
illegitimate child" and substituting "a child born
outside marriage",

(iii) in subsection (3), by —

(i) deleting "illegitimate",

(ii) deleting "putative" wherever it occurs,

(iv) by adding the following subsection

"(4) Any person who

CHILDREN AMENDMENT ACT 2002

33

(a) is not registered as the father of a child
under this Act; and

(b) claims to be the father of that child,

may apply for a declaration of paternity under Part
IIA of the Children Act 1998.".

(c) in the First Schedule —

(i) in the note to Form B, by deleting "illegitimate" and
substituting "born outside marriage";

(ii) in the notes to Form C and Form D by deleting "an
illegitimate child" and substituting "a child born
outside marriage".

28 The Succession Act 1974 is amended —

(a) in section 1(1) —

(i) by deleting the definition of "child" and substituting
the following —

"child" means any child whether or not his parents
are or were married to each other at any time
relevant for the purposes of this Act;";

(ii) by deleting the definitions of "child born in wedlock"
and "child not born in wedlock".

(b) by deleting sections 11 and 11A;

(c) in section 25, by deleting "the Legitimacy Act 1933",

29 The Wills Act 1988 is amended —

(a) in section 2(2), by deleting "legitimated child" and
substituting "child whose father and mother marry each
other after his birth";

(b) by deleting section 3(c) and substituting 

"(c) the father of the child is identified and is adjudged
by a court having jurisdiction as the father.".