Hinds v Blenman

• Jurisdiction: Barbados
• Judge: Douglas, C.J.,Husbands, J.
• Judgment Date: 30 September 1977
• Docket Number: No. 1 of 1977
• Date: 30 September 1977
• Court: Divisional Court (Barbados)

Divisional Court

Douglas, C.J., Husbands, J.

No. 1 of 1977

Hinds

and

Blenman

A. Shepherd for the appellant.

R.L.M. Clarke for the respondent.

Family Law - Children — Affiliation

Facts: An appeal against an order made by a magistrate adjudging him putative father of a child born to the respondent — The evidence revealed that the parties had a relationship of intimacy for about three years — Corroborative evidence was given by the respondent's mother in regard to the appellant's visits to her house and his familiarity with her daughter — Whether the magistrate erred in applying the civil standard of proof

Held: That since the affiliation proceedings are civil proceedings and not quasi—criminal proceedings the standard of proof is on a balance of probabilities.

JUDGMENT OF THE COURT:

1 This is an appeal from an order made by a Magistrate sitting at District “A” in which the appellant was adjudged to be the putative father of Ron Patrick Blenman, a male illegitimate child born to the respondent on the 1st of June, 1976 and ordered to pay the sum of ten dollars per week for the maintenance of the said child from the 1st of September, 1976 until the child reaches the age of 16 years or sooner dies.

2 The evidence led at the trial shows that the parties were friendly from 1974, that the appellant used to visit the respondent at her home and that intercourse took place there. The respondent realised she was pregnant in September, 1975 and her evidence is that at that time she was not friendly with any man other than the appellant. Corroborative evidence is given by the respondent's mother in regard to the appellant's visits to her house and his familiarity with her daughter.

3 The appellant's evidence is that he and the respondent were friendly from November 1974, that he took her to a few night clubs, that he visited her home and took her to the cinema. He further states that on the 13th of May 1975 he saw the respondent in a car with a man whom he does not know, that they had a quarrel and that the relationship came to an end. Between November 1974 and May 1975 he admits having intercourse with the respondent at her home and in his motor car. His witness Ivan Layne states that the relationship started in early 1974 about May and says that he last saw them together in February, 1975.

4 On these facts the learned Magistrate found as follows:–

“The complainant's evidence which was corroborated by Mrs. Violet Blenman was believed by this Court, and found proved on a balance of probabilities, defendant was adjudged to be the putative father of Ron Blenman.”

5 Mr. Shepherd's submission is that these are quasi-criminal proceedings and that the burden of proof is not as low as the balance of probabilities. Counsel cites Bater v. Bater [1950] 2 All. E.R. 458. In that case the commissioner dismissed a petition for divorce based on cruelty on the ground that the Petitioner had not proved the charges beyond reasonable doubt. Bucknill L.J. and Somervell. L.J. in dismissing the appeal held that the commissioner had not misdirected himself. Denning L.J. (as he then was) concurring in the dismissal of the appeal observed –

“So the phrase “reasonable doubt” gets one no further. It does not say that the degree of probability must be as high as ninety-nine per cent, or as low as fifty-one per cent. The degree required must depend on the mind of the reasonable and just man who is considering the particular subject matter……..If the commissioner had, however, put the case higher and said that the case had to be proved with the same strictness as a crime is proved in a criminal court, then he would, I think have misdirected himself……It would be adopting too high a standard. The divorce court is a civil court, not a criminal court, and it should not adopt the rules and standards of a criminal court.”

6 Counsel also referred to Blyth v. Blyth [1966] 1 All E.R. 524. In that case Lord Denning quoted with approval the language of Dixon,...