A.S. v R.B.

Judgment Date01 January 1984
Date01 January 1984
Docket Number[1981 No. 8350P]
CourtHigh Court

Evidence admissible to prove paternity - Evidence of wife that child not the child of the marriage - Whether admissible - Rule in Russell v. Russell - Whether part of the common law of Ireland - Whether incompatible with the provisions of the Constitution -Constitutional entitlement to fair procedures -Obligations of the Registrar of Births and Deaths - Constitution of Ireland, 1937, Arts. 34.1, 38.1, 40.3, 50 - Registration of Births and Deaths (Ireland) Act, 1863 (c. 11) - Births and Deaths Registration Act (Ireland), 1880 (c. 13), s. 7 -Guardianship of Infants Act, 1964 (No. 7), ss.6(4), 11(4).

A.S., the first named plaintiff, wife of the first named defendant (W.S.), sought an order declaring that the second named plaintiff (R.B.) with whom she had lived, was the father of a male child born during her marriage to W.S. and for an order directing the name of R.B. be registered by the Registrar General as father of the infant. W.S. elected not to defend the proceedings and the Registrar General sought formal proof of paternity and pleaded the presumption of law that the father of the child was W.S. The proceedings were amended to include a claim for the appointment of the plaintiffs (A.S. and R.B.) as guardians of the infant. The plaintiffs (A.S. and R.B.) and W.S. sought to establish paternity by oral evidence of A.S. relating to non-access at the relevant time and counsel for the Registrar General drew the attention of the court to the Rule in Russell v. RussellELR [1924] A.C. 687 i.e. the rule of law excluding evidence of non-access by husband or wife tending to prove the illegitimacy of the child born during their marriage. Counsel for the plaintiffs contended that this rule never became part of the law of the State or if it did that it was no longer part of the law due to incompatibility with the Constitution and the requirements of public policy. Medical evidence indicated that W.S...

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