Child Custody
(Jurisdiction) (Jersey) Law 2005
A LAW to amend the law relating to
the jurisdiction of the Royal Court to make orders with regard to the custody
of children; to provide for the recognition and enforcement in Jersey of such
orders made in the United Kingdom and for applications to be made for the
recognition and enforcement in the United Kingdom of Jersey orders; to make
provision as to the imposition, effect and enforcement of restrictions on the
removal of children from Jersey or from any part of the United Kingdom; and for
connected purposes.
Commencement [see endnotes]
PART 1
PRELIMINARY
1 Interpretation
(1) In this Law, unless the
context otherwise requires –
“Article 10 order” means an order made by the Court
under Article 10 of the Children (Jersey)
Law 2002, other than an order varying or discharging such an order;
“certified copy” –
(a) in
relation to an order of the Court, means a copy certified by the Greffier to be
a true copy of the order or of the official record of the order;
(b) in
relation to an order of a court in the United Kingdom, has the meaning given by
section 42(1) of the Family Law Act;
“child”, except in Article 19, means a person who
has not attained the age of 18 years;
“child of the family” shall be construed in accordance
with Article 2;
“Court” means the Royal Court;
“Family Law Act” means the Family Law Act 1986 of
the United Kingdom;
“Greffier” means the Judicial Greffier;
“Jersey order” means an Article 10 order, an order
mentioned in Article 5(2) or an existing order within the meaning of paragraph
2(1) of Schedule 5 to the Children (Jersey)
Law 2002;
“matrimonial proceedings” means proceedings for divorce,
nullity of marriage or judicial separation;
“part of the United Kingdom” means England and Wales,
Scotland or Northern Ireland;
“Part I order” means an order to which Part I
of the Family Law Act applies and includes such an order as varied;
“prescribed” means prescribed by Rules of Court;
“relevant date”, in relation to the making or variation
of an order, means –
(a) where
an application is made for an order to be made or varied, the date of the
application (or the first application, if 2 or more applications are determined
together); and
(b) where
no such application is made, the date on which the court is considering whether
to make or vary the order, as the case may be.
(2) References in this Law
to proceedings as continuing shall be construed in accordance with Article 3.
(3) References in this Law
to a provision corresponding to a provision of this Law shall be construed in
accordance with Article 4.
(4) References in this Law to
proceedings in respect of the marriage of the parents of a child shall, in
relation to a child who, although not a child of both parties to the marriage,
is a child of the family of those parties, be construed as a reference to
proceedings in respect of that marriage.
(5) References in this Law
to proceedings in respect of the custody of a child include, in relation to
proceedings outside Jersey and the United Kingdom, references to proceedings
before a tribunal or other authority having power under the law having effect
there to determine questions relating to the custody of children.
2 Meaning
of “child of the family”[1]
In this Law “child of the family” means any child who
has been treated by both parties as a child of their family, except a child
placed (whether before or after the commencement of this Law) with those
parties as foster parents –
(a) in Jersey, by the
Health and Social Services Committee, the Minister for Children and Families or
a voluntary organization;
(b) in England and Wales or
Scotland, by a local authority or voluntary organization; or
(c) in Northern Ireland, by
an authority within the meaning of the Children (Northern Ireland)
Order 1995 or a voluntary organization.
3 Continuing
proceedings
(1) For the purposes of
this Law, matrimonial proceedings (other than proceedings in Scotland) in
respect of the marriage of the parents of a child shall, unless they have been
dismissed, be treated as continuing until the child concerned attains the age
of 18 (whether or not a decree has been granted and whether or not, in the
case of a decree of divorce or nullity of marriage, that decree has been made
absolute).
(2) For the purposes of
this Law, matrimonial proceedings in a court in Scotland which has jurisdiction
in those proceedings to make a part I order with respect to a child shall,
unless they have been dismissed or decree of absolvitor has been granted
therein, be treated as continuing until the child concerned attains the age
of 16.
4 Corresponding
provisions
Any reference in this Law to a provision corresponding to a
provision of this Law specified in column 1 of the following Table shall
be construed, in relation to a part of the United Kingdom, as a reference to
the provision of the Family Law Act specified in column 2, 3 or 4 respectively
of the Table.
|
TABLE
|
|
Provision of this Law
|
Provision of Family Law Act
|
|
England and Wales
|
Scotland
|
Northern Ireland
|
|
Article 7(3)
|
section 2A(4)
|
section 13(6)*
|
section 19A(4)
|
|
Article 8(2)
|
section 5(2)
|
section 14(2)
|
section 22(2)
|
|
Article 9
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section 6
|
section 15
|
section 23
|
|
Article 11
|
section 27(4) and (5)
|
section 27(4) and (5)
|
section 27(4) and (5)
|
|
Article 16
|
section 27(1), (2) and (3)
|
section 27(1), (2) and (3)
|
section 27(1), (2) and (3)
|
|
*Any reference to an
order under section 13(6) of the Family Law Act does not include a
reference to an order made by virtue of section 13(6)(a)(i) of that Act.
|
PART 2
JURISDICTION OF THE ROYAL COURT
5 Jurisdiction
other than in matrimonial proceedings
(1) The Court shall not
have jurisdiction to make an Article 10 order, other than an order to
which Article 7 applies, in any proceedings unless the condition in
Article 6 is satisfied.
(2) The Court shall not
have jurisdiction to make an order (other than a variation or revocation of
such an order) in the exercise of its inherent jurisdiction giving care of a
child to, or providing for the child to have contact with, any person or
providing for a child’s education unless –
(a) the
condition in Article 6 is satisfied; and
(b) the
child concerned is present in Jersey on the relevant date and the court
considers that the immediate exercise of its powers is necessary for the
child’s protection.
6 Habitual
residence or presence of child
(1) The condition referred
to in Article 5 is that on the relevant date the child
concerned –
(a) is
habitually resident in Jersey; or
(b) is
present in Jersey and is not habitually resident there nor in any part of the
United Kingdom,
and, in either case, the jurisdiction of the Court is not excluded
by paragraph (2).
(2) For the purposes of
paragraph (1), the jurisdiction of the Court is excluded if, on the
relevant date, matrimonial proceedings are continuing in a court in any part of
the United Kingdom in respect of the marriage of the parents of the child
concerned.
(3) Paragraph (2)
shall not apply if the court in which the other proceedings are continuing has
made –
(a) an
order under a provision corresponding to Article 7(3); or
(b) an
order under a provision corresponding to Article 8(2) which is recorded as
made for the purpose of enabling proceedings for or relating to an Article 10
order with respect to the child concerned to be taken in Jersey,
and that order is in force.
7 Jurisdiction
in matrimonial proceedings
(1) Subject to paragraph (2),
the Court shall not have jurisdiction to make an Article 10 order in or in
connection with matrimonial proceedings unless those proceedings are
proceedings in respect of the marriage of the parents of the child concerned
and the proceedings –
(a) are
continuing; or
(b) have
been dismissed after the beginning of the hearing but the Article 10 order
is being made forthwith or the application for the order was made on or before
the dismissal.
(2) Where the proceedings
mentioned in paragraph (1) are proceedings for judicial separation and
after the grant of a decree of judicial separation on the relevant date,
proceedings for divorce or nullity in respect of the marriage concerned are
continuing in any part of the United Kingdom, the Court shall not have jurisdiction
to make an Article 10 order unless the court in the other part of the
United Kingdom has made –
(a) an
order under a provision corresponding to paragraph (3); or
(b) an
order under a provision corresponding to Article 8(2) that is recorded as
made for the purpose of enabling proceedings for or relating to an Article 10
order to be taken in Jersey with respect to the child concerned.
(3) Where the
Court –
(a) has
jurisdiction to make an Article 10 order in or in connection with any
matrimonial proceedings; but
(b) considers
that it would be more appropriate for matters relating to the custody of the
child to be determined outside Jersey,
the Court may by order direct that, while the order under this paragraph
is in force, no Article 10 order with respect to the child shall be made
in or in connection with those proceedings.
8 Power
of Court to refuse application or stay proceedings
(1) The Court may refuse an
application for a Jersey order in any case where the matter in question has
already been determined in proceedings outside Jersey.
(2) Where, at any stage of
the proceedings on an application made to the Court for a Jersey order, or for
the variation of such an order, it appears to the Court –
(a) that
proceedings with respect to the matters to which the application relates are
continuing outside Jersey; or
(b) that
it would be more appropriate for those matters to be determined in proceedings
to be taken outside Jersey,
the Court may order a stay of the proceedings on the application.
(3) The Court may order the
removal a stay granted in accordance with paragraph (2) if it appears to
the Court that there has been unreasonable delay in the taking or prosecution
of the other proceedings referred to in that paragraph, or that those
proceedings are stayed, sisted or concluded.
(4) Nothing in this Article
shall affect any power exercisable apart from this Article to refuse an
application or to grant or remove a stay.
9 Duration
and variation of orders
(1) If a Part I order
(or a variation of such an order) comes into force with respect to a child at a
time when a Jersey order has effect with respect to that child, the Jersey
order shall cease to have effect so far as it makes provision for any matter
for which the same or different provision is made by (or by the variation of)
the Part I order.
(2) Where by virtue of
paragraph (1) a Jersey order has ceased to have effect so far as it makes
provision for any matter, the Court shall not have jurisdiction to vary that
order so as to make provision for that matter.
(3) The Court shall not
have jurisdiction to vary a Jersey order if, on the relevant date, matrimonial
proceedings are continuing in any part of the United Kingdom in respect of the
marriage of the parents of the child concerned.
(4) Paragraph (3)
shall not apply –
(a) if
the Jersey order was made in or in connection with matrimonial proceedings in
respect of the marriage of the parents of the child concerned and those
proceedings are continuing and, in the case of proceedings for judicial
separation, the decree of judicial separation has not yet been granted;
(b) if
the court in which the proceedings are continuing has made an order
under –
(i) a provision
corresponding to Article 7(3), or
(ii) an
order under a provision corresponding to Article 8(2) which is recorded as
made for the purpose of enabling proceedings for or relating to a Jersey order
with respect to the child concerned to be taken in Jersey,
and that order is in force; or
(c) in
the case of a variation of an order mentioned in Article 5(2) if the child
concerned is present in Jersey on the relevant date and the Court considers
that the immediate exercise of its powers is necessary for the child’s
protection.
(5) Where –
(a) a
residence order;
(b) an
existing order under which a person is entitled to actual possession of the
child; or
(c) an
order made in the exercise of the Court’s inherent jurisdiction with
respect to children by virtue of which a person has care of a child,
ceases to have effect by virtue of paragraph (1), any family
assistance order made under Article 16 of the Children (Jersey)
Law 2002 with respect to the child shall also cease to have effect.
PART 3
ENFORCEMENT OF ORDERS MADE IN THE UNITED KINGDOM
10 Recognition
of Part I orders
(1) Where a Part I order is
in force with respect to a child who has not attained the age of 16 then,
subject to paragraph (2), the order shall be recognized in Jersey as
having the same effect in Jersey as if it had been made by the Court and as if
the Court had had jurisdiction to make it.
(2) Where a Part I order
includes provision as to the means by which rights conferred by the order are
to be enforced, paragraph (1) shall not apply to that provision.
(3) The Court shall not
enforce an order which is recognized in accordance with paragraph (1)
unless it has been registered in the Court under Article 11 and
proceedings for enforcement are taken in accordance with Article 13.
11 Registration
of Part I order
(1) Where the Greffier
receives a certified copy of a Part I order under a provision
corresponding to Article 16, the Greffier shall forthwith cause the order,
together with particulars of any variation, to be registered in the Court in
the prescribed manner.
(2) An order shall not be
registered under this Article in respect of a child who has attained the age
of 16, and the registration of an order in respect of a child who has not
attained the age of 16 shall cease to have effect on the attainment by the
child of that age.
12 Cancellation
and variation of registration
(1) Where the Greffier
receives notice from a court in any part of the United Kingdom of the
revocation, recall or variation of a Part I order registered in the Court
under Article 11, the Greffier shall –
(a) in
the case of the revocation or recall of the order, cause the registration to be
cancelled; and
(b) in
the case of the variation of the order, cause particulars of the variation to
be registered in the prescribed manner.
(2) Where an order
registered under Article 11 ceases (in whole or in part) to have effect in
the part of the United Kingdom in which it was made, otherwise than because of
its revocation, recall or variation, the Court may, of its own motion or on the
application of any person who appears to the Court to have an interest in the
matter, cancel the registration or, if the order has ceased to have effect in
part, cancel the registration so far as it relates to the provisions which have
ceased to have effect.
13 Enforcement
(1) Where a Part I
order has been registered under Article 11, the Court shall have the same
powers for the purpose of enforcing the order as it would have had if it had
itself made the order and had had jurisdiction to make it, and proceedings for
or with respect to enforcement may be taken accordingly.
(2) Where an application
has been made to the Court for the enforcement of an order registered under
Article 11, the Court may, at any time before the application is
determined, give such interim directions as it thinks fit for the purpose of
securing the welfare of the child concerned or of preventing changes in the
circumstances relevant to the determination of the application.
(3) The reference in
paragraph (1) to a Part I order does not include a reference to any
provision of the order as to the means by which rights conferred by the order
are to be enforced.
14 Staying
of enforcement proceedings
(1) Where in accordance
with Article 13 proceedings are taken in the Court for the enforcement of
an order registered in the Court, any person who appears to the Court to have
an interest in the matter may apply for the proceedings to be stayed on the
grounds that the person has taken or intends to take other proceedings (in
Jersey or elsewhere) as a result of which the order may cease to have effect,
or may have a different effect, in Jersey.
(2) If, after considering
an application under paragraph (1), the Court considers that the
proceedings for enforcement should be stayed in order that other proceedings
may be taken or concluded, it shall stay the proceedings for enforcement
accordingly.
(3) The Court may remove a
stay granted in accordance with paragraph (2) if it appears to the
Court –
(a) that
there has been unreasonable delay in the taking or prosecution of the other
proceedings referred to in that paragraph; or
(b) that
those other proceedings are concluded and that the registered order, or a
relevant part of it, is still in force.
(4) Nothing in this Article
affects any power exercisable apart from this Article to grant or remove a
stay.
15 Dismissal
of enforcement proceedings
(1) Where in accordance
with Article 13 proceedings are taken in the Court for the enforcement of
an order registered in the Court under Article 11, any person who appears
to the Court to have an interest in the matter may apply for those proceedings
to be dismissed on the ground that the order has (in whole or in part) ceased
to have effect in the part of the United Kingdom in which it was made.
(2) If, after considering
an application under paragraph (1), the Court is satisfied that the
registered order has ceased to have effect, it shall dismiss the proceedings
for enforcement or, if it is satisfied that the order has ceased to have effect
in part, it shall dismiss the proceedings so far as they relate to the
enforcement of provisions which have ceased to have effect.
PART 4
REGISTRATION IN UNITED KINGDOM OF JERSEY ORDERS
16 Recognition
of Royal Court order in the United Kingdom
(1) Any person on whom any
rights are conferred by a Jersey order may apply to the Court for the order to
be registered in any part of the United Kingdom under any provision
corresponding to Article 11 and having effect in that part.
(2) An application under
paragraph (1) shall be made in the prescribed manner, contain the
prescribed information and be accompanied by such documents as may be
prescribed.
(3) On receiving an
application under this Article, the Court shall, unless it appears to it that
the order is no longer in force, cause the following documents to be sent to
the appropriate court in the part of the United Kingdom specified in the
application, namely –
(a) a
certified copy of the order; and
(b) where
the order has been varied, prescribed particulars of any variation which is in
force; and
(c) a
copy of the application and of any accompanying documents.
(4) Where the Court revokes
or varies an order which is registered in any part of the United Kingdom under
a provision corresponding to Article 11, the Court shall cause notice of
the revocation or variation to be given in the prescribed manner to the court
in which it is registered.
(5) In this Article “appropriate
court” means –
(a) in
relation to England and Wales, His Majesty’s High Court of Justice in
England;
(b) in
relation to Scotland, the Court of Session;
(c) in
relation to Northern Ireland, His Majesty’s High Court of Justice in
Northern Ireland.[2]
PART 5
MISCELLANEOUS AND SUPPLEMENTAL
17 Power
to order disclosure of child’s whereabouts
(1) Where in proceedings
for or relating to a Jersey order in respect of a child there is not available
to the Court adequate information as to where the child is, the Court may order
any person who it has reason to believe may have relevant information to
disclose it to the Court.
(2) A person shall not be
excused from complying with an order under paragraph (1) by reason that to
do so may incriminate the person or the person’s spouse or civil partner;
but a statement or admission made in compliance with such an order shall not be
admissible in evidence against either of them in proceedings for any offence
other than perjury.[3]
18 Power
to order recovery of child
(1) Where –
(a) a
person is required by a Jersey order, or an order for the enforcement of a Part
I order, to give up a child to another person; and
(b) the
Court is satisfied that the child has not been given up in accordance with the
order,
the Court may make an order authorizing the Viscount or a police
officer to take charge of the child and deliver the child to that other person.
(2) The authority conferred
by an order under paragraph (1) includes authority –
(a) to
enter and search any premises where the person acting in pursuance of the order
has reason to believe the child may be found; and
(b) to
use such force as may be necessary to give effect to the purpose of the order.
(3) This Article is without
prejudice to any power conferred on the Court by or under any other enactment
or rule of law.
19 Effect
of orders restricting removal
(1) This Article applies to
any order made by a court in the United Kingdom prohibiting the removal of a
child from Jersey, the United Kingdom or any part of the United Kingdom.
(2) An order to which this Article
applies shall have effect in Jersey –
(a) as if
it had been made by the Court; and
(b) in
the case of an order which has the effect of prohibiting the child’s
removal to Jersey, as if it had included a prohibition on the child’s
further removal to any place except one to which the child could be removed
consistently with the order.
(3) The references in
paragraphs (1) and (2) to prohibitions on a child’s removal include
references to prohibition subject to exceptions; and in a case where removal is
prohibited except with the consent of the court making the order, nothing in
paragraph (2) shall be construed as enabling the Court to give that
consent.
(4) In this Article
“child” means a person who has not attained the age of 16; and
this Article shall cease to apply to an order once the child attains that age.
20 Surrender
of passports
(1) Where there is in force
an order prohibiting or otherwise restricting the removal of a child from
Jersey, the United Kingdom or any part of the United Kingdom, the Court (where
it made the order or is treated under Article 19 as having made it) may
require any person to surrender any United Kingdom passport which has been
issued to, or contains particulars of, the child.
(2) In this Article
“United Kingdom passport” means a current passport issued by or on
behalf of the Government of the United Kingdom.
21 Duty
to furnish particulars of other proceedings
Parties to proceedings for or relating to a Jersey order shall, to
such extent and in such manner as may be prescribed, give particulars of other
proceedings known to them which relate to the child concerned (including
proceedings instituted abroad and proceedings which are no longer continuing).
22 Habitual
residence after removal without consent
(1) Where a child
who –
(a) has
not attained the age of 16; and
(b) is
habitually resident in Jersey,
becomes habitually resident outside Jersey in consequence of
circumstances of the kind specified in paragraph (2), the child shall be
treated for the purposes of this Law as continuing to be habitually resident in
Jersey for the period of one year beginning with the date on which those
circumstances arise.
(2) The circumstances
referred to in paragraph (1) exist where the child is removed from or
retained outside, or leaves or remains outside, Jersey –
(a) without
the agreement of the person or all the persons having the right to determine
where the child is to reside; or
(b) in
contravention of an order made by the Court or a court in any part of the
United Kingdom.
(3) A child shall cease to
be treated by virtue of paragraph (1) as habitually resident in Jersey if,
during the period there mentioned the child –
(a) attains
the age of 16; or
(b) becomes
habitually resident outside Jersey with the agreement of the person or persons
mentioned in paragraph (2)(a) and not in contravention of any order made
by the Court or a court in any part of the United Kingdom.
23 Application
to Guernsey, Isle of Man, etc.
(1) The States may by
Regulations modify or amend this Law for the purposes of recognizing and enforcing,
as between Jersey and the Bailiwick of Guernsey, the Isle of Man or any British
Overseas Territory as mentioned in Schedule 6 to the British Nationality
Act 1981 of the United Kingdom, Jersey orders or orders corresponding to
such orders.
(2) Regulations under this Article
may contain such consequential, incidental and supplementary provisions as
appear to the States to be necessary or expedient, and in particular may amend
or repeal any enactment other than this Law which appears to the States to be inconsistent
with, or to have become unnecessary or to require modification in consequence
of, the Regulations.
24 Amendment
consequential on changes in United Kingdom legislation
The States may by Regulations amend this Law to take account of any
change in the law of any part of the United Kingdom.
25 Rules
of Court
Rules of Court made under Article 13 of the Royal Court (Jersey)
Law 1948 may make provision for anything that may be prescribed under this
Law or that appears to be necessary or expedient to give effect to this Law.
26 Citation
This Law may be cited as the Child Custody (Jurisdiction) (Jersey)
Law 2005.