Criminal Law (Child
Abduction) (Jersey) Law 2005
A LAW to amend the criminal law
relating to the abduction of children.
Adopted by the
States 5th July 2005
Sanctioned by
Order of Her Majesty in Council 12th October 2005
Registered by the
Royal Court 28th
October 2005
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
1 Interpretation
(1) In
this Law –
“care order”, “guardian”, “parental responsibility” and “residence order” have the same meanings as
in Article 1(1) of the Children Law;
“Children Law” means the Children
(Jersey) Law 2002.[1]
(2) A
person shall be treated under this Law as having custody of a child if there is
in force an order of a Jersey court awarding the person (whether solely or
jointly with another person) custody, legal custody or care and control of the
child.
(3) For
the purposes of this Law a person shall be regarded as –
(a) taking a child, if the person
causes or induces the child to accompany him or her or any other person or
causes the child to be taken;
(b) sending a child, if the
person causes the child to be sent;
(c) detaining a child, if the
person causes the child to be detained or induces the child to remain with him or
her or any other person.
(4) References
in this Law to a child’s parents and to a child whose parents were (or
were not) married to each other at the time of the child’s birth shall be
construed in accordance with Article 1 of the Children Law (which extends
their meaning).
2 Abduction of child by
parent etc.
(1) Subject
to paragraphs (4), (5) and (8), a person connected with a child under the
age of 16 years commits an offence if the person takes or sends the child
out of Jersey without the appropriate consent.
(2) A
person is connected with a child for the purposes of this Article if –
(a) the person is a parent
of the child;
(b) in the case of a child
whose parents were not married to each other at the time of the child’s
birth, there are reasonable grounds for believing that he is the father of the
child;
(c) the person is a
guardian of the child;
(d) the person is a person
in whose favour a residence order is in force with respect to the child; or
(e) the person has custody
of the child.
(3) In
this Article “appropriate consent”, in relation to a child, means –
(a) the consent of each of
the following –
(i) the child’s
mother,
(ii) the child’s
father, if he has parental responsibility for the child,
(iii) any guardian of the
child,
(iv) any person in whose
favour a residence order is in force with respect to the child;
(b) the leave of the court
granted under any provision of Part 2 of the Children Law; or
(c) if any person has
custody of the child, the leave of the court that awarded custody to the
person.
(4) A
person does not commit an offence under this Article by taking or sending a
child out of Jersey without obtaining the appropriate consent if –
(a) the person is a person in
whose favour there is a residence order in force with respect to the child; and
(b) the person takes or
sends the child out of Jersey for a period of less than one month,
unless by so doing the person is in breach of an order under
Part 2 of the Children Law.
(5) A
person does not commit an offence under this Article by doing anything without
the consent of another person whose consent is required under the foregoing
provisions of this Article if –
(a) the
person does it in the belief that the other person –
(i) has consented, or
(ii) would consent if
the person were aware of all the relevant circumstances;
(b) the
person has taken all reasonable steps to communicate with the other person but
has been unable to communicate with that other person; or
(c) the
other person has unreasonably refused to consent.
(6) Paragraph
(5)(c) does not apply if –
(a) the
person who refused to consent is a person –
(i) in whose favour
there is a residence order in force with respect to the child, or
(ii) who has custody
of the child; or
(b) the
person taking or sending the child out of Jersey is, by so acting, in breach of
an order made by a court in Jersey.
(7) Where,
in proceedings for an offence under this Article, there is sufficient evidence
to raise an issue as to the application of paragraph (5), it is for the
prosecution to prove that the paragraph does not apply.
(8) In
the case of a child of a description specified in column 1 of the Schedule –
(a) the reference in paragraph (1)
of this Article to the appropriate consent shall be construed as a reference to
the corresponding leave or consent specified in column 2 of the Schedule;
and
(b) paragraphs (3) to
(7) do not apply.
(9) The
States may by Regulations amend the Schedule.
3 Abduction of child by
other persons
(1) Subject
to the following provisions of this Article, a person commits an offence if,
without lawful authority or excuse, the person takes or detains a child under
the age of 16 years –
(a) so as to remove the
child from the lawful control of any person having lawful control of the child;
or
(b) so as to keep the child
out of the lawful control of any person entitled to lawful control of the
child.
(2) The
offence in paragraph (1) does not apply to –
(a) the child’s
father and mother, where they were married to each other at the time of the
child’s birth;
(b) the child’s
mother, where she was not married to the child’s father at the time of
the child’s birth;
(c) a guardian of the
child;
(d) a person in whose
favour a residence order is in force with respect to the child; or
(e) a person who has
custody of the child.
(3) A
person does not commit an offence under this Article if –
(a) where the father and
mother of the child in question were not married to each other at the time of
the child’s birth –
(i) he is the
child’s father, or
(ii) at the time of
the alleged offence, he believed, on reasonable grounds, that he was the
child’s father; or
(b) at the time of the
alleged offence, the person believed that the child had attained the age of 16.
4 Penalties and
prosecutions
(1) A
person guilty of an offence under this Law shall be liable to imprisonment for
a term of 7 years and to a fine.
(2) No
prosecution for an offence under Article 2 shall be instituted except by
or with the consent of the Attorney General.
5 Amendment
of Children Law
In Article 46(4) of the Children Law after the words
“Article 44” there shall be inserted the words “of this Law
and Article 3 of the Criminal Law (Child Abduction) (Jersey) Law
2005”.
6 Citation and commencement
(1) This
Law may be cited as the Criminal Law (Child Abduction) (Jersey) Law 2005.
(2) This
Law shall come into force on such day as the States may by Act appoint, and
different days may be appointed for different provisions of this Law.
M.N. DE LA HAYE
Greffier of the States.