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.
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 –
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,[1] 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”
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 of 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 Health and Social
Services 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
|
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, Her Majesty’s High Court of Justice in
England;
(b) in
relation to Scotland, the Court of Session;
(c) in
relation to Northern Ireland, Her Majesty’s High Court of Justice in
Northern Ireland.
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; 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.
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[2] 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
and commencement
(1) This
Law may be cited as the Child Custody (Jurisdiction) (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.