CHILDREN (JERSEY) LAW
2002
____________
A LAW to reform and consolidate the law relating
to children and for connected purposes; sanctioned by Order of Her Majesty in
Council of the
20th day of NOVEMBER 2002
____________
(Registered on the 13th day of December 2002)
____________
STATES OF JERSEY
____________
The
26th day of February 2002
____________
THE STATES, subject
to the sanction of Her Most Excellent Majesty in Council, have adopted the
following Law -
PART 1
INTRODUCTORY
ARTICLE
1
Interpretation
(1) In this Law, except where the context otherwise requires -
“Article
10 order” means any of the orders mentioned in Article 10(1) and any order
varying or discharging such an order;
“care
order” means an order under Article 24(1)(a) and (except where express
provision to the contrary is made) includes -
(a) an interim care order made under Article
30; and
(b) any order which by or under any enactment
has the effect of, or is deemed to be, a care order for the purposes of this
Law,
and
any reference to a child who is in the care of the Committee is a reference to
a child who is in its care by virtue of a care order;
“chief
officer” and “police officer” have the same meaning as in the Police Force (Jersey) Law 1974;
“child”
means, subject to paragraph 13 of Schedule 1, a person who has not yet attained
the age of majority;
“child
assessment order” means an order under Article 36;
“child
of the family”, in relation to the parties to a marriage, means -
(a) a child of both of those parties;
(b) any other child, not being a child who is
placed with those parties as foster parents by the Committee or a voluntary
organisation, who has been treated by both of those parties as a child of their
family;
“children’s
home” means any home or other institution under the administration of the
Committee for the accommodation, care and maintenance of children;
“Committee”
means the Health and Social Services Committee;
“Committee
foster parent” means a person with whom a child is placed under Article
20(1)(a) who is not a person described in paragraph (2)(a) or (b) of that
Article;
“contact
order” means an order requiring the person with whom a child lives, or is to
live, to allow the child to visit or stay with the person named in the order,
or for that person and the child otherwise to have contact with each other;
“contribution
notice” means a notice served on a contributor under paragraph 7 of Schedule 2;
“contribution
order” means an order under paragraph 8 of Schedule 2;
“contributor”
means a person liable to make contribution to a child’s maintenance under
paragraph 6 of Schedule 2;
“court”
means the Royal Court;
“emergency
protection order” means an order under Article 37;
“excluded
person” means the person in respect of whom an exclusion requirement is
imposed;
“exclusion
requirement” means one or more of the following -
(a) a provision requiring the excluded person
to leave a dwelling house in which he is living with the child in question;
(b) a provision prohibiting the excluded person
from entering a dwelling house in which that child lives; and
(c) a provision excluding the excluded person
from a defined area in which a dwelling house in which the child lives is
situated;
“family
assistance order” means an order under Article 16;
“family
proceedings” means proceedings within the jurisdiction of the Family Division
of the Royal Court
and specified in Rule 3/1(2) of the Royal Court Rules 1992;
“functions”
includes powers and duties;
“guardian”
means a guardian appointed under Article 7 but does not mean a tuteur;
“harm”
has the meaning assigned by Article 24(6) and the question of whether harm is
significant shall be construed in accordance with paragraph (7) of that
Article;
“holiday”
means Good Friday, Christmas Day and any day which is appointed as a public
holiday or bank holiday under Article 2 of the Public Holidays and Bank
Holidays (Jersey) Law 1951;
“hospital” means any institution
for the reception and treatment of persons suffering from any illness, injury
or disability or requiring convalescence or medical rehabilitation and includes
any maternity home;
“ill-treatment”
has the meaning assigned by Article 24(6);
“inquiry
officer” means the person inquiring into the case of a child pursuant to
Article 41(2)(d);
“mental
nursing home”, “nursing home” and “residential care home” have the same meaning
as in Article 3(1) of the Nursing and Residential Homes (Jersey)
Law 1994;
“parent”
includes the father of a child whether or not he was at any time married to the
child’s mother and the biological father of a child where he has been granted
parental responsibility under Article 5(2);
“parental
responsibility” means all the rights, duties, powers, responsibilities and
authority which the father of a legitimate child had in relation to the child
and his property prior to the commencement of Part 1, save that rights in
respect of custody shall not be exclusive;
“parental
responsibility agreement” means an agreement under Article 5(1)(b);
“prescribed”
means prescribed by Rules of Court made under this Law;
“privately
fostered child” has the meaning assigned by Article 58;
“probation
officer” means a délégué appointed
under Article 7 of the “Loi (1937) sur l’atténuation des peines et sur la mise
en liberté surveillée”;
“programme
service” has the same meaning as in section 201 of the Broadcasting Act
1990 (as extended to the Island by the Broadcasting Act 1990 (Jersey)
(No. 2) Order 1991);
“prohibited
steps order” means an order that no step which could have been taken by a
parent in meeting his parental responsibility for a child, and which is of a
kind specified in the order, shall be taken by any person without the consent
of the court;
“recovery
order” means an order under Article 45(1);
“registered
medical practitioner” has the same meaning as in Article 1(1) of the Medical
Practitioners (Registration) (Jersey) Law
1960;
“relative”,
in relation to a child, means a grandparent, brother, sister, uncle or aunt (whether
of the full blood or half blood or by affinity) or step-parent;
“residence
order” means an order settling the arrangements to be made as to the person
with whom a child is to live;
“responsible
person”, in relation to a supervised child means -
(a) any person who has parental responsibility
for the child; and
(b) any other person with whom the child is
still living;
“school”
has the same meaning as in the Education (Jersey)
Law 1999;
“service”,
in relation to any provision made under Part 3, includes any facility;
“signed”,
in relation to any person, includes the making by that person of his mark;
“specific
issue order” means an order giving directions for the purpose of determining a
specific question which has arisen, or which may arise, in connection with any
aspect of parental responsibility for a child;
“supervision
order” means an order under Article 24(1)(b) and (except where express
provision to the contrary is made) includes an interim supervision order made
under Article 30;
“supervised
child” and “supervisor”, in relation to a supervision order, mean respectively
the child who is (or is to be) under supervision and the person under whose
supervision he is (or is to be) by virtue of the order;
“upbringing”,
in relation to any child, includes the care of the child but not his
maintenance;
“voluntary
home” means any home or other institution providing care and accommodation for
children which is carried on by a voluntary organisation but does not
include -
(a) a nursing home, mental nursing home or
residential care home;
(b) a school; or
(c) a hospital;
“voluntary
organisation” means a body the activities of which are carried on otherwise
than for profit.
(2) References in this Law -
(a) to a child whose father and mother were married to each other at
the time of his birth include; and
(b) to a child whose father and mother were not married to each
other at the time of his birth do not include,
a
legitimated child within the meaning of the Legitimacy (Jersey)
Law 1973,
a child who was the subject of an adoption order under Article 2 of the
Adoption (Jersey) Law 1961
or a child otherwise treated in law as legitimate.
(3) References in this Law to -
(a) a person with whom a child lives, or is to live, as the result
of a residence order; or
(b) a person in whose favour a residence order is in force,
shall
be construed as references to the person named in the order as the person with
whom the child is to live.
(4) References in this Law to a child who is looked after by the
Committee are references to a child -
(a) in the care of the Committee; or
(b) provided with accommodation by the Committee for a continuous
period of more than 24 hours in the exercise of its functions under any
enactment.
(5) In determining the “ordinary residence” of a child for the
purposes of this Law, there shall be disregarded any period in which he lives
in any place -
(a) which is a school or institution;
(b) in accordance with the requirements of a supervision order under
this Law; or
(c) while he is being provided with accommodation by or on behalf of
the Committee.
(6) Any notice or other document required under this Law to be
served on any person may be served on him by being delivered personally to him,
or being sent by post to him in a registered letter or by the recorded delivery
service at his proper address.
(7) Any notice or other document required to be served on a body
corporate or a firm shall be duly served if it is served on the secretary or
clerk of that body or a partner of that firm.
(8) For the purpose of this Article and of Article 12 of the
Interpretation (Jersey) Law 1954
in its application to this Article, the proper address of a person -
(a) in the case of a secretary or clerk of a body corporate, shall
be that of the registered or principal office of that body;
(b) in the case of a partner of a firm, shall be that of the
principal office of the firm; and
(c) in any other case, shall be the last known address of the person
to be served.
(9) A reference in this Law to a Part, Article or Schedule by number
only and without further identification is a reference to the Part, Article or
Schedule of that number in this Law.
(10) A reference in an Article, Schedule or other division of this Law
to a Part, paragraph, sub-paragraph or clause by number or letter only, and
without further identification, is a reference to the Part, paragraph,
sub-paragraph or clause of that number or letter in the Article, Schedule or
other division of this Law.
(11) Unless the context otherwise requires, a reference in this Law to
an enactment is a reference to that enactment as amended from time to time, and
includes a reference to that enactment as extended or applied under another
enactment, including another provision of this Law.
ARTICLE
2
Welfare of the child
(1) When the court determines any question with respect to -
(a) the upbringing of a child; or
(b) the administration of a child’s property or the application of
any income arising from it,
the
child’s welfare shall be the court’s paramount consideration.
(2) In any proceedings in which any question with respect to the
upbringing of a child arises, the court shall have regard to the general
principle that any delay in determining the question is likely to prejudice the
welfare of the child.
(3) In the circumstances mentioned in paragraph (4), the court shall
have regard in particular to -
(a) the ascertainable wishes and feelings of the child concerned
(considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which
the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in
relation to whom the court considers the question to be relevant, is of meeting
his needs; and
(g) the range of powers available to the court under this Law in the
proceedings in question.
(4) The circumstances are that -
(a) the court is considering whether to make, vary or discharge an
Article 10 order, and the making, variation or discharge of the order is
opposed by any party to the proceedings; or
(b) the court is considering whether to make, vary or discharge an
order under Part 4.
(5) Where the court is considering whether or not to make one or
more orders under this Law with respect to a child, it shall not make the order
or any of the orders unless it considers that doing so would be better for the
child than making no order at all.
ARTICLE
3
Parental responsibility for children
(1) Where a child’s father and mother were married to each other at
the time of his birth, they shall each have parental responsibility for the
child.
(2) Where a child’s father and mother were not married to each other
at the time of his birth -
(a) the mother shall have parental responsibility for the child; and
(b) the father shall not have responsibility for the child, unless
he acquires it in accordance with the provisions of this Law.
(3) The rules of law that -
(a) where a child is legitimate, his father has sole custody of him;
and
(b) where a child is illegitimate and his mother marries, her husband
(whether or not he is the father) has sole custody of him,
are
abolished.
(4) More than one person may have parental responsibility of the
same child at the same time.
(5) A person who has parental responsibility for a child at any time
shall not cease to have that responsibility solely because some other person
subsequently acquires parental responsibility for that child.
(6) Where more than one person has parental responsibility for a
child, each of them may act alone and without the other (or others) in meeting
that responsibility; but nothing in this Part shall be taken to affect the
operation of any enactment which requires the consent of more than one person
in a matter affecting the child.
(7) The fact that a person has parental responsibility for a child
shall not entitle him to act in any way which would be incompatible with any
order made with respect to the child under this Law.
(8) A person who has parental responsibility for a child may not
surrender or transfer any part of that responsibility to another but may
arrange for some or all of it to be met by one or more persons acting on his
behalf.
(9) The person with whom any such arrangement is made may himself be
a person who already has responsibility for the child concerned.
(10) The making of any such arrangement shall not affect any liability
of the person making it which may arise from any failure to meet any part of
his parental responsibility for the child concerned.
ARTICLE 4
Person
without parental responsibility
(1) The fact that a person has, or does not have, parental
responsibility for a child shall not affect -
(a) any obligation which he may have in relation to the child (such
as a duty to maintain the child); or
(b) any rights which, in the event of the child’s death, he (or any
other person) may have in relation to the child’s property.
(2) A person who -
(a) does not have parental responsibility for a particular child;
but
(b) has care of the child,
may
(subject to the provisions of this Law) do what is reasonable in all the
circumstances of the case for the purpose of safeguarding or promoting the
child’s welfare.
ARTICLE
5
Acquisition of parental responsibility by father
(1) Where a child’s father and mother were not married to each other
at the time of his birth -
(a) the court may, on the application of the father, order that he
shall have parental responsibility for the child; or
(b) the father and mother may by agreement provide for the father to
have parental responsibility for the child.
(2) Where a child is treated in law as legitimate the court may -
(a) on the application of a person claiming to be the child’s
biological father; and
(b) where the court is satisfied he is the child’s biological
father,
order
that he shall have parental responsibility for the child notwithstanding that
he is not in law the child’s father.
(3) No parental responsibility agreement shall have effect for the
purposes of this Law unless -
(a) it is made in the prescribed form; and
(b) where Rules of Court are made prescribing the manner in which
such agreements must be recorded, it is recorded in the prescribed manner.
(4) Subject to Article 13(4), an order under paragraph (1)(a)
or (2) or a parental responsibility agreement may only be brought to an
end by an order of the court made on the application of -
(a) any person who has parental responsibility for the child; or
(b) the child himself.
ARTICLE 6
Disputes as to paternity
If, during any proceedings under
this Law, any dispute arises as to paternity, the court shall have power to
determine it in the same manner as it would have determined a dispute as to
paternity when hearing an action for pension
alimentaire prior to the commencement of Article 82(3).
ARTICLE
7
Appointment of guardians
(1) Where an application with respect to a child is made to the
court by any individual, the court may by order appoint that individual to be
the child’s guardian if -
(a) the child has no parent with parental responsibility for him; or
(b) a residence order has been made with respect to the child in
favour of a parent or guardian of his who has died while the order was in
force.
(2) The power conferred by paragraph (1) may also be exercised in
any family proceedings if the court considers that the order should be made
even though no application has been made for it.
(3) A parent who has parental responsibility for his child may
appoint another individual to be the child’s guardian in the event of his
death.
(4) A guardian of a child may appoint another individual to take his
place as the child’s guardian in the event of his death.
(5) An appointment under paragraph (3) or (4) shall not have effect
unless it is made in writing, is dated and is signed -
(a) by the person making the appointment; or
(b) at the direction of the person making the appointment, in his
presence and in the presence of two witnesses who each attest the signature.
(6) A person appointed as a child’s guardian under this Article
shall have parental responsibility for the child concerned.
(7) Where -
(a) on the death of any person making an appointment under paragraph
(3) or (4), the child concerned has no parent with parental responsibility for
him; or
(b) immediately before the death of any person making such an
appointment, a residence order in his favour was in force with respect to the
child,
the
appointment shall take effect on the death of that person.
(8) Where, on the death of any person making an appointment under
paragraph (3) or (4) -
(a) the child concerned has a parent with parental responsibility
for him; and
(b) paragraph (7)(b) does not apply,
the
appointment shall take effect when the child no longer has a parent who has parental
responsibility for him.
(9) Paragraphs (1) and (7) do not apply if the residence order
referred to in sub-paragraph (b) of those paragraphs was also made in favour of
a surviving parent of the child.
(10) Nothing in this Article shall be taken to prevent an appointment
under paragraph (3) or (4) being made by two or more persons acting jointly.
(11) A guardian of a child may only be appointed in accordance with the
provisions of this Article.
(12) A tuteur appointed by
the court shall be responsible only for the administration of the property of
the child but shall not, solely by reason of his appointment as tuteur, have parental responsibility for
the child.
(13) Nothing in this Article shall prevent the child’s parent or the
person appointed as the child’s guardian being appointed his tuteur.
ARTICLE 8
Guardians: revocation and disclaimer
(1) An appointment under Article 7(3) or (4) revokes an earlier such
appointment (including one made in an unrevoked will or codicil) made by the
same person in respect of the same child, unless it is clear (whether as the
result of an express provision in the later appointment or by any necessary
implication) that the purpose of the later appointment is to appoint an
additional guardian.
(2) An appointment under Article 7(3) or (4) (including one made in
an unrevoked will or codicil) is revoked if the person who made the appointment
revokes it by a written and dated instrument which is signed -
(a) by him; or
(b) at his direction, in his presence and in the presence of two
witnesses who each attest the signature.
(3) An appointment under Article 7(3) or (4) (other than one made in
a will or codicil) is revoked if, with the intention of revoking the appointment,
the person who made it -
(a) destroys the instrument by which it was made; or
(b) has some other person destroy that instrument in his presence.
(4) An appointment under Article 7(3) or (4) (including one made in
a will or codicil) is revoked if the person appointed is the spouse of the
person who made the appointment and either -
(a) the court by order dissolves, or by decree annuls the marriage;
or
(b) the marriage is dissolved and the divorce is entitled to
recognition in the Island by virtue of the
Recognition of Divorces and Legal Separations (Jersey)
Law 1973,
unless a
contrary intention appears by the appointment.
(5) For the avoidance of doubt, an appointment under
Article 7(3) or (4) made in a will or codicil is revoked if the will or
codicil is revoked.
(6) A person who is appointed as a guardian under Article 7(3) or
(4) may disclaim his appointment by an instrument in writing signed by him and
made within a reasonable time of his first knowing that the appointment has
taken effect.
(7) Where Rules of Court are made prescribing the manner in which
such disclaimers must be recorded, no such disclaimer shall have effect unless
it is recorded in the prescribed manner.
(8) Any appointment of a guardian under Article 7 may be brought to
an end at any time by order of the court -
(a) on the application of any person who has parental responsibility
for the child;
(b) on the application of the child concerned; or
(c) in any family proceedings, if the court considers that it should
be brought to an end even though no application has been made.
ARTICLE
9
Welfare reports
(1) In considering any question with respect to a child under this
Law the court may require -
(a) a probation officer who is not the child’s guardian ad litem; or
(b) the Committee to arrange for -
(i) an officer of the Committee, or
(ii) such other person (other than a probation
officer) as the Committee considers appropriate,
to
report to the court, in writing or orally as the court may direct, on such
matters relating to the welfare of that child as are required to be dealt with
in the report.
(2) Regardless of any enactment or rule of law which would otherwise
prevent it from doing so, the court may take account of -
(a) any statement contained in the report; and
(b) any evidence given in respect of the matters referred to in the
report,
in
so far as the statement or evidence is, in the opinion of the court, relevant
to the question which it is considering.
PART 2
ORDERS WITH RESPECT TO
CHILDREN IN FAMILY PROCEEDINGS
ARTICLE
10
Power of court to make certain orders with respect to
children
(1) Subject to Article 11 and the following provisions of this
Article, in any family proceedings in which a question arises with respect to
the welfare of any child, the court may make the following orders with respect
to a child -
(a) a contact order;
(b) a prohibited steps order;
(c) a residence order; or
(d) a specific issue order.
(2) The court may make an Article 10 order -
(a) on the application of any person who -
(i) is entitled to apply for an Article 10
order with respect to the child, or
(ii) has obtained the leave of the court to make
the application; or
(b) if it considers that the order should be made even though no
such application has been made.
(3) The following persons are entitled to apply to the court for any
Article 10 order with respect to a child -
(a) any parent or guardian of the child;
(b) any person in whose favour a residence order is in force with
respect to the child; and
(c) any person falling within such category of persons as may be
prescribed in relation to such type of Article 10 order as may be there
prescribed.
(4) The following persons are entitled to apply for a residence or
contact order with respect to a child -
(a) any party to a marriage (whether or not subsisting) in relation
to whom the child is a child of the family;
(b) any person with whom the child has lived for a period of not
less than 12 out of the 15 months immediately preceding the application;
(c) any person who -
(i) in any case where a residence order is in
force with respect to the child, has the consent of each of the persons in
whose favour the order was made,
(ii) in any case where the child is in the care
of the Committee, has the Committee’s consent, or
(iii) in any other case, has the consent of each
of those (if any) who have parental responsibility for the child.
(5) A person who would not otherwise be entitled (under the previous
provisions of this Article) to apply for the variation or discharge of an
Article 10 order shall be entitled to do so if -
(a) the order was made on his application; or
(b) in the case of a contact order, he is named in the order.
(6) Where the person applying for leave to make an application for
an Article 10 order is not the child concerned, the court shall, in deciding
whether or not to grant leave, have particular regard to -
(a) the nature of the proposed application for the Article 10 order;
(b) the applicant’s connection with the child;
(c) any risk there might be of that proposed application disrupting
the child’s life to such an extent that he would be harmed by it; and
(d) where the child is being looked after by the Committee -
(i) the Committee’s plans for the child’s
future, and
(ii) the wishes and feelings of the child’s
parents.
ARTICLE
11
Restrictions on making Article 10 orders
(1) The court shall not make any Article 10 order, other than a
residence order, with respect to a child who is in the care of the Committee.
(2) The Committee shall not make any application for a residence
order or contact order and the court shall not make such an order in favour of
the Committee.
(3) A person who is, or was at any time within the last six months,
a Committee foster parent of a child may not apply for leave to apply for an
Article 10 order with respect to the child unless -
(a) he has the consent of the Committee;
(b) he is a relative of the child; or
(c) the child has lived with him for at least three years preceding
the application.
(4) The period of three years mentioned in paragraph (3)(c) need not
be continuous but must have begun not more than five years before the making of
the application.
(5) The court shall not exercise its powers to make a specific issue
order or prohibited steps order -
(a) with a view to achieving a result which could be achieved by
making a residence or contact order; or
(b) in any way which is denied to the court (by Article 76) in the exercise
of its inherent jurisdiction with respect to children.
(6) The court shall not make any Article 10 order -
(a) which is to have effect for a period which will end after the
child has reached the age of 16; or
(b) other than one varying or discharging such an order, with
respect to a child who has reached the age of 16,
unless it
is satisfied that the circumstances of the case are exceptional.
ARTICLE
12
General principles and supplementary provisions
(1) In proceedings in which any question of making an
Article 10 order, or any other question with respect to such an order,
arises, the court may (in the light of any Rules of Court made by virtue of
paragraph (2)) -
(a) draw up a timetable with a view to determining the question
without delay; and
(b) give such directions as it considers appropriate for the purpose
of ensuring, so far as is reasonably practicable, that the timetable is adhered
to.
(2) Rules of Court may -
(a) specify periods within which specified steps must be taken in
relation to proceedings in which such questions arise; and
(b) make other provision with respect to such proceedings for the
purpose of ensuring, so far as is reasonably practicable, that such questions
are determined without delay.
(3) Where the court has power to make an Article 10 order, it may do
so at any time during the course of the proceedings in question even though it
is not in a position to dispose finally of those proceedings.
(4) Where a residence order is made in favour of two or more persons
who do not themselves live together, the order may specify the periods during
which the child is to live in the different households concerned.
(5) Where -
(a) a residence order has been made with respect to a child; and
(b) as a result of the order the child lives, or is to live, with
one of two parents who each have responsibility for him,
the
residence order shall cease to have effect if the parents live together for a
continuous period of more than six months.
(6) A contact order which requires the parent with whom a child
lives to allow the child to visit or otherwise have contact with his other
parent shall cease to have effect if the parents live together for a continuous
period of more than six months.
(7) An Article 10 order may -
(a) contain directions about how it is to be carried into effect;
(b) impose conditions which must be complied with by any person -
(i) in whose favour the order is made,
(ii) who is a parent of the child concerned,
(iii) who is not a parent of his but who has
parental responsibility for him, or
(iv) with whom the child is living,
and to whom the
conditions are expressed to apply;
(c) be made to have effect for a specified period, or contain
provisions which are to have effect for a specified period; and
(d) make such incidental, supplemental or consequential provision as
the court thinks fit.
ARTICLE
13
Residence orders and parental responsibility
(1) Where the court makes a residence order in favour of the father
of a child it shall, if the father would not otherwise have parental
responsibility for the child, also make an order under Article 5 giving him
that responsibility.
(2) Where the court makes a residence order in favour of any person
who is not the parent or guardian of the child concerned, that person shall
have parental responsibility for the child while the residence order remains in
force.
(3) Where a person has parental responsibility for a child as a
result of paragraph (2), he shall not have the right -
(a) to consent, or refuse to consent, to the making of an
application with respect to the child under Article 4 of the Adoption (Jersey)
Law 1961;
or
(b) to agree, or refuse to agree, to the making of an adoption
order, or an order under Article 32 of the Adoption (Jersey)
Law 1961
with respect to the child.
(4) Where paragraph (1) requires the court to make an order under
Article 5 in respect of the father of a child, the court shall not bring that
order to an end at any time while the residence order concerned remains in
force.
ARTICLE
14
Change of child’s name or removal from jurisdiction
(1) Where a residence order is in force with respect to a child, no
person may -
(a) cause the child to be known by a new surname; or
(b) remove him from the Island,
without
either the written consent of every person who has parental responsibility for
the child or the leave of the court.
(2) Paragraph (1)(b) does not prevent the removal of a child, for a
period of less than one month, by the person in whose favour the residence
order is made.
(3) In making a residence order with respect to a child the court
may grant the leave required by paragraph (1)(b), either generally or for
specified purposes.
ARTICLE
15
Orders for financial relief with respect to children
The court may make orders for
financial relief with respect to any child in accordance with Schedule 1.
ARTICLE
16
Family assistance orders
(1) Where, in any family proceedings, the court has power to make an
order under this Part with respect to any child, it may (whether or not it
makes such an order) make a family assistance order requiring -
(a) a probation officer to be made available; or
(b) the Committee to make one of its officers available,
to
advise, assist and (where appropriate) befriend any person named in the order.
(2) The persons who may be named in a family assistance order are -
(a) any parent of the child;
(b) any person with whom the child is living or in whose favour a
contact order is in force with respect to the child; or
(c) the child himself.
(3) The court may not make a family assistance order unless -
(a) it is satisfied that the circumstances of the case are
exceptional; and
(b) it has obtained the consent of every person to be named in the
order other than the child.
(4) A family assistance order may direct -
(a) the person named in the order; or
(b) such of the persons named in the order as may be specified in
the order,
to
take such steps as may be so specified with a view to enabling the officer
concerned to be kept informed of the address of any person named in the order
and to be allowed to visit any such person.
(5) Unless it specifies a shorter period, a family assistance order
shall have effect for a period of six months beginning with the day on which it
is made.
(6) Where a family assistance order and an Article 10 order are both
in force with respect to a child the officer concerned may refer to the court
the question whether the Article 10 order should be varied or discharged.
(7) Where a family assistance order requires a probation officer to
be made available, the officer shall be selected in accordance with
arrangements made by the Probation Committee, and if the selected officer is
unable to carry out his duties or dies, another probation officer shall be
selected in the same manner.
PART
3
COMMITTEE SUPPORT FOR
CHILDREN AND FAMILIES
ARTICLE 17
Provision
of accommodation for children: general
(1) The Committee shall provide accommodation for any child in need
who appears to it to require accommodation as a result of -
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether
or not permanently, and for whatever reason) from providing him with suitable
accommodation or care.
(2) Where the Committee provides accommodation under paragraph (1)
for a child who is ordinarily resident outside the Island,
the Committee may arrange with the appropriate authority in the place where the
child ordinarily resides for that authority to take over the provision of
accommodation for the child.
(3) The Committee shall provide accommodation for any child in need
who has reached the age of 16 and whose welfare the Committee considers is
likely to be seriously prejudiced if it does not provide him with
accommodation.
(4) The Committee may provide accommodation for any child in need
regardless of the fact that a person who has parental responsibility for him is
able to provide him with accommodation, if it considers that to do so would
safeguard or promote the child’s welfare.
(5) The Committee may provide accommodation for any person who has
reached the age of 16 but is under 21 in any children’s home which takes
children who have reached the age of 16 if it considers that to do so would
safeguard or promote his welfare.
(6) Before providing accommodation under this Article, the Committee
shall, so far as is reasonably practicable and consistent with the child’s
welfare -
(a) ascertain the child’s wishes regarding the provision of
accommodation; and
(b) give due consideration (having regard to his age and
understanding) to such wishes of the child as it has been able to ascertain.
(7) Notwithstanding the provisions of this Article, the Committee
may not provide accommodation for a child under this Article if it receives an
objection from any person who has parental responsibility for him and is
willing and able to provide or arrange for the provision of accommodation for
him.
(8) Any person who has parental responsibility for a child may at
any time remove the child from accommodation provided by or on behalf of the
Committee under this Article.
(9) Paragraphs (7) and (8) do not apply while any person -
(a) in whose favour a residence order is in force with respect to
the child; or
(b) who has care of the child by virtue of an order made in the
exercise of the court’s inherent jurisdiction with respect to children,
agrees
to the child being looked after in accommodation provided by or on behalf of
the Committee.
(10) Where there is more than one such person as is mentioned in
paragraph (9), all of them must agree.
(11) Paragraphs (7) and (8) do not apply where a child who has reached
the age of 16 agrees to being provided with accommodation under this Article.
ARTICLE
18
Provision of accommodation for children needing
protection
(1) The Committee shall make provision for the reception and
accommodation of children -
(a) who are removed or kept away from home under Part 5; or
(b) who have been taken into police protection and in relation to
whom a request for accommodation has been made under Article 41(2)(e).
(2) Where a child has been removed under Part 5 and he is not
provided with accommodation by the Committee or in a hospital, any reasonable
expenses of accommodating him shall be recoverable from the Committee.
ARTICLE
19
General duty of Committee in relation to children it
looks after
(1) Where the Committee is looking after any child it shall -
(a) safeguard and promote his welfare; and
(b) make such use of services available for children cared for by
their own parents as appears to it to be reasonable in the case of that child.
(2) Before making any decision with respect to a child it is looking
after or proposes to look after, the Committee shall, so far as is reasonably
practicable, ascertain the wishes and feelings of -
(a) the child;
(b) his parents;
(c) any person who is not a parent of his but who has parental
responsibility for him; and
(d) any other person whose feelings and wishes the Committee
considers to be relevant,
regarding
the matter to be decided.
(3) In making any such decision the Committee shall give due
consideration -
(a) to such wishes and feelings as it has been able to ascertain of
-
(i) the child, having regard to his age and
understanding, and
(ii) any other person mentioned in paragraph
(2); and
(b) to the child’s religious persuasion, racial origin and cultural
and linguistic background.
(4) The Committee may exercise its powers with respect to a child
whom it is looking after in a manner which may not be consistent with its
duties if it considers it necessary to do so to protect members of the public from
serious injury.
ARTICLE 20
Provision
of accommodation and maintenance by Committee for children whom it is looking
after
(1) The Committee shall provide accommodation
and maintenance for any child it is looking after -
(a) subject to paragraph (2) and any Regulations made by the States,
by placing him with a family, a relation of his or any other suitable person on
such terms as to payment by the Committee and otherwise as the Committee may
determine;
(b) by maintaining him in a children’s home or voluntary home; or
(c) by making such other arrangements as seem appropriate to it and
which comply with any Regulations made under this Law.
(2) Save as the States may, by Regulations, otherwise provide, the
Committee shall make arrangements with respect to a child it is looking after
to enable him to live with -
(a) his parent or a person with parental responsibility for him;
(b) where he is in care and there was a residence order in force
with respect to him immediately before the care order was made, a person in
whose favour the residence order was made; or
(c) a relative, friend or other person connected with him,
unless
that would not be reasonably practicable or consistent with his welfare.
(3) Schedule 2 shall have effect for the purposes of -
(a) making further provision as to children looked after by the
Committee and in particular as to the Regulations that may be made under
paragraph (1)(a) and (c); and
(b) making provision in connection with contribution towards the
maintenance of children who are being looked after by the Committee.
(4) Where the Committee receives a child into its care under this
Article who is ordinarily resident outside the Island, the Committee may
arrange with the appropriate authority in the place where the child ordinarily
resides for that authority to take over the care of the child and, in such
case, the Committee may make such arrangements with that authority regarding
expenses incurred by the Committee under this Law in respect of the child as it
may think fit.
ARTICLE
21
Advice and assistance for certain children
(1) Where a person to whom this paragraph applies -
(a) appears to the Committee to need advice and to be befriended; or
(b) was not being looked after by the Committee but the Committee is
satisfied that the person by whom he was being looked after does not have the
necessary facilities for advising or befriending him,
and
has asked the Committee for help of a kind which it can give under this
Article, it shall (if he was being looked after by the Committee) and may (in
any other case) advise and befriend him.
(2) Paragraph (1) applies to a person under the age of 21 who was,
at any time between the ages of 16 and 18 -
(a) looked after by the Committee;
(b) accommodated by or on behalf of a voluntary organisation;
(c) accommodated in a hospital, nursing home or in any residential
care home, nursing home or mental nursing home for a consecutive period of at
least three months (whether or not this period began before he reached the age
of 16); or
(d) a privately fostered child.
(3) Where this Article requires or authorizes the Committee to
advise and befriend a person, it may also give him assistance which may be in
kind or, in exceptional circumstances, in cash.
(4) The Committee may give assistance to any person described in
paragraph (2)(a) by -
(a) contributing to expenses incurred by him in living near the
place where he is or will be -
(i) employed or seeking employment, or
(ii) receiving education or training; or
(b) making a grant to enable him to meet expenses connected with his
education or training.
(5) Where the Committee is giving assistance to a person under
paragraph (4) by making a contribution or grant with respect to a course of
education or training, it may -
(a) continue to do so even though he reaches the age of 21 before
completing the course; and
(b) disregard any interruption in his attendance on the course if he
resumes it as soon as is reasonably practicable.
(6) Where a child who is accommodated -
(a) by a voluntary organisation or in a children’s home; or
(b) in any residential care home, nursing home or mental nursing
home, for a consecutive period of at least three months,
ceases
to be so accommodated after reaching the age of 16, the organisation, or person
carrying on the home, which was accommodating him shall inform the Committee.
ARTICLE
22
Use of secure accommodation
(1) Subject to the following provisions of this Article, a child who
is being looked after by the Committee may not be placed, and, if placed, may
not be kept, in accommodation provided for the purpose of restricting liberty
(“secure accommodation”) unless it appears -
(a) that -
(i) he has a history of absconding and is
likely to abscond from any other description of accommodation, and
(ii) if he absconds, he is likely to suffer
significant harm; or
(b) that if he is kept in any other description of accommodation he
is likely to injure himself or other persons.
(2) The Committee may by Order -
(a) specify a maximum period -
(i) beyond which a child may not be kept in
secure accommodation without the authority of the court, and
(ii) for which the court may authorize a child
to be kept in secure accommodation;
(b) empower the court from time to time to authorize a child to be
kept in secure accommodation for such further period as the Order may specify;
and
(c) provide that applications to the court under this Article shall
be made only by the Committee.
(3) The court hearing an application under this Article shall decide
whether the necessary criteria for keeping a child in secure accommodation are
satisfied and if so it shall make an order -
(a) authorizing the child to be so kept; and
(b) specifying the maximum period for which he may be so kept.
(4) On any adjournment of the hearing of an application under this
Article the court may make an interim order permitting the child to be kept in
secure accommodation during the period of the adjournment.
(5) The court shall not excise the powers conferred by this Article
in respect of a child who is not legally represented unless, having been
informed of his right to apply for legal aid and having had the opportunity to
do so, he refused or failed to apply.
(6) The Committee may by Order provide that -
(a) this Article shall or shall not apply to any description of
children specified in the Order;
(b) this Article shall have effect in relation to children of a
description specified in the Order subject to such modifications as may be so
specified;
(c) such other provisions as may be so specified shall have effect
for the purpose of determining whether a child of a description specified in
the Order may be placed or kept in secure accommodation.
(7) The giving of an authorization under this Article shall not
prejudice any power of the court to give directions relating to the child to
whom the authorization relates.
(8) This Article is subject to Article 17(8).
ARTICLE
23
Duties of other Committees not affected
Nothing in this Part shall
affect any duty imposed on any other Committee of the States by or under any
other enactment.
PART 4
CARE AND
SUPERVISION
ARTICLE
24
Care and supervision orders
(1) The court may, on the application of the Committee, make -
(a) a care order placing the child with respect to whom the
application is made in the care of the Committee; or
(b) a supervision order putting him under the supervision of the
Committee or of a probation officer.
(2) The court may only make a care order or supervision order if it
is satisfied -
(a) that the child concerned is suffering, or is likely to suffer,
significant harm; and
(b) that the harm, or likelihood of harm, is attributable to -
(i) the care given to the child, or likely to
be given to him if the order were not made, not being what it would be
reasonable to expect a parent to give him, or
(ii) the child’s being beyond parental control.
(3) The court may not make a care order in respect of a child who
has reached the age of 17 or, if he is married, 16.
(4) An application under this Article may be made on its own or in
any other family proceedings.
(5) The court may -
(a) on an application for a care order, make a supervision order;
and
(b) on an application for a supervision order, make a care order.
(6) In this Article -
“harm” means
ill-treatment or the impairment of health or development;
“development” means
physical, intellectual, emotional, social or behavioural development;
“health” means physical
or mental health; and
“ill-treatment”
includes sexual abuse and forms of ill-treatment which are not physical.
(7) Where the question of whether harm suffered by a child is
significant turns on the child’s health or development, his health or
development shall be compared with that which could be expected of a similar
child.
ARTICLE
25
Time periods
(1) When hearing an application for an order
under this Part the court may, in the light of any Rules made by virtue of
paragraph (2) -
(a) draw up a timetable with a view to disposing of the application
without delay; and
(b) give such directions as it considers appropriate for the purpose
of ensuring, so far as is reasonably practicable, that the timetable is adhered
to.
(2) Rules of Court may -
(a) specify periods within which specified steps must be taken in
relation to such proceedings; and
(b) make other provision with respect to such proceedings for the
purpose of ensuring, so far as is reasonably practicable, that they are disposed
of without delay.
ARTICLE
26
Effect of care order
(1) Where a care order is in force with respect
to a child the Committee shall -
(a) receive him into and keep him in its care;
(b) have parental responsibility for him; and
(c) subject to -
(i) any right, power, responsibility or
authority which a parent or guardian of the child has in relation to the child
and his property by virtue of any other enactment, and
(ii) the following provisions of this Article,
have
the power to determine the extent to which a parent or guardian of the child
may meet his parental responsibility for him.
(2) The Committee may not exercise the power in
paragraph (1)(c) unless it is satisfied that it is necessary to do so in
order to safeguard or promote the child’s welfare.
(3) Nothing in paragraph (1)(c) shall prevent a parent or guardian
of the child who has care of him from doing what is reasonable in all the
circumstances of the case for the purpose of safeguarding or promoting his
welfare.
(4) While a care order is in force the Committee shall not -
(a) cause the child to be brought up in any religious persuasion
other than that in which he would have been brought up if the order had not
been made; or
(b) have the right -
(i) to consent or refuse to consent to the
making of an application with respect to the child under Article 4 of the
Adoption (Jersey) Law 1961,
(ii) to agree or refuse to agree to the making
of an adoption order, or an order under Article 32 of the Adoption (Jersey) Law 1961
with respect to the child, or
(iii) to appoint a guardian for the child.
(5) While a care order is in force with respect to a child, no
person may -
(a) cause the child to be known by a new surname; or
(b) remove him from the Island,
without
the written consent of every person who has parental responsibility for him or
with leave of the court.
(6) Paragraph (5)(b) does not -
(a) prevent the removal of such a child, for the period of less than
one month, by the Committee; or
(b) apply to arrangements for such a child to live outside the Island.
ARTICLE
27
Contact with children in care
(1) Subject to the provisions of this Article, the Committee shall
allow a child in its care reasonable contact with -
(a) his parents;
(b) where there was a residence order in force with respect to the
child immediately before the care order was made, the person in whose favour
the order was made; and
(c) where, immediately before the care order was made, a person had
care of the child by virtue of an order made by a court of competent
jurisdiction with respect to children, that person.
(2) On an application made by the Committee or the child, the court
may make such order as it considers appropriate with respect to the contact
which is to be allowed between the child and the named person.
(3) On an application made by -
(a) any person mentioned in paragraph (1)(a) to (c); or
(b) any person who has obtained the leave of the court to make the
application,
the
court may make such order as it considers appropriate with respect to the
contact which is to be allowed between the child and that person.
(4) On an application made by the Committee or the child, the court
may make an order authorizing the Committee to refuse contact between the child
and any person mentioned in paragraph (1)(a) to (c) and named in the order.
(5) When making a care order with respect to a child, or in family
proceedings in connection with a child who is in the care of the Committee, the
court may make an order under this Article, even though no application for such
an order has been made with respect to the child, if it considers that the
order should be made.
(6) The Committee may, as a matter of urgency, refuse to allow the
contact that would otherwise be required by virtue of paragraph (1) or an
order under this Article for a period of not more than seven days if it is
satisfied that it is necessary to do so in order to safeguard or promote the
child’s welfare.
(7) An order under this Article may impose such conditions as the
court considers appropriate.
(8) The States may by Regulations make provision as to -
(a) the steps to be taken by the Committee where it has exercised
its powers under paragraph (6);
(b) the circumstances in which, and conditions subject to which, the
terms of any order under this Article may be departed from by agreement between
the Committee and the person in relation to whom the order is made; and
(c) notification by the Committee of any variation or suspension of
arrangements made (otherwise than an order under this Article) with a view to
affording any person contact with a child to whom this Article applies.
(9) The court may vary or discharge any order made under this
Article on the application of -
(a) the Committee;
(b) the child concerned; or
(c) the person named in the order.
(10) An order under this Article may be made either at the same time as
the care order itself or later.
(11) Before making a care order with respect to any child the court
shall -
(a) consider the arrangements which the Committee has made, or
proposes to make, for affording any person contact with a child to whom this
Article applies; and
(b) invite the parties to the proceedings to comment on those
arrangements.
ARTICLE
28
Supervision orders
(1) While a supervision order is in force the supervisor shall -
(a) advise, assist and befriend the supervised child;
(b) take such steps as are reasonably necessary to give effect to
the order; and
(c) where the order is not wholly complied with or the supervisor
considers that it may no longer be necessary, consider whether or not to apply
to the court for its variation or discharge.
(2) Schedule 3 makes further provision with respect to supervision
orders.
ARTICLE 29
Powers
of court in certain family proceedings
(1) Where, in any family proceedings in which a
question arises with respect to the welfare of any child, it appears to the
court that it may be appropriate for a care or supervision order to be made
with respect to him, the court may direct the Committee to undertake an
investigation of the child’s circumstances.
(2) Where the court gives a direction under this Article the
Committee shall, when undertaking the investigation, consider whether it should
-
(a) apply for a care order or for a supervision order with respect
to the child;
(b) provide services or assistance for the child or his family; or
(c) take any other action with respect to the child.
(3) Where the Committee undertakes an investigation under this
Article and decides not to apply for a care order or supervision order with
respect to the child concerned, it shall inform the court of -
(a) its reasons for so deciding;
(b) any service or assistance which it has provided, or intends to
provide, for the child and his family; and
(c) any other action which it has taken or proposes to take, with
respect to the child.
(4) The information shall be given to the court before the end of
the period of eight weeks beginning with the date of direction, unless the
court otherwise directs.
ARTICLE
30
Interim care and supervision orders
(1) The court may make an interim care order or an interim
supervision order where, in relation to the child concerned, it -
(a) adjourns any application for a care order or a supervision
order; or
(b) gives a direction under Article 29(1),
provided
that it is satisfied that there are reasonable grounds for believing that the
circumstances with respect to that child are as mentioned in Article 24(2).
(2) Where in any proceedings on an application for a care order or
supervision order the court makes a residence order with respect to the child
concerned, it shall also make an interim supervision order with respect to him
unless it is satisfied that his welfare will be satisfactorily safeguarded
without an interim order being made.
(3) An interim order made under or by virtue of this Article shall
have effect for such period as may be specified in the order, but in any event
shall cease to have effect on whichever of the following events first occurs -
(a) the expiry of the period of eight weeks beginning with the date
on which the order is made;
(b) if the order is the second or subsequent such order made with
respect to the same child in the same proceedings, the expiry of the period of
-
(i) four weeks beginning on the date on which
the order in question is made, or
(ii) the period of eight weeks beginning with
the date on which the first order was made,
whichever is the
later;
(c) in a case which falls within paragraph (1)(a), the disposal
of the application;
(d) in a case which falls within paragraph (1)(b) -
(i) the disposal of the application for a care
order or supervision order made by the Committee with respect to the child, or
(ii) where the court has given a direction under
Article 29(4) but no application for a care order or supervision order has
been made with respect to the child, the expiry of the period fixed by that
direction.
(4) Where the court makes an interim care order or interim
supervision order it may give such directions (if any) as it considers
appropriate with respect to the medical or psychiatric examination or other
assessment of the child having regard to his wishes.
(5) A direction under paragraph (4) may be to the effect that there
is to be no such examination or no such examination unless the court directs
otherwise.
(6) A direction under paragraph (4) may be -
(a) given when the interim order is made or at any time while it is
in force; and
(b) varied at any time on the application of any person falling
within any class of person prescribed for the purposes of this paragraph.
(7) Paragraphs 3 and 4 of Schedule 3 shall not apply in relation to
an interim supervision order.
(8) Where the court makes an order under or by virtue of this
Article it shall, in determining the period for which the order is to be in
force, consider whether any party who was, or might have been, opposed to the
making of the order was in a position to argue his case against the order in
full.
ARTICLE
31
Power to include exclusion requirement in interim care
order
(1) Where -
(a) on being satisfied that there are reasonable grounds for
believing that the circumstances with respect to a child are as mentioned in
Article 24(2)(a) and (b)(i), the court makes an interim care order with respect
to a child; and
(b) the conditions mentioned in paragraph (2) are satisfied,
the
court may include an exclusion requirement in the interim care order.
(2) The conditions are -
(a) that there is reasonable cause to believe that, if the person in
respect of whom the court is considering imposing an exclusion requirement is
excluded from a dwelling house in which the child lives, the child will cease
to suffer, or cease to be likely to suffer, significant harm; and
(b) that another person living in the dwelling house (whether a
parent of the child or some other person) -
(i) is able and willing to give to the child
the care which it would be reasonable to expect a parent to give him, and
(ii) consents to the inclusion of the exclusion
requirement.
(3) The court may provide that the exclusion requirement is to have
effect for a shorter period than the other provisions of the interim care
order.
(4) The court may attach a power of arrest to the exclusion
requirement and may provide for such power to have effect for a shorter period
than the exclusion requirement.
(5) Any period specified for the purposes of paragraph (3)
or (4) may be extended by the court (on one or more occasions) on an
application to vary or discharge the interim care order.
(6) Where a power of arrest is attached to an exclusion requirement
a police officer may arrest without warrant any person whom he has reasonable
cause to believe to be in breach of the requirement.
(7) Article 3(8) of the Powers of Arrest (Injunctions) (Jersey) Law
1998
shall have effect in relation to a person arrested under paragraph (6) of this
Article as it has effect in relation to a person arrested under paragraph (3)
or (4) of that Article.
(8) If, while an interim care order containing an exclusion
requirement is in force, the Committee has removed the child from the dwelling
house from which the excluded person is excluded to other accommodation for a
continuous period of more than 24 hours, the interim care order shall cease to
have effect in so far as it imposes the exclusion requirement.
ARTICLE
32
Undertakings relating to interim care orders
(1) Without prejudice to any other power of the court, in any case
where the court has power to include an exclusion requirement in an interim
care order, it may accept an undertaking from the excluded person.
(2) No power of arrest may be attached to any undertaking given
under paragraph (1).
(3) An undertaking given to the court under paragraph (1) -
(a) shall be enforceable as if it were an order of the court; and
(b) shall cease to have effect if, while it is in force, the
Committee has removed the child from the dwelling house from which the excluded
person is excluded to other accommodation for a continuous period of more than
24 hours.
ARTICLE
33
Discharge and variation of care orders and supervision
orders
(1) A care order may be discharged by the court on the application
of -
(a) any person who has parental responsibility for the child;
(b) the child himself; or
(c) the Committee.
(2) A supervision order may be varied or discharged by the court on
the application of -
(a) any person who has parental responsibility for the child;
(b) the child himself; or
(c) the supervisor.
(3) On the application of a person who is not entitled to apply for
the order to be discharged, but who is a person with whom the child is living,
a supervision order may be varied by the court in so far as it imposes a
requirement which affects that person.
(4) On the application of a person who is not entitled to apply for
the order to be discharged, but who is a person to whom an exclusion
requirement contained in the order applies, an interim care order may be varied
or discharged by the court in so far as it imposes the exclusion requirement.
(5) Where a power of arrest has been attached to an exclusion
requirement of any interim care order, the court may, on the application of any
person entitled to apply for the discharge of the order so far as it imposes
the exclusion requirement, vary or discharge the order in so far as it confers
a power of arrest (whether or not any application has been made to vary or
discharge any other provision of the order).
(6) Where a care order is in force with respect to a child the court
may, on the application of any person entitled to apply for the order to be
discharged, substitute a supervision order for the care order.
(7) When a court is considering whether to substitute one order for
another under paragraph (6), any provision of this Law which would otherwise
require Article 24(2) to be satisfied at the time when the proposed order is
substituted or made shall be disregarded.
ARTICLE
34
Orders pending appeals in care and supervision cases
(1) If when the court dismisses an application for a care order the
child concerned is the subject of an interim care order, the court may make a
care order with respect to the child to have effect subject to such directions
(if any) as the court may see fit to include in the order.
(2) If when the court dismisses an application for a care order or a
supervision order the child concerned is the subject of an interim supervision
order, the court may make a supervision order with respect to the child to have
effect subject to such directions (if any) as the court may see fit to include
in the order.
(3) Where the court grants an application to discharge a care order
or supervision order, it may order that -
(a) its decision is not to have effect; or
(b) the care order or supervision order is to continue to have
effect but subject to such directions as the court sees fit to include in the
order.
(4) An order made under this Article shall only have effect for such
period, not exceeding the appeal period, as may be specified in the order.
(5) Where -
(a) an appeal is made against any decision of the court under this
Article; or
(b) any application is made to the Court of Appeal in connection
with a proposed appeal against that decision,
the
Court of Appeal may extend the period for which the order in question is to
have effect, but not so as to extend it beyond the end of the appeal period.
(6) In this Article “the appeal period” means -
(a) where an appeal is made against the decision in question, the
period between the making of that decision and the determination of the appeal;
and
(b) otherwise, the period during which an appeal may be made against
the decision.
PART 5
PROTECTION
OF CHILDREN
ARTICLE
35
Causing harm to or neglecting children under 16
(1) If any person who has responsibility for a child under the age
of 16 intentionally or recklessly -
(a) causes any harm to that child;
(b) exposes him to a risk of harm; or
(c) neglects him in a manner likely to cause him harm,
he
shall be guilty of an offence and liable to a fine or to imprisonment for a
term not exceeding ten years, or both.
(2) For the purposes of this Article -
(a) a person with responsibility for a child shall be deemed to have
neglected him in a manner likely to cause him harm if he has failed to provide,
or procure the provision of, adequate food, clothing, medical aid or lodging
for him; and
(b) where it is proved that the death of a child under the age of three
years was caused by suffocation (other than as a result of disease or the
presence of a foreign body in that child’s throat or air passages) while that
child was in bed with some other person over the age of 16 years who went to
bed under the influence of intoxicating liquor or drugs, that other person
shall be deemed to have neglected the child in a manner likely to cause him
harm.
(3) A person may be convicted of an offence under this Article
notwithstanding -
(a) that harm or the likelihood of harm was obviated by the action
of another person; or
(b) that the child in question has died.
(4) If, on the trial of any person on a charge of infanticide or
manslaughter of a child under the age of 16 for whom he had responsibility, the
court or the jury as the case may be, is of the opinion that he was not guilty
of the offence charged but was guilty of an offence under this Article, he may
be found guilty of such an offence and shall be liable to be sentenced
accordingly.
(5) Nothing in this Article shall be construed as affecting the
right of any parent, teacher or other person having the lawful control or
charge of a child to administer punishment to him.
(6) For the purposes of this Article -
(a) any person who has parental responsibility for a child or is
otherwise legally liable to maintain him; and
(b) any person who has care of a child,
shall be
presumed to have responsibility for him.
ARTICLE
36
Child assessment orders
(1) The court may, on the application of the Committee, make a child
assessment order authorizing any person carrying out the assessment or any part
of the assessment to do so in accordance with the order, provided that it is
satisfied that -
(a) the Committee has reasonable cause to suspect that the child is
suffering, or is likely to suffer, significant harm;
(b) an assessment of the state of the child’s health or development,
or of the way in which he has been treated, is required to enable the Committee
to determine whether or not the child is suffering, or is likely to suffer,
significant harm; and
(c) it is unlikely that such an assessment will be made, or be
satisfactory, in the absence of an order under this Article.
(2) The court may treat an application under this Article as an
application for an emergency protection order.
(3) The court shall not make a child assessment order if it is
satisfied -
(a) that there are grounds for making an emergency protection order
with respect to the child; and
(b) that it ought to make such an order rather than a child
assessment order.
(4) A child assessment order shall -
(a) specify the date by which the assessment is to begin; and
(b) have effect for such period, not exceeding seven days beginning
with that date, as may be specified in the order.
(5) Where a child assessment order is in force any person who is
able to produce the child to which it relates shall -
(a) produce him to such person as may be named in the order; and
(b) comply with such directions relating to the assessment of the
child as the court thinks fit to specify in the order.
(6) The child may only be kept away from home -
(a) in accordance with directions specified in the order;
(b) if it is necessary for the purposes of the assessment; and
(c) for such period or periods as may be specified in the order.
(7) Where the child is to be kept away from home, the order shall
contain such directions as the court thinks fit with regard to the contact that
he must be allowed to have with other persons while away from home.
(8) The Committee shall take such steps as are reasonably
practicable to ensure that notice of the application is given before the
hearing to -
(a) the child’s parents;
(b) any person who is not a parent of his but who has parental
responsibility for him;
(c) any other person caring for the child;
(d) any person in whose favour a contact order is in force with
respect to the child; and
(e) any person who is allowed to have contact with the child by
virtue of an order under Article 27.
(9) The court may vary or discharge a child assessment order.
ARTICLE 37
Emergency
protection orders
(1) The Bailiff may, on the application of any
person, make an emergency protection order with respect to a child if he is
satisfied that -
(a) there is reasonable cause to believe that the child is likely to
suffer significant harm if -
(i) he is not removed to accommodation
provided by or on behalf of the Committee, or
(ii) he does not remain in the place in which he
is then being accommodated; or
(b) in the case of an application made by the Committee -
(i) enquiries are being made with respect to
the child under Article 42(1)(b), and
(ii) those enquiries are being frustrated by
access to the child being unreasonably refused to an officer of, or other
person authorized to act on behalf of, the Committee and the Committee has
reasonable cause to believe that access to the child is required as a matter of
urgency.
(2) Any person seeking access to a child in connection with
enquiries of a kind mentioned in paragraph (1) and purporting to be a person
authorized to do so shall, on being asked to do so, produce some duly
authenticated document as evidence that he is such a person.
(3) Where an emergency protection order is in force -
(a) any person who can comply with any request to produce the child
to the applicant must do so; and
(b) the applicant may, in order to safeguard the welfare of the
child -
(i) at any time remove him to and keep him at
accommodation provided by him or on his behalf, or
(ii) prevent his being removed from any hospital
or other place in which he was being accommodated immediately before the making
of the order; and
(c) the applicant shall -
(i) have parental responsibility for the child
but shall only take such action in meeting such responsibility as is reasonably
required to safeguard or promote his welfare having regard to the duration of
the order, and
(ii) comply with the requirements of any
Regulations made by the States for the purposes of this Article.
(4) Where the Bailiff makes an emergency protection order he may
give such directions, if any, as he considers appropriate with respect to -
(a) the contact which is, or is not, to be allowed between the child
and any named person and may impose conditions on such contact; and
(b) the medical or psychiatric examination or other assessment of
the child.
(5) A direction under paragraph (4)(b) may be to the effect that
there is to be no such examination or assessment or no such examination or assessment
unless the Bailiff directs otherwise.
(6) A direction under paragraph (4) may be -
(a) given when the emergency protection order is made or at any time
while it is in force; and
(b) varied at any time on the application of any person falling
within any class of person prescribed for the purposes of this paragraph.
(7) Where an emergency protection order is in force with respect to
a child and the applicant has exercised the power given by -
(a) paragraph (3)(b)(i) but it appears to him that it is safe for
the child to be returned; or
(b) paragraph (3)(b)(ii) but it appears to him to be safe for the
child to be allowed to be removed from the place in question,
he
shall return the child or (as the case may be) allow him to be removed.
(8) Where the applicant is required by paragraph (7) to return the
child he shall -
(a) return him to the care of the person from whose care he was
removed; or
(b) if that is not reasonably practicable, return him to the care of
-
(i) a parent of his,
(ii) any person who is not a parent of his but
who has parental responsibility for him, or
(iii) such other person as the Committee, with the
agreement of the Bailiff, considers appropriate.
(9) Where the applicant has been required by paragraph (7) to return
the child, or to allow him to be removed, he may again exercise his powers with
respect to the child (at any time while the emergency protection order remains
in force) if it appears to him that a change in the circumstances of the case
makes it necessary for him to do so.
(10) Where an emergency protection order has been made with respect to
a child, the applicant shall, subject to any direction given under paragraph
(4), allow the child reasonable contact with -
(a) his parents;
(b) any person who is not a parent of his but who has parental
responsibility for him;
(c) any person with whom he was living immediately before the making
of the order;
(d) any person in whose favour a contact order is in force with
respect to him;
(e) any person who is allowed to have contact with the child by
virtue of an order under Article 27; and
(f) any person acting on behalf of any of those persons.
(11) Wherever it is reasonably practicable to do so, an emergency
protection order shall name the child or describe him as clearly as possible.
(12) A person who intentionally obstructs any person exercising the
power under paragraph (3)(b) to remove, or prevent the removal of, a child
shall be guilty of an offence and liable to a fine not exceeding level 3
on the standard scale.
ARTICLE
38
Power to include exclusion requirement in emergency
protection order
(1) Where -
(a) on being satisfied as mentioned in Article 37(1)(a) or (b), the
Bailiff makes an emergency protection order with respect to a child; and
(b) the conditions mentioned in paragraph (2) are satisfied,
the
Bailiff may include an exclusion requirement in the emergency protection order.
(2) The conditions are -
(a) that there is reasonable cause to believe that, if the person in
respect of whom the Bailiff is considering imposing an exclusion requirement is
excluded from a dwelling house in which the child lives, then -
(i) in the case of an order made on the ground
mentioned in Article 37(1)(a), the child will not be likely to suffer
significant harm even though the child is not removed as mentioned in clause
(i) of that sub-paragraph or does not remain as mentioned in clause (ii)
of that sub-paragraph, or
(ii) in the case of an order made on the ground
mentioned in Article 37(1)(b), the enquiries referred to in that paragraph will
cease to be frustrated; and
(b) that another person living in the dwelling house (whether a
parent of the child or some other person) -
(i) is able and willing to give to the child
the care which it would be reasonable to expect a parent to give him, and
(ii) consents to the inclusion of the exclusion
requirement.
(3) The Bailiff may provide that the exclusion requirement is to
have effect for a shorter period than the other provisions of the order.
(4) The Bailiff may attach a power of arrest to the exclusion
requirement and may provide for such power to have effect for a shorter period
than the exclusion requirement.
(5) Any period specified for the purposes of paragraph (3)
or (4) may be extended by the Bailiff (on one or more occasions) on an
application to vary or discharge the emergency protection order.
(6) Where a power of arrest is attached to an exclusion requirement
a police officer may arrest without warrant any person whom he has reasonable
cause to believe to be in breach of the requirement.
(7) Article 3(8) of the Powers of Arrest (Injunctions) (Jersey) Law
1998
shall have effect in relation to a person arrested under paragraph (6) of this
Article as it has effect in relation to a person arrested under paragraph (3)
or (4) of that Article.
(8) If, while an emergency protection order containing an exclusion
requirement is in force, the applicant has removed the child from the dwelling
house from which the excluded person is excluded to other accommodation for a
continuous period of more than 24 hours, the emergency protection order shall
cease to have effect in so far as it imposes the exclusion requirement.
ARTICLE
39
Undertakings relating to emergency protection orders
(1) Without prejudice to any other power of the court, in any case
where the court has power to include an exclusion requirement in an emergency
protection order, it may accept an undertaking from the excluded person.
(2) No power of arrest may be attached to any undertaking given
under paragraph (1).
(3) An undertaking given to the court under paragraph (1) -
(a) shall be enforceable as if it were an order of the court; and
(b) shall cease to have effect if, while it is in force, the
applicant has removed the child from the dwelling house from which the excluded
person is excluded to other accommodation for a continuous period of more than
24 hours.
ARTICLE
40
Duration of emergency protection orders and other
supplemental provisions
(1) An emergency protection order shall have effect for such period,
not exceeding 28 days, as may be specified in the order, but where the order
would, but for the following provisions of this paragraph, cease to have effect
on a day which is a holiday, the order shall have effect until noon on the
first day thereafter which is not a holiday.
(2) Where an emergency protection order is made on an application
under Article 41(5)(a), the period of 28 days mentioned in paragraph (1) shall
begin with the first day on which the child was taken into police protection
under Article 41.
(3) Any person who -
(a) has parental responsibility for a child as the result of an
emergency protection order; and
(b) is entitled to apply for a care order with respect to the child,
may
apply to the Bailiff for the period during which the emergency protection order
is to have effect to be extended.
(4) Regardless of any enactment or rule of law which would otherwise
prevent him from doing so, the Bailiff may, when hearing an application for or
with respect to an emergency protection order, take account of -
(a) any statement contained in any report made to him in the course
of, or in connection with, the hearing; or
(b) any evidence given during the hearing,
which
is, in his opinion, relevant to the application.
(5) An application to discharge an emergency protection order may be
made to the court by -
(a) the child himself;
(b) a parent of his;
(c) any person who is not a parent of his but who has parental
responsibility for him; or
(d) any person with whom he was living before the making of the
order.
(6) On the application of a person who is not entitled to apply for
the order to be discharged, but who is a person to whom an exclusion
requirement contained in the order applies, an emergency protection order may
be varied or discharged by the court in so far as it imposes the exclusion
requirement.
(7) Where a power of arrest has been attached to an exclusion
requirement of an emergency protection order, the court may, on the application
of any person entitled to apply for the discharge of the order so far as it
imposes the exclusion requirement, vary or discharge the order in so far as it
confers a power of arrest (whether or not any application has been made to vary
or discharge any other provision of the order).
(8) No application for the discharge of an emergency protection
order shall be heard by the court before the expiry of the period of 72 hours
beginning with the making of the order.
(9) No appeal may be made against -
(a) the making of, or refusal to make, an emergency protection
order;
(b) the extension of, or refusal to extend, the period during which
such an order is to have effect;
(c) the discharge of, or refusal to discharge, such an order; or
(d) the giving of, or refusal to give, any direction in connection
with such an order.
(10) Paragraph (5) does not apply -
(a) where the person who would otherwise be entitled to apply for
the emergency protection order to be discharged -
(i) was given notice (in accordance with Rules
of Court) of the hearing at which the order was made, and
(ii) was present at the hearing; or
(b) to any emergency protection order the effective period of which
has been extended under paragraph (4).
(11) In making an emergency protection order the Bailiff may direct
that the applicant may, in exercising any powers which he has by virtue of the
order, be accompanied by a registered medical practitioner or such other person
as the Bailiff may direct.
ARTICLE
41
Taking of children into police protection
(1) Where a police officer has reasonable cause
to believe that a child would otherwise be likely to suffer significant harm,
he may take the child into police protection for up to 72 hours by -
(a) removing him to and keeping him in suitable accommodation; or
(b) taking such steps as are reasonable to prevent his removal from
any hospital, or other place, in which he is then being accommodated,
and
he may enter and search any premises in order to do so.
(2) As soon as reasonably practicable after
taking a child into police protection, the police officer concerned shall -
(a) inform the Committee of the steps that have been, and are
proposed to be, taken with respect to the child under this Article and the
reasons for taking them;
(b) inform the child (if he appears capable of understanding) -
(i) of the steps that have been taken with
respect to him under this Article and of the reasons for taking them, and
(ii) of the further steps that may be taken with
respect to him under this Article;
(c) take such steps as are reasonably practicable to discover the
wishes and feelings of the child;
(d) secure that the case is inquired into by a police officer
designated for the purposes of this Article by the Chief Officer, or an officer
of the Committee, or both of them acting jointly (an “inquiry officer”); and
(e) where the child was taken into police protection by being
removed to accommodation which is not provided by the Committee or as a refuge
in compliance with the requirements of Article 46, secure that he is moved to
accommodation which is so provided.
(3) As soon as is reasonably practicable after taking a child into
police protection, the police officer concerned shall take such steps as are
reasonably practicable to inform -
(a) the child’s parents;
(b) every person who is not a parent of his but who has parental
responsibility for him; and
(c) any other person with whom the child was living immediately
before being taken into police protection,
of
the steps that he has taken under this Article with respect to the child, the
reasons for taking them and the further steps that may be taken with respect to
him under this Article.
(4) On completing an inquiry under paragraph (2)(d), the inquiry
officer shall cause the child to be released from police protection unless he
considers that there is still reasonable cause for believing that the child
would be likely to suffer significant harm if released.
(5) While a child is being kept in police protection -
(a) an officer of the Committee may apply on behalf of the Committee
for an emergency protection order;
(b) neither the police officer concerned nor the inquiry officer
shall have parental responsibility for him; and
(c) the inquiry officer shall do what is reasonable in all the
circumstances of the case for the purpose of safeguarding or promoting the
child’s welfare (having regard in particular to the length of the period during
which the child will be so protected).
(6) Where a child has been taken into police
protection -
(a) the child’s parents;
(b) any person who is not a parent of the child but who has parental
responsibility for him;
(c) any person with whom the child was living immediately before he
was taken into police protection;
(d) any person in whose favour a contact order is in force with
respect to the child;
(e) any person who is allowed to have contact with the child by
virtue of an order under Article 27; and
(f) any person acting on behalf of any of those persons,
shall
have such contact (if any) with the child as, in the opinion of the inquiry
officer, is both reasonable and in the child’s best interests.
ARTICLE
42
Committee’s duty to investigate
(1) Where the Committee -
(a) is informed that a child is the subject of an emergency
protection order or is in police protection; or
(b) has reasonable cause to suspect that a child is suffering, or is
likely to suffer, significant harm,
it
shall make, or cause to be made, such enquiries as it considers necessary to
enable it to decide whether it should take any action to safeguard or promote
the child’s welfare.
(2) Where the Committee has obtained an emergency protection order
with respect to a child, it shall make, or cause to be made, such enquiries as
it considers necessary to enable it to decide whether it should take any action
to safeguard or promote the child’s welfare.
(3) The enquiries shall, in particular, be directed towards establishing
-
(a) whether the Committee should make any application to the court,
or exercise any of its other powers under this Law, with respect to the child;
(b) whether, in the case of a child -
(i) with respect to whom an emergency
protection order has been made, and
(ii) who is not in accommodation provided by or
on behalf of the Committee,
it would be in the
child’s best interests (while an emergency protection order remains in force)
for him to be in such accommodation; and
(c) whether, in the case of a child who has been taken into police
protection, it would be in the child’s best interests for an application to be
made under Article 41(5)(a).
(4) Where enquiries are being made under paragraph (1) with respect
to a child, the Committee shall (with a view to enabling it to determine what
action, if any, to take with respect to him) take such steps as are reasonably
practicable -
(a) to obtain access to him; or
(b) to ensure that access to him is obtained, on its behalf, by a
person authorized by it for the purpose,
unless
it is satisfied that it already has sufficient information with respect to him.
(5) Where, in the course of enquiries made under this Article, an
officer of the Committee or any other person authorized by the Committee to act
on its behalf in connection with those enquiries -
(a) is refused access to the child concerned; or
(b) is denied information as to his whereabouts,
the
Committee shall apply for an emergency protection order, a child assessment
order, a care order or supervision order with respect to the child unless it is
satisfied that his welfare can be satisfactorily safeguarded without its doing
so.
(6) If, on conclusion of any enquiries or review made under this
Article, the Committee decides not to apply for any of the orders mentioned in
paragraph (5) it shall -
(a) consider whether it would be appropriate to review the case at a
later date; and
(b) if it decides that it would be so appropriate, determine the
date on which that review is to begin.
(7) Where, as a result of complying with this Article, the Committee
concludes that it should take action to safeguard or promote the child’s
welfare it shall take that action (so far as it is both within its power and
reasonably practicable for it to do so).
(8) Where the Committee is conducting enquiries under this Article,
it shall be the duty of any Committee or Department of the States to assist it
with its enquiries (in particular by providing relevant information and advice)
if called upon by the Committee to do so unless it would be unreasonable to do
so in all the circumstances of the case.
(9) Where the Committee is making enquiries under this Article with
respect to a child who appears to it to be ordinarily resident outside the
Island, it shall consult the appropriate authority for the place where the
child is so resident.
ARTICLE
43
Powers to assist in discovery of children who may be
in need of emergency protection
(1) Where the Bailiff -
(a) makes an emergency protection order; and
(b) considers that adequate information as to the child’s
whereabouts is not available to the applicant but is available to another
person,
he
may include in the order a provision requiring that other person to disclose,
if asked to do so by the applicant, any information that he may have as to the
child’s whereabouts.
(2) No person shall be excused from complying with such a
requirement on the ground that complying might incriminate him or his spouse of
an offence; but a statement or admission made in complying shall not be
admissible in evidence against either of them in proceedings for any offence
other than perjury.
(3) An emergency protection order may authorize such person as is
named in the order to enter premises specified by the order and search for the
child with respect to whom the order is made.
(4) Where the Bailiff is satisfied that there is reasonable cause to
believe that there may be another child on those premises with respect to whom
an emergency protection order ought to be made, he may make an order
authorizing the applicant to search for that other child on those premises and
the applicant shall notify the Bailiff of the result of such search.
(5) Where -
(a) an order has been made under paragraph (4);
(b) the child has been found on the premises; and
(c) the applicant is satisfied that the grounds for making an
emergency protection order exist with respect to him,
the order
shall have effect as if it were an emergency protection order.
(6) A person who intentionally obstructs any person exercising the
power of entry and search under paragraph (3) or (4) shall be guilty of an
offence and liable to a fine not exceeding level 3 on the standard scale.
ARTICLE
44
Abduction of children
A person who, knowingly and
without lawful authority or reasonable excuse -
(a) takes a child who is in care, the subject of an emergency
protection order or in police protection away from the person who for the time
being has care of him by virtue of such order or protection;
(b) keeps such a child away from such person; or
(c) induces, assists or incites such a child to run away or stay
away from such person,
shall
be guilty of an offence and liable to imprisonment for a term not exceeding six
months, or to a fine not exceeding level 4 on the standard scale,20 or both.
ARTICLE 45
Recovery
of abducted children
(1) Where it appears to the court that there is
reason to believe that an offence under Article 44 has been committed or that a
child described in paragraph (a) of that Article has run away or is missing it
may issue a recovery order.
(2) A recovery order -
(a) operates as a direction to any person who is in a position to do
so to produce the child on request to any authorized person;
(b) authorizes the removal of the child by any authorized person;
(c) requires any person who has information as to the child’s
whereabouts to disclose that information, if asked to do so, to any authorized
person; and
(d) where it appears to the court that there are reasonable grounds
for believing the child is on premises specified in the order, authorizes a
police officer to enter such premises and search for the child, using
reasonable force if necessary.
(3) The court may make a recovery order only on the application of -
(a) any person who has parental responsibility for the child by
virtue of a care order or emergency protection order; or
(b) where the child is in police protection, the inquiry officer.
(4) A recovery order shall name the child and -
(a) any person who has parental responsibility for the child by
virtue of a care order or emergency protection order; or
(b) where the child is in police protection, the inquiry officer.
(5) In this Article “an authorized person” means -
(a) any person specified by the court;
(b) any police officer; or
(c) any person who is authorized -
(i) after the recovery order is made, and
(ii) by a person who has parental responsibility
for the child by virtue of a care order or an emergency protection order,
to exercise any power
under a recovery order.
(6) Where a person is authorized as mentioned in
paragraph (5)(c) -
(a) the authorization shall identify the recovery order; and
(b) any person claiming to be so authorized shall, if asked to do
so, produce some duly authenticated document showing that he is so authorized.
(7) A person who intentionally obstructs an authorized person
exercising the power under paragraph (2)(b) to remove a child shall be guilty
of an offence and liable to a fine not exceeding level 3 on the standard scale.
(8) No person shall be excused from complying with any request made
under paragraph (2)(c) on the ground that complying with it might incriminate
him or his spouse of an offence; but a statement or admission made in complying
shall not be admissible in evidence against either of them in proceedings for
an offence other than perjury.
(9) Where a child is made the subject of a recovery order whilst
being looked after by the Committee, any reasonable expenses incurred by an
authorized person in giving effect to the order shall be recoverable from the
Committee.
ARTICLE
46
Refuges for children at risk
(1) Where -
(a) it is proposed to use a voluntary home to provide for a refuge
for children who appear to be at risk of harm; or
(b) the Committee arranges for a foster parent to provide such a
refuge,
the
Committee may issue a certificate under this Article with respect to that home
or that foster parent.
(2) In paragraph (1) “foster parent” means a person who is, or who
from time to time is, a Committee foster parent or a foster parent with whom
children are placed by a voluntary organisation.
(3) The States may by Regulations -
(a) make provision as to the manner in which certificates are
issued;
(b) impose requirements which must be complied with while any
certificate is in force; and
(c) provide for the withdrawal of certificates in such circumstances
as the Regulations may prescribe.
(4) Article 44 shall not apply -
(a) where a certificate is in force with respect to a home, in
relation to any person providing a refuge for any child in that home; and
(b) where a certificate is in force with respect to a foster parent,
in relation to the provision by that foster parent of a refuge for any child in
accordance with arrangements made by the Committee.
ARTICLE
47
Rules of Court
(1) Without prejudice to Article 67 or any other power to make such
Rules, Rules of Court may be made with respect to the procedure to be followed
in connection with proceedings under this Part.
(2) The Rules may in particular make provision -
(a) as to the form in which any application is to be made or
direction is to be given;
(b) prescribing the persons who are to be notified of -
(i) the making, or extension, of an emergency
protection order, or
(ii) the making of an application under Article
40(3) or (6) or Article 41(5)(a); and
(c) as to the content of any such notification and the manner in
which, and person by whom, it is to be given.
PART 6
EMPLOYMENT
OF CHILDREN
ARTICLE
48
Restrictions on employment of children
(1) The Committee may make Orders with respect generally to the
employment of children, and any such Order may distinguish between children of
different ages and sexes and between different trades, occupations and
circumstances.
(2) If it appears to the Committee that any child is being employed
in such a manner as to be prejudicial to his health or otherwise to render him
unfit to obtain the full benefit of any education provided for him, the
Committee may give notice in writing to the employer prohibiting him from
employing the child or imposing such restrictions on the employment of the
child as appear to the Committee to be expedient in the interests of the child.
(3) The Committee may serve notice in writing on the employer of, or
the parent or guardian of, any child, requiring such person to provide the
Committee, within such period as may be specified in the notice, with such
information as appears to the Committee to be necessary to ascertain whether
the child is being employed in such a manner as to render him unfit to obtain
the full benefit of the education provided for him.
(4) An employer aggrieved by a notice served on him under paragraph
(2) or the child to whom such notice relates, may appeal to the court within 15
days of such service, on the ground that the decision is unreasonable having
regard to all the circumstances of the case, and the requirements of the notice
shall not be effective until the 15-day period has elapsed or, where an appeal
is brought, until its determination.
(5) For the purposes of this Part and any Order made thereunder, a
person who assists in a trade or occupation carried on for profit shall be
regarded as being employed notwithstanding he receives no reward for his
labour.
(6) In this Part -
“employment” includes employment as a
hawker within the meaning of the Hawkers and Non-Resident Traders (Jersey) Law 1965;
and
“guardian”, in relation to a child,
includes a person who has for the time being the care of the child.
ARTICLE 49
Offences
in connection with employment of children
(1) Subject to paragraphs (2) and (3), if a
child is employed in contravention of Article 48 or any Order made thereunder,
the employer and any person (other than the child) to whose act or default the
contravention is attributable shall be guilty of an offence and liable to a
fine not exceeding level 3 on the standard scale.
(2) If proceedings are brought under this Article against the
employer, on giving the prosecution not less than three days’ notice of his
intention, he shall be entitled to have any person (other than the child) to
whose act or default he alleges that the contravention was due, brought before
the court as a party to the proceedings.
(3) If, after the contravention has been proved, the employer proves
that the contravention was due to the act or default of the person made a party
to the proceedings under paragraph (2), that person may be convicted of the
offence, and if the employer further proves that he used all due diligence to
secure that the provisions in question should be complied with, he shall be
acquitted of the offence.
(4) Where an employer seeks to avail himself of paragraphs (2) and
(3) -
(a) the prosecution shall have the right to cross-examine him (if he
gives evidence) and any witness called by him in support of his allegations,
and to call rebutting evidence; and
(b) the court may make such order as it thinks fit for the payment
of costs by any party to the proceedings to any such other party.
(5) If a person fails to comply with the requirements of a notice
served on him under Article 48(3), he shall be guilty of an offence and liable
to a fine not exceeding level 2 on the standard scale.
ARTICLE
50
Restrictions on children taking part in performances
(1) Subject to the provisions of this Article, a child under the age
of 16 years shall not take part in a performance to which this Article applies
except under the authority of a licence granted by the Committee.
(2) This Article applies to -
(a) any performance in connection with which a charge is made
(whether for admission or otherwise);
(b) any performance in licensed premises within the meaning of the
Licensing (Jersey) Law 1974;
(c) any broadcast or television performance;
(d) any performance not falling within sub-paragraph (c) but
included in a programme service; and
(e) any performance recorded (by whatever means) with a view to its
use in a broadcast, a programme service or in a film intended for public
exhibition,
and
a child shall be treated for the purposes of this Article as taking part in a
performance if he takes the place of a performer in any rehearsal or in any
preparation for the recording of the performance.
(3) A licence under this Article shall not be required for any child
to take part in a performance to which this Article applies if -
(a) in the six months preceding the performance he has not taken
part in other performances to which this Article applies on more than three
days; or
(b) the performance is given under arrangements made by a school or
by a body of persons approved for the purposes of this Article by the
Committee, and no payment in respect of the child’s taking part in the
performance is made, whether to him or to any other person, except for
defraying expenses,
but
the Committee may by Order prescribe conditions to be observed with respect to
the age, hours of work, rest or meals of children taking part in any
performance for which a licence is not required in accordance with
sub-paragraph (a).
(4) The Committee may grant a licence for a child to take part in a
performance or series of performances if it is satisfied that -
(a) he is fit to do so;
(b) proper provision has been made to secure his health and welfare;
and
(c) having regard to such provision (if any) as has been or will be
made under sub-paragraph (b), his education will not suffer.
ARTICLE
51
Supplementary provisions as to licences
(1) The Committee may, on the application of the holder, vary a
licence granted under Article 50.
(2) The Committee may, having given such notice (if any) as may be
practicable in the circumstances, vary or revoke the licence if -
(a) any condition subject to which it was granted is not observed;
or
(b) if it is not satisfied as to the matters mentioned in
Article 50(4).
(3) The licence holder shall keep such records as the Committee may
prescribe by Order and shall produce them on request to an officer of the
Committee at any time not later than six months after the performance or last
performance to which it relates.
(4) Where the Committee refuses an application for a licence under
Article 50 or revokes or, otherwise than on the application of the holder,
varies such a licence, it shall give written reasons for doing so to the
applicant or licence holder as the case may be.
(5) The applicant or licence holder may appeal to the court against
the refusal, revocation or variation of a licence, or against any condition
subject to which it was granted or any approval is given (not being a condition
which the Committee was required to impose) on the ground that the refusal,
revocation or variation or the imposition of the condition, as the case may be,
was unreasonable having regard to all the circumstances of the case.
ARTICLE 52
Offences
in connection with performances by children
(1) If any person -
(a) causes or procures any child under the age of 16 years or, being
his parent or guardian, allows him, to take part in any performance in
contravention of Article 50;
(b) fails to observe any condition subject to which a licence under
that Article is granted, or any condition prescribed by an Order made under
paragraph (3) of that Article; or
(c) knowingly or recklessly makes any false statement in or in
connection with an application for a licence under that Article,
he
shall be guilty of an offence and liable to a fine not exceeding level 3
on the standard scale
or to imprisonment for a term not exceeding three months, or both.
(2) If any person fails to keep or produce any record which he is
required to keep or produce under Article 51, he shall be guilty of an offence
and liable to a fine not exceeding level 3 on the standard scale.26
(3) Where the holder of a licence granted under Article 50 is
convicted of an offence under this Article the court may revoke his licence.
(4) In any proceedings for an offence under paragraph (1)(a) it
shall be a defence to prove that the accused believed that the condition
specified in Article 50(3)(a) was satisfied and that he had reasonable grounds
for that belief.
ARTICLE
53
Power
of entry
(1) If it appears to the Committee that there is reasonable cause to
believe that the provisions of this Part, or of any Order made thereunder, are
being contravened with respect to any person, any officer of the Committee may,
subject to the production by him of his authority, enter any place in
connection with which the child in question is, or is believed to be, employed
or taking part in a performance as the case may be, and make enquiries with
respect to that child.
(2) A person who intentionally obstructs an officer in the exercise
of any power conferred on him by paragraph (1) shall be guilty of an offence
and liable to a fine not exceeding level 3 on the standard scale.
PART 7
VOLUNTARY
HOMES
ARTICLE
54
Registration of voluntary homes
(1) No voluntary home shall be carried on unless it is registered in
a register to be kept for the purposes of this Article by the Committee.
(2) A person shall not -
(a) carry on, or be otherwise concerned in the management of, or
have any financial interest in, a voluntary home if he is disqualified for
doing so by virtue of Schedule 4; or
(b) employ a person in a voluntary home who is so disqualified,
unless
he had disclosed the disqualification to the Committee and obtained its
consent.
(3) An application for registration under this Article shall be made
-
(a) by the persons intending to carry on the voluntary home to which
the application relates; and
(b) in such manner, and be accompanied by such particulars as the
Committee may require.
(4) Subject to Article 55, on an application duly made under
paragraph (2) the Committee shall -
(a) where the voluntary home to which the application relates is
open for the reception of children under the age of 17 years and it is
satisfied that the applicant is a fit and proper person to carry on a voluntary
home, grant the application; or
(b) in any other case, grant or refuse the application as it thinks
fit.
(5) Subject to Article 55, where at any time it appears to the
Committee that the conduct of any voluntary home registered under paragraph (1)
is not in accordance with the provisions of any Order made or directions given
under this Part or is otherwise unsatisfactory, the Committee may remove the
home from the register.
(6) A person who carries on a voluntary home in contravention of
paragraph (1) shall be guilty of an offence and liable to a fine not exceeding
level 4 on the standard scale
and to a further fine not exceeding level 1 on the standard scale28 in respect of each day
during which the offence continues after conviction.
(7) A person who contravenes paragraph (2) shall be guilty of an
offence and liable to a fine not exceeding level 3 on the standard scale.
ARTICLE
55
Appeals
(1) Where the Committee proposes to refuse an application for the
registration of a voluntary home or to remove such a home from the register it
shall give the applicant or the person carrying on the home, as the case may
be, written notice of -
(a) its intention to do so and the reasons for so doing;
(b) his right to be heard in person or by a representative if he
informs the Committee in writing of his desire to do so within 14 days of
receipt of the notice.
(2) If the Committee, after giving the applicant or the person
carrying on the voluntary home an opportunity to be heard, decides to refuse
the application or remove the voluntary home from the register, it shall, if he
requires, deliver to him within seven days of receiving such request, written
particulars of the reasons for such refusal or removal and his right to appeal.
(3) Any person aggrieved by such decision of the Committee, may,
within one month of the receipt of the notice given under paragraph (2),
appeal to the court on the ground that the decision was unreasonable having
regard to all the circumstances of the case and the home in question shall not
be removed from the register until the appeal has been determined.
(4) On an appeal under this Article, the court may confirm the
Committee’s decision or direct that it shall not have effect.
(5) Any notice under this Article required to be given by the
Committee to the persons carrying on, or intending to carry on, a voluntary
home may be given to any one of those persons.
ARTICLE
56
Orders as to conduct of voluntary homes
(1) The Committee may by Order make provision -
(a) as to the placing of children in voluntary homes;
(b) as to the conduct of such homes; and
(c) for securing the welfare of children in such homes.
(2) Orders may in particular -
(a) prescribe standards to which the premises used for such homes
are to conform;
(b) impose requirements as to the accommodation, staff and equipment
to be provided in such homes, and as to the arrangements to be made for
ensuring the health and safety of the children in the homes;
(c) provide for the control and discipline of children in such
homes;
(d) require the furnishing to the Committee of information as to the
facilities provided for -
(i) the parents of children in the homes,
(ii) persons who are not parents of such
children but who have parental responsibility for them, and
(iii) other persons connected with such children,
to visit and
communicate with the children and authorize the Committee to give directions as
to the provision of such facilities;
(e) authorize the Committee to give directions limiting the number
of children who may at any one time be accommodated in any particular home;
(f) impose requirements as to the keeping of records and giving of
notices with respect to children in such homes;
(g) impose requirements as to the facilities which are to be
provided for giving religious instruction to children in such homes; and
(h) require notice to be given to the Committee of any change of the
person carrying on or in charge of a voluntary home or of the premises used by
such a home,
and
may contain different provisions for different descriptions of cases and as
respects different descriptions of homes.
(3) Any person who contravenes or fails to comply with the
provisions of any Order made under this Article or any requirement made or
direction given under any such Order shall be guilty of an offence and liable
to a fine not exceeding level 2 on the standard scale.
ARTICLE
57
Functions of Committee in relation to welfare of
children in voluntary homes
(1) The Committee shall satisfy itself that any voluntary
organisation providing accommodation for children in a voluntary home is
satisfactorily safeguarding and promoting the welfare of the children so
accommodated and may arrange for such children to be visited from time to time
in the interests of their welfare.
(2) Where the Committee are not satisfied that the welfare of any
child who is accommodated in a voluntary home is being satisfactorily
safeguarded or promoted it shall -
(a) unless it considers that it would not be in the best interests
of the child, take such steps as are reasonably practicable to secure that the
care and accommodation of the child is undertaken by -
(i) a parent of his,
(ii) any person who is not a parent of his but
who has parental responsibility for him, or
(iii) a relative of his; and
(b) consider the extent to which (if at all) it should exercise any
of its functions with respect to the child.
(3) Any officer of the Committee may, subject to the production by
him of evidence of his authority, enter any voluntary home and carry out such
inspection of the home, the children accommodated in the home and records
relating to the home or those children as he considers appropriate.
(4) A person who intentionally obstructs an officer in the exercise
of any power conferred on him by paragraph (3) shall be guilty of an offence
and liable to a fine not exceeding level 3 on the standard scale.
PART
8
PRIVATE ARRANGEMENTS FOR
FOSTERING CHILDREN
ARTICLE
58
Meaning of privately fostered child
(1) In this Law “ privately fostered child” means, subject to the following
provisions of this Article, a child under the age of 16 years who is cared for
and provided with accommodation for a period which has exceeded or which is
intended to exceed 28 days by a person other than -
(a) a parent of his;
(b) a person who is not a parent of his but who has parental
responsibility for him; or
(c) a relative of his.
(2) A child is not a privately fostered child while -
(a) he is being looked after by the Committee;
(b) he is in the care of any person in premises in which any -
(i) parent of his,
(ii) person who is not a parent of his but who
has parental responsibility for him, or
(iii) person who is a relative of his and who has
assumed responsibility for his care,
is for the time being
living;
(c) he is in the care of any person in any children’s home;
(d) he is being accommodated in a voluntary home;
(e) he is in the care of any person in any school where he is
receiving full-time education;
(f) he is in the care of any person in a hospital;
(g)
he is in the care of any person in any
residential care home, nursing home or mental nursing home;
(h) he is liable to be detained under Part III of the Mental Health
(Jersey) Law 1969;
or
(j) he is placed in the care of a person who proposes to adopt him
under arrangements made by the Adoption Service pursuant to the Adoption (Jersey) Law 1961
or he is a protected child within the meaning of Article 23 of that Law.
(3) In this Part “to foster a child privately” means to look after a
child in circumstances in which he is a privately fostered child.
ARTICLE
59
Notification in respect of privately fostered children
(1) A person who proposes to foster a child privately who is not
already in his care shall notify the Committee not less than two weeks before
he receives the child unless he receives him in an emergency.
(2) A person who fosters a child privately whom he received in an
emergency or who became a privately fostered child while in his care shall
notify the Committee not less than one week after the fostering arrangements
began.
(3) A notice given under paragraph (1) or (2) shall be in writing
and shall specify the premises in which the child is to be or is being
accommodated.
(4) Where a person who fosters a child privately changes his
permanent address or the premises in which the child is being accommodated, he
shall, not less than two weeks before the change, or, if the change is made in
an emergency, not later than one week after the change, give written notice to
the Committee, specifying the new address or premises.
(5) If a privately fostered child dies or is removed or removes
himself from the care of the person maintaining him, that person shall, within
48 hours of such an event, give to the Committee and to the person from whom
the child was received written notice of the death or removal and, in the case
of a removal, the notice shall state, if known, the name and address of such
person (if any) into whose care the child has been removed or received.
(6) Where a privately fostered child ceases to be such on his
removal from the care of the person maintaining him that person shall, if so
requested by the Committee, inform the Committee of the name and address of
such person (if any) into whose care the child has been removed or received.
(7) The Committee may exempt any person from the duty of giving
notices under this Article, and any such exemption may be granted as regards
all or any such notices for a specified period, and may be revoked at any time
by notice in writing given to that person.
(8) A person who fosters or proposes to foster a child privately
shall at the request of the Committee supply to it -
(a) the name, sex and date and place of birth of the child; and
(b) the name and address of any parent of the child and of any other
person who has parental responsibility for the child and (if different) of any
person from whom the child was, or is to be, received.
ARTICLE
60
Power of Committee to impose requirements and
prohibitions
(1) Where a person fosters or proposes to foster any children
privately, the Committee may impose on him requirements as to -
(a) the number, age and sex of the children who may be privately
fostered by him;
(b) the standard of the accommodation and equipment to be provided
for them;
(c) the arrangements to be made with respect to their health and
welfare;
(d) the giving of particulars of the person for the time being in
charge of them;
(e) the number, qualifications or experience of the persons employed
in looking after the children; and
(f) the keeping of records.
(2) A requirement under paragraph (1) may be limited to a particular
child or class of child and (except in the case of a requirement imposed under
sub-paragraph (a) of that paragraph) may be limited by the Committee so as to
apply only when the number of children maintained by the person exceeds a
specified number.
(3) Where a person fosters or proposes to foster a child privately
and the Committee is of the opinion that -
(a) he is not a suitable person to do so;
(b) the premises in which the child is being, or will be,
accommodated are not suitable; or
(c) it would be prejudicial to the welfare of the child for him to
be, or continue to be, accommodated by that person in those premises,
the
Committee may prohibit him from maintaining any child in any premises, any
child in premises specified in the prohibition, or any child identified in the
prohibition in premises specified in the prohibition.
(4) The Committee may cancel a prohibition imposed under paragraph
(3) of its own motion or on the application of the person to whom it is
addressed if it is satisfied that it is no longer justified.
(5) Where the Committee imposes a requirement on any person under
paragraph (1) it may impose a prohibition on him under paragraph (3).
(6) Any prohibition imposed by virtue of paragraph (5) shall not
have effect unless the time specified for complying with the requirement has
expired without it having been complied with.
(7) Any requirement or prohibition imposed under this Article shall
be imposed by giving notice in writing to the person on whom it is imposed and
informing him of -
(a) the reasons for the imposition;
(b) his right of appeal under Article 63; and
(c) the time within which he may appeal.
ARTICLE
61
Functions of Committee in relation to welfare of
privately fostered children
(1) The Committee shall -
(a) satisfy itself that the welfare of all privately fostered
children is being satisfactorily safeguarded and promoted;
(b) give such advice as to the care and maintenance of such children
as it considers necessary; and
(c) arrange for such children to be visited from time to time in the
interests of their welfare.
(2) Where the Committee is not satisfied that the welfare of any
privately fostered child is being satisfactorily safeguarded or promoted it
shall -
(a) unless it considers that it would not be in the best interests
of the child, take such steps as are reasonably practicable to secure that the
care and accommodation of the child is undertaken by -
(i) a parent of his,
(ii) any person who is not a parent of his but
who has parental responsibility for him, or
(iii) a relative of his; and
(b) consider the extent to which (if at all) it should exercise any
of its functions with respect to the child.
(3) Any officer of the Committee may, subject to the production by
him if so required of evidence of his authority, enter and inspect any premises
in which privately fostered children are to be or are being accommodated and
any children there.
ARTICLE
62
Disqualification for fostering a child privately
A person shall not foster a
child privately if he is disqualified for doing so by virtue of Schedule 4
unless he has disclosed the disqualification to the Committee and obtained its
consent.
ARTICLE
63
Appeals
(1) Any person aggrieved by -
(a) a requirement or prohibition imposed under Article 60; or
(b) a refusal of consent under Article 62,
may,
within 14 days from the date on which he is notified of the requirement,
prohibition or refusal, appeal to the court, and, where the appeal is against
such a requirement, the requirement shall not have effect while the appeal is
pending.
(2) Where the court allows an appeal against a requirement or
prohibition, it may, instead of cancelling the requirement or prohibition -
(a) vary the requirement or allow more time for compliance with it;
or
(b) if an absolute prohibition has been imposed, substitute for it a
prohibition on using the premises after such time as the court may specify
unless such specified requirements as the Committee had power to impose under
Article 60 are complied with.
(3) Any requirement or prohibition specified or substituted by the
court under this Article shall be deemed for the purposes of this Part (other
than this Article) to have been imposed by the Committee under Article 60.
ARTICLE
64
Extension of this Part to certain children over 16
Where a child is a privately
fostered child when he attains the age of 16 years, this Part shall continue to
apply to him -
(a) if he is disabled and under full age; or
(b) until the earliest of the following events -
(i) he would, apart from attaining that age,
have ceased to be a privately fostered child,
(ii) he reaches full age, or
(iii) he lives elsewhere than with the person with
whom he was living when he attained that age.
ARTICLE
65
Offences
If any person -
(a) being required under any provision of this Part, to give any
notice or information -
(i) fails without reasonable excuse to give
the notice within the time there specified,
(ii) fails without reasonable excuse to give the
information within a reasonable time, or
(iii) makes, or causes or procures another person
to make, any statement in the notice or information which he knows to be false
or misleading in a material particular;
(b) refuses to allow a duly authorized officer of the Committee to
visit a privately fostered child or intentionally obstructs such an officer in
the exercise of any power conferred on him by Article 61(3);
(c) fails without reasonable excuse to comply with any requirement
imposed by the Committee under this Part or accommodates a privately fostered
child in any premises in contravention of a prohibition so imposed;
(d) contravenes Article 62; or
(e) directly or indirectly insures the life of any privately
fostered child maintained by him,
he
shall be guilty of an offence and liable to a fine not exceeding level 3 on the
standard scale.
PART 9
MISCELLANEOUS
AND GENERAL
ARTICLE
66
Effect and duration of orders
(1) The making of a residence order with respect to a child who is
the subject of a care order discharges the care order.
(2) The making of a care order with respect to a child who is the
subject of any Article 10 order or
a supervision order discharges that other order.
(3) Where an emergency protection order is made with respect to a
child who is in care, the care order shall have effect subject to the emergency
protection order.
(4) Any -
(a) order made under Article 5(1) or (2) or 7(1);
(b) agreement under Article 5;
(c) appointment under Article 7(3) or (4); or
(d) care order other than an interim order,
shall
continue in force until the child reaches full age, unless it is brought to an
end earlier.
(5) An order under Schedule 1 has effect as specified in that
Schedule.
(6) An Article 10 order shall, if it would otherwise still be in
force, cease to have effect when the child reaches full age, unless it is to
have effect beyond that age by virtue of Article 11(6)(a).
(7) Any order made under any other provision of this Law in relation
to a child shall, if it would otherwise still be in force, cease to have effect
when he reaches full age.
(8) On disposing of any application for an order under this Law, the
court may (whether or not it makes any other order in response to the
application) order that no application for an order under this Law of any
specified kind may be made with respect to the child concerned by any person
named in the order without leave of the court.
(9) Where an application (“the previous application”) has been made
for -
(a) the discharge of a care order or supervision order;
(b) the substitution of a supervision order for a care order; or
(c) a child assessment order,
no
further application of a kind mentioned in paragraphs (a) to (c) may be made
with respect to the child concerned, without leave of the court, unless the
period between the disposal of the previous application and the making of the
further application exceeds 6 months.
(10) Paragraph (9) does not apply to applications made in relation to
interim orders.
(11) Where an application for an order under Article 27 has been
refused, no further application may be made with respect to the same child
within six months of such refusal without leave of the court.
ARTICLE
67
Rules of Court
(1) Rules of Court may be made by the Superior
Number of the Royal Court,
with the advice and assistance of the Rules Committee, to give effect to this
Law, any enactment made under this Law or any amendment made by this Law to any
other enactment.
(2) Rules of Court made under this Article may, in particular, make
provision -
(a) with respect to the procedure to be followed in any relevant
proceedings (including the manner in which any application is to be made or
other proceedings commenced);
(b) as to the persons entitled to participate in any relevant
proceedings, whether as parties to the proceedings or by being given the
opportunity to make representations to the court;
(c) with respect to the documents and information to be furnished,
and notices to be given, in connection with any relevant proceedings;
(d) with respect to preliminary hearings;
(e) for the service outside the Island
in such circumstances and in such manner as may be prescribed, of any notice of
proceedings in the court;
(f) enabling the court, in such circumstances as may be prescribed,
to proceed on any application even though the respondent has not been given
notice of the proceedings; and
(g) authorizing the Judicial Greffier to discharge the functions of
the court with respect to such relevant proceedings as may be prescribed.
(3) In paragraph (2) -
“notice of
proceedings” means a summons or such other notice of proceedings as is
required; and “given” in relation to a summons, means “served”; and
“relevant proceedings”
means any application made, or proceedings brought, under any of the provisions
mentioned in paragraph (1) and any part of such proceedings.
(4) This Article and any other power in this Law to make Rules of
Court are not to be taken as in any way limiting any other power of the
Superior Number of the Royal Court
to make Rules of Court.
ARTICLE 68
Appeals
(1) Subject to any express provisions to the
contrary made by or under this Law, an appeal shall lie -
(a) where the Judicial Greffier is exercising the functions of the
court in accordance with Rules of Court, to the court; and
(b) in any other case, to the Court of Appeal,
against
the making or refusal to make any order under this Law other than in relation
to an interim order for periodical payments under Schedule 1.
(2) On an appeal under this Article, the court hearing the appeal
may make such orders as may be necessary to give effect to its determination of
the appeal, and where it makes any such order it may also make such incidental
or consequential orders as appear to it to be just.
(3) Where an appeal relates to an order for the making of periodical
payments, the court hearing the appeal may order that its determination of the
appeal shall have effect from such date as it thinks fit to specify in the
order provided that such date must not be earlier than the earliest date
allowed in accordance with Rules of Court made for the purposes of this
Article.
(4) Where, on an appeal under this Article in respect of an order
requiring a person to make periodical payments, the court hearing the appeal
reduces the amount of those payments or discharges the order -
(a) it may order the person entitled to the payments to pay to the
person making them such sum in respect of payments already made as it thinks
fit; and
(b) if any arrears are due under the order for periodical payments,
it may remit payment of the whole, or part, of those arrears.
(5) Any order of the Court of Appeal made on an appeal under this
Article (other than one directing that an application be re-heard) shall, for
the purposes of the enforcement of the order and any power to vary, revive or
discharge orders, be treated as if it were an order of the court.
ARTICLE
69
Attendance at court of person with parental
responsibility for child who is the subject of proceedings under Part 4
Where a child is the subject of
an application for a care or supervision order under Part 4, any person who has
parental responsibility for him may be required to attend court during all the
stages of the proceedings, and any such person shall be so required at any
stage where the court thinks it desirable, unless the court is satisfied that
it would be unreasonable to require his attendance.
ARTICLE 70
Attendance
at court of child at hearing under Parts 2, 4 or 5
(1) In any proceedings in which the court is
hearing an application for an order under Part 2, 4 or 5, or is considering
whether to make any such order, the court may order the child concerned to
attend such stage or stages of the proceedings as may be specified in the
order.
(2) The power conferred by paragraph (1) shall be exercised in
accordance with Rules of Court.
(3) Where an order under paragraph (1) has not been complied with or
the court has reasonable cause to believe that it will not be complied with,
the court may make an order -
(a) authorizing a police officer or such other person as may be
specified in the order -
(i) to take charge of the child and to bring
him to the court, and
(ii) to enter and search any premises specified
in the order if he has reasonable cause to believe that the child may be found
on the premises;
(b) requiring any person who is in a position to do so to bring the
child to the court; or
(c) requiring a person to disclose to the court any information
which it has reason to believe he has concerning the whereabouts of the child.
ARTICLE
71
Evidence given by, or with respect to, children
(1) Where a child who is called as a witness in any civil
proceedings does not, in the opinion of the court, understand the nature of an
oath, the court may hear his evidence if it considers that -
(a) he understands that it is his duty to speak the truth; and
(b) he has sufficient understanding to justify his evidence being
heard.
(2) The Superior Number of the Royal Court may, by Rules of Court,
make provision for the admissibility of evidence which would otherwise be
inadmissible under any rule of law relating to hearsay with respect to -
(a) civil proceedings in general or such civil proceedings, or class
of civil proceedings, as may be prescribed; and
(b) evidence in connection with the upbringing, maintenance or
welfare of a child.
(3) Rules of Court under paragraph (2) -
(a) may, in particular, provide for the admissibility of statements
which are made orally or in a prescribed form or which are recorded by any
prescribed method of recording;
(b) may make different provision for different purposes;
(c) may make such amendments and repeals in any enactment relating
to evidence (other than this Law) as the Superior Number considers necessary or
expedient in consequence of the provision made by the Rules.
ARTICLE
72
Power of court to order scientific tests in cases of
disputed parentage
(1) For the purpose of any proceedings in which the parentage of a
child falls to be determined, the court may, on an application by any party to the
proceedings, give a direction -
(a) for the use of scientific tests for the purpose of facilitating
such determination; and
(b) for the taking of bodily samples from the child, any person
alleged to be a parent of the child and any other party to the proceedings,
and
the court may at any time revoke or vary a direction previously given by it
under this paragraph.
(2) The person responsible for carrying out scientific tests in
pursuance of a direction under paragraph (1) shall report to the court -
(a) the results of the tests;
(b) whether any person to whom the report relates is or is not
excluded by the results from being a parent of the child; and
(c) in relation to any party who is not so excluded, the value, if
any, of the results in determining whether that party is a parent of the child.
(3) Rules of Court may make further provision with respect to a
direction or report given under this Article.
(4) The costs of taking and testing bodily samples and reporting to
the court in pursuance of this Article shall be paid by the party requesting
the direction but the amount paid shall be treated as costs incurred by him in
the proceedings.
(5) A bodily sample which is required to be taken from any person
for the purpose of giving effect to a direction under paragraph (1) -
(a) in the case of a person over the age of 16 years of full mental
capacity, shall only be taken with his consent;
(b) in the case of a child under the age of 16 years, shall only be
taken with the consent of a person who has parental responsibility for him; and
(c) in the case of a person suffering from a mental disorder and
incapable of understanding the nature and purpose of scientific tests, shall
only be taken -
(i) with the consent of his nearest relative or,
if that person has been the subject of a guardianship application, the person
named in that application as guardian, and
(ii) if the responsible medical officer has
certified that the taken of a bodily sample from him will not be prejudicial to
his proper care and treatment.
(6) Where the court considers that a person with parental
responsibility for a child or a nearest relative is unreasonably withholding
consent under paragraph (5)(b) or (c) as the case may be, it may dispense with
the need for that consent.
(7) Where the court gives a direction under paragraph (1) and a
person fails to take any step required of him for the purpose of giving effect
to the direction, the court may draw such inferences, if any, from that fact as
appear proper in the circumstances.
(8) Where any person named in a direction under paragraph (1)
fails to consent to the taking of a bodily sample from himself or from any
person named in the direction of whom he has the care and control, he shall be
deemed for the purposes of this Article to have failed to take a step required
of him for the purpose of giving effect to the direction.
(9) A person who, for the purpose of providing a bodily sample for a
test required under paragraph (1), personates another or proffers a child
knowing that it is not the child named in the direction shall be guilty of an
offence and liable to a fine or to imprisonment for a term not exceeding two
years, or both.
(10) In this Article -
“bodily sample” means
a sample of bodily fluid or bodily tissue taken for the purpose of scientific
tests;
“excluded” means
excluded subject to the occurrence of mutation;
“guardianship
application”, “mental disorder”, “nearest relative” and “responsible medical
officer” shall have the same respective meanings as in the Mental Health (Jersey) Law 1969;
“scientific tests”
means scientific tests carried out under this Article and made with the object
of ascertaining the inheritable characteristics of bodily fluids or bodily
tissue.
ARTICLE
73
Privacy for children involved in certain proceedings
(1) Without prejudice to any other rule-making power or power of the
court to sit in private, Rules of Court may make provision for the court to sit
in private in proceedings in which any powers under this Law may be exercised
by the court with respect to any child.
(2) Any person who publishes any material which is intended, or
likely, to identify -
(a) any child as being concerned in any proceedings before any court
either as being a child against or in respect of whom the proceedings are taken
or as being a witness in those proceedings; or
(b) an address or school as being that of a child involved in any
such proceedings,
except
in so far (if at all) as the court hearing those proceedings, having regard to
the interest of justice and the welfare of the child concerned, directs, shall
be guilty of an offence and liable to a fine not exceeding level 3 on the
standard scale.
(3) In any proceedings for an offence under this Article it shall be
a defence for the accused to prove that he did not know, and had no reason to
suspect, that the published material was intended, or likely, to identify the
child.
(4) For the purposes of this Article -
“publish” includes -
(a) include within a programme service; or
(b) cause to be published; and
“material” includes
any picture or representation.
ARTICLE
74
Self-incrimination
(1) In any proceedings in which a court is hearing an application
for an order under Part 4 or 5, no person shall be excused from -
(a) giving evidence on any matter; or
(b) answering any question put to him in the course of his giving
evidence,
on
the ground that doing so might incriminate him or his spouse of an offence.
(2) A statement or admission made in such proceedings shall not be
admissible in evidence against the person making it or his spouse in
proceedings for an offence other than perjury.
ARTICLE
75
Representation and assistance for children
(1) Where it considers it desirable in the interests of a child to
do so the court may order -
(a) that he be separately represented in such proceedings under this
Law as the court may specify; or
(b) that he be assisted and befriended by such person, being a
person independent from the Committee, as the court may specify.
(2) Where a child is empowered to bring any proceedings under this
Law -
(a) he may not do so without leave of the court and the court may
only grant leave if it is satisfied that the child has sufficient understanding
to bring those proceedings; and
(b) he may only act through a guardian ad litem appointed by the
court.
(3) Without prejudice to any other power of the court to make an
order for costs against any party to proceedings, where a child has been
granted legal representation under a legal aid certificate for any proceedings
under this Law, the court may order that the costs of such representation be
paid -
(a) out of public funds; or
(b) where he has been given an opportunity to be heard on the
question of costs, by any person with parental responsibility for the child who
is not a party to the proceedings.
(4) The amount of costs that the court has ordered to be paid under
paragraph (1) shall be determined in accordance with Rules of Court made under
the Royal Court
(Jersey) Law 1948
and where the costs are to be paid out of public funds, such amount shall be
paid from the annual income of the States.
ARTICLE
76
Restriction on court’s inherent jurisdiction
The court shall not exercise its
inherent jurisdiction with respect to children -
(a) so as to require a child to be placed in care or put under the
supervision of the Committee;
(b) so as to require a child to be accommodated by or on behalf of
the Committee; or
(c) for the purpose of conferring on the Committee power to
determine any question which has arisen, or which may arise, in connection with
any aspect of parental responsibility for a child.
ARTICLE
77
Effect
of orders as between the Island and any other part of the British Islands
(1) An order made by a court in any other part of the British
Islands which is of a class of orders that the Committee has, by Order,
designated as corresponding in effect to such an order which may be made under
this Law as may be specified in the Order, shall have effect for the purposes
of this Law in the Island as if it had been made under the corresponding
provision of this Law.
(2) Where a child who is in the care of the Committee is lawfully
taken to live in any other part of the British Islands,
the care order in question shall cease to have effect if -
(a) the court has given its approval under paragraph 4(1)(a) of
Schedule 2 to the Committee arranging or assisting in arranging for the child
to live in another part of the British
Islands;
(b) the local authority in whose area the child has been taken to
live has notified the court in writing that it agrees to receive the child into
its care; and
(c) the Committee has notified the court that it agrees to that
local authority receiving the child into its care.
(3) In this Article “local authority” has the same meaning as in
paragraph 9(4) of Schedule 2.
ARTICLE 78
Warrants
(1) Where, on an application made by any
person, it appears to the Bailiff that a person has been, or is likely to be,
prevented from exercising his powers under -
(a) Articles 43, 53, 57 or 61;
(b) paragraph 6(1)(b) and (2)(b) of Schedule 3;
(c) Article 24 of the Adoption (Jersey)
Law 1961;
or
(d) Article 11 of the Day Care of Children (Jersey)
Law 2002,
by
being refused entry to the premises concerned or refused access to the child
concerned, he may issue a warrant authorizing any police officer, at any time
or times within one month from the date of that warrant, to assist the person
named in the warrant in the exercise of his powers, using reasonable force if
necessary.
(2) Every warrant issued under this Article shall be addressed to,
and executed by, a police officer who shall be accompanied by -
(a) if the Bailiff does not direct otherwise, the person applying
for the warrant if that person so desires; and
(b) if the Bailiff so directs, a registered medical practitioner or
such other person as the Bailiff may specify.
(3) The person named in the warrant shall immediately inform the
Connétable or a Centenier of the parish in which the premises are situated of
the details of the warrant and thereafter may exercise his powers under the
warrant at any time during its currency.
(4) An application for a warrant under this Article shall be made in
the manner and form prescribed.
(5) The application and any warrant granted on the application
shall, where it is reasonably practical to do so, name the child, and where it
does not name him it shall describe him as clearly as possible.
ARTICLE 79
Limitation
of defence of reasonable corporal punishment
(1) Any defence of reasonable corporal punishment of a child shall
only be available to a person who was at the time of the punishment-
(a) a person with parental responsibility for the child; or
(b) a person without parental responsibility for the child who -
(i) is the father or relative of the child;
(ii) had care of the child; and
(iii) had the consent of a person with parental
responsibility for the child to administer such punishment.
(2) Any defence of reasonable corporal punishment of a child shall
not be available if the punishment involved any means other than the use of a
hand.
ARTICLE
80
Offences by bodies corporate
Where an offence under this Law
which is committed by a body corporate is proved to have been committed with
the consent and connivance of, or to be attributable to any neglect on the part
of any director, manager, secretary or other similar officer of the body
corporate, or any person who was purporting to act in any such capacity, he (as
well as the body corporate) shall be guilty of that offence and shall be liable
to be proceeded against and punished accordingly.
ARTICLE 81
Regulations
and Orders
(1) Any Regulations or Order made under this
Law may -
(a) make different provision in relation to different cases or
circumstances;
(b) provide for exemptions from any of its provisions; and
(c) contain such incidental, supplemental and transitional
provisions as appear to the States or the Committee, as the case may be, to be
necessary or expedient for the purposes of the Regulations or Order.
(2) The Subordinate Legislation (Jersey)
Law 1960
shall apply to Orders made under this Law.
ARTICLE
82
Transitional provisions, savings, amendments and
repeals
(1) The transitional provisions and savings contained in Schedule 5
shall have effect.
(2) The enactments specified in Schedule 6 shall be amended in
accordance with that Schedule.
(3) The Customary law action for pension
alimentaire is abolished.
(4) The following Laws are repealed -
(a) the Children (Jersey) Law 1969;
(b) the Children (Amendment) (Jersey)
Law 1972;
(c) the Children (Amendment No. 2) (Jersey)
Law 1974;
(d) the Children (Amendment No. 3) (Jersey)
Law 1978;
(e) the Children (Amendment No. 4) (Jersey)
Law 1986;
(f) the Children (Amendment No. 5) (Jersey)
Law 1996;
and
(g) the Affiliation Proceedings (Prescription) (Jersey)
Law 1999.
(5) The States may by Regulations make such amendments or repeals,
in such enactments as may be specified in the Regulations, as they consider
necessary or expedient in connection with, or in consequence of, any provision
of this Law.
ARTICLE
83
Citation and commencement
(1) This Law may be cited as the Children (Jersey)
Law 2002.
(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 purposes or
different provisions of this Law and in relation to different cases.
C.M.
NEWCOMBE
Greffier of the States.
SCHEDULE 1
(Article 15)
FINANCIAL
PROVISION FOR CHILDREN
Orders for financial relief against parents
1.-(1) On an
application made by a parent or guardian of a child, or by any person in whose
favour a residence order is in force with respect to the child, the court may
at any time make an order requiring one or more of the following -
(a) either or both parents of a child -
(i) to make such periodical payments and for
such term,
(ii) to secure such periodical payments and for
such term,
(iii) to pay such lump sum, and
(iv) to transfer such property to which the
parent is or the parents are entitled,
as may be specified in
the order to the applicant for the benefit of the child or to the child
himself; and
(b) a settlement to be made for the benefit of the child and to the
satisfaction of the court of property to which either parent is entitled and
which is specified in the order.
(2) An order under sub-paragraph (1)(a)(i) or (ii) may be varied or
discharged by a subsequent order made on the application of any person by or to
whom payments were required to be made under the previous order.
(3) Where the court makes an order under this paragraph -
(a) it may at any time make a further such order under sub-paragraph
(1)(a)(i), (ii) or (iii) with respect to the child concerned if he has not
reached full age; and
(b) it may not make more than one order under
sub-paragraph (1)(a)(iv) or (b) against the same person in respect of the
same child.
(4) On making, varying or discharging a residence order the court
may exercise any of its powers under this Schedule even though no application
has been made to it under this Schedule.
Orders for financial relief for persons over 16 years
2.-(1) If, on an
application made with leave of the court by a person who has reached the age of
16, it appears to the court -
(a) that the applicant is, will be or (if an order were made under
this paragraph) would be receiving instruction at an educational establishment
or undergoing training for a trade, profession or vocation, whether or not
while in gainful employment; or
(b) that there are special circumstances which justify the making of
an order under this paragraph,
the
court may at any time make an order requiring either or both of the applicant’s
parents to pay to the applicant such periodical payments, for such term as may
be so specified, such lump sum as may be so specified or both periodical
payments and a lump sum.
(2) An order for periodical payments under sub-paragraph (1) may be
varied or discharged by a subsequent order made on the application of any
person by or to whom payments were required to be made under the previous
order.
(3) Where the court makes an order under this paragraph it may from
time to time while that order remains in force make a further such order.
Duration of orders for financial relief
3.-(1) The
term to be specified in an order for periodical payments made under
paragraph 1(1)(a)(i) or (ii) in favour of a child may begin with the date
of the making of an application for the order in question or any later date but
-
(a) shall not in the first instance extend beyond the child’s
seventeenth birthday unless the court thinks it right in the circumstances of
the case to specify a later date; and
(b) shall not in any event extend beyond the child’s eighteenth
birthday.
(2) Sub-paragraph (1)(b) shall not apply in the case of a child if
it appears to the court that -
(a) the child is, or will be or (if an order were made without
complying with that paragraph) would be receiving instruction at an educational
establishment or undergoing training for a trade, profession or vocation,
whether or not while in gainful employment; or
(b) there are special circumstances which justify the making of an order
without complying with that paragraph.
(3) An order for periodical payments shall, notwithstanding anything
in the order, cease to have effect on the death of the person liable to make
payments under the order.
(4) Where an order is made under paragraph 1(1)(a)(i) or (ii)
requiring periodical payments to be made or secured to the parent of a child,
the order shall cease to have effect if the parent making or securing the
payments and the parent receiving such payments have lived together for more than
six months.
Matters
to which court is to have regard in making orders for financial relief
4.-(1) In
deciding whether to exercise its powers under paragraph 1 or 2, and if so in
what manner, the court shall have regard to all the circumstances including -
(a) the income, earning capacity, property and other financial
resources which each person mentioned in sub-paragraph (4) has or is
likely to have in the foreseeable future;
(b) the financial needs, obligations and responsibilities which each
person mentioned in sub-paragraph (4) has or is likely to have in the
foreseeable future;
(c) the financial needs of the child;
(d) the income, earning capacity (if any), property and other
financial resources of the child;
(e) any physical or mental disability of the child; and
(f) the manner in which the child was being, or was expected to be,
educated or trained.
(2) In deciding whether to exercise its powers under
paragraph 1 against a person who is not the mother or father of the child,
and if so in what manner, the court shall in addition have regard to -
(a) whether that person had assumed responsibility for the
maintenance of the child and, if so, the extent to which and basis on which he
assumed that responsibility and the length of the period during which he met
that responsibility;
(b) whether he did so knowing that the child was not his child; and
(c) the liability of any other person to maintain the child.
(3) Where the court makes an order under paragraph 1 against a
person who is not the father of the child, it shall record in the order that
the order is made on the basis that the person against whom the order is made
is not the child’s father.
(4) The persons mentioned in sub-paragraph (1) are -
(a) in relation to a decision whether to exercise its powers under
paragraph 1, any parent of the child;
(b) in relation to a decision whether to exercise its powers under
paragraph 2, the mother and father of the child;
(c) the applicant for the order; and
(d) any other person in whose favour the court proposes to make the
order.
Provisions relating to lump sums
5.-(1) Without
prejudice to the generality of paragraph 1, an order under that paragraph for
the payment of a lump sum may be made for the purpose of enabling any
liabilities or expenses reasonably incurred before the making of the order to
be met which were incurred in connection with the birth of the child or in
maintaining him.
(2) The power of the court under paragraph 1 -
(a) to vary or discharge an order for the making or securing of
periodical payments by a parent shall include power to make an order under that
provision for the payment of a lump sum by that parent; and
(b) for the payment of a lump sum may provide for the payment of
that sum by instalments.
(3) Where the court provides for the payment of a lump sum by
instalments, the court, on an application made either by the person liable to
pay or the person entitled to receive that sum, shall have power to vary that
order by varying the number and amount of any instalments payable and the date
on which any instalment becomes payable.
Exercise of powers to make orders for periodical
payments
6.-(1) In
exercising its powers under paragraph 1 or 2 to vary or discharge an order for
the making or securing of periodical payments the court shall have regard to
all the circumstances of the case, including any change in any of the matters
to which the court was required to have regard when making the order.
(2) The power of the court under paragraph 1 or 2 to vary an order
for the making or securing of periodical payments shall include power to
suspend any provision of the order temporarily and to revive any provision so
suspended.
(3) Where on an application under paragraph 1 or 2 for the variation
or discharge of an order for the making or securing of periodical payments the
court varies the payments required to be made under that order, the court may
provide that the payments as so varied shall be made from such date as the
court may specify, not being earlier than the date of the making of the
application.
(4) An application for the variation of an order made under
paragraph 1 for the making or securing of periodical payments to or for the
benefit of a child may, if the child has reached the age of 16, be made by the
child himself.
(5) Where an order for the making or securing of periodical payments
under paragraph 1 ceases to have effect on the date on which the child reaches
the age of 16, or at any time after that date but before or on the date on
which he reaches full age, the child may apply to the court which made the
order for an order for its revival or revival and variation in accordance with
sub-paragraph (6).
(6) If on an application under sub-paragraph (5) it appears to the
court that -
(a) the child is, will be or (if an order were made under this
sub-paragraph) would be receiving instruction at an educational establishment
or undergoing training for a trade, profession or vocation, whether or not in
gainful employment; or
(b) there are special circumstances which justify the making of an
order under this paragraph,
the
court shall have power by order to revive the order or revive and vary it so
that it is made against a parent other than the parent against whom it is made,
from such date as the court may specify, not being earlier than the date of the
making of the application.
(7) Any order which is revived or revived and varied by an order
under sub-paragraph (5) may be varied or discharged under that provision, on
the application of any person by whom or to whom payments are required to be
made under the revived or revived and varied order.
(8) An order for the making or securing of periodical payments made
under paragraph 1 may be varied or discharged, after the death of either
parent, on the application of a guardian of the child concerned.
Financial relief under other enactments
7.-(1) This paragraph
applies where a residence order is made with respect to a child at a time when
there is in force an order (“the financial relief order”) made under any
enactment other than this Law and requiring a person to contribute to the
child’s maintenance.
(2) Where this paragraph applies, the court may, on the application
of -
(a) any person required by the financial relief order to contribute
to the child’s maintenance; or
(b) any person in whose favour a residence order with respect to the
child is in force,
make
an order revoking the financial relief order, or varying it by altering the
amount of any sum payable under that order or by substituting the applicant for
the person to whom any such sum is otherwise payable under that order.
Interim orders
8.-(1) Where
an application is made under paragraph 1 or 2 the court may, at any time before
it disposes of the application, make an interim order -
(a) requiring either or both parents to make such periodical
payments, at such times and for such term as the court thinks fit; and
(b) giving any direction which the court thinks fit.
(2) An interim order made under this paragraph -
(a) may provide for payments to be made from such date as the court
may specify, not being earlier than the date of the making of the application
under paragraph 1 or 2; and
(b) shall cease to have effect when the application is disposed of
or, if earlier, on the date specified for the purposes of this paragraph in the
interim order.
(3) An interim order in which a date has been specified for the
purposes of sub-paragraph (2)(b) may be varied by substituting a later date.
Alteration of maintenance agreements
9.-(1) An
application to the court for the alteration of a maintenance agreement which is
for the time being subsisting may, where both parties to the agreement are for
the time being domiciled or resident in the Island,
be made by either party.
(2) The court may, if it is satisfied that -
(a) by reason of a change in the circumstances in the light of which
any financial arrangements contained in the agreement were made (including a
change foreseen by the parties when making the arrangement), the agreement
should be altered so as to make different financial arrangements; or
(b) the agreement does not contain proper financial arrangements
with respect to the child,
by
order make such alterations in the agreement by varying or revoking any
financial arrangements contained in it as may appear to it to be just having
regard to all the circumstances.
(3) Where a maintenance agreement is altered by an order under this
paragraph it shall have effect thereafter as if the alteration had been made by
agreement between the parties and for cause.
(4) Where the court decides to make an order under this paragraph
altering a maintenance agreement by -
(a) inserting provision for the making or securing by one of the
parties to the agreement of periodical payments for the maintenance of the
child; or
(b) increasing the rate of periodical payments required to be made
or secured by one of the parties for the maintenance of the child,
it
shall apply the provisions of paragraph 3(1) or (2) in determining the term for
which the payments or additional payments are to be made or secured, as if the
order were an order under paragraph 1(1)(a)(i) or (ii).
(5) Nothing in this paragraph shall affect any power of a court
before which any proceedings between the parties to a maintenance agreement are
brought under any other enactment to make an order concerning financial
arrangements or any right of either party to apply for such an order in such
proceedings.
(6) In this paragraph -
“financial
arrangements” means provision with respect to the making or securing of
payments, or the disposition or use of any property, for the maintenance or
education of a child; and
“maintenance
agreement” means any financial arrangements made in writing between the father
and mother of a child with respect to a child of theirs, whether before or
after the commencement of this paragraph.
Notification of change of address
10.-(1) Any
person for the time being under an obligation to make payments in pursuance of
any order for the payment of money made by the court under this Law shall give
notice of any change of address to such person (if any) as may be specified in
the order.
(2) Any person failing without reasonable
excuse to give such notice shall be guilty of an offence and liable to a fine
not exceeding level 2 on the standard scale.
Financial provision for child resident outside the Island
11.-(1) Where
one parent of a child lives in the Island and the child lives outside the
Island with another parent, a guardian or a person in whose favour a residence
order is in force with respect to the child, the court shall have power, on an
application made by the person with whom the child lives, to make one or both
of the orders mentioned under paragraph 1(1)(a)(i) or (ii) against the parent
living in the Island.
(2) Any reference in this Law to the powers of the court under
paragraph 1(1) or to an order made under that sub-paragraph shall include a
reference to the powers which the court has or to an order made by virtue of
sub-paragraph (1) of this paragraph.
Contribution to child’s maintenance by Committee
12. Where
a child lives, or is to live, with a person as the result of a residence order
who is not his parent or married to his parent, the Committee may make
contributions to that person towards the cost of the accommodation and
maintenance of the child.
Interpretation
13. In this Schedule -
(a) “child” includes any person in relation to whom an application
is made under paragraph 2 or 6; and
(b) except in paragraphs 2 and 12, “parent” includes any party to a
marriage (whether or not subsisting) in relation to whom the child concerned is
a child of the family, and any reference to either parent or both parents shall
be construed as references to any parent of his and to all of his parents.
SCHEDULE 2
(Article 20)
COMMITTEE
SUPPORT FOR CHILDREN AND FAMILIES
PART 1
ARRANGEMENTS
FOR CHILDREN LOOKED AFTER BY COMMITTEE
Regulations
1.-(1) Regulations
under Article 20(1)(a) may, in particular, make provision -
(a) with regard to the welfare of children placed with Committee
foster parents;
(b) as to the arrangements to be made by the Committee in connection
with the health and education of such children;
(c) as to the records to be kept by the Committee;
(d) for securing that a child is not placed with a Committee foster
parent unless that person is for the time being approved by the Committee;
(e) for securing that where possible the Committee foster parent
with whom a child is to be placed is -
(i) of the same religious persuasion as the
child, or
(ii) gives an undertaking that the child will be
brought up in that religious persuasion;
(f) for securing that children placed with Committee foster
parents, and the premises in which they are accommodated, will be supervised
and inspected by the Committee and that the children will be removed from those
premises if their welfare appears to require it; and
(g) as to the circumstances in which the Committee may make arrangements
for duties imposed on them by the Regulations to be discharged on their behalf.
(2) Regulations under Article 20(1)(c) may, in particular, make
provision as to -
(a) the persons to be notified of any proposed arrangements;
(b) the opportunities such persons are to have to make
representations in relation to the arrangements proposed;
(c) the persons to be notified of any proposed changes in
arrangements;
(d) the records to be kept by the Committee; and
(e) the supervision by the Committee of any arrangements made.
(3) Regulations under Article 20(2) may, in particular, impose
requirements on the Committee as to -
(a) the making of any decision by the Committee to allow a child to
live with any person described in Article 20(2)(a) or (c) (including
requirements as to those who must be consulted before the decision is made, and
those who must be notified when it has been made);
(b) the supervision or medical examination of the child concerned;
(c) the removal of the child, in such circumstances as the
Regulations may prescribe, from the care of the person with whom he has been
allowed to live; and
(d) the records to be kept by the Committee.
Promotion and maintenance of contact between child and
family
2.-(1) Where
a child is being looked after by the Committee, the Committee shall, unless it
is not reasonably practicable or consistent with his welfare, endeavour to
promote contact between the child and -
(a) his parents;
(b) any person who is not a parent but who has parental
responsibility for him; and
(c) any relative, friend or other person connected with him.
(2) Where a child is being looked after by the Committee -
(a) the Committee shall take such steps as are reasonably
practicable to secure that his parents and any other person other than a parent
who has parental responsibility for him are kept informed of where he is being
accommodated; and
(b) every such person shall secure that the Committee are kept
informed of his address.
(3) Nothing in this paragraph requires the Committee to inform any
person of the whereabouts of a child if the child is in the care of the
Committee and the Committee has reasonable cause to believe that informing the
person would prejudice the child’s welfare.
(4) Any person who, without reasonable excuse, fails to comply with
sub-paragraph (2)(b) shall be guilty of an offence and liable to a fine not
exceeding level 2 on the standard scale
unless he proves that -
(a) he was residing at the same address as another person who was
the child’s parent or had parental responsibility for the child; and
(b) he had reasonable cause to believe that the other person had
informed the Committee that both of them were residing at that address.
Appointment of visitor for child who is not being
visited
3.-(1) Where
it appears to the Committee in relation to any child it is looking after that -
(a) communication between the child and a parent or person other
than a parent who has parental responsibility for him has been infrequent; or
(b) he has not visited, been visited by or lived with any such
person during the preceding 12 months,
and
that it would be in the child’s best interests for an independent person to be
appointed to be his visitor for the purposes of this paragraph, it shall
appoint such a visitor.
(2) A person so appointed shall -
(a) have the duty of visiting, advising and befriending the child;
and
(b) be entitled to recover from the Committee any reasonable
expenses incurred by him for the purposes of his functions under this
paragraph.
(3) A person’s appointment as a visitor in pursuance of this
paragraph shall be determined if -
(a) he resigns by giving notice in writing to the Committee; or
(b) the Committee terminates his appointment by giving him notice in
writing,
and
such determination shall not prejudice any duty under this paragraph to make
further appointments.
(4) Where the Committee proposes to appoint or have appointed a
visitor for a child under this paragraph, the appointment shall not be made or,
if made, shall be determined if -
(a) the child objects to it or to its continuing; and
(b) the Committee is satisfied that he has sufficient understanding
to make an informed decision.
(5) The States may make Regulations as to the circumstances in which
a person appointed as a visitor under this paragraph is to be regarded as
independent of the Committee.
Arrangements to assist children to live outside the Island
4.-(1) The
Committee may -
(a) with the approval of the court arrange for, or assist in
arranging for, any child in its care to live outside the Island;
and
(b) with the approval of every person who has parental responsibility
for the child arrange for, or assist in arranging for, any child not in the
care of the Committee but looked after by it to live outside the Island.
(2) The court shall not give its approval under
sub-paragraph (1)(a) unless it is satisfied that -
(a) it would be in the child’s best interests to live outside the Island;
(b) suitable arrangements have been, or will be, made for his
reception and welfare in the country in which he will live;
(c) the child has consented to living in that country except where -
(i) the court is satisfied that he does not
have sufficient understanding to give or withhold his consent, and
(ii) he is to live in the country concerned with
a parent, guardian or other suitable person; and
(d) every person who has parental responsibility for the child has
consented to his living in that country except for a person whom the court is
satisfied cannot be found, is incapable of consenting or is withholding his
consent unreasonably.
(3) Article 31 of the Adoption (Jersey)
Law 1961
(which restricts the removal of infants for adoption outside the British Islands) shall not apply in the case of
any child who is to live outside the British
Islands with the approval
of the court given under this paragraph.
(4) Where the court gives its approval under this paragraph it may
order that its decision is not to have effect -
(a) where an appeal is made against the decision, during the period
between the making of the decision and the determination of the appeal; and
(b) otherwise, during the period in which an appeal may be made
against the decision.
Death of children being looked after by the Committee
5.-(1) Where
a child who is being looked after by the Committee dies, the Committee -
(a) shall, so far as is reasonably practicable, notify the child’s
parents and every person who is not a parent of his but who has parental
responsibility for him; and
(b) may, with the consent, so far as it is reasonably practicable to
obtain it, of every person who has parental responsibility for the child
arrange for the child’s body to be buried, or, provided it accords with the
practice of the child’s religious persuasion, cremated.
(2) Where the Committee has exercised its power under sub-paragraph
(1)(b) with respect to a child who was under 16 when he died, it may recover
from any parent of the child any expenses incurred by it and any sums so
recoverable shall, without prejudice to any other method of recovery, be
recoverable as a civil debt.
(3) Nothing in this paragraph affects any enactment regulating or
authorizing the burial, cremation or anatomical examination of the body of a
deceased person.
PART 2
CONTRIBUTIONS
Liability to contribute
6.-(1) Where
the Committee is looking after a child (other than under Article 18 or an
interim care order) it may recover contributions towards the child’s maintenance
-
(a) where the child is under full age, from each of his parents; and
(b) where he has reached the age of 16, the child himself,
if
it considers it reasonable to do so (having regard to that person’s means and
such other circumstances as the Committee considers relevant).
(2) A person is not liable to contribute towards a child’s
maintenance -
(a) in the case of a parent, if he is in receipt of Parish Welfare
payments or benefit under the Social Security (Jersey)
Law 1974;
and
(b) except as agreed or determined in accordance with this Part.
(3) Where a child is in the care of the Committee but is living with
a parent of his, that parent may recover contributions towards the child’s
welfare from the parent with whom he is not living.
Agreed contributions
7.-(1) Contributions
towards a child’s maintenance may only be recovered if the Committee, having
made such enquiries as it considers necessary to ascertain the contributor’s
means, has served on the contributor a contribution notice in writing and dated
specifying -
(a) the weekly sum which it considers that he should contribute
(having regard to his means and such other circumstances as the Committee
considers relevant); and
(b) arrangements for payment which shall, in particular, include the
date on which -
(i) liability to contribute begins (which must
not be earlier than the date of the notice),
(ii) liability under the notice will end (if the
child has not before that date ceased to be looked after by the Committee), and
(iii) the first payment is to be made.
(2) The Committee may specify in a contribution notice a weekly sum
which is a standard contribution determined by it for all children looked after
by it.
(3) The Committee may not specify in a contribution notice a weekly
sum greater than that which it considers it would normally be prepared to pay
if it had placed a similar child with Committee foster parents.
(4) Where a contributor fails to supply sufficient evidence of his
means the Committee may specify in a contribution notice a weekly sum up to the
maximum sum allowed in accordance with in sub-paragraph (3).
(5) The Committee may at any time withdraw a contribution notice
(without prejudice to its power to serve another).
(6) Without prejudice to any other method of recovery, where -
(a) the Committee and the contributor agree the sum which the
contributor is to contribute and arrangements for payment (whether as specified
in the contribution notice or otherwise); and
(b) the contributor notifies the Committee in writing that he so
agrees,
the
Committee may recover summarily as a civil debt any contribution which is
overdue and unpaid.
(7) A contributor may, by serving a notice in writing on the
Committee, withdraw his agreement in relation to any period of liability
falling after the date of service of the notice.
Contribution
orders
8.-(1) Where
a contributor has been served with a contribution notice and has -
(a) failed to reach agreement with the Committee as mentioned in paragraph
7(6) within the period of one month beginning with the day on which the
contribution notice was served; or
(b) served a notice under paragraph 7(7) withdrawing his agreement,
and
provided that the notice has not been withdrawn, the Committee may apply to the
court for an order under this paragraph.
(2) On such an application the court may make a contribution order
requiring the contributor to contribute a weekly sum towards the child’s
maintenance in accordance with arrangements for payment specified by the court.
(3) A contribution order shall be made with due regard to the
contributor’s means.
(4) A contribution order shall not -
(a) specify a weekly sum greater than that specified in the
contribution notice;
(b) take effect before the date specified in the contribution
notice;
(c) have effect while the contributor is not liable to contribute
(by virtue of paragraph 6); or
(d) remain in force after the child has ceased to be looked after by
the Committee.
(5) Where a contribution order is in force, the Committee serves
another contribution notice and the contributor and the Committee reach an
agreement under paragraph 7(6) in respect of that other contribution notice -
(a) the order shall be automatically discharged from the date on
which it is agreed that the agreement shall take effect; and
(b) the Committee shall notify the court of the agreement and the
date on which it took effect.
(6) A contribution order may be varied or revoked on the application
of the contributor or the Committee.
(7) In proceedings for the variation of a contribution order, the
Committee shall specify -
(a) the weekly sum which, having regard to paragraph 7, it proposes
that the contributor should contribute under the order as varied; and
(b) the proposed arrangements for payment.
(8) Where a contribution order is varied, the order -
(a) shall not specify a weekly sum greater than that specified by
the Committee in the proceedings for variation; and
(b) shall be made with due regard to the contributor’s means.
Enforcement of agreements and orders made in other
parts of the British
Islands
9.-(1) Where
a local authority in any other part of the British Islands
has an agreement or order requiring a person to contribute to the maintenance
of a child which that authority is looking after, the Committee may -
(a) at the request of that other authority; and
(b) subject to agreement as to any sum to be deducted in respect of
services rendered,
collect
from that person any contribution due on behalf of that authority and (subject
to any agreed deduction) pay it to the authority.
(2) The power to collect sums under sub-paragraph (1) includes the
power to -
(a) receive and give a discharge for any contributions due; and
(b) enforce, if necessary, payment of any contributions,
even
though those contributions may have fallen due at a time when the person liable
to make such contribution was living outside the Island.
(3) In any proceedings under this paragraph -
(a) a document purporting to be a copy of an order certified by the
clerk of the court which made it shall be evidence of the order; and
(b) a certificate purporting to be signed by the clerk or some other
duly authorized officer of the local authority who obtained the order and
stating that any sum due to the authority under the order is overdue and
unpaid, shall be evidence that the sum is overdue and unpaid.
(4) In this paragraph “local authority” includes -
(a) in relation to England and Wales, the council of a county, a
metropolitan district, a London Borough or Common Council of the city of
London;
(b) in relation to Scotland,
a local authority within the meaning of section 1(2) of the Social Work (Scotland) Act
1968;
(c) in relation to Northern Island, a Health and Social Services
Board established under Article 16 of the Health and Personal Social Services
(Northern Island) Order 1972;
(d) in relation to the Bailiwick of Guernsey, the Children Board;
and
(e) in relation to the Isle of Man,
the Department of Health and Social Security of the Isle of Man.
SCHEDULE 3
(Article 28)
SUPERVISION
ORDERS
Power of supervisor to give directions to supervised
child
1.-(1) A
supervision order may confer power on a supervisor to give directions to a
supervised child from time to time -
(a) specifying where he is to live;
(b) requiring him to present himself to a person specified in the
directions at and such time and place as may be so specified; and
(c) to participate in such activities on such dates as may be so
specified.
(2) Sub-paragraph (1) does not confer power on a supervisor to give
directions in respect of any medical or psychiatric examination or treatment.
Obligations on responsible person
2.-(1) Where a
responsible person consents, a supervision order may require him to -
(a) take all reasonable steps to ensure that the supervised child
complies with any direction given by the supervisor under paragraph 1;
(b) take all reasonable steps to ensure that the supervised child
complies with any requirement included in the order under paragraph 3 or 4; and
(c) comply with any directions given by the supervisor requiring him
to attend at a place specified in the directions for the purpose of taking part
in activities so specified.
(2) A direction given under sub-paragraph (1)(c) may specify the
time at which the responsible person is to attend and whether or not the
supervised child is required to attend with him.
(3) A supervision order may require a responsible person who has a
different address from that of the child to keep the supervisor informed of his
address.
Psychiatric and medical examinations
3.-(1) A
supervision order may require the supervised child to submit to a medical or
psychiatric examination or to submit to such examination from time to time as
directed by the supervisor -
(a) by or under the direction of such registered medical
practitioner as may be specified in the order;
(b) at a place specified in the order and at which the supervised
child is to attend as a non-resident patient; or
(c) at a hospital or, in the case of a psychiatric examination, a
hospital or mental nursing home at which the supervised child is, or is to
attend as a resident patient.
(2) A requirement of a kind mentioned in sub-paragraph (1)(c) shall
not be included unless the court is satisfied, on the evidence of a registered
medical practitioner, that -
(a) the child may be suffering from a physical or mental condition
that requires, and may be susceptible to, treatment; and
(b) a period as a resident patient is necessary if the examination
is to be carried out properly.
(3) The court shall not include a requirement under this paragraph
in a supervision order unless it is satisfied that -
(a) where the child has sufficient understanding to make an informed
decision, he consents to its inclusion; and
(b) satisfactory arrangements have been, or can be, made for the
examination.
Psychiatric and medical treatment
4.-(1) Where
the court is proposing to make or vary a supervision order and is satisfied, on
the evidence of a registered medical practitioner having special experience in
the diagnosis or treatment of mental disorder, that the mental condition of the
supervised child -
(a) is such as requires, and may be susceptible to, treatment; but
(b) is not such as to warrant his detention under Part III of the
Mental Health (Jersey) Law 1969,
the
court may include in the order a requirement that the supervised child shall,
for a period specified in the order, submit to such treatment as is so
specified.
(2) The treatment specified in accordance with
sub-paragraph (1) must be -
(a) by or under the direction of such registered medical
practitioner as may be specified in the order;
(b) as a non-resident patient at such a place as may be so
specified; or
(c) as a resident patient in a hospital or mental nursing home.
(3) Where the court is proposing to make or vary a supervision order
and is satisfied, on the evidence of a registered medical practitioner, that
the physical condition of the supervised child is such as requires, and may be
susceptible to, treatment, the court may include in the order a requirement
that the supervised child shall, for a period specified in the order, submit to
such treatment as is so specified.
(4) The treatment specified in accordance with
sub-paragraph (3) must be -
(a) by or under the direction of such registered medical
practitioner as may be specified in the order;
(b) as a non-resident patient at such a place as may be so
specified; or
(c) as a resident patient in a hospital.
(5) The court shall not include a requirement under this paragraph
in a supervision order unless it is satisfied -
(a) where the child has sufficient understanding to make an informed
decision, that he consents to its inclusion; and
(b) that satisfactory arrangements have been, or can be, made for
the treatment.
(6) If a medical practitioner by whom or under whose direction a supervised
person is being treated in pursuance of a requirement included in a supervision
order by virtue of this paragraph is unwilling to continue to treat or direct
the treatment of the supervised child or is of the opinion that -
(a) the treatment should be continued beyond the period specified in
the order;
(b) the supervised child needs different treatment;
(c) he is not susceptible to treatment; or
(d) he does not require further treatment,
the
practitioner shall make a report in writing to that effect to the supervisor.
(7) On receiving a report under this paragraph the supervisor shall
refer it to the court, and on such a reference the court may make an order
cancelling or varying the requirement.
Duration of a supervision order
5.-(1) Subject to
Article 66, a supervision order shall cease to have effect at the end of the
period of one year beginning with the date on which it was made.
(2) Where the supervisor applies to the court to extend, or further
extend, a supervision order the court may extend the order for such period as
it may specify.
(3) A supervision order may not be extended so as to run beyond the
end of the period of three years beginning with the day on which it was made.
Requirements in relation to supervision order
6.-(1) A
supervision order may require the supervised child -
(a) to keep the supervisor informed of any change in his address;
and
(b) to allow the supervisor to visit him at the place where he is
living.
(2) The responsible person in relation to any child with respect to
whom a supervision order is made shall -
(a) if asked by the supervisor, inform him of the child’s address
(if it is known to him); and
(b) if he is living with the child, allow the supervisor reasonable
contact with the child.
Selection of supervisor
7.-(1) A supervision
order shall not designate the Committee unless it agrees.
(2) The court shall not place a child under the supervision of a
probation officer unless -
(a) the Committee so requests; and
(b) a probation officer is already exercising or has exercised, in
relation to another member of the household to which the child belongs, duties
imposed on probation officers by the “Loi (1937) sur l’atténuation des peines
et sur la mise en liberté surveillée”.
(3) Where a supervision order places a person under the supervision
of a probation officer, the officer shall be selected in accordance with
arrangements made by the Probation Board.
(4) If the selected probation officer is unable to carry out his duties,
or dies, another probation officer shall be selected in the same manner.
Effect of supervision order on earlier orders
8. The making of a supervision order with
respect to any child brings to an end any earlier care or supervision order
which was made with respect to that child and would otherwise continue in
force.
SCHEDULE 4
(Articles 54(2) and 62)
DISQUALIFICATION
FOR CARING FOR CHILDREN
1. A person is disqualified for the purposes of Article 54(2) and
Article 62 if -
(a) he is the parent of a child who has at any time been made the
subject of a care order under Article 24(1)(a);
(b) an order has been made under -
(i) Article 24(1)(a), or
(ii) Part IV of the 1969 Law,
so as to remove a
child from his care or prevent the child living with him;
(c) an order has been made at any time for the purposes of removing
a child who was being kept, or was about to be received by him under -
(i) Article 62 of the 1969 Law, or
(ii) Article 27 of the Adoption (Jersey) Law 1961;
(d) his rights and powers with respect to a child had at any time
been vested in the Committee under Article 83 of the 1969 Law;
(e) he has been convicted of any offence specified in
paragraph 2;
(f) he is a person who carried on, or was otherwise concerned in
the management of, or had any financial interest in, a voluntary home which the
Committee -
(i) refused to register under Article 54(4) of
this Law or Article 78(3) of the 1969 Law, or
(ii) removed from the register under Article
54(5) of this Law or Article 78(4) of the 1969 Law;
(g) he has been prohibited from fostering a child privately under -
(i) Article 60(3) of this Law, or
(ii) Article 59(5) of the 1969 Law; or
(h) he has been refused registration under Article 2(4) of the Day
Care of Children (Jersey) Law 2002
or Article 68(5) of the 1969 Law or such registration has been cancelled under
Articles 7 or 72 respectively of those Laws.
2. The offences referred to in paragraph 1(e) are -
(a) the murder or manslaughter of a child;
(b) infanticide;
(c) any offence against a child under Article 1, 2, 4, 5 or 6 of the
“Loi (1895) modifiant le droit criminel”
and any attempt to commit an offence under Article 5 or 6 of that Law;
(d) sodomy with a child or an attempt to commit such an offence;
(e) incest with a child or an attempt to commit such an offence;
(f) stealing a child or receiving a stolen child;
(g) assault on a child;
(h) an offence under Article 35 of this Law or Article 9 of the 1969
Law;
(i) any other offence involving bodily injury to a child;
(j) an offence under Article 2(1)(a) of the Protection of Children
(Jersey) Law 1994;
(k) an offence under Article 28(1)(b) or (c) of the Adoption (Jersey) Law 1961;
(l) an offence under Article
37(12), Article 44 or Article 45(7);
(m) an offence under Article 12 of the Day Care of Children (Jersey)
Law 2002
or Article 71 of the 1969 Law; and
(n) an offence under Article 54(6) of this Law or Article 78(5) of
the 1969 Law.
3. In this Schedule “the 1969 Law” means the Children (Jersey) Law 1969.
SCHEDULE 5
(Article 82(1))
TRANSITIONAL
PROVISIONS AND SAVINGS
Pending proceedings, etc
1.-(1) Subject to
sub-paragraph (3), nothing in any provision of this Law shall affect any
proceedings which are pending immediately before the commencement of that
provision.
(2) For the purpose of the following provisions of this Schedule,
any reference to an order in force immediately before the commencement of a
provision of this Law shall be construed as including a reference to an order
made after that commencement in proceedings pending before that commencement.
(3) Sub-paragraph (2) is not to be read as making the order in
question have effect from a date earlier than that on which it was made.
(4) Rules of Court under Article 71(2) may make such provision with
respect to the application of those Rules in relation to proceedings which are
pending when the Rules come into force as the Superior Number of the Royal
Court consider appropriate.
Orders with respect to children
2.-(1) In this
paragraph “existing order” means any order, other than an order referred to in
sub-paragraph (2), in force before the commencement of Parts 1 and 2 which
determines all or any of the following -
(a) who is to have custody of a child;
(b) who is to have care and control of a child;
(c) who is to have access to a child; and
(d) any matter with respect to a child’s education or upbringing.
(2) The orders referred to in sub-paragraph (1) are -
(a) an order under Article 28(1)(b) of the Children (Jersey) Law 1969
committing a child to the care of the Committee;
(b) an order under Article 53(1) of that Law;
and
(c) a parental rights order under Article 83(1) of that Law.
(3) Subject to sub-paragraph (4), where there is an existing order
with respect to a child, each of his parents shall have parental responsibility
for him in accordance with Article 3 save that for paragraph (7) of
that Article there shall be substituted the following paragraph -
“(7) The
fact that a person has parental responsibility for a child does not entitle him
to act in a way which would be incompatible with any existing order or any
order made under this Law with respect to the child.”.
(4) Where the parents of a child in respect of whom there is an
existing order were not married to each other at the time of his birth Article
3 shall be further modified so that -
(a) for the purposes of Article 3(2), where the father has custody
or care and control of the child by virtue of an existing order, the court
shall be deemed to have made (at the commencement of that Article) an order
under Article 5(1) giving him parental responsibility for the child; and
(b) where by virtue of clause (a) a court is deemed to have made an order
under Article 5(1) in favour of a father who has care and control of a child by
virtue of an existing order, the court shall not bring the order to an end at
any time while he has care and control of the child by virtue of the order.
(5) Where a person who is not the parent or guardian of a child has
custody or care and control of him by virtue of an existing order, that person
shall have parental responsibility for him so long as he continues to have that
custody or care and control by virtue of the order and Parts 1 and 2 shall have
effect save that -
(a) for Article 3(7) there shall be substituted the following
paragraph -
“(7) The
fact that a person has parental responsibility for a child does not entitle him
to act in a way which would be incompatible with any existing order or any
order made under this Law with respect to the child.”;
(b) in Article 10(3) after paragraph (a) there shall be inserted the
following sub-paragraph -
“(aa) any
person who has custody or care and control by virtue of any existing order;”;
and
(c) in Article 27(1) after paragraph (b) there shall be inserted the
following paragraph -
“(ba)
where immediately before the care order
was made there was an existing order by virtue of which a person had custody or
care and control of a child, that person;”.
(6) where a person continues to have care and control of a child by
virtue of an existing order -
(a) Article 7 shall have effect as if -
(i) for any reference to a residence order in
favour of a parent or guardian there were substituted a reference to any
existing order by virtue of which the parent or guardian has care and control
of the child, and
(ii) for paragraph (9) there were substituted -
“(9) Paragraphs
(1) and (7) do not apply if the existing order referred to in sub-paragraph (b)
of those paragraphs was one by virtue of which a surviving parent of the child
also had care and control of him.”;
(b) Article 10 shall have effect as if for paragraph (4)(c)(i) there
were substituted the following clause -
“(i) in
any case where by virtue of an existing order any person or persons has or have
care and control of the child, has the consent of that person or each of those
persons,”;
(c) Article 17 shall have effect as if for paragraph (9)(a) there
were substituted the following sub-paragraph -
“(a) who has care and control of the child by
virtue of an existing order;”;
(d) Article 20 shall have effect as if for paragraph (2)(b) there
were substituted the following sub-paragraph -
“(b) where he is in care and immediately before
the care order was made there was an existing order by virtue of which a person
had care and control of the child, that person;”; and
(e) paragraphs 1(1) and 11(1) of Schedule 1 shall have effect as if
for the words “in whose favour a residence order is in force with respect to
the child” there were substituted the words “who has been given care and
control of the child by virtue of an existing order”.
(7) Where a person has access by virtue of an existing order -
(a) Article 10 shall have effect as if after paragraph (4) there
were inserted the following paragraph -
“(4A) Any person who has access to a
child by virtue of an existing order is entitled to apply for a contact
order.”;
(b) Article 16(2) shall have effect as if after sub-paragraph (b)
there were inserted the following sub-paragraph -
“(ba) any
person who has access to the child by virtue of an existing order;”; and
(c) Articles 36(8), 37(10) and 41(6) shall have effect as if in each
case after sub-paragraph (d) there were inserted the following sub-paragraph -
“(da) any
person who has been given access to him by virtue of an existing order;”.
Discharge of existing orders
3.-(1) The
making of a residence order or a care order with respect to a child who is the
subject of an existing order discharges the existing order.
(2) Where the court makes any Article 10 order (other than a
residence order) with respect to a child with respect to whom any existing
order is in force, the existing order shall have effect subject to the
Article 10 order.
(3) The court may discharge an existing order, or any part of it,
which is in force with respect to a child -
(a) in any family proceedings relating to the child or in which any
question arises with respect to the child’s welfare; or
(b) on the application of any parent or guardian of the child or any
person named in the order.
(4) In considering whether to discharge an order under the power
conferred by sub-paragraph (3) the court shall, if the discharge of the order
is opposed by any party to the proceedings, have regard in particular to the
matters mentioned in Article 2(3).
(5) In this paragraph “existing order” has the same meaning as in
paragraph 2.
Orders for pension
alimentaire
4. Any order in force for pension
alimentaire shall, on the commencement of Article 15 and Schedule 1, have
effect as an order for the making or securing of periodical payments under
paragraph 1(1)(a)(i) or (ii) of that Schedule.
Care orders
5.-(1) Any order in
force under -
(a) Article 28(1)(b) of the Children (Jersey)
Law 1969
committing a child to the care of the Committee;
(b) Article 53(1) of that Law
committing a child to the care of the Committee; or
(c) Article 83(1) of that Law
(a parental rights order),
shall,
on and after commencement of Part 4, be deemed to be a care order under this
Law placing that child in the care of the Committee.
(2) Any order in force under Article 28(1)(b) of the Children (Jersey) Law 1969
committing a child to the care of a fit person other than the Committee shall,
on and after the commencement of Part 2, be deemed to be a residence order in
favour of that person.
(3) Where, immediately before the commencement of Part 3, a child is
in the care of the Committee under Article 82 of the Children (Jersey) Law
1969,
on and after the commencement of Part 3 he shall be treated as a child who is
provided with accommodation by the Committee under Part 3, but he shall cease
to be so treated once he ceases to be so accommodated in accordance with the
provisions of that Part.
(4) Where, immediately before the commencement of Part 3, a child in
the care of the Committee was boarded out with a person under Article 91 of the
Children (Jersey) Law 1969,
on the commencement of that Part, while he remains with that person he shall be
treated as having been placed with a Committee foster parent.
(5) Any reference in Part 3 to a person qualifying for advice and
assistance shall be construed as including a reference to a person under the
age of 21 and who was, at any time after reaching the age of 16 but while still
a child the subject of an order mentioned in sub-paragraph (1).
(6) Where, immediately before the commencement of Part 2 of Schedule
2, there was in force a contribution order under Article 94 of the Children
(Jersey) Law 1969,
then on and after such commencement -
(a) the order shall have effect as if made under paragraph 8(2) of
Schedule 2; and
(b) Part 2 of Schedule 2 shall apply to the order save that in
paragraph 8 -
(i) sub-paragraph (4)(b) shall be deleted,
(ii) in sub-paragraph (5) for the words “another
contribution notice” there shall be substituted the words “a contribution
notice under paragraph 7” and the word “other” shall be omitted,
(iii) in sub-paragraph (8)(b) for the full stop
there shall be substituted the word “; and”, and
(iv) after subparagraph 8(b) there shall be
inserted the following paragraph -
“(c) where
the order is against a person who is not a parent of the child, shall be made
with due regard to -
(i) whether that person had assumed
responsibility for the maintenance of the child and, if so, the extent to which
and the basis on which he assumed that responsibility and the length of the
period during which he met that responsibility,
(ii) whether he did so knowing that the child
was not his child, and
(iii) the liability of any other person to
maintain the child.”.
Supervision orders
6.-(1) Any order in
force under Article 28(1)(d) or Article 54 of the Children (Jersey) Law 1969
shall, on and after commencement of Part 4, be deemed to be a supervision
order and -
(a) any requirement of the order that the child reside with a named
individual shall continue to have effect while the order remains in force,
unless the court otherwise directs; and
(b) any other requirement imposed by the court, or directions given
by the supervisor, shall be deemed to have been imposed or given under the
appropriate provisions of Schedule 3.
(2) Where, immediately before the commencement of Part 4, the order
had been in force for a period of more than six months, it shall cease to have
effect six months after the commencement of Part 4 unless -
(a) the court directs that it shall cease to have effect at the end
of a different period (which shall not exceed three years);
(b) it ceases to have effect earlier in accordance with
Article 66; or
(c) it would have ceased to have had effect earlier had this Law not
been passed.
(3) Where sub-paragraph (2) applies, paragraph 5 of Schedule 3
shall not apply.
(4) Where, immediately before the commencement of Part 4, the order
had been in force for less than six months it shall cease to have effect in
accordance with Article 66 and paragraph 5 of Schedule 3 unless -
(a) the court directs that it shall cease to have effect at the end
of a different period (which shall not exceed three years); or
(b) it would have ceased to have had effect earlier had this Law not
been passed.
Place of safety orders
7. Where -
(a) a warrant has been issued under Article 10(1) of the Children (Jersey) Law 1969;
or
(b) an order has been made under Article 62 of that Law
or under Article 27 of the Adoption (Jersey)
Law 1961,
the order
shall continue to have effect as if this Law had not been passed.
Employment of children
8.-(1) Notwithstanding
the repeal of the Children (Jersey) Law 1969,
any order made under Article 3 of that Law
and in force immediately prior to the commencement of Part 6 of this Law shall,
in so far as it is not inconsistent with any provision of this Law, continue in
force as if made under this Law.
(2) Any licence granted under Article 5 of the Children (Jersey) Law 1969
shall, on and after commencement of Part 6, have effect as a licence granted
under Article 50 of this Law.
Voluntary homes
9. Where, prior to the commencement of Part
7, a voluntary home -
(a) has been registered under Article 78 of the Children (Jersey) Law 1969;
or
(b) is the subject of an application for such registration which has
not yet been determined,
such
registration or application, as the case may be, shall, on and after
commencement of Part 7, have effect as if it had been made under
Article 54.
Foster children
10. Any requirement or prohibition imposed
under Article 59 of the Children (Jersey) Law
1969
shall, on and after commencement of Part 8, have effect as a requirement or
prohibition, as the case may be, imposed under Article 60 of this Law.
SCHEDULE 6
(Article 82(2))
AMENDMENT
OF ENACTMENTS
Code of 1771
1. In
the Code of 1771 in the Serment des
Tuteurs
the words “que vous les éleverez à la
crainte de Dieu;” shall be deleted.
Matrimonial Causes (Jersey)
Law 1949
2. In the Matrimonial Causes (Jersey)
Law 1949 -
(a) in Article 1(1)
after the definitions of “cause” and “suit” there shall be inserted the
following definition -
“ ‘child
of the family’ has the same meaning as in the Children (Jersey)
Law 2002;”;
(b) in Articles 8(2), 11, 27(1) and 28(1)(a) and (b)
for the words “children of the marriage” there shall be substituted the words
“children of the family”;
(c) for Article 25
there shall be substituted the following Articles -
“Article 25.
Provision
for children.
(1) In
any proceedings for divorce or nullity of marriage or judicial separation, the
court may from time to time, either before or after the final decree, make such
provision as appears just with respect to the maintenance of any children of
the family in relation to the parties to the marriage which is the subject of
the proceedings.
(2) Subject
to paragraph (3) of this Article, on pronouncing a decree nisi of divorce,
judicial separation or nullity of marriage or at any time thereafter, whether
before or after the decree has been made absolute, the court shall have power
to order either party to the marriage to secure for the benefit of any children
of the family such gross sum of money or annual sum of money as the court may
deem reasonable, and the court may for that purpose settle and approve a proper
deed or instrument to be executed by all necessary parties.
(3) The
term for which any sum of money is secured for the benefit of a child under
paragraph (2) of this Article shall not extend beyond the date when the child
will attain the age of 21.
Article
25A.
Restrictions
on decrees for dissolution, annulment or separation affecting children.
(1) In
any proceedings for a decree of divorce or nullity of marriage, or a decree of
judicial separation, the court shall consider -
(a) whether
there are any children of the family to whom this Article applies; and
(b) where
there are any such children, whether (in the light of the arrangements which
have been made, or are proposed to be, made for their upbringing and welfare)
it should exercise any of its powers under the Children (Jersey)
Law 2002
with respect to any of them.
(2) Where,
in any case to which this Article applies, it appears to the court that -
(a) the
circumstances of the case require it, or are likely to require it, to exercise
any of its powers under the Children (Jersey)
Law 200286
with respect to any such child;
(b) it
is not in a position to exercise that power or (as the case may be) those
powers, without giving further consideration to the case; and
(c) there
are exceptional circumstances which make it desirable in the interests of the
child that the court should give a direction under this Article,
it
may direct that the decree of divorce or nullity is not to be made absolute, or
that the decree of judicial separation is not to be granted, until the court
orders otherwise.
(3) This
Article applies to -
(a) any
child of the family who has not yet reached the age of 16 at the date when the
court considers the case in accordance with the requirements of this Article;
and
(b) any
child of the family who has reached that age at that date and in relation to
whom the court directs that this Article shall apply.”; and
(d) in Article 29(2)(a) for the words “child of the marriage” there
shall be substituted the words “child of the family”.
Separation and Maintenance Orders (Jersey)
Law 1953
3. In the Separation and Maintenance Orders (Jersey)
Law 1953 -
(a) in the long title
the words “the legal custody of children of the marriage and” shall be deleted;
(b) Articles 2(2)(b), and 7
shall be repealed;
(c) in Article 2(2)(c)
for the words “in the other party’s legal custody” there shall be substituted
the words “living with that other party”;
(d) in Article 6
for the words “in the legal custody of ” there shall be substituted the words
“living with”; and
(e) for Article 6A90 there shall be substituted
the following Article -
“ARTICLE 6A.
POWER OF COURT WITH RESPECT
TO CHILDREN ON DISMISSAL OF APPLICATION.
Where an application for an order
under Article 2 of this Law is dismissed at any stage after the commencement of
the hearing, the court may order one party to the marriage to pay to the other
party to the marriage, if any child of the marriage is living with that other
party, or to an officer of the court or third person on behalf of such other
party, such weekly sum (not exceeding such amounts as the States shall by
regulations prescribe) for the maintenance of each such child until the child
attains the age of sixteen years as the court shall, having regard to the means
of both parties to the marriage, consider reasonable.”.
Income Tax (Jersey)
Law 1961
4. In the Income Tax (Jersey)
Law 1961 -
(a) in Article 92B(1)
for the definition of “registered provider” there shall be substituted the
following definition -
“ ‘registered
provider’ means day care accommodation or a day carer registered under Article
2 of the Day Care of Children (Jersey) Law 2002;”;and
(b) for Article 115(o)
there shall be substituted the following paragraph -
“(o) payments made for the maintenance of a child
being looked after by the Health and Social Services Committee under the
Children (Jersey) Law 2002;”.
Mental Health (Jersey)
Law 1969
5. In the Mental Health (Jersey)
Law 1969 -
(a) in Article 1(1) -
(i) in the definition of “guardian”
for the words “charge of, or control over,” there shall be substituted the
words “care of”, and
(ii) for the definition of “parent”
there shall be substituted the following definition -
“ ‘parent’, in relation to a child, includes any
person who is not his parent but who has parental responsibility for him
(within the meaning of the Children (Jersey)
Law 2002)
or care of him;”; and
(b) for Articles 37 and 38
there shall be substituted the following Articles -
“Article 37.
Children
and young persons in care.
Where a patient who is a child or
young person in the care of the Committee by virtue of a care order within the
meaning of the Children (Jersey) Law 2002,97 the Committee shall be
deemed to be the nearest relative of the patient in preference to any person
except the patient’s spouse (if any).
Article
38.
Nearest
relative of minor under guardianship, etc.
(1) Where
-
(a) a
guardian has been appointed for a person who has not yet attained the age of
majority; or
(b) a
residence order (within the meaning of the Children (Jersey)
Law 200297) is in force with respect
to such a person,
the
guardian (or guardians where there is more than one) or the person named in the
residence order shall, to the exclusion of any other person, be deemed to be
his nearest relative.
(2) Paragraph
(4) of Article 36 of this Law shall apply in relation to a person who is, or
who is one of the persons, deemed to be the nearest relative of a patient by
virtue of this Article as it applies in relation to a person who would be the
nearest relative under paragraph (3) of that Article.
(3) In
this Article ‘guardian’ does not include a guardian under this Part of this
Law.”.
Family Allowances (Jersey)
Law 1972
6. For Article 18 of the Family Allowances (Jersey) Law 1972
there shall be substituted the following Article -
“Article 18.
Exclusion
of children who are the subject of certain orders.
A child shall not, for the purposes of
this Law, be treated as included in any family as respects any period during
which he -
(a) is
detained under Article 5 of the Criminal Justice (Young Offenders) (Jersey) Law
1994,
serving a sentence of youth detention under Article 4 or 6 of that Law
or remanded to a remand centre under Article 15A of that Law;
or
(b) is
placed in secure accommodation under Article 22 of the Children (Jersey) Law 2002
or is being looked after by the Health and Social Services Committee under that
Law and he is living away from the family.”.
Criminal Justice (Young Offenders) (Jersey)
Law 1994
7. In
the Criminal Justice (Young Offenders) (Jersey)
Law 1994 -
(a) in Article 1(1)
-
(i) after the definition of “attendance centre
order” there shall be inserted the following definition -
“ ‘the Committee’ means the Education
Committee;”,
(ii) in the definition of “guardian” for the
words “charge of or control over” there shall be substituted the words “care
of”,
(iii) the definition of “place of safety” shall be
deleted, and
(iv) after the definition of “probation order”
there shall be inserted the following definition -
“ ‘remand centre’ means a remand centre provided
under Article 15A;”;
(b) in Part IV after the heading
but before Article 16 there shall be inserted the following Article -
“ARTICLE
15A
Provision of remand centres
(1) The
Committee shall provide or arrange for the provision of remand centres.
(2) The
Committee may make arrangements with other bodies or persons for the provision
of remand centres if it is satisfied that -
(a) the
premises are in all respects suitable for the purposes of a remand centre; and
(b) the
person who will ordinarily have charge of or control over those premises is a
fit and proper person to do so.
(3) The
Committee may by Order make provision for -
(a) the
inspection, regulation and management of remand centres and for the
classification, treatment, employment, discipline and control of persons
required to be detained in the centres; and
(b) the
visiting of such persons by persons appointed in accordance with the Order.”;
(c) in Article 16
the words “established under the Children (Jersey)
Law 1969” shall be deleted;
(d) in Article 18
-
(i) after paragraph (1) there shall be
inserted the following paragraphs -
“(1A) In relation to a
person -
(a) for
whom the Health and Social Services Committee have parental responsibility; or
(b) whom that Committee is looking after,
(within
the meaning of the Children (Jersey) Law 2002),
the reference in paragraph (1) to a person who is a parent or guardian of
his shall be construed as a reference to an officer of that Committee.”, and
(ii) in paragraph (2) the words “taken to a
place of safety” shall be deleted;
(e) in Article 21
for the words “Articles 36 and 37 and Part XIIA of the Children (Jersey)
Law 1969” there shall be substituted the words “Articles 4 to 8 of the Criminal
Justice (Evidence of Children) (Jersey) Law 2002
and Article 73 of the Children (Jersey) Law 2002108”; and
(f) Article 22(3) and the Second Schedule
shall be repealed.
Protection of Children (Jersey)
Law 1994
8. Article 2(5) of the Protection of
Children (Jersey) Law 1994
shall be repealed.
Inquests
and Post-mortem Examinations (Jersey) Law 1995
9. In Article 2(4)(c) of the Inquests and
Post-mortem Examinations (Jersey) Law 1995
for the words “Children (Jersey)
Law 1969” there shall be substituted the words “Children (Jersey) Law 2002”.
Education
(Jersey) Law 1999
10. In the Education (Jersey) Law
1999 -
(a) in Article 1(1) -
(i) before the definition of “child”
there shall be inserted the following definition -
“ ‘care order’ has the same meaning as in the
Children (Jersey) Law 2002;114”,
(ii) for the definition of “parent”
there shall be substituted the following definition -
“ ‘parent’, in relation to a child, includes any
person who is not his parent but who has parental responsibility him (within
the meaning of the Children (Jersey) Law 2002114 or care of him;”,
(iii) after the definition of “pupil”
there shall be inserted the following definition -
“ ‘registered
day care premises’ means premises registered under Article 2 of the Day Care of
Children (Jersey) Law 2002;”,and
(iv) for the definition of “supervision order”
there shall be substituted the following definition -
“ ‘supervision order’ has the same meaning as in
the Children (Jersey) Law 2002;”;
(b) in Articles 10(1) and 39(2)(a)
for the words “premises registered under Article 68 of the Children (Jersey) Law 1969” there shall be substituted the words
“registered day care premises”;
(c) for paragraph 4(5)(b) of the Third Schedule
there shall be substituted the following clause -
“(b) a care order is made with respect to the
child.”; and
(d) paragraphs 2 and 4 of the Eighth Schedule
shall be repealed.
Maintenance Orders (Enforcement) (Jersey)
Law 1999
11. In Article 1(1) of the Maintenance Orders (Enforcement) (Jersey) Law 1999 -
(a) for sub-paragraph (a)(ii)
there shall be substituted the following clause -
“(ii) under Schedule 1 to the Children (Jersey) Law 2002,
or;”; and
(b) in sub-paragraph (b)
the expression “3,” shall be deleted.
Age of Majority (Jersey)
Law 1999
12. Article 6 of and paragraphs 4 and 8 of the Schedule to the Age
of Majority (Jersey) Law 1999
shall be repealed.
Rehabilitation of Offenders (Jersey)
Law 2001
13. In Article 8(2)(d) of the Rehabilitation of
Offenders (Jersey) Law 2001
for the words “1969 Law” there shall be substituted the words “Children (Jersey)
Law 2002124
or the Day Care of Children (Jersey) Law 2002”.
Marriage
and Civil Status (Jersey) Law 2001
14. In the Marriage and Civil Status (Jersey) Law 2001 -
(a) in Articles 55 and 56 -
(i) at the end of paragraph (2)(c) for the
full-stop there shall be substituted the word “; or”, and
(ii) after sub-paragraph (2)(c) there shall be
added the following sub-paragraphs -
“(d) at the
request of the mother or that person on production of -
(i) a copy of a parental responsibility
agreement made between them in relation to the child, and
(ii) a declaration by the person making the
request stating that the agreement was made in compliance with Article 5
of the Children (Jersey) Law 2002 and has not been brought to an
end by an order of a court; or
(e) at the
request of the mother or that person on production of -
(i) a certified copy of an order under Article 5
of the Children (Jersey) Law 2002131 giving that person parental
responsibility for the child, and
(ii) a declaration by the person making the
request stating that the order has not been brought to an end by an order of a
court; or
(f) at the
request of the mother or that person on production of -
(i) a certified copy of an order under
paragraph 1 of Schedule 1 to the Children (Jersey) Law 2002131 which requires that person to
make any financial provision for the child and which is not an order falling
within paragraph 4(3) of that Schedule, and
(ii) a declaration by the person making the
request stating that the order has not been discharged by an order of a court.”;
(b) in Article 55(3) after the words “paragraph 2(c)”
there shall be added the words “to (f)”;
(c) for Article 55(5)132 there shall be substituted the
following paragraph -
“(5) For the purposes of this Article and
Article 56 -
(a) references to a child whose father and mother
were not married to each other at the time of his birth shall be construed in
accordance with Article 1(2) of the Children (Jersey) Law 2002; and
(b) ‘parental responsibility agreement’ has the
same meaning as in Article 5 of the Children (Jersey)
Law 2002.133”; and
(d) for Schedule 2 there shall be
substituted the following Schedule -
“SCHEDULE 2
(Article 6(1))
CONSENTS
REQUIRED TO THE MARRIAGE OF A MINOR
1. The consents are -
(a) subject to sub-paragraphs (b) to (d) of
this paragraph, the consent of -
(i) each parent (if any) of the minor who has
parental responsibility for him, and
(ii) each guardian (if any) of the minor;
(b) where a residence order is in force with
respect to the minor, the consent of the person or persons with whom he lives,
or is to live, as a result of the order (in substitution for the consents
mentioned in sub-paragraph (a) of this paragraph);
(c) where a care order is in force with respect
to the minor, the consent of the Health and Social Services Committee (in
addition to the consents mentioned in sub-paragraph (a) of this
paragraph); and
(d) where neither sub-paragraph (b) nor (c) of
this paragraph applies but a residence order was in force with respect to the
minor immediately before he reached the age of 16, the consent of the person or
persons with whom he lives, or was to live, as a result of the order (in
substitution for the consent mentioned in sub-paragraph (a) of this
paragraph).
2. In this Schedule ‘guardian’, ‘parental
responsibility’, ‘residence order’ and ‘care order’ have the same meaning as in
the Children (Jersey) Law 2002.”.