JERSEY Law and Practice Contributed by: Lauren Glynn, Victoria Cure and Tara Lee, Carey Olsen
If a child is removed from Jersey to anywhere in the UK, namely England, Wales, Scotland and Northern Ireland (or from any of those countries into Jersey), reciprocal legislation exists providing for the recogni - tion, registration and enforcement of orders in respect of children made under Part 1 of the Family Law Act 1986 and its dependent territory modifications, and Part 3 of the Child Custody (Jurisdiction) (Jersey) Law 2005. Legal advice should be obtained in the relevant jurisdiction – ie, England, Wales, Scotland or Northern Ireland as to how to register and enforce an order of the Jersey court in respect of the child. Jersey is also party to the European Convention on Recognition and Enforcement of Decisions concern - ing Custody of Children and on Restoration of Cus - tody of Children signed in Luxembourg on 20 May 1980 (the “European Convention”), providing for the recognition and enforcement of custody decisions across member states, including mechanisms for the restoration of custody when a child has been wrong - fully removed. Legal advice should be obtained in the relevant jurisdiction as to how to register and enforce an order of the Jersey Court in respect of the child. Jersey is also a party to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Hague Convention”) (by exten - sion of the UK’s membership). If the country to which the child has been taken is also a party to the Hague Convention (and, if an ascension member state, has entered into relations with the UK), then an application for the summary return of the child can be filed with the Attorney General of Jersey via the Law Officers’ Department, which acts as Jersey’s Central Authority, for onward transmission to the Central Authority of the country to which the child has been removed. Applications pursuant to the reciprocal legislation with the UK and to the European Convention require that the party seeking the return of the child has a cus - tody order – ie, a residence order (or possibly parental responsibility). Many left-behind parents will not have the benefit of such an order, as orders in respect of arrangements for children are only made by the court in cases where they are required – ie, where there has previously been a dispute which could not be resolved without the court’s assistance. It is also of
note that Jersey is not currently party to the Conven - tion of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measure for the Protection of Children. This means that, even if a parent had parental responsibility for a child in the country in which they previously lived and/or in which the child was born, that position may not be capable of recognition in Jersey. If a child is taken to a country outside of the UK, and which is not party to either the European Conven - tion or the Hague Convention, advice will need to be taken in that jurisdiction as to what, if any, measures are available in that jurisdiction to aid in the return of the child. In cases with no existing order, and/or in which there is no reciprocal legislation or convention to aid in the child’s return, it is advisable for parties to consider making an urgent ex parte application to the Royal Court of Jersey by Order of Justice for: • immediate interim injunctive relief for the child’s immediate return to Jersey (such an order can be granted pursuant to the inherent jurisdiction); • parental responsibility (if required); • a sole or shared residence order in respect of the child; and/or • immediate interim injunctive relief for the non- removal of the child from Jersey following their return. 3.3 Hague Convention on the Civil Aspects of International Child Abduction Free legal aid is available in Jersey to the parent of the abducted child. Jersey is a small jurisdiction with a population of around 120,000 people. Many people relocate to Jer - sey for work in the offshore corporate finance and hospitality sectors. The majority of child abduction cases therefore involve children being removed from Jersey, rather than into Jersey. Noting that the vast majority of court decisions are reported in Jersey (anonymously), there are just two reported decisions dealing with the determination of an application for a child’s summary return to their country of habitual
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