JERSEY Law and Practice Contributed by: Lauren Glynn, Victoria Cure and Tara Lee, Carey Olsen
residence from Jersey pursuant to the Hague Conven - tion. Neither was successful. In the matter of Max (A Child) [2014] (2) JLR 413, the court determined that the father had consented to the permanent removal of the child and declined to order his return. In Applicant parent v Birth Mother and others [2020] JCA141A, the Court of Appeal upheld the Royal Court’s decision not to order the child’s return on the basis that the child was settled in her new environ - ment and that her return would expose her to a grave risk of psychological harm. Notably, the court’s deci - sion regarding settlement in this case is questionable – the child had been abducted from Canada several years prior to her arrival in Jersey. In the intervening period, the child had lived a somewhat covert and itinerant existence in Spain and then France, before she was brought to Jersey illegally from France – on a four-metre inflatable dinghy. The initial application was made on 29 July 2019, but the substantive hearing did not take place until January 2020. The court will apply the required principles set out in the Convention – namely consent, habitual residence, the exercise of rights of custody, settlement and grave risk of harm. An application for a child’s summary return should be made to the Central Authority of the country of the child’s habitual residence, for onwards transmis - sion to the Law Officer’s Department, on behalf of the Attorney General, in Jersey. 3.4 Non-Hague Convention Countries For the reasons set out in 3. Child Abduction, there is very limited case law in respect of applications for the return of a child to the country from which they have been removed. The single reported decision – E v W 2000/189 – pre - dates the implementation of the Hague Convention in Jersey and pre-dates the coming into force of the Children (Jersey) Law 2002. The Jersey Court regularly follows and adopts the law and practice of the courts of England and Wales in
children law matters. For that reason, where there is an absence of local jurisprudence, the Jersey Court will follow and apply English case law, particularly in areas in which the law is developing. In England and Wales, it is possible to secure the summary return of a child pursuant to the inherent jurisdiction of the court or by means of a specific issues order. The Royal Court of Jersey is currently hearing such a case and it remains to be seen whether it will determine that it has the power to do so. An application for the return of a child pursuant to the court’s inherent jurisdiction can only be made to the Inferior Number of the Family Division of the Royal Court of Jersey, as the lower court does not have inherent jurisdiction. An application for the return of a child by way of a specific issues order can be made to any level of the Family Division. Such applications should be heard without delay. Cas - es will be determined on the basis of the paramountcy principle – ie, what is in the child’s best interests but applying the principles of international law regarding child abduction – ie, that questions as to the upbring - ing of a child should be determined by their country of habitual residence. It is anticipated that the princi - ples set out in J v J (Return to Non-Hague Convention Country) [2021] EWHC 2412 will be applied: • “any court which is determining any question with respect to the upbringing of a child has had a statutory duty to regard the welfare of the child as its paramount consideration”; • “there is no warrant, either in statute or authority, for the principles of The Hague Convention to be extended to countries which are not parties to it”; • “in all non-Convention cases, the Courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the wel - fare principle has been superseded by some other consideration”; • “the court does have the power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conduct - ing a full investigation of the merits. In a series of
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