JERSEY Law and Practice Contributed by: Lauren Glynn, Victoria Cure and Tara Lee, Carey Olsen
cases during the 1960’s these became known as ‘kidnapping’ cases”; • “summary return should not be the automatic reac - tion to any and every unauthorised taking or keep - ing a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child”; • “focus had to be on the individual child in the par - ticular circumstances of the case”; • “the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever”; • “one important variable... is the degree of connec - tion of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his ‘home’ country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this”;
• “another closely related factor will be the length of time he has spent in each country. Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interests”; • “in a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant. But their relevance will depend upon the facts of the individual case. If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned”; and • “the effect of the decision upon the child’s primary carer must also be relevant, although again not decisive.” The identity of the country to which the child is to be returned may affect the outcome of an application. If the country in question does not determine issues in respect of children by reference to welfare – ie, what is in the child’s best interests, and/or there is serious and genuine uncertainty as to the competence of the court in the other country and/or to uphold interna - tional human rights principles, then the application is unlikely to be successful.
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