JERSEY Law and Practice Contributed by: Lauren Glynn, Victoria Cure and Tara Lee, Carey Olsen
of another person whose consent is required, if the person: • does so in the belief that the other person has con - sented, or would consent if the other person was aware of all the relevant circumstances; • has taken all reasonable steps to communicate with the other person but has been unable to com - municate with that other person; or • the other person has unreasonably refused to con - sent – note, this defence does not apply if the other person has a residence order in respect of the child, has custody of the child, or the person taking or sending the child out of Jersey is, by so acting, in breach of an order made by a court in Jersey. Notably, these defences apply only to the criminal offence of abduction. It is also a criminal offence for other persons (ie, a person not deemed to be connected with the child) to take or detain a child under the age of 16 years out of Jersey without lawful authority or excuse. The maximum penalty under the Criminal Law (Child Abduction) (Jersey) Law 2005 is seven years’ impris - onment and/or a fine. It is also unlawful (under civil law) to remove a child from Jersey, either temporarily or permanently, with - out either the permission of all those with parental responsibility for the child or an order permitting removal from the Family Division of the Royal Court of Jersey, save that a person with a residence order in respect of the child may remove the child from Jersey without consent for a period of less than one month. 3.2 Steps Taken to Return Abducted Children If a child has been removed from Jersey without the relevant consent, measures are available to aid the return of the child from the country to which they have been taken. 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 con - tact/parental responsibility orders). 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 Convention 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
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