JERSEY Law and Practice Contributed by: Lauren Glynn, Victoria Cure and Tara Lee, Carey Olsen
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 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. The Family Judges (in the lower court) currently do not have power to grant immediate interim injunctive relief for the child’s immediate return to Jersey or for the non-removal of the child from Jersey. Specific issues orders for a child’s return and/or prohibited steps orders preventing the removal of a child from Jersey can be granted by the Family Judges. How - ever, powers of arrest can presently only be attached to injunctions. 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 and, if the child has been brought to Jersey, the abducting parent, on a means-tested basis. 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 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.
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