JERSEY Law and Practice Contributed by: Lauren Glynn, Victoria Cure and Tara Lee, Carey Olsen
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 Jersey, as in England and Wales, it is possible to secure the sum - mary return of a child pursuant to the inherent jurisdic - tion of the court or by means of a specific issues order. 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 Family Judges in the lower court do 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return the child, that is because it is in his best interests to do so, not because the wel - fare principle has been superseded by some other consideration”;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 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
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