JERSEY Law and Practice Contributed by: Lauren Glynn, Victoria Cure and Tara Lee, Carey Olsen
for such consent to be dispensed with in accordance with a ground specified in Article 13 (2) of the law.
ers the question to be relevant, is of meeting the child’s needs; and • the range of powers available to the court under this Law in the proceedings in question. As noted by the Royal Court in In the matter of LL and MM (Prohibited Steps Order and Residence Order) [2020] JRC 137 and applied by the Family Division sitting in A v B (Family) [2019] JRC 001A: “The legal test to be applied is now very straight- forward. It is the application of the principle of the paramountcy of the children’s best interests, as tax - onomised by the checklist in Section 1 (3) of the 1989 Act. That principle is not to be glossed, augmented or steered by any presumption in favour of the putative relocator. Lord Justice Thorpe’s famous ”discipline” in Payne v Payne [2001] 1 FLR 1052 is now relegated to no more than guidance, guidance which can be drawn on, or not, as the individual case demands. In fact, most of the features of that guidance are state - ments of the obvious” per Mostyn, J in GT v RJ [2018] EWFC 26. In summary, the court must determine whether it is in the child’s best interests to relocate or not. 2.3.2 Wishes and Feelings of the Child As noted in 2.3.1 Factors Determining an Application for Relocation , the wishes and feelings of the child will be considered as part of the welfare checklist. 2.3.3 Age/Maturity of the Child The extent to which a child’s wishes and feelings will be taken into account depends on the age and matu - rity of the child and the specific circumstances of the case. The wishes and feelings of an older child are likely to weigh more heavily in the court’s decision than those of a younger child. However, it is acknowl - edged that children of any age are not usually able to fully understand the implications of relocation and cases are unlikely to be determined on the basis of the child’s wishes and feelings. 2.3.4 Importance of Keeping Children Together The court considers it to be very important to keep children of the family together, where this is possible.
2. Relocation 2.1 Whose Consent Is Required for Relocation?
In order for a parent to lawfully, permanently remove a child from Jersey, they need to have either (i) the consent of any other party with parental responsibil - ity or (ii) an order of the court. If a parent permanently removes a child from Jersey without the consent of those with parental responsibility, they are likely to be committing the criminal offence of child abduction. 2.2 Relocation Without Full Consent If a parent is unable to obtain the consent of any other party with parental responsibility, it will be necessary for them to make an application to the Family Division of the Royal Court of Jersey seeking the court’s leave to remove the child permanently from the jurisdiction. Such applications are commonly referred to as “leave to remove” applications. 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation In considering a leave to remove application, the child’s welfare will be the court’s paramount consid - eration, and the court must have regard to the factors set out in what is known as the “welfare checklist” in Article 2 (3) of the Children Law (Jersey) Law 2002, which are as follows: • the ascertainable wishes and feelings of the child concerned (considered in light of the child’s age and understanding); • the child’s physical, emotional and educational needs; • the likely effect on the child of any characteristics of the child which the court considers relevant; • any harm which the child has suffered or is at risk of suffering; • how capable each of the child’s parents, and any other person in relation to whom the court consid -
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