Children
There are two main areas of law which affect children in Jersey and which are both dealt with in the Children (Jersey) Law 2002. Public children law relates to cases where the States need to be involved with children either because there is no-one to look after them, or because there are problems with the care they are receiving. Private children law relates to arrangements for children within families, often after a relationship breakdown. The information below is concerned with private children law. However, Advocate Barbara Corbett is experienced in representing both children and adults in public child law cases so if you need advice or assistance because of States involvement with children, please contact Barbara at barbara.corbett@corbettlequesne.com or Nicholas at nicholas.lequesne@corbettlequesne.com.
Parental responsibility
Instead of “custody” there is now a legal concept of Parental Responsibility. Where a child’s parents are married to each other when the child is born, they both have parental responsibility for the child.
Where the parents of the child are unmarried, the mother automatically has parental responsibility, but the father does not. He can acquire it by either by being named on the child’s birth certificate (for children born since 2 December 2016) or by entering into a written Parental Responsibility Agreement (in a specified form) with the mother or by court order. Other people can also have parental responsibility for a child if they have a residence order in their favour in respect of the child.
More than one person can have parental responsibility for a child at any one time, and each of them may exercise that parental responsibility independently, except for matters which require the consent of all those with parental responsibility, e.g. adoption, change of name or permanent removal from the jurisdiction.
A person who has parental responsibility cannot transfer or surrender it, but they can arrange for some aspects of their parental responsibility to be met by someone else acting on their behalf, e.g. a childminder. The making of any such arrangement does not prevent the person with parental responsibility being ultimately responsible for the child. A person who does not have parental responsibility, but has the actual care of the child may do what is reasonable in all the circumstances to safeguard or promote the child’s welfare. A parent who has parental responsibility for a child can appoint someone else to take their place as the child’s guardian in the event of their death.
Residence and contact
It is expected that children will live with both of their parents but when parents separate another arrangement is usually necessary. The Family Court will only get involved if there is a disagreement between parents. The best people to make the arrangements are the parents and so there is encouragement for parents to communicate with each other in the best interests of the children.
“Residence” is who a child lives with (not where) and “contact” is the contact between a parent or another person such as a grandparent. Residence can be shared between parents or with other family members. Contact can be staying contact, perhaps for several days a week, daytime visits, indirect contact via telephone calls, FaceTime, Skype, email or social media. If there are safety concerns or if a child has not seen the person they are to have contact with for a long time, it is possible for contact to be “supported” at one of the contact centres in Jersey. We can help you to make arrangements for residence and contact if you are unable to agree matters directly. Matters relating to children are often best dealt with through mediation. There are two mediation organisations in Jersey: Family Mediation Jersey and The Resolution Centre. Both organisations have mediators who are qualified to not only mediate with adults but also to meet older children to ascertain their views if appropriate. If negotiations are to take place between lawyers, collaborative law is a good way to settle matters.
If the arrangements for where the children live and spend time with each parent cannot be agreed then arbitration can be used. Family arbitration is more flexible than making an application to the court but the arbitrator (who is a specialist and can be chosen for their specific expertise) will make a final decision. That decision can then be taken to the court for ratification as a consent order. If there is no other way to resolve matters or if all other routes have been tried, an application can be made to the Family Court. This is done on Form C100 with a court fee of £130. It is possible for people to apply to the court themselves and this is also something that we can help with.
Specific issues and prohibited steps
When both parents have parental responsibility for a child they should discuss and agree significant matters such as where a child goes to school or whether he or she should have a particular medical treatment or operation. If parents cannot agree, again, collaborative law or mediation is a good starting point. However, when disagreement is such that a decision has to be made by someone else, arbitration could be tried or an application made to the Family Court for either a Specific Issue Order (to insist that something is done) or a Prohibited Steps Order (to insist that something is not done). Again, the application is on Form C100 and there is a court fee of £120.
Relocation, leave to remove and child abduction
A very specific matter of disagreement can be whether a child is taken to live in a different jurisdiction. With so many families in Jersey coming from outside the island, and many families with parents from different countries, requests to take children abroad to live occur in Jersey probably more than in most places. Again, if at all possible it is best to agree matters. Sometimes the parent to be left in Jersey will not be happy with the child leaving and will try to stop the other parent’s plans. It is always difficult but if good, proper plans for education, accommodation, a source of income and a support network are put in place by the parent who wants to leave and very robust plans for contact are put in place, with enforceable arrangements for the child to return to Jersey and for the parent left behind to travel to see the child in the new environment, relocation can work.
A child should not be unilaterally removed from Jersey, to do so may well constitute child abduction and there can be criminal consequences. If a child is taken from Jersey, especially to a country which is a signatory to the Hague Convention on child abduction, there is a relatively speedy procedure for having the child returned to Jersey for the Jersey courts to decide where he or she should live. If a parent is found to have taken a child out of Jersey without consent they can also be ordered to pay the costs of any court proceedings to have the child returned. It is therefore always wise to make an application to the Family Court if you are not able to agree. An application for leave to remove (in effect a Specific Issue Order) is made by a parent wanting to take a child abroad to live and a Prohibited Steps Order is made by a parent not wanting the child to go. We at Corbett Le Quesne have significant experience of dealing with such international cases and Barbara Corbett, as a fellow of the International Academy of Family Lawyers has a worldwide network of lawyer contacts she can call on at such times.
Grandparents’ “rights”
When there is family breakdown there can be difficulties with children seeing the wider family of the parent they are no longer living with. Sometimes there can be breakdown in relations between the generations. Grandparents do not generally have rights and responsibilities towards children in the way parents do but the Law does recognise that there are times when grandparents (and others) may need to seek help to maintain a relationship with children. So, while there is no automatic right to make a court application for contact or even residence, grandparents can apply to the court for leave to make an application. Of course, before any application to the court, collaborative law, mediation, or negotiation between lawyers should be considered first.
Surrogacy and Adoption
In modern times there are now different ways in which families are created. Couples who face difficulties having children, especially same sex couples, can be helped through assisted reproduction, surrogacy or adoption. The law in Jersey has not kept pace with such developments and we at Corbett Le Quesne are supporting the Jersey Law Commission in their work to recommend to the States of Jersey updating legislation. In the meantime, the absence of specific law relating to assisted reproduction, including surrogacy and updates to the Adoption (Jersey) Law 1961 can cause uncertainty. Barbara Corbett at Corbett Le Quesne has extensive knowledge of the law as it currently stands in relation to the legal status of children born through all potential assisted reproduction techniques and can advise you at any stage in the process.
Under the Children (Jersey) Law 2002, the Law which regulates matters relating to children in Jersey, the welfare of the child is the court’s paramount consideration. And there is a general principle that any delay in determining a question regarding a child is likely to prejudice the child’s welfare and is therefore to be avoided. When asked to make a decision about a child, the Court will call on the assistance of the Jersey Family Court Advisory Service (“JFCAS”). Rather than the judge investigating the circumstances, the JFCAS officer will meet the parents to see if any agreement can be reached. The officer will then prepare a report for the court with their recommendations. Both JFCAS and the Court will try to do what is best for the child or children. This may not be what either parent wants.
Financial claims for children
Where a child’s parents were married and are going through divorce, questions relating to the maintenance and accommodation of the children will be dealt with when finances are considered as a whole, whether this is done through court or by agreement.
Where a child’s parents are not married, there are no divorce proceedings in which issues of maintenance can be considered. Both parents, whether or not they have parental responsibility, have an obligation to support their children. If the children live primarily with one parent, the other parent will be expected to contribute to the living costs of the children (this includes housing costs, heat, light, water and food as well as more tangible items). The general starting point is the children's needs in the context of available funds and lifestyle considerations. Where the children spend time with each parent or when there are disparities in the parents’ incomes, these figures can be varied. Again, if agreement can be reached by negotiation between lawyers, collaborative law or mediation, that will be best. However, if a decision has to be made by someone else, arbitration or court proceedings will be necessary.
Applications are made under Schedule 1 of the Children (Jersey) Law 2002 and can be for general maintenance, a contribution towards school fees, a lump sum payment and also in some cases, the provision of accommodation for the parent with care and the children. Child maintenance can include an element of care cost for the parent with care, particularly if the children are very young.