Return to Contents
The Jersey Law Review – February 2006
SHORTER ARTICLES AND NOTES
COMBATING CHILD ABDUCTION: JERSEY COMES INTO THE INTERNATIONAL FOLD
Steven Pallot
1 There was the air of a topping out ceremony when, on 19th December 2005, the Superior Number of the Royal Court sat to enact –
(i) the Child Abduction and Custody Rules 2005;[1] and
(ii) the Child Custody (Jurisdiction) Rules 2005.[2]
2 The Child Abduction and Custody Rules were made under the Child Abduction and Custody (Jersey) Law 2005 and were the last building block of a legislative structure that has now seen Jersey become a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”)[3] and so join the international fold in combating cross-border child abduction.
3 The Child Custody (Jurisdiction) Rules were made under the Child Custody (Jurisdiction) (Jersey) Law 2005 and completed the process of enabling Jersey’s legislation to dovetail with the statutory framework of the United Kingdom under which orders with regard to the custody of children are able to be recognised and enforced reciprocally throughout the different jurisdictions of that country.
Child Abduction and Custody (Jersey) Law 2005
4 This Law gives effect in Jersey as from 1st January 2006 to the Hague Convention which works on the principle of returning children aged under 16 years who are wrongfully removed or retained away from their country of habitual residence. In order to be considered wrongful, a removal or retention must be in breach of rights of custody which are actually being exercised by a person, an institution or any other body under the law of the state in which the child was habitually resident immediately before the removal or retention.
5 Under the Convention, courts are required to act promptly in ordering the return of a child wrongfully removed or retained away from their country of habitual residence.[4] There are however some grounds on which a return order can be refused. Amongst these are the grounds that -
· the court is satisfied that to return the child would expose the child to a grave risk of physical or psychological harm, or otherwise place the child in an intolerable situation;
· the child objects to being returned and is mature enough to have his or her views taken into account.[5]
6 The court may also refuse to return a child if the applicant was not actually exercising rights of custody at the time of removal or consented to or subsequently acquiesced in the removal or retention.
7 The Law also gave effect in Jersey on 1st January, 2006 to the 1980 Council of Europe Convention on the Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (“the European Convention”).[6] The European Convention is used less often in abduction cases because the Convention only operates where an order already exists. The Convention has more frequent application to the enforcement of access orders.
8 Orders made in European Convention countries are recognised, but must be registered before being enforced. Enforcement may not necessarily follow immediately after registration. There are a number of grounds on which enforcement can be opposed. These are set out in articles 9 and 10 of the Convention.
9 Both the Hague and European Conventions require Contracting States to establish central authorities to undertake the administrative arrangements necessary to secure their objects. The central authorities act as channels for applications under the Conventions and are required to assist applicants with the practical problems of tracing the child and securing its return. The Law provides for the functions of the central authority in Jersey to be discharged by the Attorney General.
10 The Child Abduction and Custody Rules 2005 deal with matters of procedure. In particular, they require every application, whether under the Hague Convention or the European Convention, to be made by representation. Certain requirements are made about the contents of a representation under which an application is made and the documents required by the relevant Convention to accompany the application.
11 There is a requirement for the representation to be served personally on certain persons and for the return date in court to be not more than 21 days from date on which service of the representation is ordered. A representation by which an application is made under either of the Conventions becomes, in effect, a cause de brièveté and is not subject to the normal rules of pleading. A representation may be accompanied by evidence on affidavit in support of the application; and any person on whom the representation has been served may within 7 days lodge affidavit evidence with the Court (and must serve it on the representor). Within 7 days after that, the representor may lodge and serve a statement in reply.
12 Applications under the Law will be able to be dealt with by the Bailiff rather than by the Inferior Number of the Royal Court (i.e. the Bailiff and two Jurats). Proceedings under either Convention may not be adjourned at any one time for more than 21 days.
13 The Rules go on to enable applications for interim directions under Articles 7 and 20 of the Law to be made ex parte.
14 Article 7 of the Law relates to the Hague Convention and empowers the Court at any time before an application is determined, to give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.
15 Article 20 of the Law relates to the European Convention and empowers the Court, where an application has been made for the registration or enforcement of a decision relating to custody, to give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of any subsequent application for the enforcement of the decision.
16 The Court is also empowered to order the disclosure of certain information about a child who is the subject of the proceedings.
Child Custody (Jurisdiction) (Jersey) Law 2005
17 The Law is based on Part I of the Family Law Act 1986 which laid down the jurisdictional bases for the granting of custody orders in England and Wales, Scotland and Northern Ireland and established a procedure for the recognition and enforcement of custody orders throughout the United Kingdom. The purpose of the Law is to enact similar provisions in Jersey so that there may be reciprocity in matters relating to custody orders between Jersey and the different jurisdictions of the United Kingdom.[7]
18 The key to recognition and enforcement of custody orders lies in their registration.
19 The Law provides for the recognition and registration in Jersey of United Kingdom custody orders known as “Part I orders”, i.e. orders to which Part I of the Family Law Act 1986 applies. The Royal Court is empowered to secure the enforcement of such an order, once it has been registered, as though it were an order made in Jersey.
20 The Law also enables applications to be made to the Royal Court for ‘a Jersey order’ - meaning, in most cases, an order made by the Court under article 10 of the Children (Jersey) Law 2002 - to be forwarded to a part of the United Kingdom for registration and enforcement in that part.
21 In relation to enforcement of custody orders, the Law widens the enforcement powers of the Royal Court.
22 The Child Custody (Jurisdiction) Rules 2005 define, amongst other expressions, “appropriate court” and “appropriate officer” in relation to each part of the United Kingdom. The Rules go on to set out the functions of the Judicial Greffier -
(a) upon an application being made to the Royal Court under article 16 of the Law for the registration in the United Kingdom of a Jersey order;
(b) upon receipt from the United Kingdom of a certified copy of a Part I order for registration in Jersey;
(c) when a Jersey order which has been registered in the United Kingdom is subsequently revoked or varied by the Royal Court; and
(d) when an order made in the United Kingdom and registered in Jersey is subsequently revoked, recalled or varied.
23 The Rules also provide for applications for interim directions under article 13(2) of the Law to be made by summons. Article 13(2) empowers the Royal Court, where an application has been made for the enforcement of a Part I order, to give interim directions for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.
24 Parties to proceedings under the Law in respect of any child must file an affidavit giving particulars of any other proceedings (whether in Jersey or elsewhere) relating to the child.
25 Finally, the Rules make certain provisions concerning applications for orders under articles 17 and 18 of the Law. Article 17 provides that -
“Where in proceedings for or relating to a Jersey order[8] in respect of a child, there is not available to the Court adequate information as to where the child is, the Court may order any person who it has reason to believe may have relevant information to disclose it to the Court”.
26 Article 18 provides that -
“Where -
(a) a person is required by a Jersey order, or an order for the enforcement of a Part I order, to give up a child to another person; and
(b) the Court is satisfied that the child has not been given up in accordance with the order,
the Court may make an order authorising the Viscount or a police officer to take charge of the child and deliver the child to that other person”.
27 The authority conferred by an order under Article 18 includes authority -
(a) to enter and search any premises where the person acting in pursuance of the order has reason to believe the child may be found; and
(b) for the use of such force as may be necessary to give effect to the purpose of the order.
28 The Rules provide that an application under either of these articles may be made ex parte to the Bailiff and must, if made under article 18, be supported by affidavit.
The criminal law
29 In addition to enacting the two Laws mentioned above, the States earlier in the year enacted the Criminal Law (Child Abduction) (Jersey) Law 2005. As its short title suggests, this Law was concerned with the criminal offence of child abduction.
30 It is probable, but not necessarily certain, that at Jersey customary law a parent can be guilty of kidnapping his or her own child and of unlawfully imprisoning his or her child. However, there appears to be no case in which such an offence has been charged. But although the Report of the Commissioners on the Criminal Law[9] does not refer to any such offence, Le Geyt’s Manuscripts on the Constitution, Laws & Usages of Jersey, contain, so far as relevant, the following passage (in translation) under the heading Du Plagiaire -
“It is yet another form of larceny, when one detains under one’s roof, a daughter [or] a son . . . against the wish of the father . . . This offence strictly relates only to the human person. . . The abduction of a child causes pain and grief. . .”[10]
31 Whilst Le Geyt, writing in the late 17th century, contemplated an offence restricted to the abduction of a child from its father, it might be open to the Royal Court to hold that the offence now extends to the abduction of a child in breach of custodial rights of the mother.[11]
32 Whatever the position might be at customary law, the Criminal Law (Child Abduction) (Jersey) Law 2005 has now created two statutory offences of -
(i) abduction of a child under 16 by a parent, guardian or person having custodial rights; and
(ii) abduction of such a child by a stranger.
33 The Law is a vital tool in preventing the removal of a child in the first place (and thus avoiding resort having to be had to the Hague Convention at all).
34 The Powers of Arrest (Injunctions) (Jersey) Law 1998 gave the Viscount and police officers powers of arrest upon reasonable cause to suspect that a person had acted, was acting or was about to act in breach of a non-molestation injunction or an injunction excluding that person from a specified location. That Law was later amended to extend such power of arrest to cases involving breach (actual or potential) of an injunction restraining a person from removing a minor from the Island. This provided a weapon to combat the abduction of children from the Island. The harbours and airport authorities were able to be alerted to any risk of breach of a court injunction and to call upon the police to arrest the person concerned and thereby thwart an attempt at abduction.
35 However, the power under the 1998 Law (as amended) could only be invoked where there was a court order. Now, the offences created by the Criminal Law (Child Abduction) (Jersey) Law 2005 bring into play the ordinary powers of arrest of police officers when they have reasonable cause to suspect the commission or pending commission of an offence. The power of arrest is no longer dependant upon a court having granted an injunction. However, although a court order will not be a pre-requisite to police action, it may still be advantageous (as has been found in the United Kingdom) to obtain one since, amongst other things -
· it establishes the applicant’s bona fides which may help to convince the police of the need for action;
· it enables the applicant to be assisted by the authorities in tracing the child;
· it enables the Royal Court to order the surrender of a passport; and
· the Royal Court can order publicity to trace the child.
36 Furthermore, an order of the Court will be required if resort is to be had to the Child Abduction and Custody (Jersey) Law 2005.
Conclusion
37 The Laws and Rules of Court outlined above contain far reaching and key reforms in an important area of law. Removal of a child from one country to another has always been a serious problem in the light of conflict of jurisdictions between the courts of different countries. Once a child is taken out of the jurisdiction, it is much harder both to find and recover the child.
38 Until the enactment of this legislation, Jersey’s statutory framework in this difficult area had remained somewhat insular. With the bringing into force of the Children (Jersey) Law 2002, the enactment of this subsequent legislation and Jersey becoming a Convention State, the legal structures of the Island in matters concerning the welfare of children will have been reformed in such a way that the Jersey courts, child welfare bodies and others will be able to operate fully and effectively at the international level.
Steven Pallot is an advocate of the Royal Court and is a Senior Legal Adviser in the Law Officers Department, Jersey.
Return to Contents