Criminal Law (Child
Abduction) (Jersey) Law 2005
A LAW to amend the criminal law
relating to the abduction of children.
Commencement [see endnotes]
1 Interpretation
(1) In
this Law –
“care order”, “guardian”, “parental responsibility”, “parent”, “residence order” and “second parent” have the same meanings as
in Article 1(1) of the Children Law;
“Children Law” means the Children (Jersey)
Law 2002;
“parental order” has the meaning given in
Article 1(1) of the Children Law and includes a recognition order made
under Article 9N of that Law.[1]
(2) A
person shall be treated under this Law as having custody of a child if there is
in force an order of a Jersey court awarding the person (whether solely or
jointly with another person) custody, legal custody or care and control of the
child.
(3) For
the purposes of this Law a person shall be regarded as –
(a) taking a child, if the person causes or
induces the child to accompany him or her or any other person or causes the
child to be taken;
(b) sending a child, if the person causes the
child to be sent;
(c) detaining a child, if the person causes the
child to be detained or induces the child to remain with him or her or any
other person.
(4) References
in this Law to a child’s parents and to a child whose parents were (or
were not) married to each other at the time of the child’s birth shall be
construed in accordance with Article 1 of the Children Law (which extends
their meaning).
2 Abduction of child by parent etc.
(1) Subject
to paragraphs (4), (5) and (8), a person connected with a child under the
age of 16 years commits an offence if the person takes or sends the child
out of Jersey without the appropriate consent.
(2) A
person is connected with a child for the purposes of
this Article if –
(a) the person is a parent of the child;
(b)
(c) the person is a guardian of the child;
(d) the person is a person in whose favour a
residence order is in force with respect to the child; or
(e) the person has custody of the child;
(f) [2]
(3) In
this Article “appropriate consent”, in relation to a child, means –
(a) the consent of each of the
following –
(i) the child’s
mother,
(ii) the
child’s father, if he has parental responsibility for the child,
(iii) any
guardian of the child,
(iv) any
person in whose favour a residence order is in force with respect to the child;
(v) a person who is a
second parent of the child if that person has parental responsibility for the
child;
(b) the leave of the court granted under any
provision of Part 2 of the Children Law; or
(c) if any person has custody of the child, the
leave of the court that awarded custody to the person.[3]
(4) A
person does not commit an offence under this Article by taking or sending a
child out of Jersey without obtaining the appropriate consent if –
(a) the person is a person in whose favour there
is a residence order in force with respect to the child; and
(b) the person takes or sends the child out of Jersey
for a period of less than one month,
unless by so doing the person
is in breach of an order under Part 2 of the Children Law.
(5) A
person does not commit an offence under this Article by doing anything without
the consent of another person whose consent is required under the foregoing
provisions of this Article if –
(a) the
person does it in the belief that the other person –
(i) has consented, or
(ii) would
consent if the person were aware of all the relevant circumstances;
(b) the
person has taken all reasonable steps to communicate with the other person but
has been unable to communicate with that other person; or
(c) the
other person has unreasonably refused to consent.
(6) Paragraph (5)(c)
does not apply if –
(a) the
person who refused to consent is a person –
(i) in whose favour
there is a residence order in force with respect to the child, or
(ii) who
has custody of the child; or
(b) the
person taking or sending the child out of Jersey is, by so acting, in breach of
an order made by a court in Jersey.
(7) Where,
in proceedings for an offence under this Article, there is sufficient evidence
to raise an issue as to the application of paragraph (5), it is for the
prosecution to prove that the paragraph does not apply.
(8) In
the case of a child of a description specified in column 1 of the Schedule –
(a) the reference in paragraph (1) of this Article
to the appropriate consent shall be construed as a reference to the
corresponding leave or consent specified in column 2 of the Schedule; and
(b) paragraphs (3) to (7) do not apply.
(9) The
States may by Regulations amend the Schedule.
3 Abduction of child by other persons
(1) Subject
to the following provisions of this Article, a person commits an offence if,
without lawful authority or excuse, the person takes or detains a child under
the age of 16 years –
(a) so as to remove the
child from the lawful control of any person having lawful control of the child;
or
(b) so as to keep the
child out of the lawful control of any person entitled to lawful control of the
child.
(2) The
offence in paragraph (1) does not apply to –
(a) the
child’s parents, if they were married to each other, or civil partners of
each other, at the time of the child’s birth;
(b) the
child’s mother, if, at the time of the child’s birth, she was
not –
(i) married to or the
civil partner of the child’s father, or
(ii) married
to or the civil partner of the child’s second parent;
(c) a
guardian of the child;
(d) a
person in whose favour a residence order is in force with respect to the child;
(e) a
person in whose favour a parental order is in force with respect to the child;
(f) a
person who is the child’s second parent; or
(g) a
person who has custody of the child.[4]
(3) A
person does not commit an offence under this Article if –
(a) where the father and mother of the child in
question were not married to each other, nor civil
partners of each other, at the time of the child’s birth –
(i) he is the
child’s father, or
(ii) at
the time of the alleged offence, he believed, on reasonable grounds, that he
was the child’s father; or
(b) at the time of the alleged offence, the person
believed that the child had attained the age of 16.[5]
4 Penalties and prosecutions
(1) A
person guilty of an offence under this Law shall be liable to imprisonment for
a term of 7 years and to a fine.
(2) No
prosecution for an offence under Article 2 shall be instituted except by
or with the consent of the Attorney General.
5 Citation
This Law may be cited as
the Criminal Law (Child Abduction) (Jersey) Law 2005.