Parental responsibility/Residence Order/Contact ( 8.30.40. )
What is Parental Responsibility
1. Parental responsibility means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. This would include decisions about education, religious upbringing and immunisation. (Article 3 Children (Jersey) Law 2002)
Who can have Parental Responsibility
2. Where a child's father and mother were married to each other at the time of his birth, they each have parental responsibility for the child. Where the child's parents were not married to each other at the time of the child's birth, only the mother has parental responsibility. the father can however gain parental responsibility either by entering into a Parental Responsibility Agreement with the mother or by the court making a Parental Responsibility Order. A person with a Residence Order in respect of a child also has parental responsibility for the child.
3. More than one person may have parental responsibility for the same child at the same time. When a child is subject to a care order the Minister shares parental responsibility with the mother and the father (if he has parental responsiblity either by being married to the mother, through a Parental Responsibility Agreement or a Parental Responsibility Order). Adoptive parents and guardians (appointed under Article 7 Children (Jersey) Law 2002) also have parental responsibility. Birth parents lose parental responsibility when an adoption order is made. This is the only way a mother or a married father can lose parental responsibility for a child. An unmarried father can only lose parental responsibility by way of a court order.
Parental Responsibility Agreements
A Parental Responsibility agreement is a legal document in which the child's mother and father (if they were not married when the child was born) agree that the father will have parental responsibility for the child in addition to the mother. It must be drawn up and signed on a parental Responsibility Agreement Form which the person can obtain from the Judicial Greffe, Royal Court House or download from here
4. Parents are expected to make arrangements for their children without the need for the intervention of the court. However, if parents cannot agree, then the court can make various orders in respect of children under the Children (Jersey) Law 2002. When orders are made, the welfare of the child is paramount.
What is a Residence Order?
5. A Residence Order determines who a child is to live with. It does not determine where the child is to live, although other orders may do so. Where a father who does not already have parental responsibility is granted a residence order, he should also be granted parental responsibility which he will retain even if the Residence Order is subsequently discharged. Any person other than a parent who has a Residence Order will have parental responsibility for the child the subject of the Residence Order but only as long as the Residence Order is in force. Ordinarily a Residence Order lasts until the child is sixteen, but it can last longer if the Court finds that there are exceptional circumstances. It is possible for a shared Residence Order (where children spend time with more than one person who do not live with each other) in which case the order will usually specify the number of days and nights the child/children will spend with each person. A joint Residence Order can be made where two (or more) people who live together have the care of a child or children. There is no presumption that a child should live with one parent over another, but parents will ordinarily be granted residence over non-parents, subject to the welfare of the child being the court's paramount consideration.
Who can apply for a Residence Order?
6. The following people can apply for a Residence Order:
a) Any parent or guardian of the child;
b) Any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family.
c) Any person with whom the child has lived for 12 months out of the 15 months preceding the application
d) Any person who has the consent of everyone with parental responsibility for the child; or
e) Any person with the leave of the court.
A Residence Order is usually sought when the relationship between parents has broken down and the parents can't agree on the arrangements for their children.
How to apply for Residence Order
7. An application for a Residence Order is made on Form C1, available from the Judicial Greffe, Family Section. The Judicial Greffe also provide information about making applications. It is advisable to take legal advice before making any court application, but it is not necessary to have a lawyer to bring proceedings under the Children (Jersey) Law 2002.
8. Once an application has been made, if there is still no agreement about the arrangements for the children, the parties will be asked to meet an officer of JFCAS (Jersey Family Courts Advisory Service) who will try to assist the parties to reach an agreement. If that is not possible, the court may order a report to be prepared by JFCAS. This usually takes several weeks, and there may need to be interim arrangements put in place during this time. After the JFCAS report has been received, the matter returns to court for a case review hearing, when the next steps are considered. Frequently, once the JFCAS report has been completed the parties will agree on the arrangements recommended by the JFCAS officer. The court will place considerable weight on the views of the JFCAS officer, but do not have to follow the recommendations. if there is still no agreement the case will proceed to a contested hearing. The court encourages parties to reach agreement at each stage, and will be open to delays in the process to allow the parties to negotiate or to attend mediation. Once made, a Residence Order can be varied or discharged, but an appliction to the court is necessary.
What is a Contact Order?
9. A Contact Order determines who the child is to have contact with. This contact can either be face-to-face and can include overnight contact, or it can be indirect, ie by telephone calls, letters and internet contact. The court is generally of the view that a child should have good staying contact with both parents. Therefore the court will need to be sure that if there is any risk of harm to a child through contact, that harm outweighs the benefits of a lasting relationship with both parents (and wider family) if contact is to be restricted or refused. It is unusual for there not to be contact between a child and each of his parents. Contact for a parent who does not live with the child will usually be substantial, including weekend overnight contact and further time during the week and in school holidays, if circumstances (and geography) allow. Contact for others, such as grandparents is likely to be less.
Who can apply for a Contact Order?
10. The same people who can apply for a Residence Order (see above).
How to apply for a Contact Order
10. A Contact Order is applied for in the same way as a Residence Order. As with a Residence Order, a Contact Order can be varied by an application to the court. An application to vary an order is made on Form C2. A person who is not a parent, or otherwise entitled to apply for an order (eg a grandparent) will need to apply for leave from the court on Form C2. Leave will usually be given if there is a close connection between the child and the applicant.
11. Sometimes it is necessary for contact to be supervised or supported. This could be because there is a risk to the child from the person exercising contact, or that there has been a gap in contact and the child needs to be re-introduced, or possibly to reassure the parent with care that all is well. Supervised or supported contact does not usually go on for a long time, the aim is to move contact on to more natural unsupervised contact where possible. The Child Contact Centre 8.30.40.L3 and Children's Services can help with supervised and supported contact.
Prohibited Steps Orders and Specific Issue Orders
12. As the names suggest, these orders can be applied for in order to prevent something happening or being done to a child or to order that something specific does happen to a child. Examples of the use of these orders is to prevent or to request removal of children from Jersey, a change of name, or school or a surgical procedure. Injunctions may also be available in children cases, but legal advice should be sought if an injunction is required.
The Welfare Checklist
12. When the court is asked to reach any decision relating to the upbringing of the child, in addition to the child's welfare being paramount, the court must also consider:
a) the ascertainable wishes and feelings of the child;
b) her/his physical, emotional and educational needs;
c) the likely effect on her/him of any change in her/his circumstances;
d) her/his age, sex, background and any characteristics of his which the court considers relevant;
e) any harm which s/he has suffered of is at risk of suffering;
f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting her/his needs; and
g) the range of powers available to the court.
Is there an appeal procedure?
13. Applications for Residence and Contact Orders arey heard by the Registrar of the Family Division. It is possible to have a decision reviewed by the Royal Court. Appeals from the Royal Court lie to the Court of Appeal. It is advisable to tqke legal advice if an appeal or review is being contemplated.
14. Where a Residence Order is in force with respect to a child no person may change a child's surname or remove her from the island without either the written consent of every person who has parental responsibility for her or leave of the Court. This does not apply for periods of less than a month. The court can, if it sees fit, place conditions or restrictions on Residence or Contact Orders.
21. Under Article 7 of the Children (Jersey) Law 2002 it is possible for any individual to apply to the Court to be appointed as the child's guardian if:
a) the child has no parent with parental responsibility for her/him; or
b) a Residence Order has been made with respect to the child in favour of a parent or guardian of her/his who has died while the order was in force.
22. In family proceedings the Court may appoint a guardian if it thinks the order should be made even where there has been no application. A guardian has parental responsibility.
23. A parent with parental responsibility for his child may appoint another individual to be the child's guardian in the event of his death. This appointment must be in writing and signed by the person making the appointment, or at his direction in the presence of two witnesses. This appointment will only take effect if there is no-one else with parental responsibility or if the person making the appointment had a residence order at the time of death.
24. Appointment of a guardian does not prevent someone else applying for a Residence Order, the court will consider all the circumstances when coming to a decision
24. If a child has inherited personal or real estate, following a death, the Court must appoint a guardian or 'tuteur' assisted by a least six people (known as a tutelle), to administer the assets of the child. The tutelle acts on behalf of the child until the age of 18, when the child can apply to have the tutelle discharged. The 'tuteur 'does not acquire parental responsibility by his appointment to administer the child's property.
Contact and maintenance
25. Parents have a responsibility to maintain their children and every child has a right of contact to both parents, unless it can be shown that this would be detrimental to the child's wellbeing. The two matters are not dpendent on each other, so it is not acceptable to prevent contact if maintenance is not paid or vice versa.
Court Fees Payable
26. Court fees payable in relation to applications under the Children (Jersey) Law 2002: