In Jersey, a parent’s decision-making power is known as parental responsibility. Parental responsibility is a concept introduced by Article 3 of the Children (Jersey) Law 2002 (CLJ). It is defined in Article 1(1) as being “all the rights, duties, powers, responsibilities and authority which the father of a legitimate child had in relation to the child and his property”.

Parental responsibility encompasses the right to make important decisions about a child, including, but not limited to, their education, religion, healthcare, name and where they should live.

A child’s birth mother automatically acquires parental responsibility in Jersey.

A father’s parental responsibility is dependent on his relationship to the child’s mother at the time of a child’s birth.

A father will only automatically have parental responsibility if the mother and father were married at the time of the child’s birth or the child was born in Jersey after 2 December 2016 and the father’s name is registered on the child’s birth certificate.

For children born in Jersey before 2 December 2016, an unmarried father will not automatically have parental responsibility for his child(ren). In order to acquire parental responsibility, an unmarried father must enter into a parental responsibility agreement with the child’s mother or apply to the court for a parental responsibility order. A parental responsibility agreement must be made in the form set out in the Schedule to the Children (Parental Responsibility Agreement) Rules 2005 and must be filed with the Family Division of the Royal Court of Jersey.

Jersey is not currently party to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measure for the Protection of Children. This means that, even if a parent had parental responsibility for a child in the country in which they previously lived and/or in which the child was born, that position may not be recognised in Jersey.

The factors to be considered in determining whether to grant parental responsibility to an unmarried father pursuant to Article 5 of the CJL 2002 were confirmed by the Royal Court inG v K 2005 JLR N [39], as follows:

• the commitment of the father to the child;
• the attachment between the father and child; and
• the father’s motivation for the application.

In LS v NS 2007 JLR N [37], the Royal Court confirmed the test above and noted that the welfare of the child was paramount. It was further noted that parental responsibility confers an important status on fathers and the order should usually be granted unless clearly contrary to the child’s welfare.

A non-genetic parent can obtain parental responsibility in the following ways.

• Adoption – pursuant to the Adoption (Jersey) Law 1961, an adoptive parent automatically acquires parental responsibility by the making of an adoption order.
• Step-parents – currently, a step-parent can only acquire parental responsibility if a residence order is made in their favour or if they adopt their step-child(ren). Draft legislation, the Children and Civil Status (Amendments) (Jersey) Law 2024, which is due to come into force in the latter part of 2025, will allow a step-parent who is married to, or in a civil partnership with, the child’s parent, to acquire parental responsibility for their step-child(ren) by entering into a parental responsibility agreement, providing each parent with parental responsibility is in agreement.
• Same-sex female parents – see 1.6 Same-Sex Relationships.
• Surrogacy – in Jersey, surrogacy is not currently governed by any legislation. The surrogate birth mother will be registered as the child’s mother in the register of births and named on the child’s birth certificate. The biological father (if there is one) can be registered as the father in the register of births and their name will appear on the child’s birth certificate.
1. If the surrogate mother is married, the husband of the surrogate mother will be treated as the father of the child unless it is shown that he did not consent to the arrangement. Those named in the register of births will acquire legal parent status for the child. Following a six-week period, the surrogate mother can provide her agreement for the child to be freed for adoption or for a parental order to be made by the Court in England and Wales.
2. The intended parents can either (i) adopt the child in Jersey, which extinguishes the legal parent status and parental responsibility of the birth mother and the child’s father (if named in the register of births) and will provide the intended parents with legal parent status and parental responsibility or (ii) apply for a parental order from a court in England and Wales if they satisfy the criteria in Section 54 of the Human Fertilisation and Embryology Act 2008. There is some debate in Jersey as to the enforceability of a parental order obtained in England and Wales.
3. The draft Children and Civil Status (Amendments) (Jersey) Law 2024, once enacted, will allow the intended parents of a child born by a surrogate mother to apply to the court in Jersey for a parental order, which will, if granted, provide them with legal parent status and parental responsibility for the child and extinguish the existing legal parent status and parental responsibility for the child. Certain criteria, which will be set out in the new law, will need to be satisfied in order for a parental order to be granted.
• Guardian – pursuant to Article 7 of the CJL 2002, a person appointed as a child’s guardian shall have parental responsibility for the child concerned.
• Public law proceedings – where a care order is in force with respect to a child, the Minister shall have parental responsibility for the child. If an emergency protection order is in force with respect to a child, the applicant shall have parental responsibility for the child but shall only take such action in meeting such responsibility as is reasonably required to safeguard or promote the child’s welfare having regard to the duration of the order.
• Residence order – where the court makes a residence order in favour of any person who is not the parent or guardian of the child, that person shall have parental responsibility for the child while the residence order remains in force. It is important to note that where a person has parental responsibility for a child as a result of this, the person shall not have the right to consent, or refuse to consent, to the making of an application with respect to freeing a child for adoption or the making of an adoption order.

As set out in 1.3 Requirements for Fathers, a father will automatically acquire parental responsibility if they are married to the child’s mother at the time of the child’s birth.

Marriage is relevant in terms of parentage. Currently, under Jersey customary law, if a child is born or conceived during a marriage, there is a presumption that the husband is the father of the child, which may be rebutted only by strong and satisfactory evidence to the contrary. The biological father can apply for a Declaration of Parentage by issuing an application to the Royal Court of Jersey.

In Jersey, same-sex marriage is recognised in the Marriage and Civil Status (Amendment No 4) Jersey Law 2018. However, under the current law, same-sex couples still face limitations in obtaining legal parent status and parental responsibility without adoption.

While the birth mother acquires legal parent status and parental responsibility by being the birth mother, the second female parent, even if married or in a civil partnership, cannot be registered as the child’s mother or named on the birth certificate, so cannot acquire parental responsibility via that route. The second female parent must usually adopt to gain legal parent status, and they would also then acquire parental responsibility for the child. A residence order can provide the second female parent with parental responsibility but not legal parent status. A residence order would ordinarily only last until the child reaches the age of 16, however an order can be sought for the residence order to extend to the child’s 18th birthday, as an exceptional circumstance. 

The Children and Civil Status (Amendments) (Jersey) Law 2024 is due to come into force in the latter part of 2025. This legislation will amend the Children (Jersey) Law 2002, the Marriage and Civil Status (Jersey) Law 2001 and the Marriage and Civil Status (Jersey) Order 2018, to make provision for children who are conceived as a result of fertility treatment or surrogacy arrangements, including provision for the making of parental orders, the acquisition of parental responsibility and the associated registration procedures.

An adoptive parent automatically acquires parental responsibility upon the making of an adoption order.

Pursuant to the Adoption (Jersey) Law 1961, the Court must be satisfied that each parent or the guardian of the child agrees generally and unconditionally to the making of an adoption order or that it is appropriate for such consent to be dispensed with in accordance with a ground specified in Article 13(2) of the law.

In order for a parent to lawfully, permanently remove a child from Jersey, they need either (i) the consent of any other party with parental responsibility 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. 

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.

Jersey is a small, nine-by-five mile island. Parents do not require the consent of anyone else with parental responsibility to move within the island.

Pursuant to the Criminal Law (Child Abduction) (Jersey) Law 2005, it is a criminal offence for a person connected with a child under the age of 16 years to take or send the child out of Jersey without the appropriate consent. A person is deemed to be connected with the child if they are:

• a parent of the child;
• a guardian of the child;
• a person in whose favour a residence order is in force with respect to the child; or
• a person having custody of the child. 

The law does not apply to people who have a residence order in respect of the child, if they remove or take the child out of Jersey for a period of less than one month.

No offence is committed by the person taking or sending the child out of Jersey without the consent of another person whose consent is required, if the person:

• does so in the belief that the other person has consented, or would consent if the other person was aware of all the relevant circumstances;
• has taken all reasonable steps to communicate with the other person but has been unable to communicate with that other person; or
• the other person has unreasonably refused to consent – note, this defence does not apply if the other person has a residence order in respect of the child, has custody of the child, or 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.

It is also a criminal offence for other persons (ie, a person not deemed to be connected with the child) to take or detain a child under the age of 16 years out of Jersey without lawful authority or excuse.

The maximum penalty under the Criminal Law (Child Abduction) (Jersey) Law 2005 is seven years’ imprisonment and/or a fine.

It is also unlawful (under civil law) to remove a child from Jersey, either temporarily or permanently, without either the permission of all those with parental responsibility for the child or an order permitting removal from the Family Division of the Royal Court of Jersey, save that a person with a residence order in respect of the child may remove the child from Jersey without consent for a period of less than one month.

If a child has been removed from Jersey without the relevant consent, measures are available to aid the return of the child from the country to which they have been taken.

If a child is removed from Jersey to anywhere in the UK, namely England, Wales, Scotland and Northern Ireland (or from any of those countries into Jersey), reciprocal legislation exists providing for the recognition, registration and enforcement of orders in respect of children made under Part 1 of the Family Law Act 1986 and its dependent territory modifications, and Part 3 of the Child Custody (Jurisdiction) (Jersey) Law 2005. Legal advice should be obtained in the relevant jurisdiction – ie, England, Wales, Scotland or Northern Ireland as to how to register and enforce an order of the Jersey court in respect of the child.

Jersey is also party to the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children signed in Luxembourg on 20 May 1980 (the “European Convention”), providing for the recognition and enforcement of custody decisions across member states, including mechanisms for the restoration of custody when a child has been wrongfully removed. Legal advice should be obtained in the relevant jurisdiction as to how to register and enforce an order of the Jersey Court in respect of the child.

Jersey is also a party to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Hague Convention”) (by extension of the UK’s membership). If the country to which the child has been taken is also a party to the Hague Convention (and, if an ascension member state, has entered into relations with the UK), then an application for the summary return of the child can be filed with the Attorney General of Jersey via the Law Officers’ Department, which acts as Jersey’s Central Authority, for onward transmission to the Central Authority of the country to which the child has been removed.

Applications pursuant to the reciprocal legislation with the UK and to the European Convention require that the party seeking the return of the child has a custody order – ie, a residence order (or possibly parental responsibility). Many left-behind parents will not have the benefit of such an order, as orders in respect of arrangements for children are only made by the court in cases where they are required – ie, where there has previously been a dispute which could not be resolved without the court’s assistance. It is also of note that Jersey is not currently party to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measure for the Protection of Children. This means that, even if a parent had parental responsibility for a child in the country in which they previously lived and/or in which the child was born, that position may not be capable of recognition in Jersey.

If a child is taken to a country outside of the UK, and which is not party to either the European Convention or the Hague Convention, advice will need to be taken in that jurisdiction as to what, if any, measures are available in that jurisdiction to aid in the return of the child.

In cases with no existing order, and/or in which there is no reciprocal legislation or convention to aid in the child’s return, it is advisable for parties to consider making an urgent ex parte application to the Royal Court of Jersey by Order of Justice for:

• immediate interim injunctive relief for the child’s immediate return to Jersey (such an order can be granted pursuant to the inherent jurisdiction);
• parental responsibility (if required);
• a sole or shared residence order in respect of the child; and/or
• immediate interim injunctive relief for the non-removal of the child from Jersey following their return.

Free legal aid is available in Jersey to the parent of the abducted child.

Jersey is a small jurisdiction with a population of around 120,000 people. Many people relocate to Jersey for work in the offshore corporate finance and hospitality sectors. The majority of child abduction cases therefore involve children being removed from Jersey, rather than into Jersey. Noting that the vast majority of court decisions are reported in Jersey (anonymously), there are just two reported decisions dealing with the determination of an application for a child’s summary return to their country of habitual residence from Jersey pursuant to the Hague Convention. Neither was successful.

In the matter of Max (A Child) [2014] (2) JLR 413, the court determined that the father had consented to the permanent removal of the child and declined to order his return.

In Applicant parent v Birth Mother and others [2020] JCA141A, the Court of Appeal upheld the Royal Court’s decision not to order the child’s return on the basis that the child was settled in her new environment and that her return would expose her to a grave risk of psychological harm. Notably, the court’s decision regarding settlement in this case is questionable – the child had been abducted from Canada several years prior to her arrival in Jersey. In the intervening period, the child had lived a somewhat covert and itinerant existence in Spain and then France, before she was brought to Jersey illegally from France – on a four-metre inflatable dinghy. The initial application was made on 29 July 2019, but the substantive hearing did not take place until January 2020.

The court will apply the required principles set out in the Convention – namely consent, habitual residence, the exercise of rights of custody, settlement and grave risk of harm.

An application for a child’s summary return should be made to the Central Authority of the country of the child’s habitual residence, for onwards transmission to the Law Officer’s Department, on behalf of the Attorney General, in Jersey.

For the reasons set out in 3. Child Abduction, there is very limited case law in respect of applications for the return of a child to the country from which they have been removed.

The single reported decision – E v W 2000/189 – predates the implementation of the Hague Convention in Jersey and pre-dates the coming into force of the Children (Jersey) Law 2002.

The Jersey Court regularly follows and adopts the law and practice of the courts of England and Wales in children law matters. For that reason, where there is an absence of local jurisprudence, the Jersey Court will follow and apply English case law, particularly in areas in which the law is developing. In England and Wales, it is possible to secure the summary return of a child pursuant to the inherent jurisdiction of the court or by means of a specific issues order. The Royal Court of Jersey is currently hearing such a case and it remains to be seen whether it will determine that it has the power to do so.

An application for the return of a child pursuant to the court’s inherent jurisdiction can only be made to the Inferior Number of the Family Division of the Royal Court of Jersey, as the lower court does not have inherent jurisdiction. An application for the return of a child by way of a specific issues order can be made to any level of the Family Division.

Such applications should be heard without delay. Cases will be determined on the basis of the paramountcy principle – ie, what is in the child’s best interests but applying the principles of international law regarding child abduction – ie, that questions as to the upbringing of a child should be determined by their country of habitual residence. It is anticipated that the principles set out in J v J (Return to Non-Hague Convention Country) [2021] EWHC 2412 will be applied:

• “any court which is determining any question with respect to the upbringing of a child has had a statutory duty to regard the welfare of the child as its paramount consideration”;
• “there is no warrant, either in statute or authority, for the principles of The Hague Convention to be extended to countries which are not parties to it”;
• “in all non-Convention cases, the Courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration”;
• “the court does have the power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits. In a series of cases during the 1960’s these became known as ‘kidnapping’ cases”;
• “summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child”;
• “focus had to be on the individual child in the particular circumstances of the case”;
• “the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever”;
• “one important variable... is the degree of connection of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his ‘home’ country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this”;
• “another closely related factor will be the length of time he has spent in each country. Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interests”;
• “in a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant. But their relevance will depend upon the facts of the individual case. If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned”; and
• “the effect of the decision upon the child’s primary carer must also be relevant, although again not decisive.”

The identity of the country to which the child is to be returned may affect the outcome of an application. If the country in question does not determine issues in respect of children by reference to welfare – ie, what is in the child’s best interests, and/or there is serious and genuine uncertainty as to the competence of the court in the other country and/or to uphold international human rights principles, then the application is unlikely to be successful.