Parental responsibility means that a person or people have the right to make decisions about a child or children. . This might be making decisions about what school they go to, what religion they follow or what health care they have.
Who can have Parental Responsibility?
For children born before 2nd December 2016:
Where a child’s father and mother were married to each other at the time of his their birth, they each have parental responsibility for the child. That means they both have the right to make decisions about 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 and the right to make decisions. The father can ask for the right to make decisions by reaching a Parental Responsibility Agreement with the mother or by going to court and asking the court to make a Parental Responsibility Order. A person with a Residence Order also has parental responsibility.
Where the child’s parents were not married to each other at the time of the child’s birth but subsequently marry each other, they should seek legal advice on whether the father has joint parental responsibility.
From the 2nd December 2016:
Unmarried fathers who are named on their child’s birth certificate will have automatic parental responsibility, following a change in the law, see Children and Adoption (Amendment) (Jersey) Law 2016. The change does not apply to children born before the 2nd December 2016, even where the unmarried father is named on the birth certificate.
More than one person can have parental responsibility for the same child at the same time. When a child is subject to a care order, the Minister acting on the advice of the Children’s Service shares parental responsibility with the mother and the father, if the father has parental responsibility. People who have adopted children and guardians also have parental responsibility.
A mother who puts a child up for adoption loses 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.
A Parental Responsibility Agreement is a legal document in which the child’s mother and father agree that the father will share parental responsibility for the child with the mother. It must be drawn up and signed on a Parental Responsibility Agreement Form.
Alternatives to Court
If parents can’t agree about making arrangements for their children without the need for the court, the court can make various orders under the Children (Jersey) Law 2002. The court will only make an order when it is in the best interests of the child.
A Residence Order decides who children should live with. It does not say where the children should live, although other orders might do so.
If a father is granted a residence order, he is automatically granted parental responsibility, which he will keep even if the Residence Order is later cancelled.
Any person who is not a parent who has a Residence Order will have parental responsibility for children, but only for as long as the Residence Order is in force. Usually a Residence Order lasts until children reach sixteen, but it can last longer if the Court decides there are good reasons. A usual reason is if children are still in education. It is possible to have a shared Residence Order, in which case the order will usually say the number of days and nights children will spend with each person. A joint Residence Order can be made where two or more people who live together have care of children. There is no belief that children should live with one parent over another, but parents will usually be favoured over non-parents. The court will decide what is in the best interests of the children.
Who can apply for a Residence Order?
The following people can apply for a Residence Order:
- Any parent or guardian of the child
- Any family member
- Any person who has cared for the child for 12 months out of the last 15 months before the application is made
- If everyone who has parental responsibility for the child wants the person to have an order
- Any person who the court decides should have an order.
A Residence Order is usually given by the court when the parents are no longer on good terms and can’t agree on the arrangements.
How to apply for a Residence Order
The Judicial Greffe can give information about making an application for a Residence Order. It is better to get legal advice before making any court application, but you don’t have to have a lawyer to get an order under the Children (Jersey) Law 2002 although Legal Aid may be available.
- If you apply because you can’t agree about the arrangements for the children, all parties will be asked to meet an officer of JFCAS (Jersey Family Court Advisory Service) who will try to get the parties to reach an agreement.
- If that is not possible, the court may order a report to be prepared by JFCAS. This can take a few weeks so there may need to be arrangements put in place in the meantime.
- After the JFCAS report has been given to the court, the court calls a case review hearing and the next steps are considered. Often, once the JFCAS report has been done the parties will agree on what the JFCAS officer has suggested. The court will take on board the views of the JFCAS officer, but do not have to follow what they recommend.
- If there is still no agreement, the case will go on to a hearing where each person can put their views. The court does try to encourage everyone to reach an agreement at each stage and will be willing to consider delays in the process to allow the parties to try and talk or to attend mediation.
- Once it is made, a Residence Order can be changed or stopped, but you need to go back to the court to do so.
A Contact Order decides who children should have contact with. This contact can either be face-to-face, can include overnight stays or it can be by telephone calls and video calls.
The court usually believes that a child should have good contact with both parents. The court will consider if there is any risk of harm by giving contact. If there is, contact might be very limited or even refused. It is unusual for there not to be contact between a child and each of his parents.
Contact will usually be fair for a parent who does not live with the child and often includes weekend overnight stays, time during the week and in school holidays. Much will depend on where the person lives and their circumstances. Contact for others, such as grandparents, is not likely to be as much.
Who can apply for a Contact Order?
The same people who can apply for a Residence Order.
How can I apply for a Contact Order?
You can get a Contact Order in the same way as a Residence Order. As with a Residence Order, a Contact Order can be changed by applying to the court. An application to change an order is made on Form C2. Legal Aid may be available.
A person who is not a parent will need to apply for permission from the court on Form C2. Permission will often be given if there is a close tie between the child and the Applicant.
Sometimes contact needs to be supervised or supported. This could be because there is a risk from the person they will be in contact with, that there has been a gap in contact and the child needs time to settle or to put the parent’s mind at ease.
Supervised or supported contact does not usually go on for a long time. The aim is to try and get unsupervised contact where possible. The Child Contact Centre and Children’s Service can help with supervised and supported contact.
Prohibited Steps Orders and Specific Issue Orders
You can get these orders to stop something happening, being done or to make sure that something does happen. One example might be to stop a child being taken off island or to ask to take a child off island. Perhaps a parent wants to change the children’s names, school or have an operation that the other parent does not agree with. Injunctions can also be given in children cases, but legal advice is needed if an injunction is wanted. Legal Aid may be available.
The Welfare Checklist
When the court is asked to make any decision on children, their well being is the most important thing but the court must also think about:
- what the children feels and wants
- their day to day, emotional and learning needs
- the likely effect on them of any change in their situation
- their age, sex, background and any features of theirs which the court thinks important
- any harm which they have had of is at risk of having
- how well each of their parents or those they will come into contact with are able to meet their needs
- what the court is able to do within their powers under the law.
Any application for a Residence or Contact Order is heard by the Registrar of the Family Division. It is possible to have a decision which was made by the Registrar to be looked at by the Royal Court. Going further, appeals from the Royal Court lie to the Court of Appeal. You should take legal advice if an appeal or review is being considered.
What can’t you do when a Residence Order is in place
Where a Residence Order is in place, you can’t change a child’s surname or take them from the island without either the written consent of every person who has parental responsibility or the Court’s permission. This does not apply to periods of less than a month. The court can, if it wants to, decide things that must happen or things that cannot happen on Residence or Contact Orders.
It is possible for anyone to apply to the Court to be chosen as the child’s guardian if:
- the child has no parent with parental responsibility for them
- a Residence Order has been made for a parent or guardian who has died while the order was in force.
The Court may choose a guardian if it thinks it is in the child’s best interest, even where there has been no application. A guardian has parental responsibility.
A parent with parental responsibility may pick someone else to be the child’s guardian if they die. The selection must be put in writing and signed by the parent with two witnesses. This appointment will only happen if there is no-one else with parental responsibility or if the person making the request had a residence order at the time of their death.
The appointment of a guardian does not stop someone else applying for a Residence Order. The court will look at everything before coming to a decision.
If a child has inherited land, property or other assets including money, the Court must appoint someone to look after their inheritance. The person the court chooses is called Tuteur. The tutelle acts on behalf of the child until the age of 18, when the child can apply to have the tutelle discharged or cancelled. The Tuteur does not get parental responsibility by being appointed to look after the child’s property.
Please see Child Maintenance.