Parental Responsibility / Residence Order / Contact Order
Updated 2 December 2016
Words you may need to know
Parental responsibility - the person or people who can make decisions about child/ren
Residence Order- a court order saying who the children should live and with
Guardian - someone appointed by the court to look after the interests of child/ren
Care order- an order made by the court that child/ren should be under the protection of Social Services.
Mediation- this is a service where someone acts as a go - between trying to get people to agree on an outcome such as arrangements for children or maintenance payments/ divorce settlements
Prohibited - Something that is not allowed or stopped
Injunctions - this is a legal ruling given by the court that stops something happening or says that something should happen.
What is Parental Responsibility?
Parental responsibility means that a person, or perhaps two 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 injections they have. (Article 3 Children (Jersey) Law 2002)
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 in respect of a child also has parental responsibility for the child.
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 here 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 either by being married to the mother or through a Parental Responsibility Agreement or a Parental Responsibility Order). People who have adopted child/ren and guardians (appointed under Article 7 Children (Jersey) Law 2002) also have parental responsibility.
A mother who gives birth and then puts the child/ ren 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. An unmarried father can only gain parental responsibility by way of a court order or agreement.
Parental Responsibility Agreements - Click this text for a link to a Parental Responsibility Agreement
Parental Responsibility Guidence notes can be found by clicking here.
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 share parental responsibility for the child with the mother. It must be drawn up and signed on a parental Responsibility Agreement Form which the person can get from the Judicial Greffe, Royal Court House, or downloaded on the link above..
If parents can't agree about making arrangements for their children without the need for the court then the court can make various orders for the child/ren under the Children (Jersey) Law 2002. When orders are made, what is best for the child/ren is what matters most.
What is a Residence Order?
A Residence Order decides who child/ren should live with. It does not say where the child/ren should live, although other orders might do so.
If a father is granted a residence order he should also be granted parental responsibility ( if he does not already have it) 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 the child /ren who are the subject of the Residence Order but only for as long as the Residence Order is in force. Usually a Residence Order lasts until the child/ren reach sixteen, but it can last longer if the Court decides there are good reasons. A usual reason is if the child/ren are still in education. It is possible to have 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 say the number of days and nights the child/ren will spend with each person. A joint Residence Order can be made where two (or more) people who live together have the care of child/ren. There is no belief that child/ren should live with one parent over another, but parents will usually be favoured over non-parents. What is in the best interests of the child/ren is what the court will want to decide.
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) Anyone married who has the child as part of their family;
c) Any person who has had the child for 12 months out of the last 15 months before the application is made;
d) If everyone who has parental responsibility for the child wants the person to have an order; or
e) 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 for their child/ren.
How to apply for a Residence Order
The Judicial Greffe can give information about making an application for a Residence Order. It is made on Form C100 which you can get from the Judicial Greffe, Family Section. 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.
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.
What is a Contact Order?
A Contact Order decides who the child/ren should have contact with. This contact can either be face-to-face and can include overnight stays, or it can be by telephone calls, letters and internet contact. The court usually believes that a child should have good contact with both parents. The court will need to think very carefully about if there is any risk of harm to a child/ren by giving contact. If there is, contact might be very limited or even refused. It is unusual though 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 and time during the week and in school holidays. Much will depend on where the person lives (for instance in Jersey or the UK) and what their circumstances are (for instance if they work full time or away from home). 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 (see above).
How to 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. A person who is not a parent, or able to apply for an order (such as a grandparent) 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. (Perhaps the child had stayed with the grandparent or saw them often).
Sometimes contact needs to be watched (supervised) or helped (supported). This could be because there is a risk to the child/ren from the person they will be in contact with, or that there has been a gap in contact and the child needs time to settle, or maybe to put the parent with care's mind at ease that all is well. Supervised or supported contact does not usually go on for a long time, the aim is to try and get natural 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
As the names suggest, you can get these orders to stop something happening or being done to a child or to make sure that something does happen to a child. 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 child/ren's names or 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.
The Welfare Checklist
12. When the court is asked to make any decision on the upbringing of child/ren their well being is the most important thing but the court must also think about:
a) finding out what the child/ren feels and wants;
b) their day to day, emotional and learning needs;
c) the likely effect on them of any change in their situation;
d) their age, sex, background and any features of theirs which the court thinks important;
e) any harm which they have had of is at risk of having;
f) how well each of their parents or those they will come into contact with are able to meet their needs; and
g) what the court is able to do within their powers under the law.
Is there an appeal procedure?
Any application for a Residence and/ or a 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.
Restrictions (things you can't do)
Where a Residence Order is in place for child/ren 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 for them or the Court agreeing. 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.
Under Article 7 of the Children (Jersey) Law 2002 it is possible for anyone to apply to the Court to be chosen as the child's guardian if:
a) the child/ren has no parent with parental responsibility for them; or
b) a Residence Order has been made for the child/ren for a parent or guardian of theirs who has died while the order was in force.
In family legal actions the Court may choose a guardian if it thinks it is in the child/ren's best interest even where there has been no application. A guardian has parental responsibility.
A parent with parental responsibility for their child/ren 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 present. This appointment will only happen if there is no-one else with parental responsibility for the child/ren 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 all everything relating to the child/ren before coming to a decision.
If a child has come into land or a property or other assets including money following a death ( this is called an inheritance), the Court must appoint someone to look after their inheritance. The person the court chooses is called a guardian or 'tuteur' and they are helped by at least six people (known as a tutelle), to look after everything the child has. 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.
Contact and maintenance
Parents have a responsibility to maintain their children and every child has a right of contact with both parents, unless it can be shown that this would be harmful to the child's wellbeing. The two matters do not rely on each other, so one parent cannot stop contact just because maintenance is not paid and even if maintenance is paid it does not mean that contact will always be given.
Court Fees Payable
Court fees need to be paid for any application under the Children (Jersey) Law 2002:
- Parental responsibility - £120 (no Court fee is chargeable on the filing of a Parental Responsibility Agreement)
- Contact order - £120
- Residence order - £120
- A Prohibited Steps order-£120
- Appointment of guardians - £120
- Revocation or cancelling of appointment of guardians - £120
- Removal from Jurisdicion order - £120 ( being allowed to take child/ren off island)
- Financial Provision order - £120 ( maintenance for child/ren)
Applications for directions made on form C2 £120