1 Children and child law guide FEBRUARY 2010 For more briefings visit mourantozannes.com This briefing is only intended to give a summary and general overview of the subject matter. It is not intended to be comprehensive and does not constitute, and should not be taken to be, legal advice. If you would like legal advice or further information on any issue raised by this briefing, please contact one of your usual Mourant Ozannes contacts. Contact: Penny Grainge Senior Associate, Guernsey For contact details, please see the end of this briefing. Upon any separation or divorce, children should be the first consideration of all concerned. Indeed, the court regards the welfare of the children as paramount. Any orders which are made by the court for residence or contact or financial orders take into account the needs and the welfare of the children both on an emotional and practical basis. Children Our approach is to prioritise children and to give practical, timely and effective advice to minimise, as far as possible, the trauma of divorce and separation. We believe that in most cases, the best interests of the children are served by trying to reach a quick and amicable solution. However, if issues of residence and contact cannot be resolved by agreement, the Courts may have to intervene. The Law The Children (Guernsey and Alderney) Law 2008 came into force on 4 January This law is the most comprehensive overhaul of child law in the Bailiwick for over twenty years and will revolutionise child law in the island in relation to both disputes between parents (known as private law proceedings) and also care proceedings (known as public law proceedings). We specialise in both public and private law but this guide deals only with private law proceedings. General Principles As would be expected, the guiding principle of the new law is that the welfare of the children is paramount. In practical terms, this means that the welfare of the children is the single most important factor in making any decision about their future. The law also includes other general principles which include the following: a. Children should always have the opportunity to express their wishes, feelings and views irrespective of their age, development or ability. b. From the age of 12, a child is presumed to be capable of forming a considered view. In practical terms, this means that the Courts are very likely to listen to the views of children aged 12 and above. Clearly, the older the child the more the Courts are likely to listen to what the child wants, and why. c. Any delay in making a decision about children is likely to be detrimental to their welfare. d. The Court should not intervene in children's lives unless necessary to ensure care, protection, guidance or control. e. Children should normally maintain contact with all members of their family. Orders Available The new law has introduced new names for the various orders available. The most common orders are as follows: 1. Parental Responsibility Under the old law, this was called joint custody. Parental responsibility equates to all rights and obligations involved in the raising of children. Parental responsibility gives each party, usually the parent the right to be consulted about all major decisions relating to a child's life which have to be taken from time to time. Examples of such decisions are as follows: mourantozannes.com BVI CAYMAN ISLANDS GUERNSEY HONG KONG JERSEY LONDON
2 Change of surname Permanent removal from the Bailiwick Consent to medical treatment Education Mothers always have parental responsibility. Where the parents were married at the time of the birth then each parent has parental responsibility. Parties who were married at the time of the birth and then divorce retain parental responsibility. Unmarried fathers acquire parental responsibility as follows: By marrying the mother By being named on the birth certificate but only for births registered after By Court Order By entering into a parental responsibility agreement If none of these apply to you then you do not have parental responsibility and consequently, you have no parental rights to your child until and unless the Court grants you a parental responsibility order or you enter into a parental responsibility agreement. In practice, assuming some level of commitment shown by the father, parental responsibility applications are seldom, if ever, refused. Other individuals can also acquire parental responsibility by obtaining a residence order (see below) or by adoption. In the event that those with parental responsibility disagree about any major aspect of a child's life then ultimately the Court will decide on the basis of the best interests of the child. This is called a specific issue application (see below). 2. Residence Orders This was called care and control or custody under the old law. A residence order determines with whom the children should live on a day to day basis. The following persons can apply for a residence order: Mother or father of the child Anyone with parental responsibility Any person with permission of the Court Any person with whom the child has lived for at least a year Some of this is new law. The old law was very restrictive as to who could apply for care and control. Even close relatives such as grandparents could not apply for custody and could only apply for access if a parent had applied to the Court or an order had been made previously. Under the new law, these restrictions have been swept away and anyone can apply with the permission of the Court, subject, presumably, to the Applicant having a close connection with the child. Orders for shared residence whereby the children divide their time between their parents are becoming more common but they are still relatively rare in practice. It was once thought that children always needed one settled home and that such orders were only workable where the parents were able to maintain a harmonious working relationship post separation. However, recent case law from England suggests that these are no longer pre-requisites to such orders. Shared residence if organised and managed well, can be of great benefit to the children particularly so here in Guernsey where invariably the households are within close proximity. In practice, the most common arrangement for shared residence provides for the children to spend half the week with one parent and half with the other with weekends to be shared on an alternating basis. There are however endless permutations of shared care arrangements. In contested applications for residence orders as with any other applications, the Court will apply what is called the Welfare Checklist (see below). In reality, the Courts will look at what is in the best interests of the children on a practical basis. This will include, amongst other things:
3 On a day to day basis who is best able to meet the children's needs What is the status quo ie who has been the primary carer to date and what is the child's domestic routine What are the respective work commitments of the parties and do these impact upon each parent's ability to care for the child The importance of the status quo argument cannot be overstated. In practice, the reason most people are granted a residence order is to confirm the existing arrangements. This is on the basis that, generally speaking, the Courts will only change the existing custody arrangements if there is a real need to do so. The other point to make is that siblings are rarely separated under the terms of a Court Order. For obvious reasons, the children are almost invariably kept together unless there is a very good reason to the contrary. A frequent question is at what age can a child make up his own mind about where he lives or when he sees the absent parent. Under the new law (see above under the heading General Principles) the views of an averagely mature 12 year old are deemed to be determinative ie their views will usually dictate the outcome. That said, if the child's views are irrational and clearly not in the best interest of the child then the Court can and will overrule the child's views. In short, the older the child, the more the Courts will listen to what the child wants and why. This is clear from the Welfare Checklist (see below). In practical terms, the views of the child will generally be presented by the Safeguarder who is an independent social worker appointed by the Court to investigate disputed residence and contact applications (see below under The Safeguarder). Whether in a particular case the Safeguarder will interview the child is a matter entirely for the Safeguarder. The Safeguarder will also raise any concerns there may be about a child's view being expressed under the unreasonable influence of one or both of the parents. There has been a long held perception that the Courts are biased towards mothers in custody proceedings. The official line, as included in the new law, is that there must be no discrimination on the grounds of gender, age, race etc. Some might continue to say that this is simply not true and that the law works against men. All that can be said with some certainty is that there are now more fathers having custody of their children than has ever been the case in the past and that, going forward, this trend is likely to continue. 3. Contact It is a sad fact of life that on divorce or separation a large proportion of children lose or have only restricted contact with the absent parent. We explain below what can be done if you find yourself in this position and attempt to answer some of the frequently raised questions in what can be a very difficult area of the law. Under the new law, a contact order requires the person with whom a child lives to allow that child to visit, stay or have contact with a person named in the order. Contact, also known as access, is usually face to face but it can also include indirect contact by telephone, letters, and photographs. Communication by Skype and Webcam can also be very useful especially if one party is off island. Contact is normally unsupervised but in some cases, for whatever reason, if safeguards need to be put in place then contact can be supervised or monitored at the Contact Centre. The Contact Centre is located at Le Bouet, St Peter Port. Such arrangements are usually short term and the usual plan is to move towards unsupervised contact as soon as possible.
4 As lawyers, we spend much of our time negotiating contact arrangements, trying to reach agreement so as to avoid Court proceedings. If the arrangements cannot be agreed and assuming all other attempts to reach a settlement have failed, then the Court will intervene on the application of either party. The Court will approach the matter on the basis that contact is seen to be the right of the child and that, in most cases, everything should be done to promote and encourage face to face contact. In its investigation of the case, the Court often employs the services of the Safeguarder Service (see below) in dealing with disputes over contact as well as issues of parental responsibility and residence. Usually, a Court Order in relation to children will refer to reasonable contact or alternatively will define the contact arrangements. A reasonable contact order simply establishes the principle of contact and leaves it to the parties to determine as and when access takes place. Such orders work well where there is a high level of communication and co-operation between the parents and where the parents wish to retain flexibility. The difficulty comes in trying to enforce a reasonable contact order in circumstances where contact is denied. Such orders do not work well in cases where there is a high level of acrimony and mistrust between the parties. In such cases, the only effective order is going to be a defined contact order where the arrangements are fixed. A defined contact order stipulates the date, time and place where contact takes place. This can include weekly contact, holiday access and indirect contact by telephone etc. A frequently asked question is how often should contact take place and what is the "standard" contact order? The answer is that really there is no such thing as a standard contact order. Over the years we have seen all sorts of arrangements, some that work and some that do not. Perhaps the most common arrangement is for the absent parent to have staying contact every other weekend and possibly for one night during the week as long as that is not too disruptive for the children. There can also be additional access during holidays and for birthdays, Christmas, Easter, etc. As you might expect, there are infinite variations which can be adapted to the particular needs of the parties and the children themselves who, as they get older, may have their own commitments to be taken into account. 4. Specific Issue Order An application for a specific issue order will arise when those with parental responsibility for the child cannot agree on a particular matter such as change of surname, religion, consent to medical treatment or education. In the absence of any agreement between those with parental responsibility the Court will need to determine what is in the best interest of the child. This will be determined in accordance with the Welfare Checklist (see below). With regard to change of surname, the general principle is that the Court will not allow a surname to be changed from that of the birth parent unless there is a very good reason to do so. 5. Prohibitive Steps Orders A prohibitive steps order prevents something being done in relation to a child for example removing a child from the jurisdiction. It takes the form of an Injunction Order for the breach of which there are serious criminal and civil penalties. One example of a prohibitive steps order is a non-removal order. The issue of permanent removal of children from the Bailiwick of Guernsey is a very complex subject. In a small jurisdiction such as Guernsey, applications for permanent removal of children are fairly common, especially so with the rapid development of relationships conducted via the Internet. The general rule under the new Law is that a child cannot be removed from the jurisdiction of Guernsey and Alderney without the consent of every person with
5 parental responsibility. Under the new Law, it is now a criminal offence to remove a child under the age of 16 from the jurisdiction without the consent of everyone with parental responsibility. The penalty for wrongful removal is a fine or imprisonment, save that no offence is committed if the person removing the child reasonably believes that the other people required to consent either have consented, or would do so if they knew all the relevant circumstances, or the removing party has taken all reasonable steps to communicate with the other necessary people but has been unable to do so. The consent of everyone with parental responsibility is not necessary if a child under the age of 18 is removed from the jurisdiction for a period of up to 28 days, where the person taking or sending the child has a residence order in their favour, the child is out of the jurisdiction for the purpose of medical treatment, or in some cases, where a child is subject to what is called a Community Parenting Order which involves Social Services. If you have any doubt about this complex area of the law please consult us immediately by telephone on and ask for Penny Grainge. Alternatively, please contact Penny by on com. It is hoped that in the near future Guernsey will become a signatory to the "Hague Convention on the Civil Aspects of Child Abduction". This is another complex piece of legislation. In essence, it requires that, following the abduction of a child, the Court in the country to which the children has been abducted, will order the child to be returned to their home country. In this way, the parent from whom the child has been wrongfully removed is not left to fight for return of the child in a foreign Court and can instead contest the case in their home jurisdiction. Around the world, there are currently 68 countries which have signed the 1980 Hague Convention on The Civil Aspects of International Child Abduction. The procedure works well between those participating countries. Currently, Guernsey is not a signatory to the Hague Convention and the Courts are left to deal with these very difficult cases as best they can. In any such dispute, the Court will once again consider the Welfare Checklist (see below). There are cases both locally and worldwide decided both for and against the parent who wishes to permanently remove the child. Whilst all cases are decided on their own facts, the general trend appears to be to allow the parent to remove the child from the jurisdiction, provided that the proposed arrangements are sensible and rational and that proper consideration is given to the arrangements for the children in the new country. These arrangements include accommodation, education, employment and all the usual arrangements which need to be put in place in any relocation. One very important consideration for the Court is how the parent intending to remove the child will facilitate contact with the parent left behind. This is often a crucial issue and future arrangements for access have to be thought out very carefully. In practice, contact usually involves spending longer periods of time with the parent left behind than would otherwise be the case if everyone had remained in the Bailiwick. In addition, arrangements normally need to be put in place for regular indirect contact by telephone, letter, Internet, Skype, Webcam, etc. On occasions, emergencies can arise where one parent becomes aware that the other is about to remove the child from Guernsey. In these circumstances, you must contact us immediately. If appropriate, we will then make an immediate application to the Court to prevent removal. This is a complex area of law upon which we can advise you should it relate to your particular circumstances. The Safeguarder Service The Safeguarder Service used to be known as the Court Welfare Service. The English equivalent is called CAFCASS. The role of the Safeguarder is primarily to promote the interests of children involved in family court proceedings and to ensure that the children's views are heard. If requested by the Court, the Safeguarder Service will investigate any dispute about children. If agreement
6 cannot be reached then the Safeguarder will produce a report putting forward detailed recommendations as to the best arrangements for the children. Invariably, the Safeguarder Service will interview the parties and make enquiries of all the relevant authorities including Social Services and the Police. In any particular case, the individual Safeguarder will decide whether the children should be interviewed. The general principle is that children from around the age of 10 and above will normally be interviewed to ascertain their views. Depending upon the circumstances, the views of a sensible mature child will be a major factor in determining the outcome of a particular case. Much of the work of the Safeguarder Service is an attempt to find a settlement acceptable to both parties. If this cannot be done, a detailed report is prepared setting out the background to the case, the views of the parties and the views of the children dependent upon their age and maturity. The report will conclude with a detailed recommendation as to what the Safeguarder believes is in the best interests of the children. In practice, it is very unusual for the Court to ignore the recommendations of the Safeguarder Service but, there are occasions when this occurs and the ultimate decisions always lies with the Court. Any referral to the Safeguarder Service can take several months to complete assuming that a full report is necessary. If an agreement is reached along the way then the Safeguarder will usually write to the parties and their Advocates setting out the terms of the agreement. The whole process is then short circuited and a Consent Order will be presented to the Court for approval. If no agreement is reached, the Safeguarder's report is filed at Court and served upon the parties and their Advocates. If the parties are still in dispute having considered the recommendations of the Safeguarder's report, then the case is listed for a trial. The Safeguarder would normally attend that hearing at which witnesses are called by the parties. The Court will then make a decision on the basis of what is in the best interests of the children applying the "Welfare Checklist". The Welfare Checklist How Decisions About Children Are Made Under the new 2008 Law we now have a formal Welfare Checklist which sets out all the considerations that the Court will take into account in making any decision. The Checklist is as follows: a. The child's wishes and feelings (in the context of his age and understanding). b. The age, gender, ethnicity, cultural background, language, religion and any other relevant characteristics of the child. c. Any harm the child has suffered or is at risk of suffering. d. The child's physical, emotional and educational needs. e. How capable each of the parents (or any other person looking after or having parental responsibility for the child) is of meeting the child's needs. f. The importance and likely affect of contact between the child and his parents, siblings, relatives and any other people significant to the child. g. The affect or likely affect of any change in the child's circumstances, including the affect of the child's removal from Guernsey or Alderney. In practice, the Court will give very careful consideration to the Welfare Checklist and apply this to the particular circumstances of the case. The Safeguarder in preparing her report will also consider the Welfare Checklist and usually this is set out in the body of the Safeguarder's report. The Safeguarder will then comment upon each element of the Welfare Checklist as she deems it to be relevant to the particular case. Often, one of the major factors to be determined is the extent to which the views of the child are taken into account. It is a matter for the individual Safeguarder as to whether or not to interview a child and when and how this is done. If relevant, the Safeguarder will set out the views of the child. The Safeguarder will assess whether the child is of an age and understanding sufficient for their opinions and wishes to be taken into account. Ultimately it is for the Court to assess whether the
7 children's views are to be taken into account and if so the weight to be given to those views. Under the new Law, it is presumed that a child is capable of forming a considered view from the age of 12 years. In practice, it is very unusual to make an order contrary to the views of a mature teenage child. One of the other major considerations in any dispute regarding children is the likely affect on the child of any change in his circumstances. The Court places great weight on continuity of care. This is often called the "status quo" argument. In other words, in most cases the Court will seek to preserve the existing arrangements, unless there is a good reason for those arrangements to be changed. Another guiding principle, is that it is usually appropriate for sibling children to be kept together. In practice, there must be very strong reasons indeed for brothers and sisters to be separated. It is important to bear in mind that any order in relation to children can be varied at any time upon the application of either party. This does not mean that if you do not like the order granted by the Court then you can keep applying to the Court until you get the order you like. What it does mean is that in practice the Courts may be prepared to look at the circumstances of a particular case again or possibly make different orders to take into account changes in domestic circumstances. Appeals It is possible to appeal a Court Order in relation to children but only in limited circumstances. Put simply, the original order has to be "plainly wrong" before it can be appealed. Such circumstances are very rare indeed especially when the Court has conducted, as it always does, a detailed investigation into the circumstances of a particular case. A Judge on hearing any application in relation to children has a very wide discretion. In any trial, the Judge will hear witnesses and form a view as to the credibility of each witness. Such is the width of the Court's discretion that the Appeal Courts are normally very reluctant to interfere with any decision relating to children unless the original decision is clearly wrong. In practice, appeals in such matters are rare. In the event that an appeal is to be brought then there are strict time limits from the date of the initial decision. It is possible for the Court to grant permission to appeal out of time but, in those circumstances, there would have to be a very good reason for any delay. Care Proceedings These proceedings involve the States of Guernsey seeking to remove children from the care of one or both parents on the basis that the child has or is likely to suffer significant harm etc. The new 2008 Law provides a whole new framework for care proceedings in the Bailiwick. As one might expect, these proceedings are tightly regulated by the Court. In any particular case, it is for the State to prove their case. Children can be removed and placed in interim care but only if this is justified on the facts of the case. This is a very specialised area of the law and one in which we have considerable experience. If you are involved in such proceedings or you are being threatened by care proceedings, we would advise you to contact Jessica Roland on mourantozannes.com or by telephone on as soon as possible. Contact: Penny Grainge, Senior Associate, Guernsey