A brief guide to the court processes when dealing with disputes over children in a divorce
First and foremost, prior to considering the Court process as a means of resolving any dispute regarding children, it is prudent to consider other means of dispute resolution available. Mediation can be faster, cheaper and easier than going to Court. It is worth investigating alternative methods of dispute resolution such as mediation or arbitration before entering into the Court process. For further information regarding mediation, please click here to go to the Family Mediation Jersey website.
Not all cases are suitable for mediation – for example, it may not be appropriate where the relationship has a history of violence or where there are serious welfare concerns.
The court process
When you first file for divorce, you will need to complete and return a Form 5 Statement of Arrangements. This is to be completed in respect of any children under 18 born to you and your spouse, or any child(ren) treated by you as though they were yours (known as “children of the family”). These include adopted children, but do not include foster children. There will be exceptions where the Statement of Arrangements applies to children of the family over the age of 18, for example where the child in question remains in full time education. This form broadly sets out the intentions of both parties in respect of living and financial arrangements for the children going forward.
Forms to be used in the context of existing divorce proceedings
Please note that the following does not apply if divorce proceedings have not been initiated. If there are existing divorce proceedings and:
- you wish to be joined to proceedings where you haven’t been but believe you should be, Form C2 should be filed
- you wish to seek directions from the Court as to the timing of hearings and documents to be filed, Form C2 should be filed
- you wish to apply for an Article 10 or Article 14 order from the Court, Form C100 should be filed
- you wish to file for any other type of order, Form C1 should be filed
Article 10 orders
There are four types of Article 10 orders:
A residence order
This order states with whom (not where) the child is to live, and remains in place until the child in question attains the age of 16, or for longer if the Court is of the view that there are exceptional circumstances requiring a long term Residence Order.
Residence may be granted to more than one person, and indeed a shared residence order (meaning that the child’s time is divided equally between households) may be made between parents, or between a parent and a grandparent, or other third party.
If a Residence Order is made in your favour, you may take the child out of Jersey for a period of up to one month. That said, a Residence Order prevents anyone from removing the child from Jersey without either:
the agreement of everyone who holds parental responsibility in respect of that child; or
an order of the Court.
A contact order
This sets out arrangements for the child to have contact with a parent or other individual with whom the child does not reside. Contact may be ordered in the form of supervised contact (if there are welfare issues, for example), indirect contact (for example by telephone, email or skype), direct daytime contact or staying contact (which may entail the child staying with the other parent or individual for several consecutive days).
The Court will only make contact orders for children over the age of 16 in exceptional circumstances. It should further be noted that children cannot be forced to have contact with the parties named within the Contact Order should they not wish to do so, unless there is a rigid Contact Order in place, which is extremely rare.
A prohibited steps order
If parents cannot agree upon significant matters such as which school a child should attend, or the medical treatment provided to that child, an application may be made to the Family Court for a Prohibited Steps Order to prevent a particular action from being taken.
A specific issue order
As above, if parents cannot agree upon a significant matter of contention, an application may be made to the Family Court for a Specific Issue Order to ensure that a particular action is taken.
Article 14 orders
Article 14 orders include those making provision for a child to be removed from the jurisdiction, and those making provision for a child’s surname to be changed.
Leave to apply
For some types of order, you cannot apply for the order unless you have leave to do so (i.e. you need to obtain the Court’s permission to make the application). An application for leave is made on Form C2. If you are unsure whether this applies to you, please do not hesitate to call one of our family lawyers who will be happy to assist you further.
Financial applications in respect of children are usually for child maintenance. The resulting order is known as a Schedule 1 Order and may continue after the child has surpassed the age of 17 if, for example, the child is intended to pursue tertiary education or is disabled. It should be noted that if there are existing divorce proceedings, the Court must deal with any financial aspects relating to the child(ren) within those divorce proceedings, and separate applications within the children’s proceedings may not be made.
The preliminary directions hearing
Once your application has been received by the Court, you (or your legal representatives) will be invited to attend a Preliminary Directions Hearing. At this hearing, the Registrar (being the Family Court judge) will determine whether the parties have exhausted other possible methods of dispute resolution (for example mediation). If not, it is likely that the matter will be adjourned (put on hold) whilst the parties pursue mediation or a similar option.
If the Registrar believes the matter is a case for the Court to determine, a date will be set for a case review hearing, which the parties and (if instructed) their legal representative must attend.
Jersey family court advisory service (‘JFCAS’)
Ordinarily, parties will be required to meet with a JFCAS officer ahead of the Case Review Hearing. JFCAS are responsible for ensuring that the child’s interests are sufficiently well-represented during family proceedings and advise the Court with regard to the best interests of the child(ren) and often a report will be produced to the Court in this regard. You may be required to complete DBS (police check) forms as JFCAS liaise with both the police and the Children’s Service.
The case review hearing
The Case Review Hearing is used to determine any areas of disagreement and to attempt to resolve these. As a result of this hearing, orders may be made.
If it is considered necessary for the case to proceed to a Final Hearing, it may be that interim orders are made, and for the Court to request various reports, which may include a welfare report to be provided by JFCAS and/or medical reports.
The Registrar may also provide directions ahead of the Final Hearing requesting that evidence and details of witnesses be filed with the Court.
The final hearing
It is essential that you attend the Final Hearing, together with (if appointed) you legal representative. The JFCAS Officer may also be in attendance, together with any applicable witnesses. On very rare occasions, if matters cannot be resolved, cases may be referred to the Royal Court.
The welfare of the child and the ‘no order principle’
It should be noted that the Court will not seek to make an order which is not in the best interests of the child. The child’s best interests are considered to be paramount and may not always align with your own wishes. On this basis the court is entitled (and may well consider it necessary) not to make any order at all. This is known as the ‘no order principle’.