Review of the Draft Children and Civil Status (Amendments) (Jersey) 202- (S.R.2/2024): Response of the Minister for Children and Families

Findings

Comments

1

The draft Law is bespoke legislation for Jersey, but certain areas mirror relevant elements  of  the  United  Kingdom's Human  Fertilisation  and  Embryology Act.

Noted.

2

A  regulation  making  power  for consequential amendments is included in the draft Law. Thirty-three pieces of legislation  have  been  identified  as requiring  further  amendment  and  the Panel  has  been  advised  that  the Regulations will be lodged in the States Assembly in Autumn 2024. The Panel expects that the

work  will  require  a  significant  time commitment from the Government, the Legislative  Drafting  Office  and  will require scrutiny from panels across the Assembly.

Noted.

Findings

Comments

3

The Panel notes that the draft Law is considered to be compatible with the European  Convention  on  Human Rights  and  also  supportive  of Children's  Rights  under  the  United Nations Convention on the Rights of the Child.

Noted.

4

The  draft  Law  works  to  expand  the range  of  family  units  in  which individuals can be recognised in law as legal parents by introducing the concept of  Parental  Orders  and  widening  the people  who  can  be  included  on  the registration of birth for the child.

Noted.

5

Due  to  circumstance,  the  route  to acquire legal parenthood would not be equal  for  all  parents,  however,  the registration  document  for  the  child, namely, a Birth Certificate, a Parental Order, or Adoption Order, would all have the same legal effect.

Noted.

6

The draft Law will provide new routes to  the  acquisition  of  parental responsibility  and  sets  out  various provisions for this in Article 8 of the draft Law.

Noted.

7

The  draft  Law  will  remove  a  legal presumption  of  fatherhood  and  will require a declaration or confirmation to be  provided  to  the  Superintendent Registrar from the intended parents.

Noted

8

No data is available to indicate how many  children  have  been  born  to parents  who  are  in  a  same-sex relationship.  It  is  anticipated  that numbers of birth registrations recorded to same-sex couples will be publicly available in future.

All  birth  registrations  are  a  matter  of  public record; therefore this information will be collected and accessible to the public once the Law comes into force.

9

Same-sex couples may incur additional costs in conceiving a child, for example funding  clinically  based  fertility treatment or providing expenses for a surrogate  mother.  This  may disadvantage a same-sex couple  who

The  costs  relating  to  fertility  treatment  and surrogacy would also be applicable to mixed-sex couples. Policy work to look at potential changes to the subsidies for IVF or IUI remains ongoing and in the event that the Assembly determine that IVF and / or IUI should be provided to more

Findings

Comments

was not married  but wanted  to raise children together as, in order to meet the criteria  for  "relevant  fertility treatment",  they  would  have  to  use treatment from a certified clinician.

residents at subsided cost, the Assembly will also be asked to consider restrictions on the use of anonymous doner sperm.

10

Female  same-sex  couples  who  have children before the commencement of the draft Law will be able to re-register the  birth  of  a  child  in  order  for  the second  parent  to  be  retrospectively recognised as a legal parent. It is not known how many re-registrations will be requested as a result of this change of law, but it is not expected to be high. The  Superintendent  Registrar  will waive fees relating to the re-registration of births in these circumstances.

Noted.

11

The draft Law introduces provisions for surrogacy  in  Jersey  Law.  The Government will keep a watching brief on  areas  of  policy  and  legislative developments related to surrogacy and matters  such  as  pre-birth  surrogacy arrangements.

Yes,  this  area  of  policy  is  slowly  developing globally, horizon scanning in relation to surrogacy will continue.

12

There are limits to the monitoring that the Court can provide with regards to payments made in relation to surrogacy arrangements.

Yes, the Court can only consider the monitoring of payments of cases that come before it.

13

If  the  draft  Law  is  approved,  it  is estimated that the Jersey Royal Court would grant 2 Parental Orders per year. Parental  Orders  issued  by  the  Royal Court  must  only  be  in  relation  to children whose birth is also registered in Jersey.

Noted.

14

The  Royal  Court  will  be  given  the power  to  recognise  Parental  Orders granted  by  courts  in  England  and Wales, which is the first time that an order can be granted to recognise the effect  of  an  order  made  by  another jurisdiction that is not governed by an international treaty. It is expected that the  Royal  Court  will  retrospectively recognise less than 10 Parental Orders

Noted.

Findings

Comments

granted by courts in England and Wales for Jersey children.

15

Where  a  child  has  been  conceived through fertility treatment or artificial insemination,  the  draft  Law  provides the mechanism to recognise an intended father or a second female parent if that person were to die before the birth of the child. The relevant circumstances for  this  are  set  out  in  the  proposed Schedule A1 of the Children (Jersey) Law 2002 (as amended).

Noted.

16

The  acquisition  of  parental responsibility by a step-parent would allow  a  child  to  gain  people  legally connected to them, rather than lose or limit the number of people with parental responsibility.

A  child can  have  any  number  of  people  with parental responsibility for them, if those persons acquire parental responsibility in accordance with the Children (Jersey) Law 2002. The acquisition of  parental  responsibility  by  a  step-parent  is another  method  to  legally  acquire  parental responsibility that is limited to step-parents who are married or in a civil partnership with a legal parent only.

17

Agreement  of  the  legal  parents  and those  with  parental  responsibility  for the  child  is  a  key  feature  and  is considered to be an important safeguard for providing step-parents with parental responsibility,  and  avoiding  conflict between  parental  parties.  However, where  there  is  disagreement,  the stepparent could apply to the Court to resolve. The Court will have a process for applications which have agreement from legal parents and also a process where there is not agreement from the legal parents. Both processes involve the  Jersey  Family  Court  Advisory Service.

Noted.

18

The  policy  objective  to  address legitimacy as part of the work to enable parental  responsibility  for  same-sex couples  was  included  in  scope  by previous  Governments  (pre  2022 election) but has not been included in the lodged draft Law.

This work will form part of the consequential amendment Regulations to be brought before the Assembly this year.

Findings

Comments

19

The  draft  Law  reflects  the  existing Legitimacy (Jersey) Law 1973 which does  not  extend  the  concept  of legitimacy  to  children  born  of  civil partnerships or same-sex relationships. Therefore, only children who are born into an opposite sex marriage would be registered as legitimate. However, the Minister  for  Children  and  Education has  advised  that  the  concept  of legitimacy had limited relevance in real terms today.

The  Legitimacy  (Jersey)  Law  1973  will  be amended  before  the  Children  and  Civil  Status (Amendment)  Law  2024  comes  into  effect  to equalise the 1973 Law's effect on civil partners and their children.

20

The  Minister  for  Children  and Education  has  accepted  that  steps should be  taken to review the  wider Jersey law position on legitimacy.

The Legitimacy (Jersey) Law 1973 falls under the remit of the Chief Minister. The Chief Minister has confirmed he also accepts review should be undertaken and this is to be completed during the current term of government.

21

The Financial and Staffing implications detailed in section K of the report of P.104/2023 focus on the Judicial Greffe and  Courts  and  the  Office  of  the Superintendent  Registrar.  The  Panel notes  that  there  will  also  be  matters requiring  action  from  the  Assisted Reproduction Unit and the Government of  Jersey  Communications  Unit  but there  is  no clarity of total costs  and whether  requirements  or  resources would be met from existing budgets.

The actions that fall to the Assisted Reproduction Unit  and  the  Government  of  Jersey Communications Unit will be met from existing budgets. In terms of drafting a communications plan and providing communications support this is very much falls within the usual tasks of the Communications Unit

22

If  the  draft  Law  is  approved,  the Government will prepare a coordinated communications  plan  ahead  of  the commencement of the draft Law. The purpose  of  this  will  be  to  share information  about  how  Government services  will  be  impacted  by  the legislative changes.

The work to develop this communications plan has commenced.

23

The  legislation  has  been  in development  for  a  number  of  years which has resulted in uncertainty for families  with  young  children  and feelings that the law was long overdue for change.

Noted. It is a complex law and attempts to mitigate any  uncertainty  have  been  addressed  by  the development of retrospective  provisions  within the Law.

24

It is not common practice to provide a statutory  review  timescale  in  Jersey

A statutory commitment of this nature would be very unusual; I cannot think of another piece of

Findings

Comments

Law. Whilst the Minister has confirmed that a watching brief will be kept on development of policy and legislation in this area, no commitment has been made to review  the  adequacy  of  the draft Law in future.

legislation where this review timescale has been placed in statute. Jersey is a small jurisdiction with a limited policy and legislative drafting resource, it would be inappropriate to tie the hands of future governments  to  review  a  piece  of  legislation without significant reason for a shift in policy. As mentioned in my response to the Scrutiny Panel's initial review questions, a watching brief will be kept on the policy area and legislative amends considered  should  it  be  viewed  necessary  or desirable by any future Minister or backbench politician via a lodged proposition.

25

It  is  anticipated  that  the  changes proposed by the draft Law will capture the  majority  of  family  circumstances and any situations that are not covered will be rare.

Noted. Part of the reason the Law took so long to develop was so that there would be no unintended consequences for any family circumstances.

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completi

on

1

The Minister for Children and Families should provide the Children, Education and Home Affairs Scrutiny Panel with a draft schedule of when the consequential amendments and Commencement Act will be available for scrutiny and subsequently lodged to the States Assembly.

Accept

The  panel  will  be  briefed  once  these timescales are known in detail.

June 2024

2

When the Commencement Act for the draft Law is lodged au Greffe, the accompanying report should identify the work

Accept

The consequential amendments will be brought  forward  for  debate  in  the Assembly prior to the commencement act  being  lodged,  as  such  this  is  not required.

N/A

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completi

on

undertaken on the consequential amendments.

3

The Government of Jersey should publish guidance notes about surrogacy alongside the Commencement of the draft Law. It should include information about protection for parents using a surrogate and details about financial payments to a surrogate mother.

Accept

This will form part of the preparatory work  that  will be  undertaken  in conjunction  with  the  Jersey  Family Court Advisory Service

End of 2024

4

The Minister should consider extending the provisions of acquisition of responsibility by a step-parent to situations where one, or both, of the legal parents are deceased.

Reject

The Court is already able to take this action via the appointment of a guardian or by making a residence order or similar order  provided  for  by  the  Children (Jersey) Law 2002.

5

During the remainder of this electoral term, the Government should undertake and publish a review considering the relevance of retaining laws relating to legitimacy in Jersey, to include consideration of compatibility with the United Nations Convention on the Rights of the Child, the European Convention on Human Rights and how the law reflects public expectation.

Accept

As per the comment on Finding 20; the Legitimacy  (Jersey)  Law  1973  falls under the remit of the Chief Minister. The  Chief  Minister  has  confirmed  he also  accepts  review  should  be undertaken and this is to be completed during term of government.

Q2 2026

Recommendations

To

Accept/ Reject

Comments

Target date of action/ completi

on

6

The communications plan prepared by Government in relation to the draft Law should ensure that there is a coordinated public user focused approach to information access and, also, include details about Government liaison with third parties who might share relevant information. The communications plan should be shared with the Children, Education and Home Affairs Scrutiny Panel prior to the lodging of the Commencement Act for the draft Law.

Accept

I understand Communications Officers have  already  engaged  with  Policy Officers  to  ensure  a  comprehensive approach  is  taken  so  that  access  to information  is  available  to  all  who should need it. I absolutely assure the Panel that this plan will be shared with them, in good time, prior to the lodging of the Commencement Act.

Q3 2024

7

The Government of Jersey should commit to a statutory review timescale for the draft Law, once it has been approved by the States Assembly.

Reject

As per the comment on finding 24; A statutory  commitment  of  this  nature would be very unusual; I cannot think of another piece of legislation where this review  timescale  has  been  placed  in statute. Jersey is a small jurisdiction with a limited policy and legislative drafting resource, it would be inappropriate to tie the  hands  of  future  governments  to review  a  piece  of  legislation  without significant reason for a shift in policy. As mentioned  in  my  response  to  the Scrutiny Panel's initial review questions, a  watching  brief  will  be  kept  on  the policy  area  and  legislative  amends considered  should  it  be  viewed necessary  or  desirable  by  any  future Minister or backbench politician via a lodged proposition.