Sun | Aug 20, 2017

Laws of Eve | Recent amendment to the Children Act

Published:Monday | January 30, 2017 | 1:00 AM

On January 20, 2017, the Senate passed the Children (Guardian and Custody) (Amendment) Act to incorporate the Convention on the Civil Aspects of International Child Abduction 1980 ('the Convention').

The Convention is a multilateral treaty which seeks to protect children from the harmful effects of abduction and retention across international boundaries by one parent by providing a procedure to bring about their prompt return. It preserves whatever status quo child-custody arrangement existed immediately before an alleged wrongful removal or retention, thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. (Only children under 16 years of age can rely on the provisions).

This is a significant change in Jamaica's legal landscape. It signals to the world, especially other signatories to the Convention, that Jamaica's relevant authorities will promptly and efficiently investigate and adjudicate in matters that fall for consideration under the Convention.

 

What matters arise under the Convention?

 

The typical situation that will trigger the operation of the Convention occurs when one parent relocates with a child across an international border without the consent of the left-behind parent or without a court order permitting that relocation.

 

What types of proceedings do they give rise to?

 

Civil proceedings. Proceedings under the Convention are not criminal. The hearing is not intended to determine child custody. It is more akin to a provisional remedy - to determine if the child was wrongfully removed or kept away from his or her habitual residence, and if so, then to order the child returned to that nation. The merits of the child-custody case - what a parent's custody and visitation rights should be - are questions that are reserved for the courts of the habitual residence.

 

What orders can the court make after considering an application under the Convention?

 

The court may order the return of the child to the country of his habitual residence. It should be noted that the Convention is the only internationally recognised remedy that compels the actual return of the wrongfully abducted child. Further, an application can only be entertained if the two countries involved are signatories to the Convention.

 

How quickly are these cases expected to proceed?

 

The expected time frame for handling a Hague Convention case is six weeks. For that reason, the newly enacted legislation includes a similar requirement.

 

Who will handle these cases in Jamaica?

 

The Child Development Agency is the designated Central Authority under the new legislation, with responsibility for carrying out all functions conferred by the Convention, which might include locating and ensuring the security of the child and initiating legal proceedings with respect to the prompt return of the child. Any such legal proceedings will have to be commenced in the Supreme Court.

I will consider the effects on adoptions and the workings of the Convention in future articles.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.