We are the Children, Education and Home Affairs Scrutiny Panel. It's our role to scrutinise Jersey's government on matters of public importance, policy and legislation which falls within our remit.
Children and Civil Status (Amendments) (Jersey) Law 202-
The ‘Draft Children and Civil Status (Amendments) (Jersey) Law 202-’ (P.104/2023) (the ‘draft Law’) was lodged on 21st December 2023. The Panel agreed its terms of reference to focus on a legislative review of the draft Law and to consider its adequacy and anticipated impact. At its conclusion, the Panel has made twenty-five findings and seven recommendations.
The Panel would like to highlight that the method and timing of this review has been impacted by the wider political context in Jersey. Whilst the Scrutiny Panel has not changed its membership through the course of this review, there have been changes to the Ministerial leadership since the proposition was lodged.
The Panel undertook a desktop review of the proposed changes to existing legislation and has set out its understanding in a section of the full report. The draft Law is bespoke to Jersey but elements reflect the United Kingdom’s Human Fertilisation and Embryology Act. The draft Law will directly amend the following existing legislation:
- Children (Jersey) Law 2002
- Marriage and Civil Status (Jersey) Law 2001
- Marriage and Civil Status (Jersey) Order 2018
- Interpretation (Jersey) Law 1954
- Stamp Duties and Fees (Jersey) Law 1998
The Panel is supportive of the draft Law, but highlights that there is still significant work to be done on the consequential amendments and practical guidance that will be required for the law to come into force. The Panel found that the draft Law will impact 33 pieces of legislation through further consequential amendments, which it considers to be a significantly high number. The Minister for Children and Education has advised that the consequential amendments will come forward to the Assembly by Autumn 2024.
The Panel notes that the draft Law does not solely impact families where parents are in a same-sex relationship, but will also impact any family who uses forms of artificial insemination or relevant fertility treatment to conceive their child, families where step-parents have previously had challenges in acquiring parental responsibility and the changes will also abolish the customary law assumption that the husband of the birth mother is the father of a child.
Overall, the Panel understands that the purpose of the draft Law is to modernise Jersey law to reflect modern family circumstances and believes that this will create a positive impact for children and families.
The Panel's Review
The Panel launched its review on the 9th of January 2024 to consider the following key issues:
- The impact of the draft Law and the significance of the proposed changes for Jersey, and how these will be communicated to Islanders.
- Clarity for parents that commenced family planning arrangements prior to the draft Law coming into effect (e.g. the legal parental responsibility for children born through a surrogacy arrangement in England and Wales prior to the draft Law coming into effect).
- How the proposed draft Law will operate alongside existing legislation (e.g. the Legitimacy (Jersey) Law 1973)
- What consideration has been given to the resource and funding implications of the draft Law should it be adopted.
The Panel engaged with the public on social media as well as encouraging feedback from all avenues and were able to receive a range of comments and written submissions from Islanders, charities and key stakeholders on the issues highlighted. The Panel received:
- 15 targeted key stakeholder submissions from organisations and charities.
- 4 further submissions from members of the public through our call for evidence.
Responses to written questions were received from the Minister for Children and Education on the 14th February 2024; and 23rd February 2024.
The Panel's review resulted in 25 key findings and 7 recommendations which it believes will support the Minister and the Government in ensuring the Law is fit for purpose. A summary of these findings and recommendations follows next. Alternatively, to read them all in detail, click on the full report below.
Executive Summary
The Panel has also explored the impact the draft Law will have on Children and Families. It found that the effect of the law will be to expand the range of family units in which individuals can be recognised in law as legal parents, without using adoption.
The Panel understands that one of the main policy drivers for the draft Law has been the rights of same-sex parents. The draft Law will allow both partners of a female same-sex couple to be named on the birth certificate for their child (subject to certain circumstances and specific ‘agreed female parenthood conditions’).
In comparison, both partners in a male same-sex couple could not both be named on the birth certificate of their child, as there is a requirement to register the birth mother. However, parents in a male same-sex couple would both be able to establish themselves as legal parents by utilising a newly introduced Parental Order.
Parental Orders would also be used for any couple who used a surrogate mother, and the draft Law will introduce provisions for surrogacy into Jersey Law. This is an area where the Government has confirmed it will keep a watching brief on developments. The Panel has made a recommendation that guidance is published about surrogacy when the law comes into force.
As part of its evidence gathering process, the Panel approached The Minister for Education and Familyes about this matter who commented:
"due to differences between same sex female and male couples in the way that children are conceived and enter the lives of couples, by necessity, different processes and provisions of the Law are required to suit these different circumstances. As such, some children will have a birth certificate, some children will have a parental order certificate and some children may have an adoption certificate as their birth registration document. The legislative provisions that provide for these documents have been designed in such a way that the certificates all have the same effect"
The Panel received submissions from a small number of same-sex parent families that have been impacted by the challenges of only one of the intended parents being able to be the child’s legal parent.
"I welcome you expediting any discussion you need to have to at least bring parity to the law for married parents to have children and be recognised on their birth certificate as such. We should be inclusive and not an outlier in the western world. To the minority that it affects it really matters, to the majority it flys under the radar as it doesn’t affect them. As it currently affects me I talk to my relatives and acquaintances about it. Firstly they are shocked as they assume that it would have been sorted with the marriage law and then they are appalled".
Whilst the route to legal parenthood will not be the same for all families, it is noted that the legal effect of Birth Certificates, Parental Orders or Adoption Orders would be the same and the widening scope provided by the addition of a second parent on birth certificates or introduction of Parental Orders will help the law to more accurately reflect intended parents.
The draft Law will also allow for the re-registration of births and recognition of Parental Orders granted in England and Wales prior to the Commencement of the draft Law in Jersey. It is not known how many re-registrations of birth will take place to recognise a second female parent, but it is known that there are less than ten Parental Orders granted in the United Kingdom for Jersey children.
Furthermore, where a child is conceived using fertility treatment or artificial insemination, the draft Law provides the mechanism to recognise the intended father or second female parent if that parent was to die before the birth of the child.
The changes proposed by the draft Law do not solely impact families with same-sex couple parents. As mentioned above, the draft Law will include provisions on surrogacy which could impact any couple who chose to become parents using this process.
The draft Law will also remove the presumption of fatherhood from the husband of the birth mother and introduce specific provisions around ‘fatherhood conditions’ where a child is conceived using fertility treatment or artificial insemination.
Furthermore, where a child is conceived using fertility treatment or artificial insemination, the draft Law provides the mechanism to recognise the intended father or second female parent if that parent was to die before the birth of the child.
The changes in routes to legal parenthood will also impact the ways in which parental responsibility is conferred, however, there will also be additional ways in which individuals can acquire parental responsibility.
For example, this will now be possible by agreement for step-parents. The Panel has recommended that the Minister consider extending provisions of acquisition of parental responsibility on relation to step-parents in circumstances where a legal parent is deceased.
The Panel received evidence from a number of stakeholders about this aspect of the draft Law. The Jersey Law Commission explained that:
"The ability for step-parents to obtain parental responsibility will avoid the desire of some to adopt their step-children (not an advisable approach as this legally deprives a child of half of their birth family permanently). The requirement for consent of the other birth parent is a helpful safeguard. The child gains people with responsibility for them, rather than losing or exchanging people legally connected to them".
The Panel has also made a recommendation that the Government commits to review the retention of laws relating to legitimacy.
The Minister has advised the Panel that the concept of legitimacy has limited relevance in real terms today, however, as the draft Law stands (noting that no consequential amendments have been available for review at this point in time).
The Minister for Children and Education provided the Panel with some assurance about the limited relevance of the concept of legitimacy:
"Legitimacy in Jersey law is, in real terms, of limited relevance today. A classification of illegitimacy presents no bar to the registration of the birth of a child, does not prevent the establishment of legal relations between the child and the child’s parents, and does not prevent that child or the child’s family accessing benefits or services. Importantly, the distinction between legitimate and illegitimate children in matters of succession was removed in Jersey law in 2010 by an amendment to the Wills and Successions (Jersey) Law 1993 (see Part 3A of that Law). As such, in inheritance matters, Jersey law provides that an illegitimate child has the same rights of succession as if he or she were the legitimate issue of his or her parents (see Article 8C(1) of the Wills and Successions Law)".
The legal union of a child’s parents will still be of relevance when their birth is registered. Only a child born into an opposite sex marriage would be registered as legitimate.
The Panel found that, in addition to the financial and staffing implications set out in the report accompanying the draft Law (namely work to be undertaken by the Superintendent Registrar and Judicial Greffe)
There would also be further resources and work required from the Assisted Reproduction Unit and the Government Communications Unit.
The Panel has suggested that there should be a public user focused approach to information access about the changes that will be made as a result of the draft Law and any consequential amendments, if adopted.
The Panel has asked to see details of the communications plan from Government prior to the lodging of the Commencement Act and has also recommended that, in due course, the Government should review the law in practice
Conclusion
The Panel learned that consequential amendments will also be required to at least thirty-three other pieces of legislation in relation to changes proposed by the draft Law.
Two of the Panel’s seven amendments relate to the consequential amendments and highlight the importance of the further work that is required in advance of the Commencement Act.
Many of the submissions received by the Panel referenced the extended timeframe for the development of the draft Law and the impact this had on families. Liberate advised that:
"The process by which the draft law has arrived at the stage of being scrutinised has been extremely lengthy…. The result of a long, drawn out process was to place a number of families under duress and in a position of uncertainty over the status of their child(ren) on the day of their birth. We would remind the Panel that the agreement to change the law was made in principle in 2015 by States Members. It took a further 3 years to commence drafting the law. The oldest children born to same-sex couples since agreeing this law was needed are in Year 4 at school now. This was not ‘putting children first".
The Family Law Sub Committee of the Jersey Family Law Association highlighted that:
"Principally, I will say that the Committee welcome the changes being introduced via the draft law, which we consider are long overdue and will be of significant benefit to Jersey families and, in particular, to Jersey children".
The Panel is conscious that the draft Law will touch on many areas where there will be continuing developments, for example, in the fields of science and technology related to artificial insemination and fertility treatment. Changes in these areas may create change in societal expectations and raise important ethical questions for debate.
The Panel has made 25 findings in the report and 7 recommendations which it believes will support the Minister and the Government in ensuring the Law is fit for purpose.
The Panel believes that the changes made to the Law need to be understandable for the public and make consideration for further changes and further modernisation in future and this position is reflected in the Panel’s final recommendations made to Government.
The recommendations made by the Panel are as follows:
- The Minister for Children and Families should provide the 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.
- When the Commencement Act for the draft Law is lodged au Greffe, the accompanying report should identify the work undertaken on the consequential amendments.
- 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.
- 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.
- 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.
- 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 Scrutiny Panel prior to the lodging of the Commencement Act for the draft Law.
- The Government of Jersey should commit to a statutory review timescale for the draft Law, once it has been approved by the States Assembly.