A “draconian” measure used to remove three children from their mother has been deemed unlawful and a “grave injustice” by the Royal Court.
Bailiff Robert MacRae quashed an Emergency Protection Order affecting three siblings, aged between two and seven years old, after finding fundamental breaches of fairness and legal process.
The court ruled that “the process followed was unsafe and that there was an injustice in this case”, highlighting repeated objections from the mother’s lawyer that “no evidence has been tested whatsoever”.
The case centred on an urgent application by the Children’s Minister to take the three children into care and place them with their paternal grandmother outside Jersey.
“Wholly unacceptable”
At a hearing on 24 March, Commissioner Caroline Wright – a children and family law specialist who became the first serving member of the English judiciary to take on the role in 2023 – ruled that the legal threshold for intervention was “overwhelmingly met”, despite hearing no witness evidence and allowing no cross-examination.
The mother’s legal team objected, warning that it was “wholly unacceptable” for such conclusions to be reached in the absence of any sworn evidence, cross-examination, or evidence from the mother.
But the court made an Emergency Protection Order – among the most extreme measures available to courts, allowing children to be removed from their parents immediately.
Under Jersey law, such an order can only be granted “on the application of any person”. In this case, no such application had been made.
“Taken by surprise”
Counsel for the Children’s Minister said he did not know why the Emergency Protection Order had been made, the father’s lawyer also said she was “taken by surprise”, and the children’s guardian described it as “not something that anyone expected”.
The Royal Court confirmed that the Emergency Protection Order was made unlawfully in this case.
The judgment emphasised just how serious such orders are, quoting the findings of a separate, previous case describing them as a “terrible and drastic“, “draconian” and “extremely harsh” remedy requiring “exceptional justification” and “extraordinarily compelling reasons”.
None of those safeguards were followed in the case – with no evidence tested, no witnesses called, and no opportunity for the mother to respond.
Because there is no right of appeal against an Emergency Protection Order, the mother brought a rare legal challenge known as a ‘doléance’ – an exceptional remedy used only in cases of serious injustice.
A remedy reserved for a “manifest judicial error”
The court stressed that this remedy is reserved for situations where there is both a “manifest judicial error” and a “grave injustice”, but ruled that both applied in this case.
The judges accepted that even if the outcome might ultimately have been the same, the denial of a fair hearing itself was enough to justify intervention.
The Emergency Protection Order has now been quashed.
In its place, the court accepted the mother’s undertaking that the children will remain accommodated by the Minister under a voluntary arrangement while the case continues.
The application for an interim care order will now be reheard – this time with proper evidence and cross-examination.
“Defects in process”
The mother also sought to have the original Commissioner removed from the case, but that request was refused.
“We do not accept that there is any foundation for such an order and are of the view that the Commissioner is able to deal with this matter fairly, assisted by two Jurats,” the judgment read.
While the Court said it would have been “preferable” for Commissioner Wright not to express views suggesting conclusions had already been reached, it found no basis to prevent her from continuing.
“Having regard to the material before her, the members of this court understood why the Commissioner made the observations she did,” the judgment said.
“The court’s concerns arise from the defects in process and procedure to which we have referred.”