In the matter of the Representation of J (Doleance) (Royal Court : Hearing (Civil) : MacRae : Doleance) [2026] JRC 089 (1 April 2026)

judgment the baillif: 1. J ("the Mother"), is 32 years old. The Father is 35 years old. They are separated. The Mother lives in Jersey, the Father lives in England. Together they had three children ("the Children"). The Mother moved to Jersey [redacted] last year.

2. The eldest child, BB, is 7½ years old. The next eldest child is CC, she is 4½ years old. The youngest child is DD, a boy aged 2. He was born in [Redacted] 2024.

3. There is considerable evidence that all three Children have suffered neglect whilst in the care of their Mother. The Mother has a history of trauma, a personality disorder, anxiety and her ability to provide a safe environment for her Children is significantly impaired. It has been said that the Mother lacks a reliable support network, with the maternal grandmother unable to provide consistent help, so that without assistance from outside professionals the Mother often becomes overwhelmed.

4. The Minister for Children and Families made an application for an interim care order and for approval for the Children to live outside Jersey in the care of their paternal Grandmother under Schedule 2 (4)( i )(a) of the Children (Jersey) Law 2002 ("the Law") by application dated 16 March 2026. On 18 March, having reviewed the application form, Commissioner Wright made, as is usual, ex parte orders permitting the Minister to serve the application on the Father outside the jurisdiction, for the appointment of a Guardian for the Children, joinder of the Children to the proceedings and the appointment of an advocate to represent the Children, pursuant to Article 75(1) of the Law.

5. The applications for an interim care order and to place the Children out of the jurisdiction were listed for the 24 March 2026. The Mother's counsel was appointed to represent her the day before the hearing. The Mother applied for an adjournment of the hearing on that day on the basis that there is no urgency for the application and that the Minister's concerns "should be properly tested and the Children's voices appropriately heard before such a momentous decision, including removal of the Children from their Mother, their schools and their island of residence is considered".

6. The hearing took place at 2.30 pm on 24 March 2026. The Minister, Mother, Father and Children were represented by counsel. The Father was present by video link. The Guardian was also present. There are connected proceedings before the English High Court which are not relevant for the purpose of this application.

7. The Minister's care plan was filed shortly before the hearing on 17 March 2026.

8. There were various exchanges between the Commissioner and counsel. The Commissioner expressed the view that threshold was "overwhelmingly met" . Counsel for the Mother objected to this view in the absence of any evidence being heard. He later suggested that the Mother could provide an undertaking allowing the Children to be accommodated by the Minister under Article 17 of the Law.

9. The Commissioner heard further submissions from counsel but again no evidence. The Court adjourned for an hour for the Minister to produce an amended care plan providing for the Children to remain in Jersey and returned with the Commissioner announcing that the Court was making an emergency protection order ("EPO") under Article 37 of the Law. We have the transcript of the hearing and the Commissioner appears to have made this order (which she is permitted to do alone without the assistance of Jurats) on the footing that the interim care order was not appropriate because the Court could not approve the Minister's care plan. The Commissioner said "The Court can make of its own volition the EPO and will consider the ICO next week when we have a proper care plan". In fact, a court cannot make an EPO of its own volition and Article 37 of the Law makes clear that such an order may only be made "on the application of any person". At the hearing of the petition for doléance , counsel for the Minister said he did not know why an EPO was made. He was expecting the Commissioner to make an interim care order with approval of the "hastily put together" (in his words) alternative care plan. Counsel for the Father said that she was "taken by surprise" by the making of an emergency protection order. Counsel for the Guardian said it was "not something that anyone expected" . Counsel accepted they should have informed the Commissioner that she had no power to make such an order in the absence of an application but, as counsel for the Father and counsel for the Guardian said , "it was presented to us as a fait accompli". An emergency protection order cannot be appealed - Article 40 of the Law.

10. As Munby, J said in X v B [2004] EWHC 2015 (Fam) at paragraph 34: "An EPO, summarily removing a child from his parents, is a terrible and drastic remedy. The European Court of Human Rights has rightly stressed (see P, C and S v United Kingdom (2002) 35 EHRR 31 , [2002] 2 FLR 631 , paras [116], [131] and [133]) that such an order is a "draconian" and "extremely harsh" measure, requiring "exceptional justification" and "extraordinarily compelling reasons". That case involved, as did my own decision in Re M, the removal of a new-born baby, whilst the present case involved the removal of older children. But although the circumstances and some of the sequelae may be different the principles are surely the same. After all, the child of 5 or 10 who, as in the present case, is suddenly removed from the parents with whom he has lived all his life is exposed to something the new-born baby is mercifully spared - being suddenly wrenched away in frightening - perhaps terrifying - circumstances from everything he has known and loved and taken away by people and placed with other people who, however caring and compassionate they may be, are in all probability total strangers." 11. These principles have been adopted by the Jersey courts in decisions such as In the Matter of HH (emergency protection order) [2021] JRC243. In HH, the Court made the following additional observations by

reference to the decision of Munby J in X v B: "35. In that case, at paragraph 95, the judge considered with approval the decision of the European Court of Justice in Haase v Germany, which considered, inter alia, Articles 6 and 8 of the European Convention on Human Rights. The concluding part of paragraph 95 of the judgment of Haase said - "95. ..... The fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the "necessity" for such an interference with the parents' right under Article 8 to enjoy a family life with their child." 36. Munby J then went on - "The court added at para [99] - " ... before public authorities have recourse to emergency measures in such delicate issues as care orders, the imminent danger should be actually established. It is true that in obvious cases of danger no involvement of the parents is called for. However, if it is still possible to hear the parents of the children and to discuss with them the necessity of the measure, there should be no room for an emergency action, in particular when, like in the present case, the danger had already existed for a long period." 46. I draw particular attention to the court's reference to the test as being one of "necessity"

and also to the requirement that "imminent danger" must be "actually established". I also draw attention to the court's statement (para [93]) that - "The taking into care of a child should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit, and any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and child".

37. At the end of the judgment, he provided the following summary of the effect of the relevant English legislation which, for these purposes, is identical terms to the Jersey provisions - "57. The matters I have just been considering are so important that it may be convenient if I here summarise the most important points - i ) An EPO, summarily removing a child from his parents, is a "draconian" and "extremely harsh" measure, requiring "exceptional justification" and "extraordinarily compelling reasons". Such an order should not be made unless the FPC is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. Separation is only to be contemplated if immediate separation is essential to secure the child's safety; "imminent danger" must be "actually established". ii) Both the local authority which seeks and the FPC which makes an EPO assume a heavy burden of responsibility. It is important that both the local authority and the FPC approach every application for an EPO with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the Convention rights of both the child and the parents. iii) Any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety. iv) If the

real purpose of the local authority's application is to enable it to have the child assessed then consideration should be given to whether that objective cannot equally effectively, and more proportionately, be achieved by an application for, or by the making of, a CAO under section 43 of the Act. v) No EPO should be made for any longer than is absolutely necessary to protect the child. Where the EPO is made on an ex parte (without notice) application very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child's immediate safety. vi) The evidence in support of the application for an EPO must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning. vii) Save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. They must also be given proper notice of the evidence the local authority is relying upon." 12. The Court referred to the Emergency Protection Orders good practice guidance issued by Macfarlane J in the English High Court in 2006 [2006] EWHC 510 (Fam) . The guidance envisages witness evidence being given, and neither the Court nor counsel for the Minister have ever encountered an EPO being sought or granted without witness evidence being called on behalf of the Minister.

13. Although there can be no appeal against the making of an EPO, the Minister points out that an application for discharge of an EPO can be heard 72 hours after it has been made. There can be no appeal against a refusal to discharge the EPO.

14. This is an appeal by way of a doléance . A doléance has a long legal history in each of the Crown Dependencies, as explored in some detail by an article by Lucy Marsh-Smith in the Jersey and Guernsey Law Review in June 2011.

15. The principles upon which a doléance will be granted and the case law was reviewed by Commissioner Sir Philip Bailhache in De Figueiredo v Attorney General & Commonwealth of Australia [2010] JRC 182 : " Doléance 6. We turn to consider the proper limits of the remedy of doléance . It is a remedy the use of which has fluctuated over the centuries. In 1943, Le Gros was able to write:- " Heureusement de nos jours , la doléance est peu usitée . Elle était autrefois d'un usage fort commun . La justice est maintenant administrée suivant les lois , coutumes et usages 'tant aux riches qu'aux pauvres sans acception de personne .' Les luttes politiques d'autrefois , avec toutes les conséquences regrettables qu'elles engendraient , avaient leur répercussion sur le banc de Justice. Tout est changé . Il s'est produit un changement dans le caractère et le génie du peuple jersiais qui, d'abord peu marqué , se manifeste aujourd'hui par le désir du triomphe du droit." 7. In 1985, however, it had a renaissance. In Re Barker [1985-86] JLR 284 a doléance was allowed and an order of the Inferior Number of the Royal Court establishing a novel procedure between a dégrèvement and a remise de biens was annulled on the ground of excess of jurisdiction. Frossard, Commissioner, stated that "...a doléance must show that there had been a failure of natural justice leading to injustice...".

8. In Re Harbours & Airport Committee [1991] JLR 316 , Tomes, Deputy Bailiff, after an exhaustive analysis of the history of doléance , laid it down that doléance :- ( i ) no longer carried its character of being an attack upon the integrity and honour of the judge; (ii) was available to all legal persons; and (iii) was available where there was no other right of appeal or remedy and there was a manifest error of law upon the record.

9. Both these decisions were made, of course, in the context of civil proceedings. In the sphere of criminal procedure, a petition of doléance was made in Re Lagadec [1996] JLR N 9C, where the Court held that, in the absence of evidence that a discretionary power to order costs had been improperly exercised, the judge's failure to invite submissions and to give reasons for his decision was not such a failure of natural justice as to warrant a petition of doléance .

10. In AG v Michel and Gallichan [2006] JLR N 15, [2006] JRC 089 , a doléance was presented complaining of a decision of the trial judge to refuse an adjournment to give counsel more time to prepare his submissions. Birt, Deputy Bailiff, (as he then was) stated:- "Essentially the position is this. A doléance is not an ordinary appeal. It is a review and the Superior Number may only intervene to overturn a decision where the petitioner satisfies the heavy burden of showing that a grave injustice will result whether it be from an excess of jurisdiction, a breach of natural justice, an error of law or some other manifest judicial error. In our judgement the burden is particularly heavy when a defendant seeks to challenge an interlocutory decision of a trial judge during the course of case management in relation to criminal proceedings. Although, save in the case of preparatory hearings under the Police Procedures and Criminal Evidence (Jersey) Law 2003, it is correct to say that there is no immediate right of appeal against an interlocutory decision, it is not correct to say there is no right of appeal at all so that doléance becomes appropriate as being the only method of remedying a manifestly incorrect decision. That is because if a defendant is convicted he may appeal to the Court of Appeal and may raise as a ground of appeal any criticism which he may have of any

interlocutory decisions made by the trial judge. If satisfied that the interlocutory decision of the trial judge was wrong and has led to injustice the Court of Appeal may allow the appeal. So we are not in the situation where doléance has most frequently been used, namely where there is in effect no other remedy whatsoever to correct a manifest judicial error. So that militates against the Court intervening in connection with interlocutory case management decisions in a criminal case. Secondly, such decisions often depend very much upon a detailed knowledge of, and a feel for, the case in question. This will be possessed by the trial judge, but it will not be possessed by the Superior Number and that is particularly so, of course, in a complex case such as the present." 11. Finally, in Metzner v Attorney General [2010] JRC 106 , the petitioner brought a doléance in respect of a refusal to award certain costs in connection with criminal proceedings. The Superior Number reminded itself that that there was no right of appeal against a costs order made following an acquittal or discharge from a prosecution. Even where there had been a conviction, and the costs order could be treated as part of the sentence so as to confer a right of appeal, an appellate court would be slow to interfere with the judge's exercise of discretion. Birt, Bailiff, in dismissing the petition,

stated:- "Thus, even where there is a right of appeal against a costs order, the threshold for a successful appeal is very high. Where there is no right of appeal, the threshold must by definition be even higher as otherwise the Court will simply be conferring a right of appeal when none is conferred by law. This is reflected in the jurisprudence concerning doléance . It is made clear in Re Barker [1985/86] JLR 284 at 291, that doléance is a remedy of last resort when all other doors are closed and a grave injustice will remain unless remedied." 12. The test which emerges with clarity from these different decisions is that the Superior Number will only intervene "where the petitioner satisfies the heavy burden of showing that a grave injustice will result" (per Birt, Deputy Bailiff, in AG v Michel and Gallichan ). Doléance , which involves convening the Superior Number of the Royal Court at short notice, is an extreme remedy of last resort. It is not to be employed to challenge any exercise of judicial discretion where the law allows of no appeal. To permit doléance to expand itself into a general remedy of judicial review, particularly in the context of criminal proceedings, would, in our judgement, be an abuse. It may be worth recalling that an order of His Majesty in Council of 27th July 1671 provided that:- "...in case the Complaynant shall not make good his Doléance , His

Majesty by the advice of his Councill will lay such ffine upon the Partys fayling , as the Case shall require." That was a warning shot to litigants bringing inappropriate doléances to the Privy Council. The principle, nonetheless, holds good in this Court. A party who is found wrongly to have raised a clameur de haro may expect to be fined. We think that a similar practice ought in future to be adopted in relation to doléance in appropriate cases so as to deter all but serious and well founded complaints about the administration of justice. If an appeal does not lie against a particular decision, there is usually good reason for that rule. A petition of doléance should not be casually employed in circumstances where the law provides no right of appeal. It is a measure to which parties should resort only to prevent grave injustice. If inappropriately brought to the Superior Number, it should lay the petitioner open to a wasted costs order." 16. In this case, there plainly was a manifest judicial error. The Commissioner determined an application for an interim care order without giving an opportunity to test any of the evidence where she was urged to do so; she then went on to grant an emergency protection order which has been described by the Courts as a remedy of last resort without any application to do so before the Court and without any party having the opportunity to test

any of the evidence before the Court. During the course of the application for an interim care order, counsel for the Mother, having already noted that " no evidence has been tested whatsoever today" and subsequently having said "we have heard no evidence today" said: "My submission, therefore, is that I simply want to reaffirm my objection that the Court, under no circumstances, should be coming to conclusions as you have expressed the threshold is met and that the children are at risk, in the absence of any sworn evidence, in the absence of any cross-examination, and the absence of actually hearing any evidence from the Mother. It is wholly unacceptable and that is not a decision that the Court should be making." 17. The response of the Commissioner was to the effect that the Court had read the bundle of material before it. Counsel for the Mother also offered an undertaking by his client to place the Children with their grandmother as sought by the Minister, pending the Court considering an interim care order, pursuant to Article 17 of the Law. As an application for an interim care order had been made this was an appropriate proposal to make consistent with the decision of the Royal Court in F v Minister for Children and Education [2021] JRC 280 which considered the circumstances in which Article 17 consent ought to be given. At the hearing of the petition, counsel for the Father (who generally supported the Minister's application for an interim care order when it came before the Inferior Number) said that the Court should have taken evidence regardless of the order it was making because the evidence upon which the threshold was based was challenged.

18. It is accepted that these sorts of applications need to be dealt with urgently having regard to the interests of the children concerned. The Court would always wish to ensure that they can be dealt with swiftly, say within half a day, and that the parties may be strictly timetabled in respect of the evidence which ought to be heard. The evidence of the social worker in support of the Minister's application in particular can be tendered. A social worker will generally be sworn and asked to confirm their previous statements which will stand as their evidence-in-chief. In this case, notwithstanding the extensive nature of the evidence, counsel for the Mother said that his cross-examination would take less than one hour.

19. But decisions of this gravity cannot be made in the absence of an opportunity to test the evidence, even briefly, if that is the wish of the parties, even if restricted to cross-examination where witnesses have provided statements or affidavits. In any event, it was inappropriate to grant an emergency protection order without any prior warning to the parties and contrary to the provisions of the Law - which states that such an application should be made on application. The Court has no power to grant such an order in the absence of an application. An application for an interim care order is not the substantive application for a final care order; nonetheless if threshold is disputed (and sometimes it is not and there may be no need to hear evidence in the circumstances where the care plan is also agreed) then the Court must permit some cross-examination even if as a matter of their discretion the Judge directs that cross-examination is limited.

20. Accordingly, there was a manifest judicial error and a breach of natural justice in this case as referred to at paragraph 16 above. The only live question is whether such defects gave rise to a grave injustice. We found this a more difficult question. It could be said that even if the Court had heard evidence it would still have made an interim care order and we have considered whether it would be appropriate to quash the EPO and make an interim care order in its stead which, having regard to the decision in Re Barker , we regard as permissible and within our powers. However, counsel for the Mother - who brought the matter to our attention by this petition - argued that the grave injustice in this case was the denial of the Mother's voice being heard by the Court; a refusal to permit the Mother to either cross-examine any witness via her counsel or give evidence if, having heard the evidence tested by the Minister, she chose to do so. It was further argued that even if the Mother had attempted to challenge the making of the EPO after 72 hours had elapsed as permitted by the Law, such a challenge would not disturb the findings that had already been made without her having the opportunity to test the evidence against her through her counsel or give evidence herself; the injustice would remain the same in such circumstances. We concluded, bearing in mind the repeated submission made on behalf of the Mother that the Court ought to hear evidence and the Court's refusal to do so, that the process followed was unsafe and that there was an injustice in this case.

21. The Inferior Number adjourned the application for an interim care order and that is to be considered tomorrow. In the circumstances, bearing in mind our findings above including that it was not obtained in accordance with the Law, we quash the emergency protection order, accept the Mother's undertaking on oath that the Children will remain placed with the Minister under Article 17 of the Law until further order of the Court and direct the Inferior Number to proceed with the Minister's application for an interim care order tomorrow. At the hearing, the Court should be prepared to hear evidence in the usual way.

22. The Petitioner asked for an order that the Court find that the Commissioner should be recused from hearing the interim care order application tomorrow. 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. In any event on normal principles, an application to recuse needs to be made to the Commissioner directly. It would have been preferable had the Commissioner not made observations in terms which suggested that the Court had made findings prior to having heard any evidence or any argument from counsel in circumstances where threshold was not accepted by counsel for the Mother. But having regard to the material before her, the members of this Court understood why the Commissioner made the observations she did. The Court's concerns arise from the defects in process and procedure to which we have referred. Authorities Children (Jersey) Law 2002. X v B [2004] EWHC 2015 (Fam) . In the Matter of HH (emergency protection order) [2021] JRC243. Re X [2006] EWHC 510 (Fam) . Jersey and Guernsey Law Review in June 2011. De Figueiredo v Attorney General & Commonwealth of Australia [2010] JRC 182 . F v Minister for Children and Education [2021] JRC 280. Page Last Updated: 23 Apr 2026 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII