Jersey Unreported Judgments

[2009]JRC101

royal court

(Samedi Division)

21^st May 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

 

Advocate C. G. P. Lakeman for the Representor.

Advocate D. S. Steenson for the First Respondent.

Advocate C. R. G. Davies for the Second Respondents.

judgment

the commissioner:

1.        This application is brought by the Representor, for an order directing the children's Guardian, Jane Ferguson (the Court Welfare Officer), to cease exercising any of her powers in the hearing of an application for her recusal to be heard before the Deputy Bailiff on 9^th June, 2009; in effect to suspend her.  This application is in the context of a contested contact dispute upon which the Court gave detailed directions on 6^th May, 2009, under which a number of steps have to be taken in accordance with a strict timetable laid down, to enable a final hearing to proceed hopefully in September.

2.        The application is unsupported by evidence and was brought before me as a single Judge.  I have not set out here the grounds upon which the Representor seeks to recuse Mrs Ferguson but they are summarised in some detail in Mr Parslow's letter of 5^th May, 2009.  Mrs Davies, representing the children, fairly described it as an allegation of bias.

3.        At first blush one might think it sensible, where an application for recusal is being made, for the person concerned to take no action pending its hearing.  However, Mrs Davies has put forward persuasive arguments against my giving an order to this effect, if I was empowered to make such an order.  This matter concerns contact with children.  Any delay, as she put it, is the enemy in such cases.  Apart from the general need to act quickly when dealing with children, a delay enables parties to form stronger positions.  This is particularly so where there is an allegation, as here, of parental alienation.

4.        Mr Lakeman, apart from producing no evidence, has cited no authority.  Mrs Davies says that as a matter of general principle the Court should be very slow to suspend a court-appointed officer.  It is not, as she says, a popularity contest and parents are often very uncomfortable with or even may greatly dislike the Guardian.  It should, therefore, be difficult to attack the person undertaking the role.  If complaints of bias were sufficient to give rise to a suspension then a very unfortunate precedent would be created.  I accept all of the submissions of Mrs Davies. 

5.        There are a number of steps that the Guardian would ordinarily be taking in the period between now and 9^th June.  I do not have time to set those out here but I agree that she should continue to fulfil her functions as the court-appointed Guardian in that period.  Furthermore, whilst I can understand the Representor having some reluctance, given her current application, to cooperate with the Guardian, and I do not accuse her of not cooperating, I must make it clear that cooperation is essential in the interests of the children and for the avoidance of any doubt, I direct the Representor to cooperate with the Guardian in every respect, not withstanding her feelings and reservations.

6.        Turning to my powers, whilst I would appear to have the power under the Children (Jersey) Law 2002 sitting without Jurats to appoint a Guardian, the statute is silent as to whether I have the power to suspend.  We have not had any detailed argument today but such an application involves an exercise of discretion on the facts and in my view does require the presence of Jurats.  Even if I had the power I would refuse to exercise it on the facts as presented to me.

7.        The application is therefore refused and the representation dismissed. 

Authorities

Children (Jersey) Law 2002.