LORD HODGE:
1.
An application of this nature is, fortunately, unusual; but it is most
unfortunate. It concerns an interim award made against a father to pay
maintenance for his son to the child’s mother made by the Court of the
Seneschal of Sark on 14 August 2013 and orders for payment of arrears of
maintenance and a maintenance order made by that court on 9 February, 5 March
and 9 July 2015. Since then, the father has appealed those orders to the Royal
Court of Guernsey and the Court of Appeal of Guernsey. The Court of Appeal
refused him leave to appeal on 13 July 2017. He now seeks special leave to
appeal to the Board. In the meantime, the outstanding questions of the custody
and care of the child, who is now eight years old, have not been determined
after five years of litigation. Those questions include the determination of
the country in which he will live, as his parents are both German citizens, and
in the meantime he is required by court order to remain in Sark. It is
imperative that, following the promulgation of this judgment, the courts act
promptly in the best interests of the child to resolve those questions.
2.
This application raises an important question as to the circumstances in
which an applicant needs permission to appeal to the Board from a judgment of
the Guernsey Court of Appeal. It also raises questions about (a) the extent of
the jurisdiction of the Seneschal of Sark and (b) the scope for judicial
development of the common law or customary law in Sark and more widely in the
Bailiwick of Guernsey. The Board addresses each in turn.
Appeals from the Court of Appeal of Guernsey
3.
There appears to be uncertainty in Guernsey about when an appellant
needs leave to appeal to the Board from the Court of Appeal of Guernsey in
civil matters. As a result, the Board invited written and oral submissions on
whether special leave was required in this appeal and whether it should be
granted.
4.
Section 16 of the Court of Appeal (Guernsey) Law 1961 provides:
“No appeal shall lie from a
decision of the Court of Appeal under this Part of this Law without the special
leave of Her Majesty in Council or the leave of the Court of Appeal except
where the value of the matter in dispute is equal to, or exceeds, the sum of
five hundred pounds sterling.” (Emphasis added)
The emphasised words are clear in their exclusion of the
need for leave when the monetary value of the claim is or exceeds £500. This is
an anachronistic provision and the Court of Appeal has, understandably, sought
to reform the regime for permission to appeal by refusing to grant permission
unless the appeal raised an arguable point of law of general public importance,
thereby bringing appeals from Guernsey into line with the practice in the
jurisdictions of the United Kingdom: Emerald Bay Worldwide Ltd v Barclays
Wealth Directors (Guernsey) Ltd (judgment 2/2014) (unreported), given on 9
January 2014, and Investec Trust (Guernsey) Ltd v Glenalla Properties Ltd (judgment
55/2015) (unreported) given on 22 December 2015.
5.
In Emerald Bay McNeill JA drew an analogy with appeals to the
Supreme Court from Scotland, which at that time allowed for an appeal without
leave and (in the Supreme Court Practice Direction 1.2.25) required only that
two counsel certify the appeal as reasonable. Addressing such appeals, the
House of Lords in Wilson v Jaymarke Estates Ltd 2007 SC (HL) 135 and the
Supreme Court in Uprichard v Scottish Ministers 2013 SC (UKSC) 219 had
stated that it was contrary to the public interest for the time of the Supreme
Court to be taken up on appeals which do not raise an arguable question of
general public importance. The Court of Appeal of Guernsey in Emerald Bay
considered that it should bear in mind those statements and should refuse leave
if an appeal did not raise an arguable point of general public importance,
thereby allowing the Board to decide whether to grant special leave.
6.
The Board does not consider that the Scottish practice at that time,
which since 2015 has been superseded by the statutory introduction of a test of
an arguable point of law of general public importance in the Courts Reform
(Scotland) Act 2014, section 117, is a sufficiently close analogy to support
the introduction of a general public importance test in the face of the words
of exception in section 16 of the 1961 Law which the Board has emphasised. In Uprichard
Lord Reed (para 63) invited counsel to bear in mind the court’s statements as
to the public interest when considering whether an appeal was reasonable. The
House in Wilson and the court in Uprichard did not suggest that
any appeal which did not pass the general public importance test was
necessarily an abuse of process.
7.
Section 16 of the 1961 Law provides for an appeal as of right. The
section begins with a general rule prohibiting an appeal to the Board from the
Court of Appeal without leave of the Court of Appeal or special leave of the
Board. But it then goes on to exclude from that prohibition judgments where the
value of the matter in dispute is £500 or more. In relation to such decisions
the 1961 Law gives an appeal as of right; and it is beyond the power of the
courts to contradict that legislation. The Board therefore agrees with counsel
for both A and R that the Emerald Bay and Investec cases were
wrongly decided.
8.
An appellant’s appeal as of right does not mean that the Court of Appeal
has no control over the appeal. Orders in Council in many jurisdictions with
appeals as of right to the Board provide for the appellate court to grant final
leave to appeal only after the appellant has provided security for costs and
complied with other prescribed procedural conditions, such as the preparation
of the record of proceedings. More generally, a court of appeal has power to
make sure that there is a genuinely disputable issue within the category of
cases which are given an appeal as of right. Thus in Alleyne-Forte v
Attorney General of Trinidad and Tobago [1998] 1 WLR 68 Lord Nicholls of
Birkenhead, delivering the judgment of the Board, stated (p 73):
“An appeal as of right, by
definition, means that the Court of Appeal has no discretion to exercise. All
that is required, but this is required, is that the proposed appeal
raises a genuinely disputable issue in the prescribed category of case.”
9.
The Board’s Practice Direction 1 para 2.1 recognises the right of local
courts of appeal to grant leave in appeals as of right and thus to police the
application for leave as the Board envisaged in Alleyne-Forte. This
practice was upheld by the Board in Ross v Bank of Commerce (Saint Kitts and
Nevis) Trust and Savings Association Ltd (in liquidation) [2011] 1 WLR 125
in which, in its advice delivered by Lord Mance, it was stated (para 5) that
the purpose of seeking leave from the local court of appeal was to “confirm
that the appeal was as of right, and to impose such limited conditions as might
be permitted by the local Constitution and law.”
10.
Returning to Guernsey, in Pirito v Curth [2005-06] GLR 34,
Southwell JA in delivering the judgment of the Court of Appeal recognised the
power of the court to refuse leave to an appeal which fell within the exception
in section 16 of the 1961 Law if the appeal was an abuse of process. He gave
the following hypothetical example:
“35. There is no time limit in
the 1961 Law or elsewhere within which an appellant has to seek leave to
appeal. Suppose that the proposed appellant had allowed the decision of the
Court of Appeal to remain unappealed for a considerable time, and the decision
had been acted upon and the necessary steps taken to give it effect, before any
application under section 16 for leave was made. In such a case, in our
judgment, it would be essential, if serious abuse were to be prevented, for
this court to have the inherent power to refuse leave. Such a power would be
necessary to prevent the appeal process being carried forward and the whole
basis on which the civil dispute had been resolved as between the parties being
overturned ex post facto.
36. In our judgment,
therefore, … the existence of such a residual inherent power is necessary in
the exceptional circumstance that pursuit of an appeal to the Judicial
Committee would involve a serious abuse.”
The Board agrees that the Court of Appeal has such a power.
The exercise of that power would, nonetheless, leave it open to the applicant
to apply to the Board for special leave and to attempt to persuade the Board
that an appeal would involve no abuse.
11.
The Board, when considering an application for special leave to appeal
in a case in which there is an appeal as of right but the local court has
erroneously refused leave, has only a limited discretion to refuse such special
leave or to impose additional conditions. In Crawford v Financial Services
Institutions Ltd [2003] 1 WLR 2147, para 23, the Board recognised that its
discretion was limited and stated that it would refuse permission for an appeal
as of right, for example, “where it was clear that the appeal was wholly devoid
of merit and was bound to fail”.
12.
In the Board’s view the limits of the discretion to refuse leave to
appeal in a case where an appeal as of right has been wrongly refused by the
local court may be stated thus: the Board may refuse permission to an application
to appeal, if the appeal is devoid of merit and has no prospect of success (viz
Crawford para 23; Ross para 6), and also if the appeal is an
abuse of process, such as might arise in the hypothetical example given by
Southwell JA. Another example of an abuse of process could, depending on the
circumstances, be where the local Court of Appeal had refused an appeal to
itself or where the proposed appeal raises questions of fact which have not
been raised in that court.
13.
The Board adopts this approach in its consideration of the application
for leave to appeal in this case. Before so doing and addressing the substance
of the appeal, the Board observes that there is merit in achieving what the
Court of Appeal sought to do in Emerald Bay and Investec. It
notes that the States of Jersey by the Court of Appeal (Amendment No 8)
(Jersey) Law 2008 repealed similar words of exception (with a higher monetary
limit) in section 14 of the Court of Appeal (Jersey) Law 1961. An applicant
must obtain leave of the Court of Appeal or special leave of the Board for all
appeals to the Board from the Court of Appeal of Jersey. Were the exception to
be repealed in the 1961 Law in Guernsey, the Court of Appeal would be able to
address the appropriate test for the grant of leave to appeal.
The jurisdiction of the Seneschal of Sark
14.
The father advances a stark proposition, that the jurisdiction of the
Seneschal of Sark is confined to ordering the payment of liquidated sums due as
debts and making orders in relation to immoveable property. This submission contradicts
the established understanding in the Bailiwick of Guernsey. To demonstrate that
the submission is wrong it is necessary to summarise the development of the law
in Sark.
15.
The island of Sark has a population of about 600. It is part of the
Bailiwick of Guernsey, which comprises Guernsey, Alderney and Sark. It has its
own legislature, the Chief Pleas, but it has limited resources to draft and
enact legislation. The chief judge of the island is the Seneschal. There is an
appeal from his court to the Royal Court of Guernsey and appeals from the Royal
Court lie to the Court of Appeal of Guernsey, and from that court to the Board.
16.
In R (Barclay) v Lord Chancellor (No 2) [2015] AC 276, Baroness
Hale of Richmond, in a judgment with which the other Justices agreed, set out
the history of the constitutional relationship between the Channel Islands, the
Crown and the United Kingdom. In para 9 of her judgment she referred to the
loss by King John of continental Normandy in 1204, the English Crown’s
subsequent surrender of the title of Duke of Normandy and the Crown’s retention
of the Channel Islands. She stated:
“The States of Guernsey told the
Kilbrandon Commission, Cmnd 5460, para 1349, that, after the ducal title was
surrendered,
‘the King of England continued to
rule the Islands as though he were Duke of Normandy, observing their laws and
customs and liberties; and these were later confirmed by the charters of
successive sovereigns which secured for them their own judiciaries and freedom
from process of English courts and other important privileges of which the
Islands were justly proud and which have always been respected.’”
She continued (para 10):
“The Charter granted by Queen
Elizabeth I to the people of Guernsey, Alderney and Sark in 1560, for example,
granted to the:
‘bailiff and jurats, and all
other magistrates and officers of justice … full and absolute authority, power,
and faculty to have the cognisance, jurisdiction, and judgment concerning and
touching all and all sorts of pleas, processes, lawsuits, actions, quarrels and
causes arising within the islands and maritime places aforesaid’: clause 5.”
17.
Queen Elizabeth I also confirmed the grant of the island of Sark as a
Royal Fief to Helier de Carteret, a Jerseyman who became the first Seigneur, by
letters patent in 1565, which allowed the Seigneur and his successors the right
to a manorial court. In his public judgment in this case in the Royal Court
dated 13 June 2016 (paras 8-11), the Deputy Bailiff set out the origins of the
present court in Sark, drawing on Darryl Ogier, The Government and Law of
Guernsey (2nd ed) (p 200) and Julien Havet, Les Cours Royales des îles
Normandes (chapter 8). The Court of Appeal of Guernsey also addressed this
matter in their judgment of 21 April 2017 (paras 30-40). In short, Sark had
become depopulated by the 16th century and, following the grant of the Royal
Fief, was repopulated by people from Jersey. In 1579 the inhabitants of Sark
established a court on the island which applied the laws and customs of Jersey.
The Royal Court of Guernsey did not take the attempted introduction of Jersey
law into the Bailiwick lying down. In 1581 and 1582 the Royal Court challenged
the legality of both the adoption of Jersey law and the establishment of the
court. The dispute was resolved by an Order in Council on 24 April 1583. In
article 2nd the Order provided that there be five Jurats chosen by the
inhabitants of Sark (or seven if the population increased). Article 3rd
provided:
“These Jurats to hold Pleas and
use jurisdiction in Sark, in all causes, as is used in Alderney; and
appeals likewise to be from Sark to Guernsey, as to superior Justice, in all
causes as is used in Alderney.” (Emphasis added)
Article 7th excluded ecclesiastical causes, which fell
under the jurisdiction of the Bishop of Winchester. That jurisdiction apart,
the Sark court was given jurisdiction over all civil causes. In article 15th,
to which the Board will return when addressing customary law, the Order
provided that the inhabitants of Sark were to observe “the ancient laws and
customs confirmed, to be established by Her Majesty, as in Alderney”.
18.
On 16 July 1594 the Royal Court of Guernsey made an ordinance to give
effect to the Order in Council of 24 April 1583. The Ordinance stated, so far
as relevant:
“En administration de justice
useront les dites Jurez les loix et coûtumes approuvez et établies d’authorité
de Sa Majesté en la dite Isle de Guernsey, tant conformes aux lois et coûtumes
de Normandie, et aux coûtumes localles de la dite Isle de Guernsey approuvez,
différentes de la coûtume de Normandie.
Jugeront les susdits Jurez de
toutes causes civiles, tant en cause de meuble que d’heritage, et de toutes
matières et actions de Forfaite, Excez, et Injures par emprisonnements, ou
amendes n’excédant la somme de soixante sols et un denier Tournois. …”
19.
The Sark court survived in that form until 1675 when it was replaced by
the Court of the Seneschal. It appears from the Order in Council dated 19 May
1675 that the Bailiff and Jurats of Guernsey had removed from office the Jurats
of Sark because, being Presbyterians, they had refused to take oaths and comply
with the practices of the Church of England, and that the island had been
without judges for a year. The Order in Council instructed the Bailiff and
Jurats of Guernsey to “give oath to a Seneschall, and establish such others
officers as shall be requisite for the administration of the civil justice
there …”. The Royal Court gave effect to the Order in Council by an Act dated
15 July 1675 appointing the Seneschal, whom the Seigneur had nominated, “avec
même pouvoir et authorité de jurisdiction que les naguères Juges et Juréz de la
dite Isle ont eu”. The Seneschal thus inherited the jurisdiction of the former
judges and jurats.
20.
The modern statement of the jurisdiction of the Seneschal of Sark comes
from an Order in Council relating to the Constitution of Sark in 1922 and an
ordinance of the Royal Court of Guernsey dated 5 October 1931 which implemented
that Order in Council. Later statutory statements of that jurisdiction in the
Reform (Sark) Law 1951 and the Reform (Sark) Law 2008, which replaced it,
preserved the pre-existing jurisdiction of the Court of the Seneschal of Sark
and stated that the court shall be the sole court of justice in Sark.
21.
Article 13 of the 1922 Order in Council provided:
“The Court of the Seneschal shall
be the sole Court of Justice in the Island. There shall be an appeal therefrom
to the Royal Court of Guernsey, and the said Royal Court shall determine the
jurisdiction to be exercised by the Seneschal’s court in civil and criminal
matters.”
The Royal Court’s ordinance in 1931, the Ordonnance portant
Règlement quant à la Jurisdiction de la Cour de Serk, provided:
“La Cour de Serk aura le droit
d’entendre et de juger de toute cause soit en meubles soit en immeubles, pourvu
toutefois qu’il y aura appel de la sentence de la Cour de Serk à la Cour Royale
de l’Ȋle de Guernesey par l’une ou l’autre partie.”
22.
This is the jurisdiction which is now preserved by sections 5 and 10 of
the 2008 Law; the Court of the Seneschal has the right to hear and adjudicate
every action whether in moveables or in immoveables. This does not exclude the
possibility of legislation giving exclusive jurisdiction over a specified
matter to the Royal Court of Guernsey; but that does not arise in this appeal.
23.
It was submitted on the father’s behalf that the Seneschal’s
jurisdiction was severely limited because “moveables” fell to be construed
narrowly in Guernsey. The Board was referred to the Royal Court’s Ordinance of
19 January 1852 at the Christmas Chief Pleas entitled “Des Biens Meubles et
Immeubles”, which states at item 20: “Sont réputées Meubles, les Obligations et
Actions qui ont pour objet des sommes exigibles ou des effets mobiliers.” In
the Board’s view this definition, which is one of several in the Ordinance,
provides no assistance to the father. Actions which have as their object
“payable sums” or “sums which may be demanded” are not confined to actions for
already liquidated sums but extend to monetary claims, the amount of which will
be determined by the court.
24.
The Board, in agreement with the Deputy Bailiff and the Court of Appeal,
confirms that the Court of the Seneschal of Sark has, as Lady Hale stated in R
(Barclay) at para 20, “unlimited jurisdiction in civil matters”. This
accords with the charter of 1560, the Royal Court’s ordinance of 16 July 1594
and the Royal Court’s ordinance of 1931. It also accords with the understanding
of writers on the laws of the Bailiwick of Guernsey: Sir John Loveridge, The
Constitution and Law of Guernsey (2nd ed) (1998) p 21; Gordon Dawes, Laws
of Guernsey (2003) p 382; and Darryl Ogier (above), p 201.
25.
The Seneschal has jurisdiction in civil matters. But what is the law of
Sark that he applies? The Board turns to that question, which is the father’s
second challenge.
The laws and customs of Sark
26.
Each of the Channel Islands has two principal sources of domestic law.
Those sources are legislation and their customary law, which is sometimes
described as their common law. In Guernsey, the sources of legislation include
Royal Charters, Orders in Council, including those which embody Projets de Loi
approved by the States of Guernsey, Acts of the United Kingdom Parliament which
extend to Guernsey, Ordinances originally by the Royal Court and since 1948 by
the States of Guernsey, and statutory instruments made under such legislation.
The expressions “customary law” or “common law” are used in two senses. First,
there is the ancient customary law which has developed from the unwritten laws
of the Duchy of Normandy and such local laws in the islands of the Channel
Islands, arising in each case from customs which were tacitly accepted as
binding. Such unwritten laws were over time recorded in unofficial written
compilations or coutumiers, which, if given official sanction by Royal
ordinance, became coutumes. Secondly, there is the evolving body of case law
and practice by which the courts of the islands have developed and continue to
develop their non-statutory laws. As will become clear, the father argues that,
within the Bailiwick of Guernsey, whatever the position may be in Guernsey
itself or in Alderney, the customary law of Sark has been fixed for over 400
years and can be amended only by legislation. The Board disagrees and sets out
its reasoning below.
27.
As is shown in recent histories of the laws of the Channel Islands, for
example Ogier (above) chapter 6, Stéphanie Nicolle, The origin and
development of Jersey Law (5th ed) (2009), and Gordon Dawes (above) chapter
1 and also “A brief history of Guernsey Law” [2006] JL Rev 4, the islands
gained their customary laws initially from the unwritten customs of the Duchy
of Normandy, of which they were a part, and drew on unofficial written
compilations of those customs, including the 13th century Grand Coutumier. In
addition, local customs developed within the islands. Although there were
repeated editions of the Grand Coutumier published in the late 15th century and
during the 16th century, much of the compilation ceased to reflect current
usages in both Normandy and the islands by the mid-16th century.
28.
Commentaries on the Grand Coutumier also contributed to the islands’
customary laws. One of the most influential commentators was Guillaume Terrien,
whose Commentaires du Droict Civil, tant public que privé, observé au pays
et Duché de Normandie, was published in 1574. This work, which sought to
organise the law on Roman principles and drew on the Grand Coutumier and other
legal sources including the judgments of French courts, has had a considerable
influence as an authority on the law of Normandy and Jersey. It has also played
a more direct role in the formation of the law of the islands in the Bailiwick
of Guernsey in the following way.
29.
In 1578 uncertainty as to the customs and usages of Guernsey in relation
to the disposal of stolen goods seized on a pirate vessel caused the Privy
Council to initiate an investigation of Guernsey customary law. A Royal
Commission was appointed on 27 July 1579 to ascertain the extent to which the
laws and customs of Normandy applied in Guernsey. The Privy Council was
dissatisfied by the commissioners’ initial investigation of this matter and in
1581 ordered the Bailiff and Jurats, the Governor or his Lieutenant and HM
Procureur to set down the laws and customs of Guernsey. The commissioners’
subsequent submission (which was based on the work of the Royal Court and the
Governor) principally referred to the commentary of Terrien and commented on
the text and its application to and variance from the laws and customs of
Guernsey, with the intention of identifying the customary law which applied in
the Bailiwick of Guernsey so far as it fell within the scope of Terrien’s
writing. The commission’s commentary on Terrien’s Commentaires was
approved by the Privy Council and the commentary and approval became a
statement of the law of the Bailiwick of Guernsey known as L’Approbation des
Loix, Coutumes, et Usages de l’Ile de Guernsey (“L’Approbation”) once ratified
by Her Majesty through an Order in Council of 27 October 1583.
30.
It is important to observe both that L’Approbation was not a complete
statement of the customary laws of the bailiwick and that after its ratification
by the Order in Council the courts in the bailiwick did not cease to look at
developments in the law of Normandy as a source of law. Among the sources to
which the courts have had regard was the Coutume Réformée, in which the Grand
Coutumier was comprehensively re-written as an official code of the customs of
mainland Normandy, removing the many obsolete parts of the outdated
compilation. The Coutume Réformée was frequently cited by Laurent Carey in his
Essai sur les Institutions, Lois et Coûtumes de l’île de Guernsey, and
commentaries on the Coutume Réformée, including the work of the 17th century
French commentator, Henri Basnage, to whom the Board will return, have had a
significant influence on the development of the law in Guernsey.
31.
That notwithstanding, the father founds on the status of L’Approbation
as an officially sanctioned coutume. He refers to the judgment of the Board in Snell
v Beadle [2001] 2 AC 304, which was an appeal from Jersey, in which Lord
Hope, giving the judgment of the majority, said this about an unwritten custom
which was the product of generally accepted usage and practice (para 18):
“When the word [custom] is used in
that sense, as soon as custom is changed into formal or positive law by
judicial decision or statute it ceases to be custom. Authority is given to the
law by the decision of the court or by statute. It ceases to evolve or develop
by usage and practice. Thus, as Routier [Droit Civil et Coutumier de Normandie
(1742)] observed, at p 2, customary law when reduced to writing in this way
acquired the status of written law:
‘La rédaction par écrit de nos
coutumes les a renduës le droit écrit de nos provinces, chacune dans son
détroit; elles y dérogent au Droit Romain, mais elles y cédent à l’autorité des
Ordonnances de nos rois; qui sont les loix générales du roïaume, quand il y a clause
expresse de dérogation.’
As different systems of French
customary law became codified by royal authority they acquired the status of
coutumes. This meant that they had an official status, so that nothing they
contained could be abrogated except by statute.”
32.
But L’Approbation forms only part of the customary law of Guernsey. The
expression “customary law”, as the Board has said, includes the decisions of
the courts which have used many sources to assist the development of the
island’s common law. The law of contract has been strongly influenced by the
work of Pothier. More recently, the influence of English law on the development
of the common law by the courts can be seen, for example, in the law of trusts,
which was imported from English law, the law of torts and also criminal law. An
example which was cited to the Board was Morton v Paint [1996] 21 GLJ 61
in which the Guernsey Court of Appeal developed the island’s law of negligence
to bring its law of occupier’s liability into line with the English law which
had been reformed in the Occupiers Liability Act 1957. In that case and others
the court also had regard to the law in other commonwealth jurisdictions and
Jersey law. In areas of law in which Norman influence and, through that, the
structure of Roman law can be seen, such as property law and succession, the
courts in developing the law have looked to the law of Jersey, the Coutume
Réformée and its commentators, jurists like Domat, and, at least for the
purposes of comparative law rather than as a source, the French Code Civil and
modern French textbooks. In cases relating to property, assistance may also be
found in analogous jurisdictions, such as Scotland and South Africa, in which
Roman law has had a strong influence on the structure of property law. An
example of this is the decision of the Court of Appeal of Jersey in Haas v
Duquemin 2002 JLR 27 concerning the law of servitudes.
33.
In the Board’s view, L’Approbation has not prevented the judicial
development of the common law of Guernsey, including in areas of law which it
addressed. Judges in developing the law “interstitially”, to use Wendell
Holmes’s vivid phrase, must take care not to create incongruity in the law when
developing the common law in areas in which the legislature has legislated. See
for example the decision of the House of Lords in Johnson v Unisys Ltd
[2003] 1 AC 518, in which Lord Hoffmann stated (para 37) that judicial
development of the law
“must be consistent with
legislative policy as expressed in statutes. The courts may proceed in harmony
with Parliament but there should be no discord.”
While the status of L’Approbation as legislation prevents
direct abrogation of its provisions by judicial decision, the scope for
judicial development of the law around and in addition to its provisions should
not suffer the constraints which more modern statutory provisions would impose.
It is important to recall that its purpose over 400 years ago was to set down
the state of customary law at that time within the fields of law which it
addressed. There is no reason to believe that it was intended to prevent the
further development of the island’s common law.
34.
The position is no different in Sark. As the Board has mentioned (para
17 above), article 15th of the Order in Council of 24 April 1583 provided
“that, in Sark, the inhabitants shall observe the ancient laws and customs
confirmed, to be established by Her Majesty, as in Alderney”. It is clear that
the reference to Her Majesty’s confirmation and establishment of the laws was a
reference to L’Approbation which was then being prepared. But there is nothing
to support the view that this article sought to make the laws set out in
L’Approbation the definitive statement of the common law of Sark in all time
coming. In the context of the dispute between the Jerseymen who repopulated the
island and the judicial authorities in Guernsey which sought to preserve the
laws of the bailiwick on Sark, it is apparent that the purpose of this
provision was to re-establish the laws of Guernsey as Sark’s customary law, as
in Alderney. Article 3rd, which directed that appeals from Sark were to go to
the courts of Guernsey, as was the usage of Alderney, is consistent with this
aim.
35.
It follows therefore that the court in Sark is no more constrained than
the courts of Guernsey in developing the law by the status of L’Approbation as
legislation. That this is so is clear when one examines the development of the
law in relation to the maintenance of children, to which the Board now turns.
The law of Sark on the maintenance of children
36.
In its commentary on chapter 2 of book 2 of Terrien, L’Approbation
stated that the father was the legal administrator of the bodies and goods of
his (legitimate) children until they were married or had achieved the age of 20
years. It stated that the father had to aliment such children and that if the
father failed in his duties, another guardian would be appointed. In Sark there
was no directly relevant family legislation to abrogate this rule until the
Children (Sark) Law 2016 which created a statutory regime for parental
responsibility and family proceedings and, in accordance with international
norms, stated the overriding principle that the child’s welfare is the paramount
consideration. In the following year, the Affiliation Proceedings (Sark) Law
2017 created for the first time a statutory right of an unmarried woman to
obtain a court order against the putative father to pay towards the maintenance
of his child.
37.
But the absence of a statutory regime does not mean that the common law
had not developed since 1583; nor does it mean that L’Approbation encompassed
the whole law on the maintenance of children. Thus in the Channel Islands and
also in Normandy the customary law extended beyond coutumes which had received
royal sanction. So it was in relation to children born outside of marriage.
Basnage, in his Commentaires sur la Coutume de Normandie 3rd ed, (1709)
recognised that the Coutume Réformée did not address the maintenance of
illegitimate children but considered that the law imposed an obligation arising
out of nature. He stated in article 275 (p 445):
“Bien que nôtre Coûtume n’ait rien
dit pour les alimens des bȃtards, par un temperament équitable on oblige
les peres ou leurs meres à leur donner quelque chose par forme de pension
alimentaire: Ils les doivent élever jusqu à ce qu’ils leur aient donné le moien
de gagner leur vie, imitans en cela les autres animaux qui n’abandonnent leurs
petits que quand ils peuvent chercher leur pȃture. …”
38.
A similar approach has long been adopted in jurisdictions to which the
courts within the Bailiwick of Guernsey have looked for persuasive authority by
way of comparative law. In England, Blackstone in his Commentaries on the
Laws of England (4th ed) (1876) Book I, chapter XVI.I.i, pp 422-423 stated:
“The duty of parents to provide
for the maintenance of their children, is a principle of natural law; an
obligation laid on them not only by nature herself, but by their own proper
act, in bringing them into the world: for they would be in the highest manner
injurious to their issue, if they only gave their children life, that they
might afterwards see them perish, By begetting them, therefore, they have
entered into a voluntary obligation, to endeavour, so far as in them lies, that
the life which they have bestowed shall be supported and preserved. And thus
the children will have a perfect right of receiving maintenance from their
parents.”
At p 424 Blackstone went on to say:
“It is a principle of law, that
there is an obligation on every man to provide for those descended from his
loins.”
And this obligation was not confined to children born
within marriage (p 433):
“Let us next see the duty of
parents to their bastard children by our law, which is principally that of
maintenance. For, though bastards are not looked upon as children to any civil
purposes, yet the ties of nature, of which maintenance is one, are not so
easily dissolved. …”
In Scotland the obligation of a parent to aliment a child
was also founded on natural law. Stair, Institutions I, 5, 7 in
upholding the obligation, quoted from St Paul’s first letter to Timothy: “If
any provide not for his own family, he is worse than an infidel.” In enforcing
the obligation the court had regard to the ability of the parents and the
necessity of the child. Historically, the primary obligation to aliment a
legitimate child was on the father, but the child could sue the mother for
aliment if the father failed in his duty. Both the father and the mother were
under an obligation to aliment an illegitimate child: Erskine, Institute I,
6, 56. The obligation continued as long as the child was not capable of
supporting himself or herself: Marjoribanks v Amos (1831) 10 S 79; Pott
v Pott (1833) 12 S 183.
39.
In his judgment the Deputy Bailiff prayed in aid the effect of the Human
Rights (Bailiwick of Guernsey) Law 2000, and article 8 of the European
Convention on Human Rights in support of the development of the customary law
to give the mother a legal remedy to obtain maintenance for her child from the
child’s father. The United Nations Convention on the Rights of the Child
(“UNCRC”) to which the European Court of Human Rights looks when interpreting
its own Convention, vouches an expectation that such a remedy should exist:
article 27(2) of the UNCRC. But in the Board’s view, it is not necessary to
call on the Human Rights Law or persuasive international instruments as the
Court of Appeal was correct to hold that there has long existed an action in
maintenance at common law in Sark.
40.
In a very small jurisdiction such as Sark, it is unavoidable that case
law will be sparse. But as to the existence of a legal obligation on a father
to support his child and the existence of an action for maintenance of the
child, there is no real doubt. First, there is an early 19th century case of Guille
v de Carteret (Sark Extracts Vol C, 1565 - 1883) which concerned claims
between the father of a minor boy, Jean Guille, and the father of a minor girl,
Jenny de Carteret, concerning liability to provide for both the girl and her
illegitimate child. While the short report does not disclose the precise nature
of the action, it is consistent with a recognition of a paternal obligation to
aliment an illegitimate child.
41.
Secondly, the Loi relative à l’entretien des enfants illégitimes 1868
recognised the existence of a jurisdiction to order the provision of
maintenance for an illegitimate child. The Loi not only created a limitation period
of one year and a day for the action of maintenance of such a child, unless the
paternity of the child had been recognised in specified ways, but also provided
that such a maintenance order was of no effect once the child attained the age
of 14 years. This law applied throughout the Bailiwick of Guernsey and
therefore applied in Sark and Alderney as well as in Guernsey.
42.
Thirdly, the Board was referred to other cases in the Court of the
Seneschal which showed that the court has exercised a wide jurisdiction on
matters of family law, including the award of maintenance. The cases concerned
the award of maintenance to a wife on separation from her husband (Maunder v
Hotton Court, 22 December 1920), the appointment of a husband and wife as
joint guardians of the wife’s natural children (Kellet v Kellet, 23 August
1949), an award of custody of children and maintenance on separation to a wife
and the two children of the marriage (Bonnefin v Bonnefin, 27 April
1982) and the fixing of custody and access arrangements between the parents of
a child born outside of marriage and the award of maintenance payments by the
father to the mother for the benefit of the child (William v Martin, 29
June 2007). The Seneschal in his judgment of 30 May 2013 referred to another unreported
judgment from 2007, Pointz Baker v Perrée, in which the court awarded
maintenance to a child born outside of marriage.
43.
Fourthly, there is statutory recognition of the existence of maintenance
orders under the customary law of Sark in section 27 of the Maintenance Orders
(Reciprocal Enforcement) (Bailiwick of Guernsey) Law 1984 which provides for a
married woman in a convention country to apply to recover maintenance from her
husband in Sark in an application “made under and in accordance with the
customary law of Sark as applicable to maintenance orders”.
44.
The Board is satisfied not only that the obligation of a parent to
maintain a child, whether born within or outside of a marriage, is part of the
customary law of the Bailiwick of Guernsey, including Sark, but also that Sark
has an action for maintenance of that child, which the parent caring for the
child can raise when the child is not of an age at which he or she can assert
the right to maintenance himself or herself.
45.
The father advanced two further arguments about the nature of the law of
Sark which the Board deals with shortly. First, he contended that the
enforcement of a maintenance obligation was not “subject to conditions provided
for by law” under Article 1 of Protocol No 1 to the European Convention on
Human Rights (“A1P1”). This was because the law was not sufficiently accessible
and precise to be foreseeable and allow the citizen to regulate his conduct: Silver
v United Kingdom (1983) 5 EHRR 347, paras 87-88. On the hypothesis, which
the Board does not need to address and does not decide, that A1P1 is relevant
to a claim by a mother rather than by the state for the maintenance of a child,
there is no basis for this challenge. In a small jurisdiction such as Sark,
legal materials, and in particular case law, are not as abundant as they are in
larger jurisdictions. But the obligation of a father to support his child born
outside of a marriage is vouched in Basnage, which is an established source of
customary law for the Channel Islands. The case law to which the Board has
referred discloses the court in Sark awarding maintenance in differing
circumstances. The quantification of the liability is dependent on the
circumstances of the interested parties. In the absence of statutory formulae, the
court fixes the level of maintenance by an evaluation of what is reasonable.
46.
Finally, the father argues that the court has no power to make an
interim order. The Board disagrees. The court needs no specially conferred
power to make an interim order where the legal obligation to maintain the child
pre-exists the claim and the court fixes the level of maintenance pending a
full hearing on the question.
47.
The statutory regime created by the Laws of 2016 and 2017, which the
Board mentioned in para 34 above, is unquestionably an improvement on the
common law of Sark by its provision of a modern statement of family law which
addresses current international norms. But the common law of Sark empowered the
Court of the Seneschal to make the orders challenged in this appeal.
Private international law
48.
The father’s final argument is that the Court of Appeal erred in
declining to address the relevant conflicts of law rule to identify the law
applicable to the mother’s claim for maintenance for the child. The difficulty
with this argument is that the parties did not address the question of the
applicable law in relation to the obligation to maintain the child before their
case reached the Court of Appeal and did not lead evidence as to habitual
residence and domicile which might be relevant to that question. The father
first sought to raise the matter by listing it as one of his questions which he
wished the Court of Appeal to address. In the Board’s view the question of the
applicable law is not the proper subject of an appeal when the question was not
raised in the pleadings of either party or adjudicated upon by the fact-finding
court and the father only briefly mentioned it as a question in a written
submission before the Court of Appeal and did not develop it in his oral
submissions. It is therefore a challenge which is not in reality an appeal from
the decision of a lower court and, for the reason set out in para 12 above, an
appeal on this ground is to be viewed as an abuse of process.
Conclusion
49.
The Board therefore refuses special leave to appeal the issue of the
applicable law. Otherwise the Board gives the father special leave to appeal
and will humbly recommend to Her Majesty that his appeal should be dismissed.
