Guernsey's flexible customary law

In a recent decision the Royal Court of Guernsey has reminded us of the flexibility of the Bailiwick's legal system and the interplay between customary law and legislation.

Although the case in question concerned guardianship of a minor, the case has implications for every aspect of Guernsey's legal system ranging from insolvency to property and company law.

Whilst the law of guardianship has its roots in customary law, guardianship of children has been substantially overwritten by the Children (Guernsey and Alderney) Law, 2008 (the 2008 Law). However, the law of guardianship for adults remained unchanged.

In this case the child's mother sought an order which would apply to the child now and would also continue into adulthood. Accordingly, the application straddled the two regimes: one for children based on legislation, the other for adults based on the customary law. The benefit was that only one Court order would be needed, not two.

In granting the order sought, the Royal Court observed that the 2008 Law had not removed its customary law powers to grant guardianship orders over children. In the exceptional circumstances which applied here, it was in the best interests of the child for the court to exercise its customary law powers even regarding children (where statute usually intervened).

The principles applied here can be extrapolated to the interplay between for example the statutory insolvency regimes under the Companies (Guernsey) Law 2008 and the customary law remedies of Saisie and désastre. The possibilities are endless.