Scottish Court of Session Decisions

The appellants in these two appeals, SG and MR or G, are husband and wife. For the purposes of the Social Work (Scotland) Act 1968, Mr. and Mrs. G are the parents and guardians of a child KMG, who was born on 9 August 1988. K normally resides in family with Mr. and Mrs. G, at an address in Kilmarnock, and has resided with them since birth. She has been in their sole care since the age of 2 years or thereabouts. K is not a child of the appellants' marriage, but is the natural daughter of Mr. G. K's mother is D M, who was born on 10 May 1969, and was thus aged 18 when K was conceived, and 19 when she was born. There is no blood relationship between DM and either Mr. or Mrs. G, but as a child she lived with them, although not adopted by them or, apparently, formally in their foster care.

On 19 December 1996, a referral under section 42 of the 1968 Act in relation to K called before the sheriff at Kilmarnock. The sheriff held the grounds of referral established, and the present appeals by Stated Case are in similar terms. At the hearing of the appeal, Mr. and Mrs. G were separately represented, but the appeals have been dealt with together.

Before considering the referral and the hearing before the sheriff, we should comment briefly upon the background and context of these appeals. There has been a very long delay since the hearing by the sheriff. We are not here concerned with identifying why this has occurred, far less in attributing responsibility or blame. The questions originally suggested for the Stated Cases are accepted as having been unsatisfactory; and unfortunately the attempt made by the sheriff to give the appellants an opportunity to make their grounds fuller resulted in no Stated Cases being prepared at what would really have been the appropriate time. It was only after an interlocutor of this court, in a petition to the nobile officium, in July 1998, that the present Stated Cases were eventually produced. The abnormal and long delay has had a number of unfortunate consequences in relation to the form and content of the Stated Cases. It is however to be noted that while in many cases such a delay could have seriously detrimental effects for the child in question, this does not appear, on the information before us, to have been the case for K. She had been removed to a place of safety, before the hearing; but after the sheriff had held the grounds of referral to be established, K was returned home, into the care of Mr. and Mrs. G, although subject to supervision. Since her return, in April 1997, she has remained with them, under supervision. While the appellants' position is that the sheriff's decision was flawed, and that the referral if insisted in requires consideration de novo, it is at least fortunate that the dispute over the grounds of referral (which constitute a basis for supervision) has not entailed, and is not expected to entail, any dispute over K remaining with Mr. and Mrs. G, given such supervision.

Of the conditions for compulsory measures of care referred to in section 32(1) of the 1968 Act, and listed in section 32(2), two were relied upon as grounds for the present referral. These were (a) in terms of section 32(2)(dd), that K is a child who "is...a member of the same household as a person who has committed" any of the offences there mentioned; and (b) in terms of section 32(2)(b), that "she...is exposed to moral danger". The supporting statement of facts, after certain undisputed matters which we have already mentioned, contains at heads (4) and (5) certain assertions of lewd and libidinous conduct on the part of Mr. G towards DM, between 1982 and 1988, together with an assertion that Mrs. G was on one occasion present when Mr. G used such conduct towards DM. The two remaining heads of the statement of facts, heads (6) and (7), are respectively to the effect that Mr. G had sexual intercourse with DM when she was aged 15 years, and that K is the product of the relationship between DM and Mr. G. The latter of these is not disputed. Heads (4), (5) and (6) were denied by Mr. and Mrs. G. All the heads of the Stated Case, except head (4) were accepted by DM.

At the diet on 19 December 1996, each of Mr. and Mrs. G was represented by a solicitor. The Reporter Mrs. Baillie appeared as reporter. In the Stated Case, the sheriff tells us that he stated that statements of facts (3) and (7) (of which the former narrated that DM resided in childhood with Mr. and Mrs. G) appeared to support condition (b). Mrs. Baillie stated that she agreed and was willing to proceed on acceptance of one of the two conditions. The sheriff allowed a short adjournment to enable parties to discuss the matter, but when they returned to court he was informed that the moral danger condition remained denied. In presenting their contentions at appeal, counsel for each of Mr. and Mrs. G criticised what the sheriff had done at this stage, but no such criticism has ever been focused in a question for this court, and in any event such an attempt by a sheriff to see whether the issues could be narrowed and resolved is neither open to criticism in itself, nor of any weight in considering the proceedings which followed, the issue not having been resolved.

What followed, putting matters very shortly at this stage, was that there was a motion for the sheriff to adjourn the hearing, opposed by Mrs. Baillie, which the sheriff refused. The question stated by the sheriff in both Stated Cases is "Did I err in law in refusing to adjourn the hearing?". As will appear, counsel for the appellants asked us to take notice of a number of points which go beyond and conflict with the Case as stated by the sheriff, and this single question which has been put to us by the sheriff. We shall return to these matters, but at this stage it is convenient to proceed upon what the sheriff says, and to do so in relation to this specific question.

The sheriff tells us that both Mr. G's solicitor and Mrs. G's solicitor moved that he adjourn the hearing. He tells us that this was on the ground "that they had been unable to make any preparations for the proof". It is not disputed that the adjournment which was being sought was adjournment to a future date. As counsel for the reporter submitted to us, the question of whether to grant such an adjournment or not is a matter for the sheriff's discretion. This was not disputed by counsel for either appellant. It was further submitted on behalf of the reporter that when the exercise of such a discretion by a sheriff is made the subject of appeal to this court, this court will not disturb the sheriff's decision unless satisfied that the sheriff has acted as no reasonable sheriff could or would act, in exercising the discretion in question, or alternatively has misdirected himself upon some point of law. Reference was also made to the familiar vocabulary, and the classic authorities, showing that intervention by courts of appeal or review will only be justified, in the absence of error in law, if the sheriff's decision must be regarded as irrational or perverse. None of these general principles was disputed by counsel for either appellant. It was accepted that the sheriff's decision to refuse adjournment to a future date would only be vitiated if it was, by these familiar standards, irrational or perverse.

It was not of course submitted that a decision to refuse an adjournment would automatically be irrational or perverse, merely because a party was unprepared. The fact that a party, or an agent, is inadequately prepared or indeed totally unprepared is obviously one of the many considerations which will have to be put in the balance. In the present case, there is nothing to indicate that the sheriff rejected as untrue or unreliable the assertion that the agents were not prepared. But against that fact, there were plainly considerations weighing against the adjournment sought. He says that Mrs. Baillie strenuously opposed any adjournment; and while the strenuousness of her opposition may not be of any significance, its basis must plainly be looked at. We are told that Mrs. Baillie "founded strongly on the serious nature of the grounds of referral, and emphasised that the child had been in a place of safety since 9 November 1996, and that it was of the utmost importance that a decision be made as soon as possible as to her future". To put it no higher, these are evidently considerations which a sheriff would be entitled to see as having significant weight, in favour of proceeding to proof that day. And what he says is that he refused the motion to adjourn "because it appeared to me that it was of the utmost importance for the future of the child that a speedy decision be made as to whether the grounds were established or not".

Understandably, the contention that the sheriff's refusal of adjournment to a future date was vitiated by a defect justifying the intervention of this court was not based simply on the fact that he had given greater weight to the desirability of a speedy decision than to any disadvantages inherent in unpreparedness. The contention appeared to rest rather on two more special aspects of what had occurred. First, some emphasis was placed on the reasons for unpreparedness. The sheriff notes that Mr. and Mrs. G had had notice of the hearing since about 5 December 1996, and says that as far as his notes go, there was no explanation given as to why neither agent was prepared for the hearing. He is not however saying that no explanation was given, nor that any explanation given was so bad or unconvincing that it altered his decision. He appears quite simply to have seen the want of preparation as not necessitating an adjournment, when weighed against the need for a speedy decision. In principle, we see nothing wrong with that. Refusing adjournment to a future date in no way ruled out the possibility of less extreme steps being taken, during the proceedings, to meet any actual problems which might arise from a lack of preparation. Mrs. Baillie's stated willingness to proceed on acceptance of one of the two conditions showed that if one issue could be resolved, adjournment to resolve the other might be unnecessary. Whatever potential problems there might be in relation to moral danger, the issue of whether Mr. G had committed a relevant offence, as he would have done if he had had sexual intercourse with DM when she was aged 15, was a question of fact, in relation to which the appropriate direct witnesses were present. On the matters which we have mentioned thus far, we can see no basis upon which it could be seen as irrational or perverse to decide that an adjournment to a future date was not appropriate.

In contending that the sheriff's refusal of an adjournment was defective, counsel for Mr. G also laid emphasis upon a subsequent passage in the Stated Case, where the sheriff reverts to the question of his reasons for refusing the motion. Repeating that his reason was that in the interests of the child a decision required to be reached as soon as possible, the sheriff says that he was conscious that section 42 proceedings are sui generis, and are conceived in the interests of the child. That was not disputed. But the sheriff goes on to say that "Where there is a conflict between the perceived interests of adults and of a child" it is his view that any decision taken should not fail to recognise that the proceedings are primarily concerned with the interests of the child. So far as the child's interests are concerned, he goes on to note that she had been removed from her home to a place of safety some weeks before, and that if the grounds were without foundation it was obviously in her interests that she should be returned home as soon as possible.

It was not suggested that the sheriff had erred in seeing these as matters of importance for the child. What was criticised was his reference to "a conflict between the perceived interests of adults and of a child", it being submitted that in a case such as the present, it was not merely Mr. and Mrs. G, but also K herself, who had an interest in a fair procedure being adopted. The child not only needed a decision, but a decision after fair inquiry. It was not in her interests to have grounds of referral wrongly established. There was a mutual interest in a full and fair consideration of the evidence, affecting both the child and Mr. and Mrs. G. It would not be in the child's interests to have them labelled as offenders. It was submitted that the sheriff had not permitted a fair hearing. Moreover he had acted on a misapprehension as to the interests of the child. In support of these submissions, reference was made to cases from other areas of jurisdiction, such as Tudhope v. Lawrie 1979 J.C. 44 in the field of criminal prosecution, and H. v. Mearns 1974 S.C. 152 and Sloan v. B. 1991 SC 412. More generally, counsel referred to McMichael v. The United Kingdom 1995 20 E.H.H.R. 205.

We can well appreciate that both the child and Mr. and Mrs. G would have an interest in fair procedures being followed. But the submissions seem to us to beg the question. In deciding whether to grant an adjournment or not, the sheriff was not deciding whether to have a fair procedure or not. In seeking an adjournment to a future date, the agents for Mr. and Mrs. G were plainly acting in what was perceived to be their interests - although not of course an interest necessarily in conflict with K's own interest. But the sheriff saw it as in K's interests to proceed that day, and put that interest above any interest there might be in deferment, without in any way suggesting that this would involve unfairness to anyone. We see no misapprehension on his part. Ensuring that the procedure actually adopted would indeed be fair would be a matter not only for the parties, but for the sheriff, throughout the actual course of those procedures. In refusing to adjourn to a future date, the sheriff was in no way committing himself to carrying on regardless, if at a particular juncture, for reasons of unpreparedness or otherwise, justice appeared to demand some particular step, such as an adjournment, brief or otherwise.

It was also contended that the sheriff had misapprehended the "moral danger" ground of referral. The suggestion appeared to be that the sheriff thought that moral danger was established by the mere fact of immoral past behaviour. That would plainly be wrong. However, we see nothing to suggest that the sheriff took any such view. His initial comments in relation to findings 3 and 7, to which we have already referred, carry no such implication. And there is no indication that in refusing to adjourn the hearing, he was proceeding along the lines imputed to him by counsel for the appellant.

It is right to add that counsel for both appellants pointed out that the Stated Case does not follow the form laid down in Rule of Court 41.9. The absence of properly numbered findings-in-fact can of course be a serious defect, particularly where the question for the court, in terms of a Stated Case, relates to facts which a sheriff has held to be established, and their evidential basis. But in view of the fact that the present Stated Case is concerned with the exercise of a procedural discretion, we have not seen this as a matter of significant importance. Taking the Case as it stands, we see no error on the part of the sheriff in refusing to adjourn the hearing, and would on that basis answer the question in the negative. The position is, however, somewhat more complicated.

In an appendix to each Stated Case, the sheriff sets out certain proposed adjustments for both the reporter and the particular appellant. As set out in these appendices, the proposed adjustments appear identical, and the sheriff notes that he has not included them in the Stated Case because he has no clear recollection of the detail of what transpired, after such a very long passage of time. He adds that he is clear that SG conceded that what he had done was immoral. And he says that he has endeavoured to set out the gist of what happened. In the light of the sheriff's inability to recall the detail of what transpired, counsel for Mrs. G submitted that this court should fill the gap by having regard to the account of events contained in the proposed adjustments. It is not necessary to set out the proposed adjustments in any detail. As one might expect, those proposed by the reporter relate to points which the reporter herself is said to have made, while those proposed for Mr. G are concerned mainly with points said to have been put to the sheriff by Mr. G's agent. The various points said to have been made by either side appear to us to be the kind of points which, if made, a sheriff would take into consideration, in deciding whether to adjourn to a future date, or to proceed that day. In any event, they contain nothing which we would see as indicating that he exercised his discretion in an inappropriate way. Nor do they indicate any specific injustice actually said to have emerged as a result of his decision to proceed. We note that the possibility of proceeding that day, after a short adjournment to allow agents to precognosce witnesses, was raised at this stage, and that would indeed have been a possible course, if requested by or on behalf of either of the appellants, if the sheriff decided, as he did, to refuse adjournment into the future. While other lines of inquiry said to have been put forward by Mr. G's agent would not appear to have been capable of resolution that day, they remain only one consideration to be weighed, and in any event might turn out not to be essential, depending on the course which the evidence took and on the possibility that the matter could be resolved upon one ground alone. Upon that basis, we see nothing in what is set out in the appendix as altering our view that the question in the Stated Case should be answered in the negative. Again, however, matters are more complicated.

On behalf of Mrs. G, there was produced to us a copy of what was said to be the Note of proposed adjustments to the Stated Case lodged on her behalf. This contains the same quite substantial adjustments (largely devoted to points put forward by the agent for Mr. G) as are set out in the appendix to each Stated Case as constituting the adjustments sought by each appellant. However, according to this Note, certain further adjustments were sought on behalf of Mrs. G, which have not found their way into the relevant appendix. According to these, it was not agents for both appellants who moved for an adjournment, but only the agent for Mr. G; and it is asserted (although not in fact in the form of a proposed adjustment) that before Mrs. G's agent "was given an opportunity to address the court", the sheriff instructed the reporter to call her first witness. Furthermore, the Note seeks the addition at the end of the Stated Case of three further questions. The first of these is perhaps just a variant of the question actually included in the Stated Case as it is "Did I act reasonably in refusing the Appellant's motion for adjournment in order to allow time for further inquiry?". But the second and third questions raise separate issues, being as follows:

If the Note for Mrs. G was indeed in this form, it is obviously unfortunate that in the appendix to her Stated Case, the sheriff has set out as her proposed adjustment only that part thereof which coincided with the proposed adjustment for Mr. G. How this came about one cannot know, but it seems that it may merely have been a slip, resulting from the fact that the major additional passage sought was indeed a narrative of submissions made by the agent for Mr. G. We are not persuaded that in the event anything turns on the assertion that the agent for Mrs. G was not "given an opportunity" to address the court. It is not for a sheriff positively to invite the agent for any party to make any such motion; and the motion having been made by the agent for Mr. G, with submissions which according to both appellants were presented by him, followed by an adjournment apparently for all parties to discuss matters, it appears to us that the agent for Mrs. G could have associated herself expressly with that motion, or moved a like motion. She was apparently seen as having at least implicitly associated herself with the motion and submissions presented by the agent for Mr. G. The alternative is that she did not wish to seek any adjournment. Having considered this matter as raised in the Note, we are satisfied that it raises no error of the kind suggested; and no point having been taken when the Stated Case was produced with its now allegedly defective appendix, we do not regard this as a matter which requires to be remitted to the sheriff for any further procedure in this connection.

One further complication remains. Counsel for Mrs. G, founding upon the final question included in the Note, and also counsel for Mr. G, upon the basis that this court could amend the question put to it, both sought to advance arguments to the effect that even if the refusal to adjourn to a future date was not itself vitiated by error or unfairness, what thereafter transpired was unfair, with the consequence that the sheriff's holding that the grounds of referral were established was vitiated.

Such submissions plainly raise a number of possibilities. The content of a Stated Case on the one hand, and the question put to the court on the other hand, are correlative. If a question upon a new matter is to be added, the content of the Stated Case itself may require substantial amendment to put that question in context. A number of questions would arise as to whether and how any problem of this kind might be resolved. However, in the present case the sheriff in fact provides, in the Stated Case, a narrative of what followed upon his refusal to allow the adjournment. The adjustments sought by the appellants do not include any suggested deletion of this narrative given by the sheriff. Nor is there, at this point, a lacuna, with the sheriff having no recollection, and the parties proposing to fill the gap. Nor is any adjustment proposed which provides a narrative of any part of the proceedings, or which raises any question, so as to identify any error or failure in justice. There are minor contradictions of what he says, but his general version of events stands. Having considered that version, we are satisfied that he was entitled to find the grounds of referral established, and we see no need for further procedure.

What happened was this. Upon refusal of the motion to adjourn to a future date, one might have expected the agents to seek a short adjournment, as had been suggested, for precognition or the like. They did not do so. When the sheriff refused the motion to adjourn, "both agents stated that they were withdrawing from acting". We are not primarily concerned with what induced them to take this step, leaving their clients unrepresented. Any question of error or fairness would clearly turn on how the sheriff dealt with this new position, with parties thus abandoned by those who had represented them. But before turning to the possibility of error or unfairness in that unhappy situation, we would express some perturbation at the fact that the agents took this step. Without an account of why they did what they did, we would hold back from passing any judgment upon its propriety. But speaking generally, we would say that in our opinion a legal representative who has sought and failed to obtain an adjournment to a future date, even if he is (perhaps through being new to the case or for some other understandable reason) wholly unprepared, will normally owe it to his client and to the court not to return his instructions, but to continue to do his best for his client, and to bring to the procedure adopted by the sheriff the advantages, which exist generally and are emphasised by the grant of legal aid, of legal representation. Even assuming, as one must, that this was not a crude attempt to create a situation in which the sheriff might be forced to see adjournment as appropriate after all, faced with party litigants rather than legal practitioners, we see the agents' withdrawal, unless there were specialties, as being in conflict with the ordinary duties of agents in such circumstances. We would add that if in the profession there has arisen any more general view that withdrawal is a normal or proper course in such circumstances, in our opinion it is quite unjustified.

The remaining question would be whether the subsequent proceedings and eventual finding were vitiated by error or any affront to natural justice. Quite apart from the absence of any proper foundation, even in the amendments, we can see no basis for finding this to be so. Faced with party litigants, a court will always do what it can to help them, in particular on points of law and procedure. There is no suggestion that the sheriff was guilty of any error or omission in carrying out this function. He expressly says that after establishing that they both denied the grounds, he explained the procedure to them. Not only did they seek no adjournment at the time: even with hindsight nothing is identified as having called for one, or as otherwise defective. In the absence of any specific questions, the sheriff does not narrate the evidence in detail. But he does say that from the evidence he heard, he was satisfied that for some time before and after her 16th birthday, SG used lewd and libidinous practices towards DM, and that from some time before her 16th birthday he had sexual intercourse with her, with the encouragement of MG. He narrates that SG said that the purpose of this was to provide a child for them to bring up as their own, since MG was beyond child bearing age. He also expressly says that although SG denied intercourse before the age of 16 he accepted the evidence of DM on this. He further comments that the evidence of SG, that he had intercourse with the girl shortly after her 16th birthday, would have justified a finding that K was exposed to moral dangers because SG freely conceded that his conduct was immoral, for he had brought D up as her father, and she regarded him as her "Daddy". On the basis of the facts which he found established, the sheriff was plainly right to hold the first ground of referral established. He was also in our opinion well entitled to conclude, as a matter for his judgment in the light of the whole facts, that SG's past conduct and attitude in relation to D could carry forward with implications for K amounting to moral danger. He was thus entitled to hold the second ground was established.

On the basis of the case as stated, had there been a question as to subsequent procedure, we would have seen no error or injustice. And we answer the actual question in the negative.