EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Hardie Lord Mackay of Drumadoon Lord Abernethy	[2011] CSIH 39 XA122/10 OPINION OF THE COURT delivered by LORD HARDIE in the Stated Case in the cause (1) JB, (2) DB, (3) JWDWB Appellants; against THE AUTHORITY REPORTER FOR EDINBURGH Respondent: _______

Act: Guinnane; Aitken Nairn WS (for the first named appellant)

Act: MacFarlane; Hughes Walker, Solicitors (for the second named appellant)

Act: M Hughes; Drummond Miller LLP (for the third named appellant)

Alt: Dowdalls; Brodies LLP (for the respondent)

For the Safeguarder: Forrest; Aitken Family Law Solicitors

22 June 2011

Introduction

[1] JWDWB ("Johnny"), the third named appellant, who was born on 23 March 1998, was referred on 3 September 2008 to a Children's Hearing on the grounds referred to in paragraphs (b) and (f) of section 52(2) of the Children (Scotland) Act 1995 ("the Act"), that is, that he was falling into bad associations or was exposed to moral danger, and that he was, or was likely to become, a member of the same household as a person who had committed any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995. The fourth offence listed in that Schedule is any offence involving the use of lewd, indecent or libidinous practices or behaviour towards a child under the age of 17 years, and that was the offence relied upon in this case by the respondent.

[2] Johnny's father and mother, the first and second named appellants, did not accept the grounds of referral and the matter proceeded to proof in Edinburgh Sheriff Court. The procedure in the sheriff court, as outlined by Miss Guinnane, counsel for the first named appellant, was that a five day proof had been fixed for dates in February 2009, but it was apparent that the proof would not be completed within that timescale. The sheriff originally allocated to this case was not available if the hearing extended beyond the five days allocated to it. Accordingly the hearing was adjourned until 27 April 2009 when the proof commenced. The first and second appellants were each separately represented in the sheriff court by junior counsel, who also appeared at the hearing before this court. The respondent was represented in the sheriff court by a member of staff in the respondent's office. Unfortunately in the course of the hearing the respondent's representative became ill and despite adjournment to enable her to recover, she was unable to conclude the case and another representative from the respondent's office replaced her. In the course of the proof Johnny became a party in the case. Prior to that stage his interests had been protected at the proof by a safeguarder, who continued to act in that capacity after Johnny was separately represented. The proof was not heard continuously, but the evidence and submissions lasted several weeks. Having commenced on 27 April 2009, the evidence was not concluded until 11 December 2009. On 8 January 2010 the sheriff heard oral submissions from the representatives of the parties, who had also lodged written submissions in advance of or on that date. The sheriff continued the case until 12 February 2010 for the purpose of giving his decision, which was to the effect that the ground referred to in section 52(2)(b) of the Act had not been established, but the ground referred to in section 52(2)(f) of the Act had been established.

Hearing before the sheriff

[3] In the case stated for the opinion of this court the sheriff reproduces from his note dated 12 February 2010 a well drafted and useful summary of the case and the hearing before him. In paragraph 7 the sheriff narrates that Johnny was born on 23 March 1998 and is the child of JB and DB. He refers to the two grounds of referral quoted above and continues:

"[8] At the heart of this case are another two children, A and SA, respectively a girl born on 11 July 2001 and a boy born on 7 December 2002. They are the children of SW, D's sister, and TA, SW's former husband. In other words they are Johnny's cousins and the niece and nephew of JB and DB. Another relative who features in the case is IB, J's uncle.

[9] Between April 2006 and September 2006 A and S lived with JB and DB, and Johnny, in the Bs' home. IB was a frequent visitor to the home. The reporter's broad contention is that during this period JB and DB, along with IB and a number of unidentified adults, sexually abused A and S.

[10] Since they were removed from the Bs' home in September 2006, both A and S have frequently said that the Bs' and others sexually abused them. The essence of the Bs' respective cases, and also Johnny's case, (see the following paragraph), is that what the children said cannot be accepted as credible and reliable. A substantial number of contentions have been advanced, both in support of the argument that it has not been proved that the children have been sexually abused at all and the esto argument that if they have been sexually abused, it has not been proved that the Bs and others associated with them carried out that abuse.

[11] A proof extending over a number of weeks commenced before me at the end of April 2009. The evidence concluded on 11 December 2009. On 8 January 2010 I heard submissions from the parties. Written submissions had been lodged by them, and accordingly oral submissions, which incorporated reference to the written submissions, were completed within the course of 8 January. I thereafter continued the case to ... [12 February 2010] for the purpose of giving my decision. Evidence for the authority reporter was originally led by a reporter named Lesley Stansfield. Unfortunately she suffered ill health and after instances when individual days and latterly weeks were discharged, the case for the reporter was taken over by another reporter, Anne-Marie Cobban. DB was represented throughout by Mr MacFarlane, advocate, and JB was represented by Ms Guinnane, advocate. Maureen McGowan was appointed safeguarder to Johnny, and she participated in the proof, initially largely appearing personally and latterly always represented by a solicitor, Mr Johnstone. During the course of the proof, Johnny became a party to the proceedings. He did not attend court but was represented by Mr Maguire, solicitor. It was plain that DB and those representing her had had a hand in Mr Maguire being instructed by Johnny - this was apparent from what Mr Maguire himself said about the circumstances of his engagement, not merely from ex parte information from the reporter about statements said to have been made by DB - but I have no reason to doubt that Mr Maguire considered himself properly instructed by Johnny and that he carried out Johnny's instructions. No one suggested that there was anything wrong in Johnny both having a safeguarder and being represented by a solicitor, either by way of competency or otherwise, and in this case it appeared to me appropriate that Ms McGowan continued in office. Ms McGowan had first hand knowledge of the earlier stages of the proceedings, and in particular had heard the evidence led in the proof's initial weeks. More important than that, while both Mr Maguire and Ms McGowan might be said to be representing Johnny's interests, in Mr Maguire's case, that was from the point of view of carrying out his instructions, whereas Ms McGowan was more concerned with Johnny's welfare. There were points where their submissions differed. Johnny was taken into care in 2008, and during the currency of the case I heard and granted a number of applications seeking warrant to further detain him in terms of section 67 of the Children (Scotland) Act 1995. Mr Maguire opposed these applications; Ms McGowan supported them. Most fundamentally, of course, Mr Maguire submitted that the grounds of referral had not been established, whereas on behalf of Ms McGowan a more nuanced position was advanced in which it was suggested that I could hold the grounds of referral to be established were I to prefer certain evidence.

[12] The reporter led a total of eight witnesses: Fiona Currie, a social worker from the social work unit at the Royal Hospital for Sick Children; Detective Constable Grant Paterson of Lothian and Borders Police; Tracey Hamburgh, also a social worker based at the Royal Hospital for Sick Children; Joyce Holden, present carer of S and A, along with her husband; Dr Jacqueline Mok, a consultant paediatrician; Susie Reade, an occupational therapist and mental health practitioner; Dana Deegan, a social worker; and Jennifer ('Jenny') Munro, a consultant clinical psychologist.

[13] In addition to giving evidence herself, DB led a total of three witnesses: Dr (James) Bryan Tully, a clinical and forensic psychologist;

PL, the mother of DB and SW, and the present partner of IB; and

Margaret Hunter, landlady and downstairs neighbour of the Bs in relation to the house they occupied at the material time. Dr Tully gave evidence twice. Although a witness for DB, because of his work commitments, he initially gave evidence during the reporter's case, interrupting the evidence of Tracey Hamburgh. He was recalled to give further evidence during DB's case, on the basis that Jennifer Munro's testimony had included matters not mentioned in her report.

[14] JB gave evidence on his own behalf.

[15] Johnny did not give evidence, but an affidavit on his behalf was produced.

[16] A Joint Minute of Admissions was also produced on the last day of evidence. A number of issues arise in relation to this Joint Minute and it is perhaps appropriate to deal with them now. The Joint Minute is in the following terms:

'Cobban, for the Reporter,

Maguire, for the child [Johnny]

Macfarlane, for the mother DB,

Guinnane¸ for the father JB and

Johnstone for the safeguarder Maureen McGowan, stated and hereby state to the court that for the purpose of these proceedings the following facts are admitted, without the necessity of evidence being led;

1. That the said child was not touched on the private parts, did not touch anyone else's private parts and did not ever see anybody touching anyone else's private parts. The said child has not been interviewed regarding the specific incidents alleged at statement of facts (a) to (i) inclusive.

2. That the transcripts of police interviews of the said child [Johnny] dated 20 October 2006 (Nos. 37a and 37b of process) and 29 January 2007 (Nos. 22a and 22b of process) are true and accurate records.

3. That the said child's position as set out at the police interviews referred to in paragraph 2 above has not changed since.

4. That the said child [Johnny] holds the view that he would like to return to the full time care of his parents JB and DB. Since being received into care, the child [Johnny] has consistently maintained that he wanted to be returned to the care of his mother, DB.' ".

[4] Thereafter the sheriff explains his reasons for concluding that he was not inhibited from making findings contrary to the terms of the Joint Minute, if he wished to do so on the basis of evidence that he had heard and accepted. Firstly, the Joint Minute was tendered on the last day of evidence by which time he had heard evidence which, were he to accept it, would have entitled him to make factual findings contrary to each of paragraphs 1 to 4 of the Joint Minute, either in whole or in part. Secondly, the sheriff considered that, in circumstances where he had heard the evidence of witnesses, parties to an action could not require him to accept something which he did not find as a fact on the basis of the evidence that he had heard. Equally they could not require him to reject something which he had found to be established on the basis of that evidence. Thirdly, as the grounds of referral did not allege that Johnny had been involved in the sexual abuse of AA and SA the sheriff decided to make no findings about that aspect of the evidence. That, however, was different from accepting the first sentence of paragraph 1 of the Joint Minute. Fourthly, Johnny's mother had given evidence which contradicted paragraph 2 of the Joint Minute and in fairness to her the sheriff considered the credibility of that evidence. Had he found her to be credible he would not have accepted paragraph 2. As it transpired, he concluded that she was incredible and was able to accept paragraphs 2 and 3 in the absence of any credible or reliable evidence contradicting their terms. Finally, while the sheriff accepted the first sentence of paragraph 4 he concluded on the basis of the evidence that he had heard that one of the reasons that Johnny held such views was the pressure to which his mother subjected him to express such views.

Questions for the opinion of the Court

[5] A total of thirty five questions were posed although a number of them were not insisted upon. In particular the first named appellant did not insist upon questions 8, 9 and 10; the second named appellant did not insist upon questions 16 to 24 inclusive, which counsel for the second named appellant conceded should be answered in favour of the sheriff and the respondent did not insist upon questions 29 to 35 inclusive, thus the remaining questions for our determination were in the following terms:

"1. Did the sheriff err in not accepting in evidence the terms of the Joint Minute signed by all of the parties and dated 11 December 2009?

2. Did the sheriff err in looking behind the terms of the said Joint Minute and, in so doing, reject the statements of agreed fact contained therein?

3. Was the sheriff entitled to reject the terms of the Joint Minute because he had heard evidence on matters referred to within the Minute at an earlier stage of the proof?

4. Did the sheriff err in rejecting the terms of the Joint Minute on 11 December 2009 before evidence was led on behalf of JB and in not informing counsel for JB to that effect before counsel for JB started to lead evidence on his behalf?

5. Did the sheriff err in not informing JB, in particular, and the other parties, generally, before the conclusion of evidence the basis on which he would or could reject the terms of said Joint Minute?

6. By not so informing the parties, did the sheriff allow or permit the case for JB to proceed on a materially incorrect fact or legal irregularity, namely that the Joint Minute agreeing the facts was before the court and would not be looked behind by the sheriff?

7. Did the sheriff err by the stage that written submissions were lodged on 5 January 2010 and spoken to on 8 January 2010, in not indicating that he would or could reject the terms of the Joint Minute thereby preventing the counsel for JB from leading further evidence in support of his position which may have included, inter alia, the evidence of Johnny, the evidence of Julie Coghill as well as the evidence of CW and her mother SW, none of which persons were called to give evidence?

11. Was the sheriff entitled to disregard paragraph 1 of the Joint Minute of Admissions, given that all parties had signed it and had agreed that certain material facts were admitted?

12. Was the sheriff entitled to allow himself to speculate as to why the curator's agent had signed the Joint Minute?

13. Was the sheriff entitled to allow himself to speculate that the Joint Minute had been 'sold' to the Reporter?

14. Was the sheriff entitled to fail to inform the parties of my (sic) decision to reject the said paragraph of the Joint Minute, thus effectively depriving them of the opportunity of leading certain witnesses to rebut the issues upon which the sheriff later founded?

15. If the sheriff knew at the stage of the presentation of the Joint Minute or at a later stage that he was not going to accept the terms of the Joint Minute, then ought the sheriff to have informed the parties of this before beginning to formulate his judgment so that the parties could make submissions as to whether or not they required to lead further evidence or make further submissions?

25. Was the sheriff entitled to disregard the terms of the first sentence of paragraph 1 of the Joint Minute of Admissions which had been signed by all five parties?

26. When the sheriff decided that he could not accept the facts stated in the Joint Minute of Admissions, did he err by thereafter failing to advise the parties of his view in order that they could consider their positions, lead further evidence and advance further submissions?

27. Did the sheriff err by failing to allow the parties to lead further evidence and in particular by failing to allow the [third] appellant the opportunity to give evidence in person?

28. On the whole facts of the case was the sheriff entitled to hold the grounds of referral established?".

Submissions on behalf of the first named appellant

[6] In her submissions to us Miss Guinnane explained that there had been discussions with the sheriff about the most appropriate method of presenting Johnny's views to the sheriff. Three options were canvassed. The first, that Johnny should be seen alone by the sheriff, was rejected by the sheriff. The second was that Johnny would give evidence and there was discussion about how best to avoid cross examination of him by several different people. The third option, preferred by his solicitor, was that an affidavit should be lodged. On 11 December 2009 before counsel for the first named appellant opened her proof, the solicitor for Johnny tendered his affidavit and the Joint Minute referred to above. The terms of the Joint Minute were clear and were not intended to be restricted to an agreement that they reflected the evidence which Johnny would have given if he had been adduced as a witness. The Joint Minute had been negotiated between Johnny's solicitor and Miss Cobban on behalf of the reporter. All parties had thereafter signed it. The sheriff had not expressed any concerns about the terms of the Joint Minute when it was lodged or at the hearing on 8 January following receipt of written submissions on behalf of the parties. All of the written submissions except those on behalf of the reporter were in agreement that the Joint Minute should be given its literal meaning whereas the written submissions on behalf of the reporter suggested that it should be construed as reflecting what Johnny had said. The representative of the reporter had declined the opportunity of withdrawing her agreement to the terms of the Joint Minute. At paragraph 81 of the Stated Case there is the following passage:

"On 8 January, having seen the parties' submissions, I did raise the issue of the Joint Minute, and heard parties' further submissions about it. At that stage, it was clear to parties that I would be considering what effect the Joint Minute should receive, and it was open to any of them to seek to lead further evidence. They chose not to do so. As recorded earlier, counsel for the parents and Mr Maguire made submissions to the effect that I was bound by its terms, as indeed they had done in their written submissions".

Miss Guinnane stated that that passage was "untrue, incomplete and inaccurate". Rather, the position was as stated by her and recorded above. If the sheriff had thought that there was an option for him to consider that he was not bound by the Joint Minute he should have raised it at that stage. Having said that, Miss Guinnane was unable to quote any authority to us to vouch that proposition. She acknowledged that it was unusual to have a Joint Minute lodged at the end of a proof, particularly when it dealt with evidence which had been led at an earlier stage. She asserted that the presentation of the case on behalf of the first appellant had been influenced by the existence of the Joint Minute.

[7] In her submissions to the sheriff Miss Guinnane had relied upon the Joint Minute to invite the court to reject the credibility of the child SA. If Johnny was not involved in touching anyone else's private parts and did not witness anybody else doing so, that contradicted the evidence of the children SA and AA as recorded in social work records and repeated in evidence by an adult witness. Although Miss Guinnane appreciated from the terms of the written submissions on behalf of the reporter that the reporter's representative did not understand the implications of the terms of the Joint Minute, she did not consider it necessary to lead additional evidence because the sheriff did not make it clear that he was contemplating not implementing the terms of the Joint Minute. Had she appreciated that he might adopt such a course, she would have sought to lead additional evidence. The Joint Minute was significant in the assessment of the credibility of the children, who had allegedly been sexually abused by Johnny's father and uncle. She was of the opinion that the terms of the Joint Minute were such that it was no longer open to the sheriff to find the grounds of referral established. Despite that opinion, Miss Guinnane confirmed that, after the Joint Minute had been lodged, she nevertheless led the evidence of the first named appellant. The effect of the Joint Minute was that it amounted to an agreement between the parties as to what was to constitute the evidence (McPhail, Sheriff Court Practice 3^rd ed. para.16.28; The Scottish Marine Insurance Company of Glasgow v Turner (1853) 1 Macq 334; Brown v North Lanarkshire Council [2010] CSOH 156). Miss Guinnane invited us to answer questions 1 and 2 and 4 to 7 inclusive in the affirmative and question 3 in the negative and to remit the case to the sheriff to enable it to be reheard before a different sheriff.

Submissions on behalf of the second named appellant

[8] Mr MacFarlane submitted that the reporter was bound by the terms of the Joint Minute. Although in January it was apparent that the reporter's representative did not appreciate the effect or significance of the terms of the Joint Minute, all other parties accepted that she was bound by it and he had made submissions to the sheriff in reliance upon the Joint Minute. These submissions related to the evidence that the sheriff had heard. In particular he had submitted that the Joint Minute was crucial to an understanding of the case. The concessions in the Joint Minute by the reporter that Johnny was never touched inappropriately nor did he ever touch anyone else inappropriately nor did he see such a thing happen fundamentally weakened the reporter's case. It undermined the disclosure by SA and AA to the contrary effect. Moreover, the sheriff was bound by the terms of the Joint Minute and he was not entitled to depart from the agreed facts. These facts should be considered along with other facts which the sheriff concluded had been established in the evidence. If the sheriff had proceeded in this manner, he could still have found the grounds of referral established. It was further submitted that, if the sheriff had intended to depart from the terms of the Joint Minute, he ought to have afforded an opportunity to parties to address him on this matter (Osborne v British Coal Property 1996 SLT 736). Counsel agreed with Miss Guinnane that the sheriff was in error in the passage quoted at paragraph [81] of the Stated Case. While the sheriff had accurately recorded that he raised the issue of the Joint Minute and heard further submissions about it, the sheriff was in error when he observed that it was clear to parties that he would be considering what effect the Joint Minute should receive. In conclusion, Mr MacFarlane invited us to answer questions 11 to 14 inclusive in the negative and question 15 in the affirmative.

Submissions on behalf of the third named appellant

[9] Mrs Hughes agreed with Mr MacFarlane, that if the sheriff had given effect to the Joint Minute, he would not have been precluded from finding that the grounds of referral had been established. In that regard she disagreed with the position adopted by Miss Guinnane on behalf of the first named appellant. However, Mrs Hughes submitted that the sheriff was obliged to give effect to the content of the Joint Minute in reaching his disposal. The proceedings before the sheriff were civil proceedings sui generis and the paramount consideration was the welfare of the child (Children (Scotland) Act 1995, section 16). In the present case the grounds of referral did not allege that the child was an offender. Initially, the child had been represented by a safeguarder but the safeguarder had approached Mr Maguire, the solicitor who ultimately acted for Johnny, because she was concerned about place of safety warrants. Mr Maguire consulted Johnny and satisfied himself about Johnny's ability to instruct him. He obtained information from a number of sources including the reporter, the safeguarder and the solicitor acting for the second named appellant about whether Johnny should be separately represented. Johnny's position was clear. He was opposed to place of safety orders and wanted to live with his parents. Parties were exercised about the question whether Johnny should give evidence. Mr Maguire had not been involved in the case when Fiona Currie and Mrs Holden had given evidence about reports from SA concerning alleged sexual abuse. However, he had been aware that there had been issues about the police interviews of Johnny. His understanding was that there was an issue both regarding the duration and the content of Johnny's interview. Accordingly he canvassed with Johnny the contents of the transcript of the interviews to ascertain whether Johnny accepted their accuracy. The discussions about the credibility of Johnny contained in email traffic between Mr Maguire and the reporter's representative were effectively designed to establish whether Johnny's versions of events would be accepted by the reporter. The decision not to lead Johnny as a witness was conditional upon the reporter accepting Johnny's position. The Joint Minute had been proposed on the basis that there would be no attack on Johnny's credibility. If that had not been accepted, he would have called Johnny to give evidence. The wording of the Joint Minute should be seen in that context. The other parties were not privy to the emails between Mr Maguire and the reporter's representative. In these circumstances, counsel submitted that the preamble to the Joint Minute required the sheriff to accept that it reflected the settled will of the parties. The sheriff was bound to accept paragraphs 1 to 4 inclusive of the Joint Minute. Counsel for the third named appellant invited us to answer question 25 in the negative and questions 26 and 27 in the affirmative. Question 28 was a matter for this court.

Submissions on behalf of the respondent

[10] Counsel for the respondent submitted that there had been no irregularity in the conduct of the case by the sheriff that was so damaging to the justice of the proceedings that it would found a successful appeal. Moreover, we should not interfere with the sheriff's decision unless we considered that the sheriff was not entitled, on the evidence as a whole, to make the findings in fact that he did and to find that the grounds of referral had been established. In the present case the sheriff's treatment of the Joint Minute made no difference to the outcome of the case. There were various pieces of evidence upon which the sheriff relied which entitled him to reach the conclusion that the grounds of referral had been established. Such evidence included the disclosures by SA and AA to Joyce Holden about sexual abuse by JB, DB and IB; Joyce Holden's observations of the children's behaviour; SA's depiction of sexual behaviour; SA's extreme fear of the first named appellant and Joyce Holden's description of SA's reaction to the food blender and toothbrush together with his repeated references to the effect that implements were inserted in his bottom (paras.[36], [40], [49], [50], [73], [89] and [96] of Stated Case). In addition there was the evidence of Miss Munro that in her opinion the children had been abused and their disclosure over time was consistent with children who were abused revealing such abuse (para.[52] of the Stated Case). Support for her opinion was to be found in the evidence of the appellant's expert witness, Dr Tully at paragraph [50] of the Stated Case in respect that he indicated that he had never seen a child with SA's behaviour who had not been sexually abused. There was also the evidence of Dr Mok relating to the medical examination of SA and his extreme reaction to it described at paragraph [56] of the Stated Case. Furthermore there was the evidence of Susie Reade of the conclusions that she reached as a result of play therapy sessions (para.[57]). Finally there was AA's drawing referred to in paragraph [60] of the Stated Case.

[11] Counsel also submitted that contrary to the submissions on behalf of the appellants the sheriff had not rejected the first sentence of paragraph 1 of the Joint Minute. He took it into account in his deliberations. He considered the terms of the Joint Minute along with the other evidence and concluded that he could accept parts of the Joint Minute. This was a legitimate exercise for him unless the parties had agreed that the evidence, which he had heard, was not to be relied upon. In her written submissions to the sheriff, which were available to us, the representative of the reporter referred in paragraphs 2.6, 2.7 and 2.9 to alleged incidents in which Johnny had been involved in alleged abuse. No suggestion had been made in the appeal that these references were inaccurate. In any event at paragraph [85] of the Stated Case the sheriff concluded that, even if AA and SA were deemed to be wrong about this aspect of their evidence involving Johnny, it was difficult to see that that error on their part should have much effect on the substance of their evidence because the involvement of Johnny was more peripheral than that of the first and second appellants.

[12] Finally, it was clear from her emails that the reporter's representative wished the Joint Minute to reflect the fact that what was contained within it was what the evidence of Johnny would have been, if he had testified in court. On 8 January she acknowledged that she had made a "foolish mistake" in signing the Joint Minute but, having regard to the evidence upon which she relied, she was not inclined to withdraw from the Joint Minute. She did not consider that the facts in the Joint Minute affected the ability of the sheriff to find the grounds of referral established on the evidence which he had heard. It was not correct to suggest that parties had been prejudiced by the reporter's approach to the Joint Minute. They were aware of the reporter's position three days before oral submissions. Although counsel's primary submission was that there had been no irregularity because the sheriff had taken into account all of the material before him, her alternative submission was that, even if there had been an irregularity, the outcome would not have been any different. In any event, parties had an opportunity to seek relief by asking the sheriff to permit them to lead additional evidence. Questions 3 and 11 should be considered in the context of rejecting or disregarding parts of the Joint Minute insofar as these were inconsistent with other evidence which the sheriff had accepted. If so amended each of these questions should be answered in the affirmative. Questions 1, 2, 4, 5, 6, 7, 26 and 27 should be answered in the negative. Question 14 should be amended by substituting the word "his" for the word "my" and should be answered in the affirmative. Question 15 should be answered in the negative. In any event the sheriff had informed parties that he had a concern about the terms of the Joint Minute. Questions 12 and 13 were issues for the court.

Submissions on behalf of the safeguarder

[13] Miss Forrest, for the safeguarder, adopted the submissions on behalf of the respondent.

Discussion

[14] It has long been recognised that a Joint Minute is a form of making judicial admissions which are conclusive in a litigation. In The Scottish Marine Insurance Company of Glasgow v Turner op.cit. Lord Truro observed at page 339:

"In the action against the insurers of this ship the jury found facts which must be coupled with other facts admitted upon the record; it being a clear principle of law that that which the parties admit by their pleadings the jury even cannot gainsay. It is not within the issue left to them".

Although these observations were made in the context of pleadings they are equally apposite to admissions made in the context of a Joint Minute. In McPhail: Sheriff Court Practice (3^rd edition) at paragraph 16.28 the learned editor makes a similar observation to the following effect:

"The joint minute is a form of making judicial admissions, which are conclusive for the purposes of the action in which they are made, the joint minute constituting a contract whereby the parties accept as true the facts stated therein. It does not exclude consideration of admissions made in the closed record or of the terms of documents admitted therein to be genuine; but, unless the contrary appears, it excludes all other or additional evidence upon the matters contained in it, and the construction of statements in it is subject to the decision of the court".

Prima facie these observations would tend to support the submissions on behalf of the appellants that the sheriff was bound to accept the terms of the Joint Minute and to reject any contrary evidence which he had heard. However, the learned editor of Macphail clearly envisaged the parties' solicitors giving consideration to the preparation of a Joint Minute of Admissions in advance of, or at least at an early stage of, the proof, the purpose being to avoid unnecessary expense and the inconvenience of calling witnesses to establish matters that are no longer in dispute. The difficulties in this case have been occasioned by the failure of the professional representatives for all parties to apply their minds at the appropriate time to the fundamental question of whether Johnny should give evidence and, if not, how his views should be conveyed to the sheriff. We note from the submissions made by Miss Guinnane that this was the subject of discussion at some stage with the sheriff and Mrs Hughes confirmed that parties were exercised about the question whether Johnny should give evidence. However, we consider that in the context of a hearing in respect of grounds of referral, where the welfare of the child is the paramount consideration, it is astonishing that this issue was not addressed before any hearing before the sheriff commenced. It is apparent from the submissions by Miss Guinnane that she considered that it was important to have Johnny's evidence in support of her own case. In contrast to what is recognised by the learned editor of Macphail as good practice before every proof, parties in the present case delayed consideration of this critical issue until after the conclusion of the evidence on behalf of the reporter as well as the evidence on behalf of DB. The terms of the Joint Minute were discussed between the solicitor for Johnny and Ms Cobban at lunch time on the day before it was presented to the sheriff and it was also the subject of discussion by email later that day into the late evening. Copies of those emails were made available to us. The effect of the parties' decision to enter into the Joint Minute was that the sheriff had heard evidence from a number of witnesses before being presented with the Joint Minute of Admissions immediately prior to the commencement of JB's evidence. Included in the evidence that the sheriff had heard was the hearsay evidence of AA and SA who were the alleged victims of sexual abuse by JB, DB and IB. We agree with the submissions on behalf of the respondent that, if it had been intended that that evidence should be disregarded by the sheriff because it was no longer relied upon by any party, that should have been stated in unequivocal terms in the Joint Minute.

[15] We also consider that the purpose of the Joint Minute in this case can be identified as intending to reflect the evidence of Johnny thereby avoiding his attendance at court as a witness, which would have subjected him to cross examination on behalf of some, if not all, of the other parties. The phrase in the preamble of the Joint Minute that certain facts were admitted "without the necessity of evidence being led" clearly supports that construction, particularly as each of the four paragraphs pertain to Johnny. If the intention of the parties had been otherwise and the Joint Minute had been designed to agree as true the facts stated therein, to the exclusion of all other evidence upon those matters which had already been heard by the sheriff, the consequence would be that the sheriff would be precluded from assessing the evidence which he had heard upon those matters. He would be obliged to find as a fact something which he rejected on the basis of the evidence that he had heard and assessed or to reject something which he had found to be established. In other words, on the last day of a proof which had lasted almost forty days the parties would have usurped the sheriff's function by requiring him to make particular findings in fact notwithstanding the evidence that had been led. Another consequence would be that the parties had led unnecessary evidence about "agreed facts" with impunity and at considerable cost to the public purse. We do not consider that such consequences could ever have been envisaged as the intention behind parties entering into a Joint Minute.

[16] The situation in the present case bears certain similarities to the situation considered by Lady Dorrian in Brown v North Lanarkshire Council op.cit., although in that case the relevant Joint Minute was lodged at the outset of the proof. In that case the Joint Minute agreed that the accident to a child occurred in the manner narrated in an accident investigation report which was lodged in process. As Lady Dorrian observes at paragraph 12 of her opinion:

"In normal circumstances, the agreement in the Joint Minute would have been conclusive of the material contained within it, and no evidence on that issue would have been heard".

It appears that the pursuer led the evidence of two teachers who had been in the classroom on the day of the accident. In the course of their evidence about the background circumstances, certain discrepancies arose between their evidence and the terms of the Joint Minute. The matter was pursued without objection in cross examination as a result of which the terms of the Joint Minute were contradicted. In that regard Lady Dorrian observed at paragraph 13:

"Where evidence contrary to a Joint Minute comes out by inadvertence and is not pursued, I would in general feel that the appropriate course would be to ignore it and to proceed on the basis of the Joint Minute. There might be many reasons why some discrepancy might arise in evidence by inadvertence and why parties might quite rightly have decided not to rely on that piece of evidence. However, that is not the case here. Even if the matter came out through inadvertence in the examination in chief of Mrs Stirrat it was pursued in cross examination without objection. Apart from the children, Mrs Stirrat and Mrs Holmes were the only two witnesses in the room. It was not suggested to either of them that they were mistaken in their recollection ..., no evidence was led from the compiler(s) of the accident report and it was not suggested to either of the witnesses that they had, for example, given a different statement to the compiler of the report or written a different account on the day in question. The agreement in the Joint Minute is not on some incidental matter: it is part of the basis on which the court has been asked to determine the issue of liability. Where evidence on the matter has been led in the manner and to the extent done in this case, the court cannot ignore that evidence and proceed merely on the basis of a Joint Minute agreed by the parties. In such a situation in my view the whole matter is at large for the court, and the averments in the Joint Minute are merely adminicles to be taken into account along with all the other evidence in assisting the court to reach a conclusion on the facts. I should emphasise that during submissions this was effectively the approach which I was invited to take by both counsel. Counsel for the pursuer submitted that all these matters were to be taken into account. Counsel for the defenders, under reference to Turner v Lothian Health Board 1996 SCLR 1063, submitted that the Joint Minute should not be given any more weight than the admitted pleadings or unchallenged evidence of the witnesses who were there at the time".

We respectfully agree with these observations, the consequence of which is that we take the view in the present case that the sheriff was correct in the approach which he adopted to the Joint Minute. As he records at paragraph 84 of the Stated Case he did not reject the Joint Minute; he merely also took into account the evidence that he had heard in relation to the matters dealt with by the Joint Minute. In particular he accepted paragraphs 2, 3, and 4 and in doing so rejected DB's evidence as untrue.

[17] Moreover, it is clear from paragraph 85 of the Stated Case that the sheriff excluded from his consideration any suggestion that Johnny was involved in the sexual abuse of SA and AA because such an allegation was not included in the statement of facts in support of the grounds of referral. That aspect of the evidence had, as the sheriff records, "no bearing on my conclusion that the ground mentioned in section 52(2)(f) was established". However the exclusion of that evidence from his consideration resulted in his conclusion that the ground mentioned in section 52(2)(b) was not established. Having said that, it is apparent that even if the sheriff had given effect to paragraph 1 of the Joint Minute and had concluded that SA and AA were clearly wrong in their statement that Johnny had been involved in the sexual abuse of them, the extent of that abuse was much less significant than the sexual abuse of SA by JB, DB and IB. As regards that abuse the sheriff recorded that there was "strong supporting evidence of sexual abuse" and he concluded that even if AA and SA were wrong about that part of their evidence relating to Johnny, it was "difficult to see that that error should have much effect on the substance of their evidence" (para [85]). Accordingly it is clear that, even if the effect of the Joint Minute had been to call into question the credibility and reliability of the evidence of SA and AA about Johnny's involvement, the sheriff was entitled on the evidence and the whole facts of the case to make the findings in fact which he did and to conclude that the grounds of referral had been established.

[18] Miss Guinnane was the only counsel who suggested that there was insufficient evidence to entitle the sheriff to find that the grounds of referral had been established, if effect were given to the literal terms of the Joint Minute. We reject that submission. As the sheriff records at paragraph [36] of the Stated Case:

"While in the care of the Holdens, however, S reportedly began to make allegations to the effect that he had been sexually abused by [JB], [DB] and IB. He also displayed certain behaviours. A also reportedly made similar allegations".

In paragraphs [40], [49], [50], [73], [78], [89] and [96] of the Stated Case the sheriff refers to the evidence on this matter and at paragraph [73] he states that he was satisfied on the balance of probabilities that SA and AA had been sexually abused by JB, DB and IB, together with a number of other persons. He accepted the evidence of Joyce Holden as to what the children said to her and as to her observations of their emotions and behaviour. He preferred the evidence of Miss Munro to Dr Tully and accepted her opinion that the children had been abused in the manner described. As submitted by Miss Dowdalls, the sheriff also found support for Miss Munro's opinion in the passage of Dr Tully's evidence where he testified that he had never seen a child behaving like S who had not been sexually abused. The evidence of Dr Mok and Susie Reade was also accepted by the sheriff and supported the conclusion that the ground of referral in respect of sexual abuse of S was established. Miss Reade had had dealings with S over a prolonged period of time. She concluded that he had been very seriously sexually abused; that she had never come across such overtly sexualised behaviour in a child of his age and that he had identified JB as someone who had carried out the acts of abuse upon him. Moreover, A's drawing described by the sheriff in paragraph [60] of the Stated Case supported the allegation of her and her brother that they had been present when JB and DB had sexual relations. There was a clear sufficiency of evidence to entitle him to conclude that the relevant ground of referral had been established, even if the sheriff had been obliged to interpret the Joint Minute as advocated by Miss Guinnane. Moreover, if there had been any substance to Miss Guinnane's submission that there was insufficient evidence in view of the terms of the Joint Minute, we cannot understand why she decided to lead JB as a witness after the Joint Minute was tendered. Her actions in that regard would tend to suggest that at the time of the hearing she had either given no consideration to the question of the sufficiency of evidence or that she herself was not convinced in the submission which she ultimately advanced to this court. Whatever the position before JB gave evidence, the situation, as far as he was concerned, was exacerbated by his doing so. At paragraph [59] of the Stated Case the sheriff records that his evidence occupied less than half a day and he could remember very little. In that regard the sheriff states:

"His lack of knowledge reached its apogee in the course of Miss Cobban's cross-examination. When Miss Cobban put it to him that he had abused and molested S and A, he replied, 'I don't know'. When Miss Cobban, I think genuinely surprised by his response, then asked him, 'You don't know?', he replied 'No, you don't know, you cunt'."

The sheriff also observes that JB's evidence did not assist his case but on one view that exchange could be construed as indicating that JB was unaware whether he had sexually abused these two children. Thus, although Johnny denied any involvement in the sexual abuse of SA and AA, the sexual abuse specified in the grounds of referral at the instance of JB was the subject of a significant body of evidence accepted by the sheriff and not contradicted by JB.

[19] Before answering the questions posed by the sheriff, it might be appropriate to note that questions 12 and 13 relate to peripheral matters which did not feature to any significant extent in the submissions to us. These questions refer to paragraph [18] of the Stated Case which is in the following terms:

"I was not told in detail the history of the Joint Minute. It appeared from what Ms Guinnane said that it had been prepared by Mr Maguire and revised by Ms Cobban. For whatever reason - whether because Mr Maguire had prepared the Joint Minute, because generally it dealt with Johnny, because of the second sentence of paragraph 1, and I do not of course know the basis on which the Joint Minute was 'sold' to Ms Cobban - Ms Cobban quite clearly had interpreted the first sentence of paragraph 1 to mean that Johnny's position was that he had not been touched on the private parts etc. For example, in her written submissions, she states on page 5 that 'Johnny also gave evidence by way of an affidavit and joint minute.' Elsewhere in her written submissions, she repeats, and invites the court to accept, a number of things allegedly said by [AA] and [SA] indicating that Johnny himself had been involved in abuse, for example on page 13 an alleged statement by [SA] that Johnny had touched his wee man. In other words, the last thing that Ms Cobban regarded as not being in dispute, in the words of Macphail, was that Johnny had not been caught up in the abuse allegedly initiated by his parents. Ms Cobban, who as I understand it is not a qualified lawyer, very frankly accepted that she had erred in signing the Joint Minute. I consider below what effect, if any, Ms Cobban's misunderstanding could have on the Joint Minute. (I might add in parenthesis that Mr Johnstone did not say, and I did not ask, what had led him to sign the Joint Minute, which is perhaps the more interesting question, since he is an experienced solicitor. The curator ad litem did not come down on one side or the other on the question of whether or not [SA] and [AA] had been abused, but she did not positively submit that they were not credible and reliable.)"

It is clear from that passage that the sheriff appreciated, as did Ms Cobban, that Ms Cobban had a different understanding of the import of the Joint Minute from Mr Maguire, who had prepared it, and from both counsel for Johnny's parents. The reference to the Joint Minute being sold to the reporter, as the sheriff records at paragraph [83] was made in the context of the document having been drafted by Mr Maguire. The sheriff was simply recording that he was not aware of the basis upon which Ms Cobban signed it. That might be considered an understandable position for the sheriff to adopt in view of the different interpretations placed upon it by Ms Cobban and by the representatives of the other parties. Moreover, as the sheriff records in that paragraph he did not speculate why the curator's agent, Mr Johnstone, had signed the Joint Minute. He simply stated that he did not know why he had done so. We are satisfied that the comments referred to in these questions played no part in the substantive decision of the sheriff. We shall accordingly treat these questions as superseded as they are either unfounded in fact or irrelevant.

[20] In all the circumstances we are not satisfied that there has been any irregularity in the conduct of the case by the sheriff which was so damaging to the justice of the proceedings that it would found a successful appeal (C v Miller 2003 SLT 1379). Accordingly we answer the questions as follows:

Q1. In the negative

Q2. In the negative

Q3. In the affirmative insofar as the terms of the Joint Minute were inconsistent with other evidence which he had accepted.

Q4. In the negative

Q5. In the negative

Q6. In the negative

Q7. In the negative

Q8-10 Superseded

Q11. In the affirmative insofar as it was inconsistent with other evidence which he had accepted.

Q12-13 Superseded

Q14. In the affirmative

Q15. In the negative

Q16-24 Superseded

Q25. In the affirmative insofar as it was inconsistent with other evidence which he had accepted.

Q26. In the negative

Q27. In the negative

Q28. In the affirmative

Q29-35 Superseded

Addendum

[21] The proof, including submissions, lasted forty days despite the initial allocation of five days. In addition there were numerous days on which the proof was adjourned, having regard to the indisposition of the person who first represented the respondent. It has not been possible to ascertain the reasons for the protracted proceedings because no record is kept in the sheriff court process of the times taken for the examination, cross-examination and re-examination respectively of each witness. In the course of their submissions counsel for the first and second named appellants attempted to blame the respondent for the protracted nature of the proceedings and sought to attribute its cause to the decision by the respondent to instruct a reporter, who was not legally qualified, to conduct proceedings on behalf of the respondent. Counsel also suggested that the difficulties in this case relating to the Joint Minute negotiated by the reporter representing the respondent and the solicitor representing Johnny had also been occasioned by the fact that the reporter was not legally qualified. While it is clear from the interlocutors in the sheriff court that delay was occasioned by the illness of the first representative of the respondent and the understandable desire of the sheriff to afford her an opportunity to recover her health in the expectation that she might be able to conclude the proof, we reject the suggestion that the respondent is solely to blame for the protracted nature of the proceedings. In the first place these delays were separate from and had no bearing upon the extension of the allotted five days for the proof to the forty days of court time taken up with evidence and submissions. Secondly, it is clear that it was competent for the respondent to require a reporter having the requisite experience to conduct the proceedings on behalf of the respondent whether or not the reporter was an advocate or a solicitor. (The Reporter's Conduct of Proceedings before the Sheriff (Scotland) Regulations 1997 SI 714). Thirdly, we have reservations about the ability of one representative alone to cause proceedings to be extended from an estimated five days to forty days. The nature of the allegations in this case, and the number of witnesses, did not merit eight weeks of court time, even allowing for the change in representation and the recall of an expert witness. Allegations of this nature in criminal cases tried on indictment, either in the sheriff court or in the High Court of Justiciary, would normally be concluded within two weeks, having regard to the number of charges and witnesses and allowing for three separate defence representatives. Our concerns about the length of the proof in this case are similar to those expressed by the court in NJDB v JEG and Another [2010] CSIH 83. Consideration should be given to the introduction of rules designed to expedite such hearings, including a requirement for parties to agree uncontroversial evidence and to address the question of how best to communicate the views of the child to the sheriff. Such matters should be agreed in advance of any proof before the sheriff. Moreover, the Scottish Legal Aid Board might wish to review its rules for the payment of professional fees to solicitors and counsel and for the sanctioning the employment of counsel in such cases with a view to encouraging, before the commencement of any proof, the agreement of evidence and other issues not in dispute and to discouraging the prolongation of proofs.