SWA50/07 &
SWA51/07
JUDGMENT
OF
SHERIFF PRINCIPAL
JAMES A TAYLOR
in the cause
KG and JG
APPELLANTS
against
Jim McClafferty, Authority Reporter
RESPONDENT
GLASGOW, 22 January 2008.
The Sheriff Principal, having resumed
consideration of the cause, Answers the question posed in the Stated Case in
the affirmative; Remits the case to the sheriff with a direction that the
grounds of appeal be held to be established and that the case be remitted to
the Children's Hearing.
NOTE:-
[1] This is an appeal by the parents of two
children against a decision of the learned sheriff who held that the grounds of
referral had on the evidence led before him been established. The child is the son of the appellants. The learned sheriff found as a matter of fact
that the child is under the supervision of the Children's Hearing. Grounds for referral were established at Glasgow
Sheriff Court on 17 March 2005. The
child is on the child protection register under the category of emotional
abuse. He found that the mother and
father had repeatedly presented the child at hospital in circumstances where he
was said to be suffering from symptoms for which there was no physical or
organic basis. The complaints included
testicular pain, abdominal pain, rectal bleeding, vomiting and diarrhoea. As a matter of fact the learned sheriff found
that the child had not been suffering from the symptoms described by the
parents.
[2] The case called before the learned
sheriff on 5 April for a pre-proof hearing.
The Reporter moved a minute of amendment. That minute of amendment deleted statements
of fact seven and ten. This meant it was
no longer part of the Reporter's case that the parents were suffering from a diagnosis
known as Fabricated or Induced Illness syndrome. That was a diagnosis which Dr Jean Herbison,
consultant paediatrician, had given in her report dated 19 December 2006. Mr Targowski, QC appeared for the father at
the pre-proof hearing on 5 April 2007. He opposed the deletion of statements of fact
seven and ten. The learned sheriff in
his Note to the interlocutor of 5 April states as follows:-
"His (senior counsel's) concern was borne out of an
apparent contradiction in the position adopted on behalf of the Reporter. In other words, on the one hand, Dr
Herbison's considered opinion was being explicitly departed from whilst, on the
other, the Reporter was still intent upon calling Dr Herbison as a witness
to speak inter alia, to the terms of
her report. Senior counsel submitted
that, standing the view she had reached, any evidence given by Dr Herbison
would inevitably be coloured having regard to her conclusions about Fabricated
or Induced illness.
The court itself detected merit in senior counsel's
argument. It suggested that, with
Dr Herbison's opinion no longer being an issue, all that the court was
concerned to hear evidence about was the de
facto history of medical complaints coupled with the conclusions reached by
those medical professionals called upon to deal with those complaints.
The impression gained by the court was that the Reporter's
case could involve no more than setting out the basic facts, with the parents,
thereafter, being called upon to explain their
position after sustained and repeated rejections of their concerns about their
children, in particular, KG."
The learned
sheriff allowed the minute of amendment notwithstanding senior counsel's
opposition thereto. In a summary
contained in a Note to his interlocutor of 5 April the learned sheriff wrote:-
"(a) The
syndrome or diagnosis characterized as Fabricated
or Induced Illness is no longer part of this case and any evidence about
that will be deemed inadmissible as proof.
(b) Dr Herbison's
evidence (should she be called as a witness) will be confined to matters of
fact and not opinion. It follows that
any non-factual evidence to be given by Professor Golding will be similarly
excluded. Indeed, with the explicit
departure from the Fabricated or Induced
Illness case, it appears that Professor Golding's opinion evidence may be
rendered superfluous."
[3] At the appeal Mr Targowski appeared for
the parents, Miss Spence, solicitor, for the Reporter and Mr O'Donnell,
solicitor, as curator ad litem. The application for a stated case posed nine
questions. Mr Targowski intimated at the
outset that he was only advancing arguments in support of the first five
questions which are in the following terms:-
"1. Was the
Sheriff entitled on 5th
April 2007 to allow the Minute of Amendment lodged on 4th April 2007 to be
received and allow the application to be amended in terms thereof?
2. Was the Sheriff
entitled on 5th April 2007
by way of case management procedure undertaken at a Pre-proof Hearing at Glasgow
to hold that the syndrome or diagnosis characterised as fabricated or induced
illness was no longer part of the case and any evidence about that would be
deemed inadmissible at Proof?
3. Was the Sheriff
entitled to restrict Dr Herbison's evidence should she be called as a witness
to be confined to matters of fact and not opinion in particular in relation to
Fabricated or induced illness?
4. Was the Sheriff
entitled to hold that any non factual evidence to be given by a proposed
defence witness Professor Jean Golding should be excluded?
5. Was the Sheriff
entitled to hold that Professor Golding's opinion evidence may be rendered
superfluous in the context of the case?"
It can be seen
from the nature of the questions that the attack was upon the interlocutor of
the learned sheriff of 5 April 2007
and not the factual findings made on the basis of the evidence led. At no time during the appeal was it submitted
that the minute of amendment should have been refused by the learned
sheriff. The attack was directed against
the restriction in the ambit of any evidence which Dr Herbison and
Professor Golding might give. Thus,
in effect, only questions 2-5 were argued.
[4] Mr Targowski referred me to The
Children's Hearing System by Sheriff Brian Kearney 2nd Edn at
paragraphs 27.01, 28.10 and 28.11. From
these paragraphs he submitted that when hearing a referral from a Children's Hearing
the sheriff was acting as a judge and that the proceedings required to be taken
and viewed by him in a judicial way. This
was, properly, not challenged. He explained
that when Dr Herbison's name had appeared on the list of witnesses, authority
had been granted by the Scottish Legal Aid Board for the father to instruct an
expert witness to comment on Dr Herbison's report of 19 December 2006. That expert was Professor Golding. Accordingly Professor Golding had been placed
on the list of witnesses whom the father intended to lead in evidence. Mr Targowski then took me through a
number of the productions from which he demonstrated that Dr Herbison had
attended a number of meetings which were also attended by other professionals
who had been called to give evidence by the Reporter. He explained to me that, in the event,
Dr Herbison had not been called as a witness and neither had Professor
Golding. However Sara McGuffog, a family
therapist, Dr Carachi, a consultant surgeon, Dr Morton, a consultant
psychiatrist, Dr Hookin, Evelyn Kane, a social worker and Linda Robb,
a social worker, were called to give evidence.
It was inevitable, submitted Mr Targowski, that these witnesses would
have been privy to the diagnosis of Fabricated or Induced Illness expressed by
Dr Herbison. Their evidence would
thereby be influenced by that knowledge.
Furthermore, the child who was the subject of the Children's Hearing,
had a sister, AAG. AAG had died. Dr Herbison had expressed concerns regarding
AAG's death. Dr Herbison concluded that
the parents' Fabricated and Induced Illness had adversely impacted on the life
of AAG. Dr Herbison had called for a
post mortem to be carried out on AAG but unfortunately the request came too
late. This view would have been known to
at least some of the witnesses who were called by the Reporter. Since the diagnosis was no longer part of the
Reporter's case the parents were prejudiced in that they could not challenge
the diagnosis by virtue of the learned sheriff's decision on 5 April. The parents were thus restricted in the scope
of their cross-examination. They had to
contend with the influence which Dr Herbison's diagnosis would have had on the
evidence of the other witnesses without being able to challenge that
diagnosis. The learned sheriff had no
entitlement to hold at a pre-proof hearing that evidence with regard to a
diagnosis of Fabricated or Induced Illness would be inadmissible at the
proof. The learned sheriff had no entitlement
to hold, as he did, that Dr Herbison's evidence would be confined to
matters of fact and not opinion.
Furthermore he was not entitled to hold, as he had done, that
Professor Golding's evidence should be restricted to factual
evidence. The learned sheriff had no
power to limit the scope of the proof.
In Mr Targowski's submission the rules bound the learned sheriff to hear
evidence led by the Reporter and accordingly the ruling of 5 April 2007 was a
breach of Rule 3.47(1) of the Act of Sederunt (Child Care and Maintenance
Rules) 1997. The nature of the
restriction of the proof was prejudicial and unwarranted. Mr Targowski had researched the issue
but had not found any authority to support his proposition.
[5] The Reporter relied upon the reasoning
adopted by the learned sheriff in his stated case. The Reporter had come to the view that the
diagnosis of the parents by Dr Herbison was irrelevant when seeking to
establish grounds of referral for the children.
It was logical that once the learned sheriff had allowed statements of
fact seven and ten to be deleted from the statement of facts that any evidence
in relation to Fabricated or Induced Illness syndrome could not be led as it
was no longer part of the Reporter's case.
No objection had been made at the time to the learned sheriff's ruling
other than that which is set out in paragraph [2] of this Note.
[6] Mr O'Donnell as curator ad litem adopted the submissions made on
behalf of the Reporter. He submitted
that once the minute of amendment had been allowed the learned sheriff's ruling
was the only logical conclusion to which one could come. He said that each witness had been robustly
cross-examined under reference to the documents as to the extent the diagnosis
by Dr Herbison had affected their judgement.
In his submission Dr Herbison's opinion could hardly have
influenced the evidence of fact which they gave. In any event the learned sheriff, exercising
a judicial function, would be able to assess whether their credibility and
reliability was in any way affected by having been exposed to the views of Dr
Herbison. He referred me to Professor
Norrie's book Children's Hearings in Scotland (2nd Edn) at
pages 26 and 27 where the learned author opines that the effect of a parent's
illness on the child was much more significant than the reason for the lack of
care.
[7] In reply Mr Targowski took me through
the response given by some of the witnesses when asked about the effect which
Dr Herbison's views had on their evidence.
Evelyn Kane had said that it was clear that Dr Herbison had suspicions
regarding the death of AAG. Dr Morton
had said that the discussion of AAG had been an important fact. Ms McGuffog had been over the records and
knew what was in them. Dr Hookin
had seen the various productions and had found them very concerning. He was aware of the diagnosis given by Dr
Herbison. He stated that the child was
at risk by virtue of the diagnosis although that was not the only reason why
the child was at risk. This had formed
part of Mr Targowski's submissions to the learned sheriff.
[8] In my opinion the learned sheriff was
perfectly entitled to do that which he did.
Recently there have been a number of cases in the Sheriff
Court involving referrals from a Children's
Hearing which have lasted for many weeks and on some occasions months. Concern has been expressed that some proceedings
might have been unnecessarily long. It
was therefore entirely appropriate that there should have been pre-proof
hearings in this case to ascertain more fully what evidence the parties intended
to lead. Such pre-proof hearings have
the potential to shorten the evidential hearing to a considerable extent. That happened in this case. A very substantial body of fact was agreed in
a minute of admissions entered into by the parties. It also enabled the Reporter to focus upon
what facts he needed to establish. He
decided that he was no longer relying upon the diagnosis of Fabricated or Induced
Illness syndrome which Dr Herbison had reached. It therefore seems to me that once the
learned sheriff had allowed the statements of fact which made reference to this
diagnosis to be deleted, the inevitable consequence was that no evidence could
be led with regard to the diagnosis which Dr Herbison held. In the Note to his interlocutor of 5 April the
learned sheriff was doing no more than stating the obvious. It was not he who decided that there would be
only factual evidence led from Dr Herbison. That was a decision made by the Reporter when
the Reporter sought to remove Dr Herbison's diagnosis from the ambit of
the proof. I can see nothing whatsoever
in the learned sheriff's Note of which I can be critical. If anything he is to be lauded. Given the background involving the longevity
of other cases it was entirely appropriate that he should spell out the
consequences which flowed from the minute of amendment being allowed. Indeed his interlocutor of 5 April was
clearly designed to assist the parents.
Mr Targowski had expressed concern that even although statements of
fact seven and ten had been deleted it was still the intention of the Reporter
to take Dr Herbison through her report without a "record" for such
evidence. The learned sheriff in his
Note seems to me to be addressing that concern by making it clear that Dr
Herbison's evidence was not to extend beyond evidence of fact. The concern expressed by Mr Targowski before
me had not been expressed until application was made for a Stated Case. It had been open to Mr Targowski to
cross-examine each of the witnesses who gave evidence of fact as to the extent
to which their evidence was influenced by their knowledge of Dr Herbison's
views and diagnosis. I was told that
this was done. We are here dealing with
professional witnesses. The learned
sheriff was in a position, exercising his judicial function, as it was
emphasised by Mr Targowski he was performing at the time, to assess whether
such knowledge had influenced the witnesses.
Mr Targowski then made submissions to the learned sheriff regarding the
reliability of the witnesses and how that reliability might have been affected
by exposure to Dr Herbison's opinion.
Given the terms of the Stated Case it is clear that the learned sheriff
found the witnesses called by the Reporter to be both credible and reliable
notwithstanding such exposure. Not one
of the findings-in-fact made by the learned sheriff was challenged in the
appeal.
[9] The learned sheriff puts it well in his Stated
Case which I quote:-
"[8] The
approach taken by the court was specifically designed to meet the objection
raised on behalf of the parents. The
effect of the minute of amendment was clear.
It was equally clear therefore that any opinion evidence relating to
fabricated or induced illness should not be allowed to creep back into the
evidence. Accordingly, paragraphs (a)
and (b) of the summary (see interlocutor and Note of 5 April) were intended to
exclude irrelevant evidence thereby protecting the interests of the parents
themselves.
[9] As I
understood matters, it was accepted on behalf of both parents that the court's
explicit exclusion of evidence regarding fabricated or induced illness and, in
particular, any related opinion evidence from Dr Herbison meant that the stated
opposition to the Reporter's minute of amendment was thereby deprived of any
merit.
[10] With
regard to Professor Jean Goldie (sic) who had been listed as a defence witness,
it likewise appeared to the court that in the foregoing circumstances, her
opinion evidence, in rebuttal of Dr Herbison's opinion, might be rendered
superfluous. Once again, with a view to
ensuring to that irrelevant opinion evidence did not encroach upon the proper
basis for proof, the court held that any non-factual evidence to be given by
Professor Goldie (sic) would be excluded in the same way as that of
Dr Herbison. To my mind, that was a
logical and measured approach.
[11] However, it must be stressed that come the proof hearing, no
party to the Referral sought to call either of the foregoing experts. Accordingly, I was never, in fact, called
upon to rule on the admissibility or otherwise of each witness' evidence."
[10] Rule 3.47(1) of the Act of Sederunt (Child
Care and Maintenance Rules) 1997 is in the following terms:-
"In the case of any condition mentioned in section
52(2) of the Act (conditions relative to compulsory measures of supervision),
the sheriff shall, in relation to any ground of referral which is in dispute,
hear evidence tendered by or on behalf of the Principal Reporter, including
evidence given pursuant to an application granted under rule 3.23."
I do not agree
with Mr Targowski's submission that the learned sheriff's interlocutor of
5 April is in breach of the rule.
All evidence tendered by the Principal Reporter was heard by the learned
sheriff. In any event the rule seems to
me to be conceived to give the Reporter an entitlement but not any other
party. I heard no complaint from the Reporter.
[11] Finally, I was invited by Mr Targowski to
comment on the decision of the Scottish Legal Aid Board not to grant legal aid
to the parents for this appeal. I am
happy to do so. In my opinion the Board
was correct to refuse legal aid.
