SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

 

B261/11

 

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

 

in the cause

 

BG

Appellant

 

against

 

PAULINE PROUDFOOT, Authority Reporter, Stirling

Respondent

 

__________________

 

 

Act: Ms Cartwright, Advocate for the Appellant (step father)

Alt: (1) Mallon (for SW the natural mother); (2) Dickson (for Authority Reporter);

and (3) Dunbar (Safeguarder)

 

 

ALLOA, 13 December 2012. The Sheriff Principal, having resumed consideration of the cause, answers the question contained in paragraph [78] of the stated case in the affirmative and the question contained in paragraph [80] of the stated case in the negative; finds it unnecessary to answer the remaining questions; therefore refuses the appeal and adheres to the sheriff's interlocutor of 3 May 2012; remits to the sheriff to proceed as accords.

 

 

 

 

NOTE:

 

[1] This is an appeal by way of stated case against the sheriff's decision to dismiss an application made in terms of section 85 of the Children (Scotland) Act 1995 for review of a finding that grounds of referral to the children's hearing in respect of the child LW had been established. The applicant and now appellant is the step father of LW. In the proceedings before the sheriff and in the appeal the natural mother of LW (SW) was represented and offered submissions in support of the applicant and appellant. Mr Dunbar, solicitor, was appointed safeguarder of LW and appeared to support the position of the Authority Reporter.

 

[2] The procedural background to the present appeal is set out in the stated case. It is sufficient for present purposes to note that there were two separate grounds of referral founding on sections 52(2)(c) and 52(2)(d) respectively of the 1995 Act. The former ground of referral was ultimately accepted but the section 52(2)(d) ground of referral was not and accordingly a proof was heard on that ground on 15 March 2012, at the conclusion of which the sheriff issued his decision.

 

[3] The alleged factual basis for the disputed ground of referral was that the child had been found to have bruising of his thigh which had been caused by being grabbed by an adult. Evidence was adduced from two doctors which supported the view that the bruising to the thigh of LW was consistent with a grab by an adult hand; that moderate to considerable force had been used; and that in the absence of an alternative explanation, the bruising was non accidental.

 

[4] The only explanation offered by the appellant or SW was that there had been an incident involving a trampoline when LW had allegedly got his leg stuck. In attempting to free the child the appellant claimed that he had grabbed LW by the thigh. Suffice it to say that the sheriff rejected this evidence as not being credible. He then found the ground of referral to be established.

 

[5] On 28 March 2002 the appellant applied under section 85 of the 1995 Act for a review of the decision of 15 March 2012. Section 85(3) provides as follows:-

"An application under subsection (1) above may only be made where the applicant claims

(a)   to have evidence which was not considered by the sheriff on the original application, being evidence the existence or significance of which might materially have affected the determination of the original application;

(b)  that such evidence -

(i)    is likely to be credible and reliable; and

(ii)  would have been admissible in relation to the ground of referral which was found to be established on the original application; and

(c)   that there is a reasonable explanation for the failure to lead such evidence on the original application."

 

[6] Sections 85(5) and (6) provide as follows:

"(5) Where the sheriff on an application under subsection (1) above is not satisfied that any of the claims made in the application are established he shall dismiss the application.

(6) Where the sheriff is satisfied on an application under subsection (1) above that the claims made in the application are established, he shall consider the evidence and if, having considering it, he is satisfied that -

(a) none of the grounds of referral in the original application to which the application relates is established, he shall allow the application, discharge the referral to the children's hearing in respect of those grounds and proceed in accordance with subsection (7) below in relation to any supervision requirement made in respect of the child (whether or not varied under section 73 of this Act) in so far as it relates to any such ground; or

(b) any ground of referral in the original application to which the application relates is established, he may proceed in accordance with section 68(10) of this Act."

 

[7] It is also relevant to notice the provisions of the Child Care and Maintenance Rules 1997 which, in terms of Rule 3.62, provide inter alia:-

"An application under section 85 of the Act for a review of a finding made in terms of section 68(10) of the Act (finding that grounds for referral established) shall contain -

...

(g) specification of the nature of evidence in terms of section 85(3) of the Act not considered by the sheriff who made the finding;

... and

(i)     any reports, affidavits and productions upon which the applicant intends to rely."

 

[8] Rule 3.63 provides inter alia:

"(1) After the lodging of the application in terms of rule 3.62, the sheriff clerk shall assign a diet for a hearing of the application .......

......

(3) After hearing parties and allowing such further procedure as he thinks fit, the sheriff shall, if satisfied in terms of section 85(5) of the Act, consider the evidence and may fix a further hearing for that purpose."

 

[9] In paragraph 7 of the application made under section 85 it is narrated that the applicant had requested an adjournment of the proof on 15 March 2012 to allow completion of a report from Professor Anthony Busuttil which was expected to be available by 19 March 2012 at latest. It is not in dispute that such a motion was indeed made but refused. The applicant then goes on in the application as follows:

"The applicant wishes the court to reconsider the decision of the learned sheriff on the following ground: The learned sheriff was wrong to conclude that an assault on the child had taken place, and the applicant refers to new evidence hereinafter referred to as a report by Professor Busuttil dated 15 March 2012."

Reference is then made to a specific contention drawn from the report that the bruising to the upper thigh could have been caused while the child's nappy was being changed or clothing being removed or put on him by an adult, particularly if the child was being boisterous at the time. The report forms part of item 5 in the first inventory of productions for the respondent in the appeal.

 

[10] Having heard parties the sheriff dismissed the application by interlocutor of 3 May 2012. The sheriff accepted that there was a reasonable explanation for the failure to lead the evidence of Professor Busuttil but took the view that the appellant had failed to make out the claim that that evidence might materially have affected the determination of the original application. He also concluded that in any event he could not say that it was likely that the evidence of Professor Busuttil would be reliable and in support of that conclusion refers to the material errors in the report and the fact that paragraph 6.6 thereof was unintelligible.

 

[11] In his note of appeal the primary contention for the appellant is that the sheriff had erred in his application of sections 85(3)(a) and (b)(i). Specifically it is said that section 85 required the sheriff to consider "the claims" made about the evidence and not the evidence itself so that the sheriff had erred in deciding that the content of the report from Professor Busuttil might not have affected his decision. The report was not in itself evidence but merely an indication of the nature of the evidence Professor Busuttil was likely to give. He had accordingly adopted the wrong test. So far as concerned the provisions of section 85(3)(b)(i) it was contended that it had always been recognised that the report contained clerical or typographical errors but that these did not relate to the medical opinion expressed and did not afford a proper basis for concluding that the expert opinion of Professor Busuttil would not be reliable.

 

[12] A further ground of appeal was directed to the sheriff's refusal to adjourn the proof but that was not insisted upon.

 

[13] In elaboration of the points taken in the note of appeal counsel submitted that section 85 imported a two stage approach. In the first place section 85(3) was directed to consideration of the applicant's claim to have evidence and did not involve a consideration of the evidence itself which was a matter to which section 85(6) was directed as part of the second stage. The report of Professor Busuttil did not have the status of evidence. The proper approach was to consider whether what was in the report taken pro veritate was capable of satisfying the requirements of section 85(3)(a) and (b). The test was essentially one of relevancy. It was submitted that this had not been the approach adopted by the sheriff. Instead he had adopted an approach which involved a critical analysis of the evidence which was an exercise appropriate to a consideration of the evidence in terms of section 85(6) but not to the prima facie exercise called for by section 85(3). The essence of counsel's proposition was encapsulated within the sheriff's narrative of the submission made in paragraph 60 of the stated case namely that the sheriff could not evaluate the materiality of the evidence on the strength of the report alone but required firstly to hear the evidence in question. Counsel also took issue with the sheriff's manner of expression in paragraph 67 of the stated case where he referred to the likely effect that Professor Busuttil's evidence "would" have had on the original determination which in her submission betrayed an error as to the proper test which used the word "might".

 

[14] In relation to the sheriff's criticism of Professor Busuttil's report counsel pointed out that it had been made clear to the sheriff that the report was incomplete and she submitted that it was at least unwise of the sheriff to consider rejecting the argument about the materiality of the report on that ground.

 

[15] Finally, counsel submitted that the sheriff's reasoning in paragraphs 67 and 70 of the stated case was inconsistent. On the one hand he appeared to rely on what is said in paragraph 6.6 of Professor Busuttil's report and yet on the other he had described that paragraph as unintelligible.

 

[16] Mr Mallon for SW adopted the submissions for the appellant. He submitted further that Professor Busuttil's report was indicative of contrary expert opinion which "might" have challenged the evidence of the other two doctors. All that was required of the appellant was to make out a prima facie case and the report from Professor Busuttil satisfied that requirement.

 

[17] In responding to the appeal the solicitor for the Reporter pointed out that in terms of section 51(11) of the 1995 Act an appeal against the sheriff's decision was only open on a point of law or in respect of any irregularity in the conduct of the case. No suggestion was made that there had been any irregularity and the proper focus of the appeal was confined to the question whether the sheriff had applied the correct test set out in section 85(3). The answer to that question depended on a proper interpretation of that sub-section. It was submitted that the test was not merely one of relevancy or of establishing a prima facie case but rather required the sheriff to consider the narrative of what the new evidence was and then to make an assessment of whether the claims that that evidence met the criteria set out in section 85(3) were established. It was only in the event that the claims were established would the court then go on to hear the evidence in terms of section 85(6). It was submitted therefore that there was a two stage test and that the appeal was concerned with the sheriff's assessment of the claims at the first stage. The two stage test was supported by the 1997 Rules and the leading authors in this field of law. Reference was also made to a number of provisions and texts in the field of criminal law which I did not find helpful. Under reference to paragraphs 54 - 58 of the stated case it was submitted that the sheriff's approach outlined there disclosed no error of law.

 

[18] Turning to the sheriff's treatment of the new evidence it was pointed out that Professor Busuttil's report was the only narrative of the new evidence. It was also pointed out that there was no urgent requirement to lodge the section 85 application and if the report required revisal or correction then the proper course was to delay submitting the application until that had been done. In any event the report could have been supplemented by an affidavit or precognition if further elaboration had been felt necessary (Rule 3.62). Looking at the terms of the report it was submitted that the opinion expressed was of no real value unless underpinned by a relevant factual narrative.

 

[19] In reply to these submissions counsel for the appellant accepted that the sheriff was entitled to engage in a degree of critical examination but submitted that he had gone beyond what was appropriate.

 

Discussion

 

[20] In my opinion the submissions for the Reporter in relation to the proper approach to section 85(3) are well founded. The significance of the word "claims" in the opening sentence of section 85(3) is that at this stage there is only a representation that there is evidence that meets the tests set out in the sub-section. The exercise which the sheriff requires to undertake is to look critically at the evidence which the applicant claims to have and to consider whether that evidence meets the tests set out in section 85(3). The onus is on the applicant to demonstrate that and it is only if the sheriff is satisfied about these matters that he then requires to go on to consider that evidence in terms of section 85(6). If not satisfied he must dismiss the application (section 85(5)). At this stage therefore his role is one of gate keeper. Of course, even if satisfied in terms of section 85(3), the claimed evidence may not in fact emerge at a section 85(6) proof or may in the final analysis be inadequate to persuade the sheriff that the grounds of referral were not established. However that is a consideration for stage two.

 

[21] Looking at the sheriff's approach against this background I am unable to detect any error in his analysis of the legislation or in his appreciation of the exercise which he required to undertake. The only remaining question therefore is whether the conclusions reached on each of the matters referred to in section 85(3) were conclusions to which he was entitled to come. The need for the sheriff to be "satisfied" on the various matters referred to in section 85(3) points to an exercise of judgement by the sheriff and in my view he is entitled to take into account the whole circumstances of the case and to examine the new evidence critically in that context. Counsel for the appellant criticised the sheriff for not taking on board the explanation that Professor Busuttil's report was incomplete and had typographical errors and suggested that unanswered questions which arose from a consideration of the terms of his report could have been put to the Professor at a proof under section 85(6). In my opinion this is the wrong approach. It is for the applicant to place before the sheriff the evidence upon which it is intended to rely and the sheriff cannot be criticised if that evidence is found wanting when set against the tests set out in section 85(3). The only evidence which was tendered to the sheriff was Professor Busuttil's report and the sheriff could do no more than examine its terms and consider how it might affect the determination of the original application. The fact that it had errors and left material questions unanswered points strongly in support of the sheriff's conclusion that he could not be satisfied that the claims made for the evidence were established. At its highest Professor Busuttil's report contains a possible explanation about how in general terms an injury of this sort might be sustained but unless the factual scenario on which that opinion is based can be shown or at least claimed to exist then the opinion is no more than hypothesis and speculation. On that approach it seems to me that the main plank of the appellant's argument disappears.

 

[22] It is clear that the primary focus of the sheriff's attention was the question of materiality raised by section 85(3)(a), the issue of reliability being described by the sheriff as a subsidiary point. On the first question the sheriff has set out his reasoning in paragraphs [67] and [68] of the stated case, which included as a factor the deficiency in the new evidence tendered which I have discussed in the preceding paragraph. In my opinion the sheriff's reasons are cogent and afford no basis for thinking that he was not entitled to reach the conclusion that he did. That is sufficient for disposal of the appeal. The subsidiary question is to my mind less clear cut but, had it been necessary to do so, I would have sustained the sheriff's reasoning on this matter as well.

 

[23] It should be noted that the solicitor for the Reporter challenged the sheriff's conclusion that there was a reasonable explanation for the failure to lead the new evidence on the original application. Again it is unnecessary to determine this issue but in my view the sheriff cannot be faulted for that conclusion. While the applicant might be criticised for failing to appreciate earlier than he did that a medical report might be required, the fact is that the evidence which is represented by the terms of Professor Busuttil's report was not available to the applicant at the time of the original proof.

 

[24] In the result I am satisfied that the sheriff was entitled to dismiss the application and it follows that the appeal must be refused. In giving effect to that conclusion I find it unnecessary to answer the questions set out at paragraphs [79] and [81] of the stated case. As I have already noticed the appellant departed from his grounds of appeal in relation to the question of adjournment of the proof and I was not invited to answer the questions set out in paragraphs [76] and [77] of the stated case.