Scottish Sheriff Court Decisions

TUESDAY 11 FEBRUARY 2014

EDINBURGH SHERIFF COURT - COURT REF: B1611/12 & B1612/12

APPEAL: J.B & B.J v authority reporter re D & K

1 Appeals to the Sheriff Principal against decisions by the sheriff have from the outset of children's hearing procedure been by stated case. Section 51 applies in the current proceedings along with the provisions of the Child Care and Maintenance Rules. It is important to recognise that the appeal commences with an application for the sheriff to state a case and the stated case is the vehicle by which the points of the law which the parties wish to specify and have answered by the Sheriff Principal proceed. There is no other basis on which an appeal proceeds other than procedural irregularity which is not relevant in the present case.

2. The Child Care Maintenance Rules 1997 - Rule 3.59 governs appeals and para (1) of that rule requires specification of the point of law upon which the appeal is to proceed. Sub-section 3 requires the sheriff to draft a stated case containing findings in fact and law; questions of law and a note stating the reasons for his decisions in law. The purpose of stated case procedure is to enable the sheriff who heard the proof, which in this case involved a very significant body of evidence, to state the facts which underpins his decision and crucially the reasoning which led to the conclusions he makes both with regard to fact and law on the evidence. The sheriff is directed to provide a note stating the reasons for his decisions in law.

3. The grounds of appeal have to be drafted with a degree of precision in order that the sheriff can fulfil his or her function.

4. The authorities recognise the distinctly emotive issues that arise when grounds of referral have been established and the difficulty which parents have in accepting such a finding. This is referred to in the case of R v Grant being an appeal from the Sheriff Principal to the Inner House of the Court of Session (2000 SLT 372).

5. In that case the ground on which the sheriff was asked to state a case related to the whole facts of the case.

6. The court in that case emphasised the need for precision in raising legal issues on appeal. The practice of framing general questions based on the whole facts of the case is commented on adversely. Their Lordships emphasised the necessity that the legal issue or issues be identified in order that the sheriff can deal with the point, if it was raised, before him and give his reasons.

7. Rule 35.59(9) states that: parties to an appeal "shall not be allowed to raise questions of law of which notice has not been given except on cause shown" and subject to such conditions as I may consider appropriate.

8. The question arises having regard to the history of the case as to whether cause has been shown on behalf of the female appellant that further questions of law should be added to the stated case of which the sheriff had notice and rejected and which are therefore not dealt with in his stated case.

9. The sheriff has given careful consideration to these issues and his principal point is that the entire referral proof concerned allegations of sexual abuse of children and the evidence centred on disputed medical evidence. "No-one who was party to this referral or had even skimmed read the note of decision could fail to be absolutely clear on that matter".

10. The two further questions relate to (1) the evidence of the consultant paediatrician in relation to reported behaviours shown by either or both of D & K? and (2) whether the sheriff erred in law in assessing the medical evidence in the case as demonstrating, on balance of probabilities, that there were physical signs that either or both D & K had been subjected to sexual abuse?

11. Both questions are characterised by a lack of precision. The second question, in my view, seeks to open up entirely the medical evidence led before the sheriff who, of course, had the benefit of hearing and seeing all the witnesses and weighing up their evidence. The witnesses spoke not only to medical records but to direct evidence relating to examinations of both D & K.

12. The principal argument on behalf of the first named appellant relates to fairness.

13. Fairness in cases involving children has to be a comprehensive test involving all parties but particularly the children. Fairness is a living instrument.

14. The context to this appeal, as all round the table will be aware, lies in lengthy and complex evidence led before the sheriff last year over many weeks with all parties represented either by solicitors or counsel with the exception of the Safeguarder and of course Miss Wolff represented the Scottish Children's Reporters Administration. In particular the first named appellant was represented throughout by the same solicitors as now represent her.

15. The sheriff's note of decision sets out sequentially his approach to the case, the evidence and his assessment of that evidence. The material is available to all parties to consider and, if appropriate, state any errors in law which may have occurred.

16. Against that background the sheriff has understandably underlined the main focus of the evidence and has prepared a stated case as he is obliged to do on the basis of the grounds of appeal articulated. In particular, he notes that a specific ground of appeal is articulated on medical evidence and focusses on the diagnoses of "thrush" in respect of child D.

17. Accordingly, there had clearly been sufficient opportunity to identify the sheriff's approach to that evidence as being potentially an error in law arguable on appeal.

18. There was no explanation given to the sheriff as to why core issues had been omitted from the grounds of appeal and of course as I have observed the proposed additional questions of law raise very wide issues which would require extensive surgery to the stated case.

19. In particular I agree with the observation by the sheriff on page 20 of the stated case when he says "If that question had been addressed within the original grounds of appeal the draft stated case would have been entirely different both in shape and size and since virtually all of the matters originally at issue in the hearing are now sought to be introduced into the appeal, the stated case would be effectively the size and format of the annexed decision note. It would be quite impossible to deal with such a complex undertaking by simple amendment or addition to the current stated case and the entire shape and direction of the appeal would be altered, requiring procedure to start again if I was to be able to give the appellate court a proper representation of the evidence upon which I made that central decision that the children had been sexually abused."

20. In the absence of any specific reason as to the omission of these points I face the decision of having to remit the matter back to the sheriff to start anew the stated case procedure.

21. Added to that, in my view, the proposed questions of law are lacking in precision as required by the rules.

22. There is indeed no reason why this preliminary issue could not have been raised prior to the first day of the appeal given the terms of the rule and that it lies within my power to grant or refuse additional questions of law depending on whether cause has been shown. Clearly remitting the cause back to the sheriff is an option which would lead to significant delay. Delay in proceedings involving children is to be discouraged. I am aware that there are other proceedings pending in the Court of Session which await the outcome of this appeal. These proceedings involve permanency. Delay in such proceedings causes unwelcome uncertainty when the welfare of children are involved.

23. In my view, it would be unsatisfactory to attempt to proceed with an appeal on amended grounds without the sheriff's input and reasoning. This would lead to an unfocussed appeal which would seek to review the medical evidence which was the essence of the case. The purpose of the appeal is to deal with issues of law and not to review the facts which is the sheriff's function.

24. That, in my view, is not the purpose of the appeal procedure and accordingly I propose to refuse the motion made by Mr Halley on behalf of the first named appellant to amend the stated case. It is not explained why the proposed amendment comes so late in this appeal.