Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS Case Numbers: B1611/12 & B1612/12
	Judgment by SHERIFF PRINCIPAL MHAIRI M STEPHEN in appeal by J.B. (Mother) First Appellant and B.J. (Father) Second Appellant Against The Authority Reporter Respondent in the case of Child D and Baby K ___________________________

Act: Halley, Advocate for First named Appellant instructed by J R Rahman, Solicitors

Act: Guinnane, Advocate for Second named Appellant instructed by Messrs Livingston Brown, solicitors

Alt: Ms Jack, DWF Biggart Baillie, for the Reporter

Ms Foy, Safeguarder

EDINBURGH, 26 March 2014

The Sheriff Principal having resumed consideration of the cause answers Questions 1, 2 and 6 of the stated case in the affirmative; answers Questions 4, 5 and 7 in the negative, declines to answer Questions 3 and 8 as unnecessary; refuses the appeal and remits the cases of child D and baby K to the Sheriff in terms of section 51(14) of the Children (Scotland) Act 1995 to proceed as accords; makes no order in respect of expenses.

(signed) Mhairi M Stephen

NOTE:

1. This case involves allegations of sexual abuse of very young children. Child D was born on 25 May 2007 and baby K on 14 February 2011. The appellants are the parents of both children.

2. In July 2012 the Reporter referred the cases of child D and baby K to the Children's Hearing which convened on 9 August 2012. There were, of course, separate referrals in respect of each child. The referral in respect of child D involved allegations of rape or attempted rape of the child by both mother and father during the period between 14 February 2011 and 13 July 2011. The ground of referral is in terms of section 52(2)(d) of the Children (Scotland) Act 1995 namely that:

"she is a child in respect of whom any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (offences against children to which special provisions apply) has been committed".

The grounds of referral were not accepted by the parents and paternal grandmother and, in view of the child's age, the Reporter applied to the Sheriff to find whether the grounds were established. A referral was made in respect of baby K on the same grounds but alleging similar offending against baby K by father alone during the first five months of her life.

3. The background and procedural history is more fully described by the Sheriff in his note. The paternal grandmother (I.T.) is also a relevant person in respect of the children and she was a party to the proof before the Sheriff. The Sheriff records the representation at page 4 of the note. At the hearing before the Sheriff the Reporter was represented by Miss Wolff, and the Safeguarder who was appointed to safeguard the interests of both child D and baby K was Miss Foy. She was present throughout the hearing before the Sheriff and participated in proceedings. The mother has been represented by the same solicitors throughout and at the hearing before the Sheriff was represented by Mrs Loudon, Advocate. The father was represented by Messrs Ian Moir & Co, Solicitors who had instructed Ms Breslin, Advocate to appear. The paternal grandmother was represented by R M S Law, Solicitors who in turn instructed Mr Inglis, Advocate.

4. The Sheriff heard evidence over many weeks followed by submissions on the evidence by all parties. He issued his decision on 16 August 2013. His evaluation of the evidence and his reasoning can be found in the note which he issued to parties. The note contains the Sheriff's comprehensive analysis of the evidence, his determinations on credibility and reliability and his decisions on the facts. He found the grounds of referral to be established in respect of both children subject to amendment of the statement of facts. In the referral of baby K (B1612/12) the offence mentioned in paragraph 1 was amended to a sexual assault in terms of section 20(2)(b) of the Sexual Offences (Scotland) Act 2009. Reference to "rape or attempted rape" and section 18 of that Act is deleted. In respect of child D (B1611/12) the Sheriff found paragraph 1 of the statement of facts proved. He found paragraph 2 proved not only in respect of mother but also father and subject to some amendment firstly to include reference to father and secondly by making amendments to include "penetration or attempted penetration by means of fingers, toes or other parts of their body and other objects unknown".

APPEAL

5. On 12 September 2013 the mother appealed the Sheriff's decision by an application for a stated case in terms of section 51(11) of the Children's (Scotland) Act 1995 ("the 1995 Act"). The application enumerated five points of law which the appellant sought to argue on appeal. The application was lodged on the first appellant's behalf by her solicitors. Around the same time the father appealed by lodging a copy or photocopy of the mother's appeal grounds. No appeal has been lodged by the paternal grandmother. The lodging of the application for a stated case engages Rule 3.59 of the Child Care and Maintenance Rules 1997, requiring the Sheriff to issue a draft stated case with findings in fact, findings in law, questions of law and a note giving reasons for his decisions in law. There follows procedure for adjustment and finalising of the stated case. In these referrals the Sheriff has issued one composite stated case. The Sheriff deals with the five grounds of appeal in his note. However, as the Sheriff records from page 16 of the stated case onwards, the mother sought to introduce new grounds of appeal at the stage of adjustment. The mother had the same solicitors who represented her at the hearing and who lodged the grounds of appeal. However, counsel instructed on behalf of the mother for the appeal is Mr Halley who had not appeared before the Sheriff during the hearing of evidence. The father was represented at the hearing on adjustments by a new firm of solicitors and indeed, the same firm of solicitors who appeared on his behalf at the appeal. In the main the new grounds of appeal were refused by the Sheriff at the hearing on adjustments.

6. Prior to hearing the appeal I was made aware of the existence of concurrent proceedings in the Court of Session in respect of these children. A petition for permanence orders with authority to adopt both children is pending in the Court of Session. The Lord Ordinary's interlocutor of 18 October 2013 ordered intimation on this court. Counsel for the mother confirmed that the permanence proceedings were opposed and proof had been discharged to await the outcome of this appeal. Counsel for the mother referred to the permanence proceedings the proof in which, I was informed, had been further delayed pending the outcome of this appeal.

PRELIMINARY ISSUE - ADDITIONAL QUESTIONS OF LAW

7. At the outset Mr Halley, for the mother, intimated that he intended to argue matters not specified in the application for a stated case. He seeks to raise and argue additional questions of law which are in effect the additional questions 7 and 8 annexed to the stated case and rejected by the Sheriff at the hearing on adjustments. The Sheriff deals with this in his note following the hearing on adjustments (pages 16 to 22 of the stated case). The original note of proposed adjustments sought to add four additional questions. One additional Question (9) was allowed by the Sheriff subject to concerns as to its purpose and effect. It is now Question 8 in the stated case. The additional questions of law would form Questions 9 and 10 and are in the following terms:

"9. Did I err in law by accepting as expert, and by placing importance upon, the evidence of two consultant paediatricians in relation to reported behaviours shown by either or both of D and K?

10. Did I err in law in my assessment of the medical evidence in the case as demonstrating, on a balance of probabilities, that there were physical signs that either or both of D & K had been subjected to sexual abuse?"

8. Mr Halley invoked Rule 3.59(9) of the Child Care and Maintenance Rules 1997 and sought permission to add these additional questions. Notice had already been given. It was a matter in the discretion of the Sheriff whether he allowed them. He did not and accordingly Mr Halley required to rely on the provision mentioned and show cause. Mr Halley argued that the Sheriff's detailed note covers the issues to be raised in these further questions of law and it is not necessary to look at the stated case as a stand alone document.

9. In any event he considered that there were compelling reasons why the mother should be allowed to raise these additional questions of law and these are:-

1. The importance of the issues for the appellant. She absolutely rejected the finding that she had sexually abused her daughters.

2. The importance of the issues for the welfare of the children.

3. Notice has already been given of these issues.

4. The issues disclosed a patent error in law or misdirection on the facts.

5. There was an urgent requirement to deal with this issues given the pending permanency applications in the Court of Session in respect of both children.

6. Fairness pointed towards the additional questions being allowed and it was competent to do so.

10. Ms Guinnane, for the father, intimated that she also intended to review the grounds of appeal and questions of law. She intended dealing with the medical evidence in so far as it affected BJ.

11. Ms Jack, for the Reporter, opposed Mr Halley's motion. The first appellant had not shown cause as to why the issues which she now seeks to argue could not have been specified in the application for a stated case. The Sheriff has provided clear reasoning on the merits of the case and has provided reasons for his rejection of the additional grounds at the stage of adjustments.

12. Allowance of the additional questions of law would require the matter to be remitted back to the Sheriff for the stated case to be redrafted. It would be quite inappropriate for the appellate court to proceed with these questions of law on the basis of the stated case and the Sheriff's note of decision. The Sheriff requires to deal with specific errors in law in order that they may be properly focussed and addressed in the stated case.

13. The Sheriff had correctly identified that the proposed additional questions sought to open up the medical evidence and also sought to challenge in very general terms the evidence which dealt with the observed behavioural traits of each of the two children. The Sheriff makes it clear that he would require to indulge in speculation. This would be contrary to the purpose of stated case procedure.

14. Furthermore the Sheriff reports that the object of the first additional question is truly to criticise the manner in which counsel for mother at proof approached the cross-examination of the medical witnesses.

15. The second question is clearly directed to the medical evidence which was, of course, a central and significant tract of evidence at proof. There is again no specification of the precise issue which is to be argued on appeal. This is to be contrasted with the second ground of appeal which gives rise to the third question of law namely the evidence relating to a possible thrush infection in child D. If such a specific question was capable of being framed in the application for the stated case there was no reason whatsoever why the appellant could not have framed precise questions in other discrete areas of the medical evidence. Accordingly, the purpose of the further widely drawn questions of law seemed truly to relate to an attempt to open up the evidence for review on appeal which was not the proper function of the appellate court.

16. Ms Foy, the Safeguarder, adopted the submissions made on behalf of the Reporter. She reminded me of the need to avoid delay in cases involving children. The referral to the Children's Hearing had commenced in the summer of 2012. Delay would have a further impact on the permanence proceedings which were in abeyance at the present time pending this appeal.

17. Having considered the submissions for and against Mr Halley's motion I gave my decision from the Bench. I recorded my decision to refuse Mr Halley's motion. The transcript of the ex tempore decision on this preliminary matter is attached to this judgment. To summarise, however, I refused the motion primarily on the basis that cause had not been shown as to why specific points of law relating to the additional questions could not have been drafted and specified timeously. The mother had been legally represented by the same firm of solicitors throughout, albeit, counsel had changed. Another specific medical ground had been framed timeously and no reason had been given as to why points of law had not been raised with regard to behavioural issues and medical issues at that stage. The second reason for refusal related to the imprecise and inspecific nature of the questions of law. The statutory provisions and the rules require specification of the points to be argued on appeal in order that the Sheriff can address these matters in the stated case. I noted that the additional questions were characterised by imprecision. A further and very significant consideration was delay. On the hypothesis that cause had been shown and additional questions in a more precise form should be allowed then the case required to be remitted back to the Sheriff in order to redraft the stated case and I say that against the background of much detailed evidence having been led and despite the Sheriff's careful note of decision. It is essential that the Sheriff address the points of law to be raised on appeal. It is not for the appellate court to speculate as to the Sheriff's reasoning on specific points or to second guess how the Sheriff would respond to particular criticisms and indeed whether evidence had been led or submissions advanced on these points. Therefore a remit back to the Sheriff being necessary this would result in delay. It is known that there are permanence proceedings pending in respect of both children in the Court of Session. The proof has already been discharged pending the outcome of this appeal and further delay in such proceedings leads to uncertainty as to their future. Such delay is to be discouraged. Finally, another factor which pointed away from acceding to Mr Halley's motion was the absence of any explanation as to why there had been no motion made in the appeal process for me to consider this issue in advance of the first day of the appeal. The Sheriff finalised his stated case at the end of October 2013. There has been ample time for this to be considered and dealt with in a manner which might have obviated or reduced delay.

18. On the second day of the appeal Ms Guinnane, for the father, tendered additional questions of law for my consideration in terms of the same Rule 3.59(9). The additional ground sought to open up the medial evidence specifically. No prior notice had been given. It was suggested that the difficulties lay in the very recent grant of legal aid. There was a clear suggestion that those instructing Ms Guinnane had only accepted instructions from BJ (father) in December of last year and had thus far been unsuccessful in obtaining the papers from his previous solicitors. Clearly, I am unable to comment on these assertions however I do observe that the father's current firm of solicitors also appeared before the Sheriff at the hearing on adjustment of the stated case. It was suggested, rather unconvincingly, that although they had appeared they had not decided whether to accept instruction.

19. Similar considerations applied to the late application on behalf of the second named appellant as did with the first named appellant's motion. I refused Ms Guinnane's motion.

MOTHER'S APPEAL

20. Mr Halley for the mother spoke to his written submissions and essentially restricted his submissions to the first chapter starting on page 8. The conclusion which he urged on me was that the Sheriff was not entitled to rely on the hearsay evidence of child D and that the Sheriff had misdirected himself as to that evidence and had therefore got it plainly wrong by relying to any extent on that evidence.

21. The Sheriff refers to the three main planks of evidence which, considered cumulatively, proved the offence grounds. One of these planks is the hearsay evidence of D with the others being D's behaviour and the medical evidence. Without the hearsay evidence the statement of facts in both referrals cannot be proved on the factual matrix remaining.

22. Mr Halley looked at:-

(1) The Sheriff's analysis of the evidence relating to the interviews of D particularly Interview No 3.

(2) The evidence of Dr David La Rooy in respect of these interviews.

(3) Guidance and authorities in Scotland and England.

23. Mr Halley argued that the Sheriff had misunderstood the detail and import of Dr David La Rooy's evidence. This led the Sheriff to fall into error by rejecting the doctor's approach even though pedantic and then substituting his own (erroneous) view of what the expert was saying. The Sheriff had no proper basis for rejecting Dr La Rooy's evidence. He gives no cogent reason for overlooking the flaws in the interview process which the Sheriff himself acknowledges. There was no contradictor to Dr La Rooy other than the Sheriff himself. The Sheriff's erroneous approach to the evidence of what the child said at interview led the Sheriff to place some weight on the interviews and to rely on the hearsay evidence of child D. The interviews of child D were of such poor quality that they came close to having no evidential value at all. Accordingly, there was a clear error on the part of the Sheriff in his evaluation of the evidence which derived from these interviews. The Sheriff was plainly wrong to dismiss Dr La Rooy's evidence in the absence of any contradictory evidence. The Sheriff simply substituted his own view and for a Sheriff or Judge at first instance to do so pointed clearly to a misdirection or error of the type referred to in M v M [2011] CSIH 65.

24. Turning to the findings in fact and the Sheriff's treatment of the evidence of Dr La Rooy the important findings are core Findings 3 to 10 inclusive. The findings in fact relating to the hearsay evidence of child D can be found from Findings 25 to 35 of the stated case. Mr Halley was critical of Findings 29 and 33. 29 was characterised as "unusual" and Mr Halley questioned whether Finding in Fact 33 is truly a finding in fact at all as it appears to be the Sheriff's approach to the admissibility of the interviews and the weight he sought to place on that evidence. Findings in Fact 16 to 18 are also material.

25. Mr Halley argued that these findings demonstrate the Sheriff failed to understand what Dr La Rooy's evidence was about otherwise he could not have made these findings. The Sheriff makes no reference to the "inherent improbability" that children of that age would be abused by their parents. He errs by giving any weight to the admittedly defective and low quality of the interviews especially interview no 3. Separately Mr Halley was critical of the Sheriff's Findings 3, 4 and 6. Finding 6 is, of course, a critical finding which states:-

"6. That child D had been subjected to sexually abusive and penetrative acts in the area of her vagina, and separately, her anus, at various points during the period between February and July 2011."

Mr Halley suggested that there was no medical evidence or allegation relating to child D's anus. The medical point was not and could not be pursued as there was no ground of appeal directed towards that evidence. Findings 8, 9 and 10 are likewise crucial to the Sheriff's determination that the statement of facts and grounds were established.

26. The fundamental and clear error on the part of the Sheriff as the fact finder was his failure to appreciate the nature of Dr La Rooy's evidence and to dismiss that evidence without any proper basis for so doing. In substituting his own view of the evidence the Sheriff was plainly wrong.

27. In support of his submissions Mr Halley referred to a number of authorities. In particular, Mr Halley contended that the Sheriff in his decision showed no appreciation of the significant guidance and written material available on joint investigative interviews. Clearly, joint investigative interviews are of crucial importance in cases of this nature. I was referred to excerpts from the Scottish Government Guidance on Joint Investigative Interviews (JIIs); the Report of the Cleveland Enquiry and extracts from the judgment of Lord Justice Thorpe in re B (a child) (Sexual Abuse: Expert's Report) [2000] WL 542 paragraphs 10 to 12. The dicta of Lord Justice Thorpe in that case also suggests that the evidence of Dr Hammond is undermined due to her being a witness who gave both fact and opinion evidence. Additionally, it was suggested that by virtue of her title of Child Protection Co-ordinator she could not be considered entirely objective and independent.

28. On the function of the Appellate Court I was referred to McGraddie v McGraddie [2013] UKSC 58 and M v M. In the latter case Lord Emslie gave the Opinion of the Court in an appeal from the Sheriff and Sheriff Principal in a child relocation case. That case is authority that the appeal court will override the first instance Sheriff if he has failed to carry out a proper balancing exercise before deciding whether to make an order under section 11 of the 1995 Act or has reached conclusions which were plainly wrong. Mr Halley suggested that the approach of the Sheriff to the evidence of the expert and the hearsay evidence of the child was so plainly wrong that this court here should intervene.

29. I was also referred to HMA v A 2005 SLT 975 an opinion of Lord Macphail in a criminal matter where his Lordship repelled an objection to a Crown motion to bring an expert (consultant psychologist) who would give evidence to assist the jury (or fact finder) on the credibility and reliability of a witness. I was also referred to the dicta of the then Lord Justice Clerk (now Lord President) and Lord McCluskey in AJE v HM Advocate 2002 JC 215 another criminal case involving charges of sexual offending against a young child. I was also referred to the following English authorities D v B [2006] EWHC 2987 (FAM) where the court was critical of children's words being interpreted without any proper professional guidance or enquiry. The court in D v B referred to the English guidance in child cases particularly child sexual abuse cases "Achieving Best Evidence". This guidance deals inter alia with the evidence of children hearsay or otherwise. The court was also critical of the first instance Judge's acceptance of the speculative suggestions that the child's reference to a "knife" was equivalent to "penis". There are parallels with the current case as child D in her disclosures refers to the "bone" which is interpreted as being a reference to her father's "penis". I was also referred to the decision by Mrs Justice Theis in Local Authority v A & B & Others [2011] EWHC 231 (FAM) and Sir Nicholas Wall in TW [2011] EWCA civ 17. These cases refer to the proposition that the "inherent improbability" of an event occurring is a matter to be taken into account when weighing up the evidence and deciding on the balance of probabilities. In such cases the "inherent improbability" is that a parent or parents would abuse their children in the manner alleged.

30. In conclusion I was invited to answer questions 1, 2 and 6 of the stated case in the negative and questions 4, 5, 7 and 8 in the affirmative and to allow the appeal in respect of both applications and to either remit to another sheriff for a rehearing or to discharge both referrals.

FATHER'S APPEAL

31. Ms Guinnane appeared for the father at the appeal. In common with Mr Halley, she had had no involvement in this case at the stage of proof. Ms Guinnane adopted Mr Halley's submissions as to the evidential value of the joint investigative interviews, or lack of it. The hearsay evidence of child D should not be accorded any weight especially in the light of Dr La Rooy's report and evidence (Question of Law 1).

32. Ms Guinnane addressed Questions of Law 2, 4 and 6. Question of Law 6 relates to the referral of baby K. Ms Guinnane considered this question -

"6. Was I entitled to find that father was responsible for the sexual assault of baby K?"

and that it was necessary to approach this question as a two stage test (firstly) was there an assault of a sexual nature? (secondly) was the father the perpetrator? The findings which support the grounds of referral re baby K are core Findings 7, 8 and 10. The findings which point to the father being the perpetrator are Findings in Fact 11 to 14. The Sheriff's conclusion is found at page 112 of his note of decision and is stated in the following terms:-

"The injury was therefore beyond reasonable doubt caused by an act of applied violence, an assault, and standing the area affected, most probably an act of sexual assault, whether it was caused by the male penis, by a hard blunt object or by some instrument which had an edge to it. I am therefore clear on the evidence that K has been the victim of a sexual assault of some nature, and I require to look outside the medical evidence in order to see if further light can be shed in the area of causation."

33. Core Finding 7 of the stated case is in the following terms:-

"7. That baby K had an injury to the area of her body between her vagina and her anus which from a strictly medical view was caused either by attempted penetration of her by a penis or other object of blunt character, or was a sexual assault caused by application of force or violence by an instrument which had a sharp edge."

Ms Guinnane suggested that this finding did not assist the Sheriff identify father as the perpetrator of the abuse in relation to baby K. She characterised the finding variously as "peculiar" and "gobbledegook". That finding depended on the Sheriff's approach to the disclosure by child D. However, these disclosures whilst pointing to father being the perpetrator of something on baby K do not amount to a sexual assault. The child's evidence was filtered by the carer and became the carer's interpretation. The Sheriff ought to have treated this evidence with extreme caution in the same manner as he was advised to do by Dr La Rooy in relation to the hearsay evidence obtained by the Joint Investigative Interviews. These disclosures by D in respect of her father's involvement were arguably even less reliable than the flawed JIIs.

34. Another important reason why the Sheriff ought to have placed less reliance on D's disclosures and behaviour lies in the assertions by the child of sexual interference by others eg Mark. In accepting and relying on certain disclosures the Sheriff has simply cherry picked from the child's reported behaviour or hearsay evidence.

35. The Sheriff's Finding in Fact 16 appears to cast doubt on the credibility and reliability of child D in relation to her disclosures regarding Mark and Granny in so far as the Sheriff accepts:-

"16. That paternal grandmother did not sexual abuse child D, although a level of sexually abusive conduct by a friend of hers, 'Mark', may have occurred during periods when child D was in the care of the paternal grandmother in Glasgow."

This undermines child D's credibility and reliability.

36. Similar considerations apply with regard to Question 4 that being the question of law relating to child D having been abused by her parents. There was insufficient evidence to find that the parents perpetrated sexual abuse on Child D. The medical evidence is non-specific with regard to findings on examination for example, the physical findings with regard to child D could just as easily be as a result of poor hygiene or recurrent diarrhoea. Accordingly, without specific medical findings relating to abuse it was unsafe to rely on child D's disclosure.

37. Dealing specifically with child D's disclosures with regard to her father and baby K, there was no basis for the Sheriff to impute a reference to "penis" when the child spoke about her father's "bone". The Sheriff, and indeed, others were wrong to interpret the child's reported disclosures in that manner as there is no basis for so doing. There is no skilled evidence to guide the Sheriff on the interpretation of the child's reported words.

38. Ms Guinnane referred to and adopted Mr Halley's submission that the Sheriff had failed to show that he was aware of current knowledge and guidance as to the correct approach that the court should take to the evidence of children. She accepted that this had not been specified in any ground of appeal.

39. In conclusion, counsel for the father argued that the Sheriff had erred in his approach to the child's disclosures. The Sheriff had failed to approach these in the same cautious manner that he adopted and indeed was advised to adopt with regard to the JIIs. Had he evaluated the evidence as to disclosures properly and cautiously he would not have afforded them the weight he did and therefore could not have made the core Findings 7 to 10.

40. I was urged to answer Question 1, 2 and 6 in a negative, Questions 3, 4, 7 and 8 in the affirmative and thereby allow the appeal. Having done so I should either remit to another Sheriff for a rehearing or discharge both referrals.

response by safeguarder (ms foy)

41. Ms Foy considered that in light of the criticisms made of the Sheriff's reasoning in the submissions of counsel for both mother and father and the departure from the grounds of appeal that, it was necessary to remind me that of those appearing at the appeal she alone had participated in the proof before the Sheriff. The publications, guidance and authorities referred to by Mr Halley had not either been canvassed before the Sheriff nor were they matters upon which submissions had been made. They did not form part of any ground of appeal or question of law.

42. The main thrust of Mr Halley's argument relates to the Joint Investigative Interviews and the evidential value of these interviews. Child D had been interviewed on three occasions. The interviews had been recorded and shown on DVD to the Sheriff. Indeed, the DVD had been shown on more than one occasion to the Sheriff. The Sheriff had considered these in detail and the Sheriff had asked questions about the DVDs. Ms Foy was of the view that it would be unusual for an appellate Sheriff to view the evidence in the form of DVDs at all far less in isolation to other evidence. Her submission was based on the function of the appellate court. Her observation indicated that the viewing of the DVD would assist the reporter rather than the appellants.

43. Ms Foy returned to the evidential value of the Joint Investigative Interviews. The Sheriff had rejected any suggestion that the child had been coached or influenced by any of the carers who had been looking after her. He was correct to take that view. At the interviews the child had not been influenced by any particular question which Dr La Rooy may have considered suggestive. Her responses can be seen to be spontaneous responses often not meeting the question put to her at all.

44. The Sheriff's approach to the very significant amount of evidence which he heard and saw was one which Ms Foy described as very cautious and careful. The evidence was heard over a significant number of weeks.

45. This was a very extreme case. Cases involving sexual abuse of babies are uncommon. The medical evidence led from Dr Hammond and Professor Busuttil in respect of baby K was directed towards an abnormal lineal white line on the perineum.

46. Ms Foy had viewed and noted the contents of Interview No 3 on a number of occasions. The interview is set out at page 16 of Dr La Rooy's report and on page 101 of the Sheriff's note. The child's responses were both unexpected and spontaneous. She accepted that the interviews were of poor quality however stressed that the child did not give the hoped for or suggestible answer to any potentially suggestible questions.

47. With regard to Mr Halley's criticism of the JIIs due to the use of anatomical dolls it was Ms Foy's position that there had been no use of anatomical dolls during the JIIs or on any occasion. Child D from time to time used her own doll and demonstrated various worries she had either about what had happened to her or what had happened to her sister using the doll. For example, when she spoke about protecting her sister (baby K) the child would hide the doll as if showing that she was protecting her baby sister.

48. Ms Foy sought to refute any argument that child D's behaviour and disclosures may have been influenced or suggested by carers or social workers. In that regard Ms Foy reminded me that the family were well known to the Social Work Department due to drug misuse. Child D had been in care or "looked after" prior to 2011 due to these concerns. Until the disclosures by D there had been no concerns relating to sexual abuse. Neither the Social Work Department nor the carers expected the revelations about sexual abuse. The Sheriff describes and comments on the graphic nature of the disclosures to the foster carers at pages 92 to 98.

49. Re the assertion by counsel for the mother that the Sheriff had failed to address the "inherent improbability" of parents sexually abusing their children in the manner alleged, according to the Safeguarder this was not raised in submission to the Sheriff. In any event, that is not the correct test for the Sheriff in such proceedings.

50. Responding to the appeal by the father Ms Foy directed me towards the graphic description of the disclosures by child D described in part 7 of the Sheriff's note pages 56 and 57.

51. The Sheriff's Finding in Fact 7 and its terms described by Ms Guinnane as "peculiar", is based on the evidence of Dr Hammond and Professor Busuttil as to the likely causation of the "scar" discovered when baby K was examined. The finding is an accurate distillation of the evidence of these medical experts as to causation as more fully described by the Sheriff in chapter 9 of the note. This was complicated evidence but nevertheless the finding reflects that evidence.

52. I was urged by Ms Foy not to interfere with the Sheriff's careful decision and the appeal should be refused no error of law having been disclosed.

SUBMISSIONS FOR THE REPORTER

53. Ms Jack for the Reporter lodged written submissions which she spoke to. In these circumstances I do not propose to record the submissions in detail but will summarise them.

54. Ms Jack firstly made submissions on the role of the Appeal Court generally and specifically with regard to appeals under section 51(11) of the Children (Scotland) Act 1995 ("the 1995 Act"), which provides that an appeal lies by way of stated case either on a point of law or procedural irregularity. Ms Jack pointed out that counsel for both appellants had paid scant, if any, regard to the stated case and the Sheriff's note of his reasoning. Submissions for the first named appellant proceeded largely as a global submission without specific reference to the questions of law or the grounds of appeal contained in the application for the stated case. Indeed, there had been no submissions made in support of Ground 2 (Question of Law 3) and in these circumstances that question should be answered in the negative. This failure on the part of the appellants' counsel to have regard to the stated case was, accordingly to Ms Jack, of some significance. The submissions particularly by Mr Halley focussed not on the Sheriff's approach to the evidence but rather on Mr Halley's criticisms of what the Sheriff did not do and the guidance which he had failed to take account of. There is no specification or notice given of these criticisms. Accordingly, the Sheriff was not in a position to address the points. There is, of course, no transcript of evidence in such proceedings and the observation is properly made that Mr Halley did not hear the evidence as he did not represent the first named appellant at the proof. I was reminded of the function of the appeal court with regard to the evidence. Ms Jack referred to the oft quoted dicta from Thomas v Thomas 1947 SC (HL) 54 on the role of the appeal court. Having regard to that authority and Melon v Hector Powe Ltd 1980 SC 188 and M v M 2012 SLT 428 it was necessary for the appellants to show that the Sheriff had either misdirected himself in law or had wrongfully exercised his discretion such as to suggest that he had gone plainly wrong. It was submitted on behalf of the Reporter that there was no such misdirection and that the Sheriff had carefully analysed and weighed up the evidence. The Sheriff having heard lengthy and difficult evidence throughout the proof should not have his judgment on the evidence disturbed lightly. Ms Jack accepted entirely that if there was a clear misdirection or error then the appeal court was entitled to intervene.

55. It is not the function of the court to review and reassess the evidence and come to its own view. The case proceeds on appeal by way of stated case and it is the stated case which governs the ambit of the appeal. Ms Jack referred to C v Miller 2003 SLT 1379, an appeal under section 51(11) of the 1995 Act on the ground of procedural irregularity. In that case at paragraph [80] the Inner House states:

"It is essential that specific and relevant questions must be posed in the case in order to focus the error or errors of law which it is contended have been made by the sheriff".

The Inner House in C v Miller referred to R v Grant and in turn to the Lord Justice Clerk's dicta in Drummond v Hunter noting the difficulties which have been raised in this current appeal where arguments by both appellants and the other criticisms of the Sheriff had not been raised either as grounds of appeal or focussed as questions of law in the stated case. In that regard the Inner House in C v Miller also at paragraph [80] referred to the Lord Justice Clerk in Drummond v Hunter who observed:

"In such situations, there is in our view a real risk that as the Lord Justice Clerk put it: 'Ingenuity of counsel can, by searching for gaps and discrepancies in the stated case, raise arguments which were not live issues either at the trial or at the adjustment of the case.'"

56. Turning to the specific questions in the stated case Questions 1 and 2 required to be considered together in light of the Sheriff's comment at page 22 of the stated case where he states:

"I have with some reluctance allowed the second question to be added. I do so on the clear understanding that this is simply to place Question 1 in context, and not for the purpose of introducing matters which (again in this case) are not included in the original ground of appeal. To make that position clear I can simply say that neither the original grounds of appeal, nor any adjustments, claim that I erred in placing weight on what the child said to her confidants and carers, but rather address specifically the way I dealt with Dr La Rooy's evidence about what she said during the interviews."

57. In that regard although Mr Halley sought to make submissions on the child's behavioural issues and other disclosures he could not present these submissions standing the grounds of appeal which do not challenge the Sheriff's approach to that evidence (dealt with at chapter 11 of his original note of decision).

58. By reference to the Sheriff's original note chapter 11.3 Ms Jack argued that the Sheriff's approach to the evidence of Dr La Rooy and, indeed, to the evidence in its entirety had been a careful assessment. He had approached the evidence relating to the child's behaviour, disclosures and the child's hearsay evidence at interview with great care. Far from dismissing or brushing aside the evidence of Dr La Rooy the Sheriff found him to be a helpful and genuine expert. In other words, the Sheriff had carried out a full and careful assessment of all the evidence including that given by Dr La Rooy. He had accepted the advice given by Dr La Rooy to treat the hearsay evidence with caution. The fact that there was no contradictor to Dr La Rooy was unimportant. It was the Sheriff's function to assess the evidence which he did. The Sheriff had not been asked to and therefore cannot be criticised for failing to provide his approach to the Scottish Government Guidance on JIIs, the Cleveland Report, the Orkney Report or any other of the materials including the English Guidance known as "Achieving Best Evidence" (ABE). The sheriff had not been referred to nor was addressed on these documents.

59. Ms Jack reviewed and commented on the authorities referred to by Mr Halley firstly, the decision of Lord Justice Thorpe in re B (a child) (sexual abuse expert's report) [2000] (supra) which touched on both joint investigative interviews and the proper role of an expert witness. She distinguished that case on its facts.

60. Ms Jack analysed and commented on the remaining authorities cited on behalf of the first named appellant as detailed in the written submissions.

61. Ms Jack argued that Questions of Law 4 and 5 in the stated case should be answered in the negative. The Sheriff's careful and complete analysis of the evidence supported his conclusion that both parents can be identified as the perpetrators of sexual abuse on child D. The Sheriff sets out his approach to the evidence upon which he makes Findings in Fact 15 to 20. His reasoning can be found at page 14 of the stated case. It is clear from the Sheriff's approach to the evidence and, indeed, the parties' position at proof was that the child had not been sexually abused by anyone at all including the individual known as "Mark". The Sheriff takes account of the allegations in respect of "Mark". The Sheriff notes, that both appellants did not believe that Mark could have carried out sexually abusive acts towards D.

62. Questions of Law 6 and 7 are similar to Questions of Law 4 and 5 but in respect of baby K. The evidence with regard to the abuse of baby K is more focussed. The evidence implicating the father as the perpetrator of abuse on baby K comes from the graphic disclosures by child D referred to in the Sheriff's note pages 56 and 57. The Sheriff deals with this in Findings in Fact 11 to 14 and 18 and comments at pages 14 and 15 of the note attached to the stated case. The evidence clearly indicates that no-one other than the appellants and the paternal grandmother had access to the baby during the relevant period between February and July 2011. The Sheriff gives reasons as to why he excluded the mother as a perpetrator of abuse on baby K. He had regard to a combination of the disclosures by child D and the medical evidence with regard to attempted penetration. These two pieces of evidence were considered. The evidence of child D points directly to the father being the perpetrator of abuse on baby K and the medical evidence although less clear cut taken together with the other source of evidence from child D points towards father being the perpetrator of abuse. Accordingly, I was asked to accept the Sheriff's assessment of the evidence relating to all these questions of law as being thorough, well reasoned, clear and logical.

63. In conclusion Ms Jack invited me to answer Questions 1, 2 and 6 in the affirmative and Questions 3, 4, 5 and 7 in the negative. Ms Jack did not consider it was necessary to answer Question 8 but in the event that it required to be answered it should be answered in the negative. Thus, the appeal should be refused and the case remitted to the Sheriff in terms of section 51(14) of the 1995 Act.

REPLY BY MR HALLEY ON BEHALF OF THE MOTHER

64. Mr Halley took the opportunity to reply to the submissions made by the Safeguarder and the Reporter. Mr Halley accepted that the decision of the Sheriff is a careful and thorough one. Despite the Sheriff being an experienced Sheriff he was nevertheless plainly wrong in his evaluation of the evidence in this case. Mr Halley made certain comments on the Safeguarder's submissions to the effect that she was not qualified to make some of the assertions presented to the court.

65. Mr Halley repeated that the Sheriff had expert scientific evidence in the form of Dr La Rooy, his report and evidence. There was no contrary evidence and the Sheriff was not entitled to reject that expert's evidence. The use of suggestive questions and the absence of free narrative recall in the interviews are two very important factors which, if the Sheriff had directed himself properly to that evidence, would have led the Sheriff to reject the hearsay evidence of child D as unreliable.

DISCUSSION

66. Cases such as this involving allegations of the sexual abuse of very young children by parents are some of the most difficult any court has to consider.

67. The two children who are the subject of the referrals from the Children's Hearing are now aged 6 and 3. At the relevant time D was 3 or 4 and baby K an infant. Both had suffered neonatal abstinence syndrome at birth to some degree. Child D had been accommodated by the local authority due to her parents' drug or other substance misuse. By the time her baby sister was born in February 2011, she had returned to her parents' care. The paternal grandmother, who ordinarily lives in Glasgow, assisted the parents in caring for child D between March 2010 (when D returned to her parents' care) and July 2011 (when both child D and baby K were taken into care). From the time of her birth until 14 July 2011, a period of five months, baby K was cared for exclusively by mother and father at their home in Edinburgh and was at no time in the care of any other person apart from short periods of time when she was being examined by medical professionals either in child clinics or hospitals.

68. In or about 13/14 July 2011, following a search for drugs carried out by police at the family home, social workers believed that both D and K were at risk and were taken into care. They were initially placed for one night with the paternal grandmother in Glasgow and thereafter with foster carers. Following D's placement with foster carers she began to make disclosures which were graphic and consistent with her having been sexually abused. At that time she was four years and two months old. These disclosures were made to her carers and social workers. They involved "Mark" a friend of her paternal grandmother. These disclosures were associated with sexually explicit behaviour on the part of D. These are more fully discussed in chapter 8 of the Sheriff's note of decision. They can be summarised as sexualised behaviour with obvious masturbatory acts. The assertions were repeated when interviewed on 1 and 11 August 2011. Later in August (22 August 2011) child D made a disclosure of sexually abusive conduct by her mother. When interviewed the following day she referred to digital penetration and other conduct involving the child's genital area. The reference to digital sexual penetration was similar to statements made by the child to her carers and the reference to kissing her bottom was similar to references to her mother licking her bottom and to a demonstration which she made to carers of her mother putting her head into her vaginal area and moving her head and tongue vigorously from side to side. Child D continued to make allegations relating to sexually abusive conduct towards her by her mother and also towards both she and her sister baby K by their father. Her sexualised behaviour continued and she repeated sexual abuse disclosures to people who were effectively strangers spontaneously. Paediatric specialists became involved. Child D was examined on 12 August 2011 and subsequently by Dr Hammond Consultant Paediatrician NHS Lothian. Baby K was examined on four occasions the first of these being on 2 September 2011 when Professor Busuttil and Dr Hammond conducted a joint examination and produced a joint Paediatric Forensic Medical Report. All examinations of both children were recorded on DVD. Professor Busuttil, who prepared a report and gave evidence on behalf of the father, was not present at any examination of child D or any subsequent examination of baby K. He has seen the DVDs. Dr Hammond involved Dr Hobbs in relation to baby K. He is a recognised expert in paediatric aspects of child protection based in England. He provided a report having reviewed the case records and the DVDs of the examinations of both children.

69. In making the Findings in Fact and finding the grounds of referral established the Sheriff relied on four significant areas of evidence.

1. Disclosures by child D made to persons involved in her care and welfare.

2. Observed behaviour of child D.

3. Joint Investigative Interviews (JIIs) - following 1 and 2.

4. Medical evidence.

The Sheriff was able to accept child D's account where consistent with other disclosures and consistent with other evidence which support that account. The Sheriff sets out his reasoning and his approach to these pillars of evidence in chapter 13 of his note. Had the child been fantasising or fabricating her account of sexual abuse there would be nothing found on medical examination. However, the medical evidence found genital inflammation and an unusual anal presentation consistent with sexual abusive conduct. He therefore found the grounds established on the statement of facts as amended, based on this evidential matrix.

The Law

70. The law on the function of the appellate court generally is well settled. A series of decisions have stated and restated the oft quoted dicta of Lord Thankerton in Thomas v Thomas 1947 SC (HL) 45. It is, as Lord Reed observes in McGraddie v McGraddie [2013] UKSC 58, cited along with Clarke v Edinburgh and District Tramways Co Ltd 1919 SC (HL) 35 and Thomson v Kvaerner Govan Ltd [2003] UK HL 45 in time honoured fashion. The oft quoted passage from Thomas v Thomas is conveniently set out in Macphail on Sheriff Court Practice (18.110 - 18.112) which is the first port of call or vade mecum for the practitioner in the Sheriff Court and for those considering an appeal and the drafting of grounds of appeal. The law as to the appellate court's function should therefore be well known. The appellate court should only intervene if satisfied that the Judge or Sheriff at first instance has got it plainly wrong. Lord Hope in Thomson v Kvaerner Govan Ltd paragraph [17] put it thus:-

"It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion."

71. Lord Emslie, giving the judgment of the Inner House in M v M applied these principles. M v M involved the application of Part 1 of Children (Scotland) Act 1995 ("the 1995 Act") and the considerations which apply on appeal from the Sheriff and the Sheriff Principal in cases where the court is considering making orders under section 11 of that Act. The Inner House found that there had been a material error in law.

72. Thus it is for the appellant to demonstrate that in the present proceedings the Sheriff was plainly wrong or misdirected himself in law or proceeded upon a misapprehension or misconstruction of the evidence. This is reflected by Lord President Emslie in Melon v Hector Powe Ltd 1980 SC 188. Lord President Emslie at page 198 states:

"It is of no consequence that the appellate tribunal or court would itself have reached a different conclusion on the evidence. If there is evidence to support the tribunal of first instance then in absence of misdirection in law - which includes the tribunal selection of the wrong question to answer - that is an end of the matter."

In the submissions of both appellants there is more than a hint that the Sheriff misunderstood the evidence of Dr La Rooy and in the case of the father the medical evidence also. Both appellants challenge the Sheriff's evaluation of the evidence. Of course, the evaluation of factual evidence is a matter primarily for the Sheriff as Lord Emslie observes in M v M.

73. The role of the appeal court in appeals under section 51(11) of the 1995 Act is considered in C v Miller. The application for stated case must specify the point of law (or procedural irregularity) upon which the appeal is to proceed. The Sheriff then proceeds to draft and issue a stated case based on the point of law or points of law to be raised on appeal. The stated case is to contain relevant findings in fact and questions of law and a note of the Sheriff's reasons based on the grounds specified in the application. The appeal cannot proceed on different points without leave and without the Sheriff fulfilling his duty to make findings and give reasons. Both appellants sought to expand the grounds of appeal to cover matters not addressed in the stated case. Indeed, the arguments for the first appellant raised matters which were not before the Sheriff at the proof - such as guidance on JIIs; the Cleveland Report and the Guidelines used by the judiciary in England and Wales. These are not mentioned in the Sheriff's note and there is no suggestion that he simply omitted to take account of such material. Indeed, I have no way of knowing whether these matters were raised at all before the Sheriff other than the Safeguarder's advice that they were not. This emphasises that the function of the appeal court in such cases is to answer the question of law posed by the Sheriff in the stated case. These are the questions of law which are based on the specific points of law raised in the grounds of appeal. If on appeal the parties seek to address the court on arguments which are not addressed in the stated case then the Sheriff has not had the opportunity of dealing with these points and the relevant evidence. The mischief that would produce is that the stated case would not provide the parties and the appeal court with the findings in fact, narrative of the evidence and the Sheriff's reasoning in support of the critical findings in fact and the grounds of appeal. In other words the issue would not be focussed for the appeal court.

74. Appeals on matters of fact are not envisaged given the terms of section 51(11). The appeal court cannot reassess and review the evidence but can deal with any misdirection or error of law if addressed in the stated case. Sheriff Kearney in "Children's Hearings and the Sheriff Court" (2^nd Edition) at page 552 in relation to appeals under section 51 of the 1995 Act states:-

"There is no provision for appeal on ground of fact, ie one cannot relevantly argue on appeal that, although the sheriff was entitled to come to the decision he did on the evidence before him, the appellate court ought to draw another conclusion which is equally open."

Sheriff Kearney goes on to comment on the appellate court's function on matters of fact

"Certain decisions on matters of fact may be appealed as wrongous exercise of judgment or discretion if it can be shown from such written record as is available in the form of the sheriff's stated case and any reports or documents referred to incorporated therein that the sheriff has made an error in stating or applying the law, taken account of irrelevant or improper considerations, failed to give adequate reasons for his factual conclusions or otherwise gone 'plainly wrong'."

75. It is difficult to avoid the observation that the decision of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235 referred to by Lord Reed in McGraddie v McGraddie may well describe the present case. Lord Reed at paragraph [4] sets out the following part of the decision.

"The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged".

That passage is entirely apt to describe the present appeal. All the more so as Ms Foy is the only survivor of the original proof to present argument on appeal.

76. Finally, on the role of the appellate court in section 51 appeals I would refer to the decision of the Inner House in C v Miller who considered the nature and scope of appeals, Lord Osborne at paragraph [79] having observed the provision for appeal in terms of section 51(11) of the 1995 Act had this to say:

"Thus, the basis of such an appeal must be either an issue on a point of law, or one arising from an irregularity, such as we have already mentioned. What is perfectly clear, but has unfortunately been frequently overlooked, as it was in this case, was that such an appeal as this cannot involve a general review of the decisions of fact made by the sheriff."

In the following paragraph Lord Osborne refers to the decision in R v Grant which in turn refers to the opinion of the Lord Justice Clerk in Drummond v Hunter at 1948 SLT page 527 where it is observed:-

"If a legal issue is to be raised, it ought to be properly raised by a question defining the issue precisely. Unless this rule is followed, there is no real guarantee that a point taken in this court was a live point in the lower court, nor is there any guarantee that, when the case was being stated, the judge stating it had in view the points sought to be argued here."

In such situations there is the real risk, that as the Lord Justice Clerk put it:

"The ingenuity of counsel can, by searching for gaps and discrepancies in the stated case, raise arguments which were not live issues either at the trial or at the adjustment of the case".

The Inner House went on to deal with the precise issue which arises in this appeal in the following terms:

"We might add that, unless the proper practice is followed, the sheriff will be likely not to appreciate exactly what question of law is intended to be raised. In such a situation as that, there is a real risk that a stated case will not contain material which is pertinent to the resolution of the question concerned, such as a narrative of the evidence available to justify a particular finding in fact, or may not deal as specifically as desirable with such material."

77. This is precisely one of the considerations in refusing the late applications to add additional grounds of appeal or questions of law. I had regard to the requirement that the point of law required to be specified in the application for the stated case otherwise clear difficulty would arise when points of law are advanced which are not addressed in the stated case and of course the consequential delay which would arise, particularly in cases involving small children, when the matter requires to return to the Sheriff to reconsider the new points of law.

78. Finally, section 16 of the 1995 Act sets out the welfare test to be applied when the court is determining any matter with respect to a child. The welfare of that child throughout his childhood must be the court's paramount consideration. Children's referral proceedings are sui generis and the standard of proof is that of civil proceedings. Therefore, the Reporter, on whom the burden of proof lies, must prove the material facts on a balance of probabilities. Hearsay evidence is admissible.

Mother's Appeal

79. I now turn to consider the mother's appeal which concentrates mainly on questions of law 1 and 2 and seeks to undermine the Sheriff's reliance on child D's hearsay evidence presented by way of the JIIs. The submissions made on appeal permeate questions 4, 5 and 6 also.

80. I propose to deal with a preliminary issue first of all. I was invited by Mr Halley to view the DVD of JII no 3 in order that I may form my own view of that interview and place in context Dr La Rooy's evidence. Mr Halley's submission was in the following terms:

"19. The court is invited to watch the DVD recorded JIIs. This is essential. Because all of the evidence of the child D is hearsay, this court is in just as good a position to for (form) a view about these 'essential' elements of the evidence in this case. The impression gained is far removed from a child insisting in, and refusing to depart from and withdraw, allegations of sexual abuse by her parents and others."

I declined to view the DVDs. I did so for several reasons. Firstly, the appeal is not a mechanism for review of the evidence. Secondly, the Sheriff required to consider all of the evidence led after what was a very lengthy proof. He then required to evaluate the strengths and weaknesses of the evidence. The DVD is but one part of that evidence. The Sheriff places that interview in the context of other evidence. I cannot evaluate one piece of evidence, however important, out of context and without the benefit of the remaining evidence. This goes to the heart of the appeal court function v the Sheriff's function as discussed above. Individual pieces of evidence in cases of sexual abuse cannot be viewed in isolation. The individual piece of evidence has to be weighed and evaluated and assessed in the context of the other evidence making up the entire body of evidence. Therefore to look at one aspect of the evidence led before the Sheriff in a vacuum would be dangerous and unbalanced. Contrary to the submission made by Mr Halley child D did not make allegations of sexual abuse by both her parents at interview. She made allegations relating to Mark and her mother. The allegation of sexual abuse by father post-dated the third interview and is made in a disclosure to those caring for her graphically described in the Sheriff's note pages 56 and 57.

81. I will deal with the Sheriff's approach to Dr La Rooy's evidence. This may be found in the stated case at pages 10 to 12 and in turn referring to the note of decision where the evidence is considered at chapters 4.10 and 11.3. The concluding paragraph on page 12 of the stated case indicates succinctly that the Sheriff fully understands the purpose and scope of Dr La Rooy's evidence as follows -

"Accordingly, the full and careful assessment which I gave to Dr La Rooy's evidence was carried out in order to assist me to make a decision in a wider area - it was not a vital self-standing piece of definitive evidence."

82. It is clear from the expert's report that the nature of his instruction is to report on the quality of the interviews. He concluded that the interviews were of low quality due to the lack of open prompts and the number of suggestive questions. As a result his advice to the court is to exercise caution in relying on the information the interviews provide. It is clear that the sheriff did take that advice and exercised caution in his evaluation of that evidence. Dr La Rooy understands and respects that it is the Sheriff's view of the evidence that counts and offers his evidence to assist the Sheriff in fulfilling that function. Consideration of the stated case alone gives a very clear indication that the Sheriff did so. It is important to note that the doctor's written report and the Sheriff's note of Dr La Rooy's evidence does not urge that the evidence should be discarded altogether but it is to be treated with caution due to its poor or low quality.

83. It is abundantly clear from the Sheriff's note attached to the stated case (pages 10 to 12) that he did not dismiss or reject Dr La Rooy's evidence. The Sheriff carefully sets out his analysis of the evidence relating to the three JIIs and the evidence of Dr La Rooy. He accepts the advice given by Dr La Rooy to treat the interview evidence with caution and concludes that the evidence from the interviews ought not to be disregarded entirely on the basis of unreliability. The Sheriff both in the stated case and in the note sets out sequentially the series of questions and answers in interview 3. Dr La Rooy specifically objects to the question "she doesn't hurt you, and who hurts you?" The objection is on the basis that the question is leading and suggestive and contaminates every question that follows. It is, of course, an important part of the Sheriff's function to consider and evaluate that evidence. He does so closely and carefully. By forming a view of that exchange which differs from Dr La Rooy does not mean he is rejecting entirely the expert's evidence. It is clear from the Sheriff's analysis that Dr La Rooy was not interested in what followed nor was he interested in the age of the child. Dr La Rooy accepts that he takes a technical or perhaps academic approach to the content of the interview. The Sheriff's own analysis of the interview and the reasons why he is unable to reject the interview as unreliable are themselves important factors. It is clear from the Sheriff's note on appeal ground 1 that he neither misdirects himself as to Dr La Rooy's evidence nor misconstrues that evidence. At page 11 of the stated case the Sheriff discusses the question which Dr La Rooy finds objectionable.

"Effectively Dr La Rooy's position was that the question "she doesn't hurt you, and who hurts you?" is leading because it suggests to the child that someone did hurt her and it cannot be excused by the fact that in the previous question the child had in an entirely unprompted way said that her present carer "doesn't hurt me". The original response that her present carer didn't hurt her was entirely unprompted and that was accepted by Dr La Rooy, but his contention was that the fact that the child said somebody didn't hurt her, did not entitle the question about who did hurt her. Dr La Rooy was of course asked about that during examination and effectively his response was that there was no acceptable follow up question in that type of situation and that the whole area would require to be revisited again in an open way until the child made an open, spontaneous, and unprompted reference to somebody hurting her. That appeared to me to be an unrealistic and unnecessarily academic approach to the business of interviewing a child and indeed would make the interview virtually impossible to conduct, as in this instance the child had quite spontaneously and unexpectedly introduced the element of "hurting" into the interview and it seemed to me perfectly proper and reasonable for the follow up question to be asked. In that follow up question she did then make reference to her mother and to what her mother did and I used that information as part of my assessment of the credibility and reliability of the child's disclosures in general. It was an important piece of information to the extent that it confirmed in a very visible way what other witnesses had recounted about the child's disclosures."

Thus, the Sheriff understands Dr La Rooy's evidence full well and sets out his approach to the hearsay evidence in the light of the advice given by Dr La Rooy. The Sheriff neither misunderstands, misconstrues nor dismisses Dr La Rooy's evidence. He does not accept that part of Dr La Rooy's evidence which suggests that the third interview is contaminated once the questioner poses the question "she doesn't hurt you and who hurts you?" In response to the spontaneous and indeed unexpected answer by child D to an earlier question that Karen her carer "doesn't hurt me". Accordingly, the argument that the Sheriff misdirected himself as to Dr La Rooy's evidence is unsustainable. The Sheriff fulfils his necessary and important function of evaluating that interview evidence by exercising caution - the caution urged on him by Dr La Rooy. He assesses the interview in the light of that evidence and the other evidence including the evidence of disclosure and behaviour and other evidence capable of shedding light on the credibility and reliability of that interview and child D's hearsay evidence. The Sheriff makes it clear that he is fully seized of the difficult issue with the evidence of a child of that age and needs to find other evidence which will support that evidence before he can rely on or place any weight on the child's evidence. I can detect no error whatsoever in the Sheriff's approach to the important matter of the evidence of the joint investigative interviews.

84. Nevertheless, further criticisms emerged in the mother's appeal as to the Sheriff's approach to the joint investigative interviews. The essence of these further arguments or criticisms of the Sheriff's approach related to the failure on the part of the Sheriff to explicitly have regard to the Government guidance on JIIs; the Cleveland Report and in considering the allegations against the mother to have in mind that it is "inherently improbable" that a mother (and indeed a father) would sexually abuse her daughter of three or four. These arguments did not relate to any question of law posed in the stated case. That, of course, raises the clear possibility that these issues were not live issues at proof. Certainly, there has been no opportunity for the Sheriff to comment. Nevertheless, rather than simply reject these criticisms due to the absence of an appropriate question or questions I will deal with the points raised and the authorities advanced by Mr Halley.

85. Mr Halley referred to an English case Re B (the child) (sexual abuse: expert's report) [2000] WL 542 and the dicta of Lord Justice Thorpe a very experienced and eminent judge in the family division in England and Wales. It appears that the purpose in citing this case was twofold firstly, to stress the importance of investigative interviews of children being conducted in accordance with the Memorandum of Good Practice (albeit the excerpt referred to by Mr Halley had little to say about joint investigative interviews). Secondly, the passage appeared to me to be designed to be critical of an expert witness who is also the psychiatrist treating a child. The expert not only gave evidence but had conducted an interview with the child using leading questions and the use of anatomically correct dolls in clear breach of the English guidelines. If the passage was designed to undermine or criticise the contribution of Dr Hammond in these proceedings it fails to serve that purpose. Firstly, there is no ground of appeal directed towards the medical evidence at all far less one directed towards the impartiality of Dr Hammond. Secondly, the considerations identified by Lord Justice Thorpe in Re B do not apply in the circumstances of this case. There is no use of "anatomically correct" dolls in the current proceedings. The English case is concerned with contact proceedings. That is the context in which Thorpe, LJ stated his views in paragraphs 10 to 12. He is looking at the distinction between the treating clinician and the court appointed expert in family cases where child sex abuse is alleged. The psychiatrist whose report was before the court was the consultant treating the child for sex abuse which that doctor believed had occurred. She was engaged in a therapeutic relationship with the child and as such this made her position wholly incompatible with the issue which was before the court - whether or not the child had been sexually abused. A consultant who is treating a child for sexual abuse which the clinician believes has occurred is incapable of giving an objective opinion about whether or not the child had been abused. This is the context and clear import of that case. Clinical involvement by the doctor does not necessarily affect his or her capacity to act as an expert witness. To say otherwise would mean that the court would be deprived of that doctor's direct knowledge and expertise. There has been no criticism made of Dr Hammond's objectivity and impartiality. She is an expert witness to both fact and opinion by virtue of her having examined the children and reported. Accordingly, it is difficult to understand in what way that authority is helpful to the first named appellant in this appeal in the absence of a ground of appeal in relation to Dr Hammond's impartiality or not.

86. The ratio of HMA v A is that fairness in criminal proceedings trumps any objection to the expert evidence of a witness whose evidence is designed to assist the fact finders (ie the jury) as to the veracity or otherwise of a witness (Oath Taker). The expert in this case Dr La Rooy gave evidence as to the quality of the interview not the truthfulness of the interview. AJE v HMA was adduced on behalf of the first named appellant. It involved an "Anderson appeal" in criminal proceedings which alleged sexual offending against a young child. That case is important in the context of the subject matter of the appeal, namely inadequate professional service, where the court held that the appellant (panel) was entitled to lead evidence of the concept that the manipulation and suggestibility of young children is a recognised phenomenon. The deficiency in representation led to the court being deprived of evidence as to the improbability of penetration of a young child. There are parallels with the case of R Petitioner 1999 SC 380 where Lord Prosser discusses the oral evidence of children. The case deals with the competency of that evidence. The decision also centres on children's suggestibility, fantasy or deliberate coaching. It would be difficult not to accept that the evidence of children could be influenced by these possibilities or promptings. Nevertheless, there is no issue or direct evidence relating to these difficulties in the current case. The Sheriff recognises the difficulties presented by the assessment of the evidence of a child as young as child D and rejects the proposition that the child has been induced or coached to make disclosures and allegations. In any event, the point is met by the Sheriff's careful evaluation of the evidence of child D by virtue of him not relying solely on the interview evidence. The Sheriff required independent support from other aspects of the evidence including the medical evidence.

87. The case of D v B and Others (flawed sexual abuse enquiry) [2006] EW 8C 2987 (FAM) is relied upon by Mr Halley as having obvious parallels with the current case. D v B involved allegations of abuse in the context of contact proceedings involving estranged parents. There was a significant degree of hostility and the mother is said to have promoted and supported the allegation that the children had been abused by the father. In that case the mother was a wholly unreliable witness who evinced a great deal of hostility towards the father and was thought to have been involved in suggesting to the children that they had been sexually abused by their father. There had been shortcomings in the system leading to delay in having the allegations investigated. These are important factors in understanding the court's concern about the mother's interpretation of the children's words given that the children had been nurtured (by the mother) to believe that the father had sexually abused them. Against that background it is not difficult to understand why the judge in D v B was concerned that the children's words had been interpreted without any proper professional enquiry. The case turned on the hearsay evidence of the mother mainly who had an agenda to discredit and vilify the father. These considerations do not apply in the current proceedings and although the parents in the current proceedings may have suggested that carers and social workers are responsible for child D's disclosures as to sexual abuse there was no evidence to support that proposition and in any event that is not a ground of appeal. The judge in D v B however made several important observations which apply equally in this jurisdiction. Summarising Dame Elizabeth Butler-Sloss's opinion in Re T (children) [2004] 2FLR 838 he states at paragraph 27

"A judge in difficult cases such as this has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the party making the allegation has been made out to the appropriate standard of proof. Evidence should not be compartmentalised".

The judge goes on to confirm that knowledge of extreme sexual behaviour would normally be outside the knowledge of a five year old child however in the context of that particular case he correctly adds the caveat that it depends on what the child has heard in her home. He goes on to conclude that interpreting the child's reference to "knife" as equating to "penis" is wholly speculative. These observations are entirely appropriate and wholly understandable given the context but it is difficult to see how this case assists the appellant in these proceedings.

88. The English case of A v A involved allegations of sexual abuse of young female children. The significant issue related to the medical evidence. Similarly in T W Sir Nicholas Wall, President of the Family Division considered the deficiencies in the ABE interview of a child in the context of sexual abuse allegations against the child's uncle. Civil proceedings had followed the criminal trial. In Sir Nicholas Wall's judgment the interviews are described at paragraph [50]. Neither the conduct of the interview nor the approach of the judge in that case can be compared with the present appeal. In T W the principal basis upon which the judge reached a decision as to whether L R was abused by T W was the joint investigative interviews. In the present appeal the Sheriff has other sources of evidence including objective medical evidence upon which his finding is based.

89. In both A v A and T W the court considers the correct approach to the legal test. In T W Sir Nicholas Wall stressed that the interview of the child must be assessed in the context of all of the evidence. In A v A Mrs Justice Theis reviews and summarises the law and the English authorities in public law care proceedings with allegations of abuse. Reference is made to the "inherent probability or improbability" of an event being a matter which must be taken into account when weighing the probabilities and deciding on the balance of those probabilities whether the event alleged took place. Referring to Re B (allegation of sexual abuse: and child's evidence) [2006] EWCA Civ 773 she observes that:

"failure to follow the ABE guidelines reduce but by no means eliminated, the value of the evidence. In a family case, the evidence of this kind fell to be assessed by the judge, however, unsatisfactory its origin; to hold otherwise would be to invest the guidelines with a status of the law of evidence. In every case the judge has the unavoidable task of weighing up the evidence warts and all and deciding whether it had any value or none. The judge had been entitled to take the flawed evidence into account having recognised its deficiencies and had evaluated it carefully in the context of other independent evidence."

90. I detect no material difference between the law as stated and the approach to the law of evidence which applies in this jurisdiction. Mr Halley relied significantly on the absence of any reference by the Sheriff to the "inherent improbability" that parents would sexually abuse their young children. This, however, is certainly not the current legal test. The legal test is set out in section 16 of the 1995 Act. The "inherent improbability" referred to by Mr Halley is no more than another way of saying that the Sheriff must weigh up the evidence having regard to all factors. The inherent improbability of a parent sexually abusing the child is but one factor. Another inherent improbability is that a child, especially a child under five, would have any knowledge of sexual behaviour or acts unless they have witnessed them or had these acts perpetrated on them. This is referred to by the Judge Stephen Wildblood QC in D v B in the passage I have already referred to. Likewise Dr Hobbs in his report of 3 September 2012 states at page 12:

"The most important indicator of sexual abuse in a child is a spontaneous account given of activities they have been involved with. Young children have no knowledge of such acts normally and are unable to describe in detail sexual acts unless they have witnessed them."

Another inherent improbability is that babies under the age of one year would suffer sexual abuse. Again, Dr Hobbs at page 13 states:

"The sexual abuse of infants in arms, ie under one year, is less commonly described but there have undoubtedly been confirmed cases and there is no doubt that sexual abuse of infants can and does take place on occasions."

91. It would be contrary to the welfare test to suggest that there are any special rules involving a presumption for or against an event having taken place. The Sheriff is concerned with the evidence and whether the facts are proved on a simple balance of probabilities. The standard of proof in such proceedings was the issue for the court in the case of Re B [2008] UKHL 35 which was referred to by Mrs Justice Theis in A and also referred to by Mr Halley in his submissions. Lord Hoffman in that case stressed that the words "inherent improbability" did not lay down any rule of law and that the only rule is proof on the balance of probabilities. He goes on to say:

"Common sense, not law, requires that in deciding this question regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the Tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one's reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the Tribunal is simply whether it is more probable that one rather than the other was the perpetrator."

92. Accordingly, the submissions made by Mr Halley using selective interpretation of these English authorities carry no weight. The function of the Sheriff is to decide the facts based on the balance of probabilities. He must weigh up the evidence of the witnesses (including the hearsay evidence) against the whole body of evidence for or against in these proceedings. It is clear that the Sheriff has approached the evidence with the care and caution which one would expect in a complex case such as this. He has, in my view, paid attention to and followed the thrust of Dr La Rooy's evidence that being to take great care. He has looked to find whether there is evidence which supports the hearsay evidence. He has considered the evidence relating to child D's disclosures and behaviour against the established advice that he must look for spontaneous disclosures and had regard to the child's age and the unlikelihood of young children being unable to describe in detail sexual acts unless they have witnessed or suffered from them.

93. I conclude by saying that the Sheriff's findings with regard to the mother have been impugned without there being any proper basis in law to do so. The suggestion that the Sheriff does not have the requisite family court expertise to deal with difficult cases involving allegations of sexual abuse and hearsay evidence of children is, in my view, simply an affront and moreover completely misses the point of what this appeal is about namely the evaluation of evidence. These proceedings could easily be categorised as criminal proceedings where the civil standard of proof applies. Indeed, the Sheriff has carefully assessed the evidence and at points in his judgment refers to proof beyond reasonable doubt being, of course, the higher criminal standard of proof. This criticism of the Sheriff is both completely without foundation and unfair there being no hint or suggestion of such criticism in any question of law or even any proposed question of law. I therefore refuse the appeal and will remit back to the same Sheriff to proceed as accords.

The Father's Appeal

94. The appeal put forward on behalf of the father adopted Mr Halley's argument. For the detailed reasons I have given I reject these submissions.

95. The discrete arguments deployed on behalf of the father with regard to the Sheriff's findings in respect of baby K fall to be rejected for the reasons I have given regarding the Sheriff's assessment of the evidence. The Sheriff has fulfilled his function with regard to the need to consider the whole body of evidence and has given reasons based on disclosures by child D and the medical evidence. There is no ground of appeal directed to the medical evidence. The core Finding in Fact 7 with regard to baby K which was heavily criticised by counsel for the father derives clearly from the medical evidence of Dr Hammond and Dr Christopher Hobbs taken together. That finding does not depend on the Sheriff's evaluation of the hearsay evidence of child D given at joint investigative interviews. Identification of the father as the perpetrator of an assault depends on the disclosures made by child D to carers and social workers evidence which the Sheriff was entitled to accept.

96. The core findings with regard to child D are Findings 6 and 9 and as regards her father depend on D's disclosures, behaviour and the medical evidence. As I have said it is part of the Sheriff's function to weigh up the evidence of child D set in the context of the whole evidence in the case. The Sheriff has discretion as to his approach to the evidence in the case. It is part of his function with regard to the evidence that he is entitled to accept parts of child D's evidence and reject other parts depending on whether they are supported by other evidence. In this regard I reject the submission made by Ms Guinnane on behalf of the father that the Sheriff is not entitled to cherry pick the evidence of child D.

97. It was suggested on behalf of the father that the Sheriff had failed to demonstrate that he had adopted a suitably cautious approach to the reported disclosures and behaviour of child D compared with his cautious approach to the evaluation of the hearsay evidence of D emerging from the joint investigative interviews. The Sheriff discusses his approach to that evidence in chapter 11 of his note of decision. The first paragraph of section 11.1 discloses the Sheriff's approach to this chapter of evidence. Evidence of the child's disclosures is brought to the court by the social worker and carer. The Sheriff is satisfied as to the credibility and reliability of those witnesses who recounted to the court what D had said to them. The Sheriff gives full reasons as to why he accepts certain evidence and rejects others. And he concludes:

"Accordingly, taking all of these factors into account I found that I was unable to reject the child's allegations on account of her young age and felt that certain of these had to be given some weight when viewed in conjunction with other evidence, albeit that there are aspects of some allegations which I cannot regard as reliable for the reasons stated above. It is also important that I record here that I accept the clear view of Dr Hobbs and Dr Hammond both leading UK experts in the field of diagnosis of child sex abuse, that any account given by a child which is spontaneous, which details activities in which they have been involved and which contains details of acts of which they would normally have no knowledge are likely to be important indicators of sexually abusive conduct in that they are likely to be descriptive of events in which they have been involved."

Child D described behaviour on the part of the father in the bath. The language was of observed description. It did not involve anatomical or slang words for "penis" but was compellingly convincing not only to the Sheriff but those conveying the child's disclosures to the court. The Sheriff was entitled to apply common sense and logic to evaluate this piece of evidence which is crucial to the case involving baby K. It is for the Sheriff to accept or reject the interpretation of the child's word "bone" as meaning "penis". The absence of skilled evidence to aid the interpretation of children's use of language did not mean the Sheriff required to reject this disclosure evidence as meaning other than the literal meaning of the words used. Accordingly, the Sheriff did not require expert assistance to conclude that when child D spoke of her father's "bone" she was describing his penis. He was entitled to consider that evidence and choose the inference he did from the entire context and the entire evidence led. The whole evidence including that of the medical experts was available to the Sheriff to assist him interpret this disclosure.

98. In my opinion this discloses a proper and careful approach to the evidence of disclosures by a young child. The Sheriff has adopted the evidence given by the medical experts who are skilled in the field of child sexual abuse. He has weighed up the factors for and against relying on the child's disclosures and has carefully looked at the checks and balances provided by the totality of the evidence and the support provided by independent sources of evidence. Accordingly, I can see no error in the approach adopted by the Sheriff to the evidence of child D's disclosures. As regards the allegations against the father this area is, of course, crucial. Accordingly, I will refuse the appeal advanced by counsel for the father.

99. I will answer the questions of law posed in the stated case in the following manner Questions 1, 2 and 6 will be answered in the affirmative, Questions 4, 5 and 7 in the negative. Neither Mr Halley nor Ms Guinnane advanced an argument in respect of Question of Law 3 and I therefore take the view that it is unnecessary to answer that question at all. Question of Law 8 does not raise any issue of law independent of the previous seven questions of law and I therefore take the view that it is unnecessary to answer Question 8. No question of expenses arises and I will make no order as to the expenses of the appeal process.

(signed) Mhairi M Stephen