Scottish Sheriff Court Decisions

2014SCDUMF52

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES

AND GALLOWAY AT DUMFRIES

APPLICATIONS BY THE PRINCIPAL REPORTER UNDER SECTIONS 93(2) (a) and 94(2) (a) OF THE CHILDREN’S HEARINGS (SCOTLAND) ACT 2011

 

                                                                                       JUDGMENT

          of

SHERIFF GEORGE JAMIESON

                                                            In the causes

 

                                    THE PRINCIPAL REPORTER                                       APPLICANT

    Against

                                    J. P. N.                                                                       FIRST RESPONDENT

                                                                                          And

                                    C. G                                                         SECOND RESPONDENT

       For

A determination in cause B303/13 that section 67(2) (b) of the Act applies in respect of C. N. born 18 June 2013 and in cause B302/13 that section 67(2) (d) of the Act applies in respect of K. N. born 18 June 2013.       

                                          ________________________________________   

 

 

B 303/13

 

DUMFRIES:                                                          24 July 2014

 

Act: Miss S                             Alt: Miss P (First Respondent)

 

 

The Sheriff, having resumed consideration of the cause, Finds the ground to which the application relates is established; Directs the Principal Reporter to arrange a children’s hearing to decide whether to make a compulsory supervision order in respect of the child C. N.; and Finds no expenses due to or by any party in the cause.

 

 

 

 

Sheriff George Jamieson

 

 

 

 

 

 

B 302/13

 

DUMFRIES:                                                          24 July 2014

 

Act: Miss S                             Alt:  Miss P (First Respondent)

 

 

The Sheriff, having resumed consideration of the cause, Finds the ground to which the application relates is not established; Dismisses the application; and Finds no expenses due to or by any party in the cause.

 

 

 

 

Sheriff George Jamieson

 

 

 

 

 

 

 

B 302/13 and B 303/13

DUMFRIES:                                                          24 July 2014

 

Act:  Miss S                            Alt: Miss P (First Respondent)

 

The Sheriff, having resumed consideration of the causes,

 

Finds in fact:

 

1. On 5 November 2013 FR was given charge of CN by mother. He was alone with CN in his bedroom. He was sleeping on the bed. He left CN in her bouncy chair. He was awoken by her cry. He found her bouncy chair toppled over, with CN facing the bedroom cabinet. He rescued her from this predicament. He put her on or near the edge of the bed while he went to the bathroom to run a bath for her. While there she fell off the bed. He heard a thud and returned to the bedroom where he found CN crying and in distress.

    

2. At some point immediately thereafter FR placed CN’s face between his hands. He applied significant force in so doing. She was injured as a result of him squeezing her face.

    

3. CN has a twin sister KN.

Finds in fact and in law:

 

1. FR had charge of CN within the meaning of section 27 of the Children and Young Persons (Scotland) Act 1937. FR was over 16 years of age and CN was under 14 years of age at the time.

    

2. The statutory offence of wilful neglect contrary to section 12(1) of the Children and Young Persons (Scotland) Act 1937 was committed in respect of CN.

    

    

3. The common law offence of cruel and unnatural treatment of persons was committed in respect of CN.

    

4. The common law offence of reckless conduct which causes actual injury was committed in respect of CN.

    

5. Each of these three offences was a schedule 1 offence within the meaning of section 67(6) of the Children’s Hearings (Scotland) Act 2011.

 

 

 

Sheriff George Jamieson

NOTE TO THE FOREGOING INTERLOCUTORS:

 

This Note is in four Parts: The Applications; Causation; Determination regarding K.N; and Expenses:

 

1. THE APPLICATIONS

    

   References

    

   Legal references

    

• [1]In this Note, including its footnotes, any references to the “1937 Act” are to the Children and Young Persons (Scotland) Act 1937; any references to the “1988 Act” are to the Civil Evidence (Scotland) Act 1988; any references to the “1995 Act” are to the Criminal Procedure (Scotland) Act 1995; any references to “the 2011 Act” are to the Children’s Hearing (Scotland) Act 2011; in addition, “CCMR 1997” refers to the Child Care and Maintenance Rules 1997[1]; and Norrie refers to Norrie, Children’s Hearings in Scotland, 3^rd edition 2013.

   

   

  The Applicant, Witnesses, Relevant persons and their procurators and the children

   

• [2]I seek to protect the identity of the children in this Note; I have therefore avoided referring to any person involved in the proceedings by name; I have used initials to indicate who they are.

   

• [3]The first respondent is acknowledged as father of the children by the principal reporter. As he is not married to the second respondent, no presumption of paternity arises pater est quem nuptiae demonstrant.

   

• [4]The applicant did not produce the children’s birth certificates to demonstrate to me FR is registered as their father in a United Kingdom birth register and a presumption of paternity arose in respect of him under section 5 of the Law Reform (Parent and Child) (Scotland) Act 1986.

   

• [5]Since I have no presumptive evidence he is the children’s father[2], I have not made any finding in fact to that effect, and I do not refer to him as the children’s father, in this Note. I refer to him in this Note as “FR”, meaning first respondent^[3].
• [6]The second respondent appeared only at the first day of the proof. She did not take any active part in the proceedings on that date. She did not appear at any other stage of the proceedings. For those reasons, I make no further mention of her in this Note except to the extent she features in the narrative of the witness’s evidence or my findings in fact made in this Note. I refer to her in this Note as the children’s mother because maternity is more assured in law than paternity[4].

   

   

  Grounds in respect of which the Applicant seeks determinations

   

• [7]The Applicant seeks a determination that a schedule 1 offence has been committed in respect of CN and a determination that KN is, or is likely to become, a member of the same household as CN. This Note, while issued in respect of both causes, and being in identical terms in each, largely addresses my determination whether a schedule 1 offence has been committed in respect of CN. My determination regarding KN is in Part III of this Note.

  Summary of procedure

   

• [8]On 17 April 2014 I pronounced interlocutors in both applications conjoining proof to take place commencing on 25 April 2014^[5]. I did not find it necessary to appoint a safeguarder to the children in terms of section 31 of the 2011 Act and CCMR 1997, rule 3.7. All proceedings took place in private in accordance with CCMR 1997, rule 3.1(4).

   

• [9]Proof took place on 25 April 2014, 27 May 2014 and 17 June 2014. I heard submissions on 17 June 2014. On 18 June 2014 I directed parties to make further submissions on the law of causation with reference to the four reported cases referred to in my interlocutors of that date. I heard these further submissions on 17 July 2014. I adjourned that hearing until today to allow me an opportunity to consider the evidence and the submissions in the causes before concluding the hearing and to enable me then to pronounce an oral judgment in each cause pursuant to CCMR 1997, rule 3.51 (1).

   

• [10]CCMR 1997, rule 3.51 (4) allowed me also, when giving my decision to “issue a note of the reasons for my decisions”. I have accordingly issued this Note giving my reasons for my decisions. Although the CCMR 1997 do not specify that I ought to make separate findings in fact, as in an ordinary action, I have done so to assist in the comprehension of my findings.

  Summary and discussion of the evidence

   

• [11]The Applicant led evidence from five witnesses; FR and his mother gave evidence on his behalf.

   

• [12]In addition, the Applicant lodged a large number of productions, some of which were spoken to by the Applicant’s witnesses in their evidence. The approach I have taken to consideration of the documentary evidence follows that of Lord Nimmo Smith in McTear v Imperial Tobacco 2005 2 SC 1 at 1.37:

   

  “With a few well-recognised exceptions, the terms of a document which has been lodged as a production are not evidence. There are procedures, such as the joint minutes and notices to admit which have been used in this case, under which the terms of a document may be agreed to be accurate, and in such an event it is not necessary for it to be put to any witness. Otherwise, evidence is required to establish its terms. I do not regard it as being open to me to take account of any passage in any document, the terms of which were not agreed, and to which reference was not made in the course of the evidence of any witness. This is because of the fundamental rule that I must decide the case on the basis of the evidence led before me, leaving aside any other considerations”.

   

• [13]I refer to the first witness in the causes as PM. PM is a very experienced paramedic. He adopted his witness statement at pages 57-63 of the bundle. He was on duty on 5 November 2013 with his colleague. They responded to FR’s 999 call for assistance.

   

• [14]He said he thought FR’s account of the accident “strange”. Based on his own experience of being a parent, he stated that babies of CN’s age “didn’t do much but lie on their backs; they were not able to roll over”.

   

• [15]He could not remember FR saying anything to him about a broken bouncy chair; he did however observe both bouncy chairs and could not remember damage to either of them.

   

• [16]He examined CN and observed linear marks on the side of her face. The injuries appeared to him to be more traumatic than a simple fall on a carpeted floor. He coded the emergency call as non-accidental injury (see p4 of the bundle). He signed the medical record at page 11 of the bundle recording his suspicion of non-accidental injury. He said he had never seen a child with such injuries in the previous twenty years.

   

• [17]He described FR as not being concerned with FR, but more concerned about “getting his story across “and “making sure it was drilled into us”.
• [18]In cross-examination, he said FR’s story “didn’t match”. He acknowledged however FR’s account matched the transcript of the emergency call (pages 1-3 of the bundle). He said he “definitely” did not see the broken bouncy chair.

   

• [19]The second witness was EMT, an emergency medical technician with 43 years’ experience. He adopted his witness statement at pages 45-53 of the bundle. He remembered the scene as a small room, with two bouncy chairs, one empty.

   

• [20]FR “kept going on about the baby rolling out of the bouncy chair”; he could not tell if those produced in the court were those he had seen at the scene. However he could not remember anything wrong with either of the bouncy chairs at the scene.

   

• [21]He looked at the book of photographs number 3 showing the flat. He asked FR to show him the bed CN fell off. He got “a feeling” something was wrong. He did not think FR’s story of CN rolling out her bouncy chair “matched”. He referred to FR “being desperate to show me the bath he had been running”. He also signed the medical record at page 11 of the bundle to record his suspicion of non-accidental injury.

   

• [22]The third witness was AEC, a medical doctor with considerable experience as an accident and emergency consultant, with “some training” in child protection. The A&E Department saw up to 7,000 children annually “with a range of injuries”.

   

• [23]He was on duty when CN was brought to hospital by PM and EMT. He adopted his witness statement at pages 68 and 69 of the bundle. He referred to the medical records at pages 5-7 of the bundle. It was noted that CN was already on the “child protection register”.

   

• [24]He said CN had “discernible pattern bruising” on her right side. He could not understand how that bruising occurred from a “simple fall”. He described her injuries from the photographs in book 2. He thought the “blunt force injury” was quite extensive, requiring “very significant force”, not a “simple fall”.

   

• [25]He explained CN had been born prematurely and although 4 and a half months at the date of the incident, “developmentally” she was 3 and a half months old. At that age, she was non-ambulant and not able to injure herself.

   

• [26]He discussed his concerns with PM and EMT and decided immediately to contact the police because of child protection concerns. He considered this an “unusual case”. He had only done that two or three times in twenty years.

   

• [27]He observed FR as “agitated” and trying to “get information across”. He was speaking loudly and it took a bit of time to get him to calm down. He contacted the social work helpline to inform them of his concerns.
• [28]In cross-examination, he considered the pattern of bruises to be “unusual”. He approached CN’s injuries with “very high suspicion” they were non-accidental. The “teachings” were that less than 1% of bruises on non-ambulant children were non-accidental.

   

• [29]He did not think it “probable” CN had fallen from her bouncy chair. He thought that if she fell from the bed, there would likely to be a single point of bruising. He considered the pattern of her bruising “highly improbable” from such a fall.

   

• [30]He viewed a video recording of CN moving on a mat; he thought she was “a normal vigorous four month old child”, but she would not be able to achieve a roll from a bed.

   

• [31]He was asked about the statistics he had mentioned. He said these came from the Royal College of Child Health, but “given the recent issues around statistical evidence”, he said had started to consider this.

   

• [32]In re-examination, he said it was improbable CN could roll and roll from the middle of the bed. He thought the bed covers would impede rather than promote that.

   

   

• [33]The fourth witness was CP, a consultant paediatrician with considerable experience, including experience of conducting joint forensic examinations. He said he had knowledge of the CORE information, a statistical database maintained by Cardiff University, and the Royal College of Paediatrics and Child Health’s Companion publication.

   

• [34]He was called out to examine CN after she had been admitted to hospital. He confirmed his record of his examination at page 18 of the bundle. He made his notes and spoke to “the parents”. Additional tests were carried out on CN to make sure there was no internal injury.

   

• [35]He carried out the joint forensic examination of CN with witness number 5. Her age “corrected” for prematurity was noted as 3 and half months’ old. The typed report appears at pages 40 – 42 of the bundle. The bruising to face is noted at page 41. There was no bruising elsewhere.

   

• [36]He concluded in the report the injuries “are not consistent with the explanation provided nor of accidental injury”; a fall from the bouncy chair did not explain the mode of injury.

   

   

• [37]He opined the injuries were “non-accidental inflicted injuries as a result of direct blunt force or impact leading to bruising of the skin and likely due to slapping/hitting mechanism caused by a hand or possibly a fist, which would have been very painful. This occurred both to the left and right side of the face and head suggesting at least 2 separate impact mechanisms”.

   

• [38]He said in his evidence he was not aware a child could roll before five months.

   

• [39]He said the injuries were highly suspicious of child abuse. The bruising around the eyes suggested some force had impacted CN’s face; the other explanation would be a blood disorder.

   

• [40]He referred to the book of photographs number 1, and gave a detailed description of her injuries as disclosed by those photographs.

   

• [41]He discounted the injuries being caused by CN falling off the bed as, in that scenario he would have expected only a single bruise, not bleeding under the skin.

   

• [42]He said he had examined the bouncy chair and could not “discharge the load”. A baby could not roll back and forward at that age. He accepted a baby could fall from a bed, but that did not explain CN’s bruising. It was “absolutely not possible” for her to roll off the bed.
• [43]He thought the likely cause of CN’s injuries might have been “a rope, a belt, a rod, a hard impact with a slap or hit, or the “crease of fingers”.

   

• [44]In cross-examination, he referred to the “linear” pattern of bruising. He accepted if placed at the edge of a bed a baby could fall from it. After viewing the video of CN on her mat, he suggested she “did not go anywhere” and she was “incapable of rolling”. He referred to “significant force” having been used.

   

• [45]In the course of his evidence he attempted to explain the photographs of CN’s injuries as consistent with a slapping impact. The linear objects were really a hit by fingers; there was no action of the palm.

   

• [46]On that theory, FR’s agent asked him to explain how the bruise to CN’s forehead shown in photographs 13 and 18 was consistent with FR slapping CN. When challenged on this, he said it was “probably a thumb”.

   

• [47]The fifth witness was FP, a forensic physician of considerable experience. He had carried out the joint forensic examination with CP. He had some knowledge of child protection issues, referring to the “Cardiff Review”.

   

• [48]He described the bruise at the top of CN’s temple between her eyes and ear, the speckling bruises above her right eye, and the bruising on the left and right hand sides of her face. As CN was not walking, she could not have fallen over and injured herself.

   

• [49]The injuries to the sides of her face could not be created without a mechanism. Two separate forces had caused this. He ruled out slapping however; it “was more of an impact than a slapping”. He said his opinion was based on two sources: clinical experience; and Cardiff Child Protection information.

   

• [50]He thought if CN had fallen off the bed she would have got “an egg on the head” or laceration; it would only be one injury. If she had fallen out of the baby bouncer she would not have “directly” bashed her head. She had not reached her developmental milestones so as to have been able to roll off the bed. Her injuries would have been “very painful” for her.

   

• [51]He said the impact had to have been “significant” to have caused the bruising. He was thinking: “both hands holding the head and squeezing hard”. However he could not say “for definite”. There was “no pattern to it, just a collection of bruises”. If she had been slapped, he would have expected more bruising.

   

   

• [52]He referred to the Child Protection Companion, page 300, on abusive bruising (paragraphs 9.3.6 and 9.3.7) and concluded the most likely explanation for CN’s bruising was they had been inflicted on her. There was however “no imprint of a hand”.

   

• [53]He believed “beyond reasonable doubt” these were inflicted injuries. A fist or a hand might have been a possible explanation, but not a fall from the bed or bouncy chair.

   

• [54]I asked FP to say if he could explain a possible mechanism for CN’s injuries. He said the injuries were not caused by a single slap. He did not know by what, but there had been direct “blunt force”. In his opinion, a hand was involved in inflicting CN’s injuries. It was not a slap; it was more than a slap, possibly a fist.

   

• [55]FR’s initial explanation for CN’s injuries (999 call transcript) was she had had two accidents. First, she rocked herself over in her bouncy chair while he was in bed. When he woke up, her “face was in the unit”; the bottom frame of her bouncer had dislodged from her rocking. He calmed her down. He then placed her on the bed while he ran her a bath. While doing that he heard a thud and ran through to hear her screaming.

   

   

• [56]In his police statement at pages 75-84 of the bundle, he recounted how he woke up when he heard CN crying. The bouncy chair was on its side and CN against the chest of drawers. He rescued CN from this predicament. She did not look hurt to him. He placed CN on the bed, but not “right at the edge”. He went to the bathroom directly across the hall and started running a bath for her. He was there “no more than two or three minutes”. He heard a thud from his bedroom.

   

• [57]He returned to the bedroom. CN was not on the bed. She was lying on the floor between the bed and the bedside cabinet. He put her into her bouncy chair. She was “crying really hard, much worse than with the first fall”.

   

• [58]He said in his evidence that he was alone with CN in the house. CN’s mother had taken KN out with her, leaving him in charge of CN. He woke up to CN crying. The “legs” of the baby bouncer had come apart and CN had “toppled into the unit”. She was crying. He reassured her. She did not look injured.

   

• [59]He “placed her on the bed”. He went and ran her a bath. He heard a bang. He returned to the bedroom. CN was not on the bed. She was lying in “quite an awkward position”. He put her on her chair. She was crying at that point. He noticed the bruise coming out on her right side.

   

   

• [60]He said he got a “very strange vibe” off the paramedics when they arrived, as though they were questioning him and didn’t believe what had happened.He said he wouldn’t harm a hair on her head. He felt he had to explain himself because the paramedics doubted him.

   

• [61]Later in his evidence he referred to placing CN “near the edge of the bed”. His mother had told him 100s of times never to leave a child alone. She “maybe wasn’t totally straight”. He didn’t see her fall off the bed.He guessed she had rolled over; he had seen her do that; just on to her side, not totally rolling over. Without a doubt she had rolled off the bed. He had done “nothing wrong”.

   

• [62]FR was challenged in cross-examination about exactly where he had placed CN on the bed. At page 2 of the 999 transcript he said he placed her “in the middle of the bed”. In reply, he said he had placed her near the edge of the bed.

   

• [63]ER is FR’s mother. She had worked in the care sector for twenty years. She had family in the local area and frequently visited. She observed FR as a caring “hand-on father”, splitting child care 60/40 with CN’s mother. She described him as “a wonderful, caring, compassionate father who lived for his children”.

   

• [64]She was not however at the family home on 5 November 2013 to observe what happened.
• [65]I do not think it necessary to record in detail the parties’ submissions on the evidence. I have however taken these into account in my assessment of that evidence.

   

• [66]Miss P on behalf of FR invited me to believe FR’s account; she noted the discrepancy between the evidence of CP and FP and invited me to conclude this evidence could not reliably establish the cause of CN’s injuries. She invited me to take the “third alternative”[6] and find that on the balance of probability it could not be inferred a schedule 1 offence had been committed in respect of CN.

   

• [67]The applicant submitted FR’s account was not consistent with itself or with the medical evidence and should therefore be disbelieved. The applicant submitted the medical evidence established on the balance of probability “that FR inflicted trauma on CN”.

   

• [68]The applicant relied on the case of JS and PS v Authority Reporter[7], which had similarities to this case.

   

• [69]That case involved complex fracture to the four and a half month old baby’s skull, with no explanation offered capable of accounting for the occurrence of the injuries. There was absence of evidence as to the mechanism for the injuries.
• [70]I agree JS and PS v Authority Reporter establishes I do not need to find a mechanism for CN’s injuries to find the applicant’s case that a schedule 1 offence was committed in respect of CN established.

   

• [71]I also agree that it is possible in a particular case to infer real injury to a child has been caused from the medical evidence together with evidence tending to exclude any non-accidental cause for the injuries and the failure to identify any incident which might have given rise to such injuries accidentally[8], but that is not a rule of law and not necessarily applicable to CN’s case.

   

• [72]For the court has to assess the evidence in each individual case, rather than applying this dictum as a formula which always leads the court to find the commission of a schedule 1 offence has been committed in respect of a child.

   

• [73]Otherwise there are significant differences between JS and PS v Authority Reporter and this case.

   

• [74]Notably, there were no fractures, no internal damage, no internal damage caused by the impact to her eyes and thus no damage to CN beyond the bruising.

   

• [75]In addition, FR has given an account, which may or may not be credible, but I have to take that into account with all the other evidence in deciding, if I can, the probable cause of CN’s injuries.

   

• [76]I have to do that bearing in mind Miss P’s submission the appropriate course for me to take was in her submission the “third alternative” of finding the applicant had not discharged the burden of proof.

   

• [77]I note the sheriff’s Note in JS and PS v Authority Reporter was said to have been “confusingly expressed” so as to imply the sheriff had inverted the onus of proof^[9]. Lord Coulsfield did not accept that criticism and remarked the sheriff was simply stating there was no other evidence sufficient to counter the medical evidence[10].

   

• [78]I do not think this remark should be wrenched out of its context.

   

• [79]The onus of proof is on the applicant; each case depends on its own facts and circumstances; the weight to be attached to FR’s evidence and its consistency or otherwise with the medical evidence is part of the overall exercise entrusted to me of deciding whether the applicant has discharged the onus of proof that a schedule 1 offence has been committed in respect of CN.

   

• [80]I of course approach this case as one to which the provisions of 1988 Act apply; though I am concerned with proof of whether an offence was committed in respect of CN, there is no requirement for corroboration[11]; hearsay evidence is admissible[12], and the standard of proof is the civil standard, not the criminal standard[13].

   

• [81]There is a difference between proof of a fact and proof of a probability[14], so I intend in this part of my Note to explain what primary, or evidential, facts I have found to be established in this case; my assessment of causation, drawing upon those evidential facts will be carried out later, in Part II of this Note.

   

• [82]First of all I note AEC, CP and FP referred somewhat obliquely to statistical information on child abuse in the course of their evidence. I accept, though they are not epidemiologists or statisticians, they can competently refer to such sources of information if it informs them in the formation of their opinions as to causation. Responsibility remains with the court to assess the whole evidence to determine if the applicant has discharged the onus of proof[15].
• [83]The “Update to the Child Protection Companion, paragraph 9.3.7 at page 300 of the bundle lists bruising that might be regarded as abusive, such as bruising or petechiae, not caused by a medical condition such as a coagulation disorder, bruising in children who are not independently mobile and multiple bruising or bruises in clusters.

   

• [84]Paragraph 9.3.7 states that

   

  “Infants who have yet to acquire independent mobility (rolling/crawling) should not have bruises without a clear explanation.”

   

• [85]I think it is important to make a distinction between clinical and social work practice, “which is to assess and manage risk, in planning for the child and deciding what action to initiate, and the task of the court in deciding where the truth lies and what the consequences should be”[16].

   

• [86]Of course it is a matter of concern to professional persons such as paramedics and doctors when non-ambulant infants present with bruising of this sort. Guidance such as this ought to properly guide them in their responsibilities of caring for the child and deciding what should be done to care for her.

   

• [87]However when it comes to causation, the court is attempting to establish what happened. That decision is not based on suspicion or, potentially, the risk of reversing the onus of proof. It is not for FR to prove and give a “clear” of explanation of what happened, though his failure to do so might be a component in the court’s decision on causation.

   

• [88]I am somewhat concerned that the opinions of CP, and to a lesser extent FP, were coloured by this guidance. Their responsibility is to assist the court in evaluating the evidence, not to form opinions as to “probability” or whether something is established “beyond reasonable doubt “(which is apt to mislead in cases such as this, the standard of proof being on the balance of the probabilities).

   

• [89]I think there a certain danger from the forensic point of view in concluding from type of bruising alone, that there has been “abuse”. Such evidence is helpful to the court in its task of weighing the evidence, but not determinative of the question. I shall therefore approach this evidence from this perspective.

   

• [90]I come now to the statistical references. As AEC hinted at in his cross-examination, there may be problems with statistical evidence of this sort. These problems were not however identified and I was not referred to the primary evidence; I can therefore make no assessment of how helpful or reliable is this evidence.

   

• [91]Indeed, I think I must exclude this evidence from my consideration; it would be dangerous and misleading to rely upon it to any extent in this case.
• [92]This is because when the court approaches the analysis of epidemiological or statistical evidence, it must bear in mind the distinction between statistical association and causation^[17]. The fundamental rule is association is not equivalent to cau­sation. An association identified in an epidemiologic or statistical study does not necessarily mean that there is a cause–effect relationship[18].

   

• [93]Thus where there is epidemiological or statistical evidence, it may form an important element in proof of individual causation, but unless a special rule applies the court should not proceed to find a causal relationship without further, non-statistical evidence. By its very nature statistical evidence does not deal with the individual case. Something more is therefore required before the court will be able to reach a conclusion, on the balance of probability, as to what happened in that case[19]. As I lacked that additional evidence, I do not think it has any probative value when later in this Note I come to assess the probabilities in relation to causation of CN’s injuries.

   

• [94]I now consider the credibility and reliability of each witness. None has any special status, or entitlement to be believed or disbelieved on account of their qualifications or profession, or lack of them. All witnesses are to be treated equally.

   

• [95]I was satisfied PM and EMT were truthful witnesses; in the event there was no material difference between their evidence and that of FR or AEC. I am satisfied I can take their evidence into account in determining causation in this case. I shall consider their evidence in Part II of this Note, dealing with causation.

   

• [96]I was satisfied AEC was a truthful witness. I found him to be an impressive witness in court. He did not exaggerate or seek to hold to his opinions at all cost; he voluntarily conceded the statistical evidence might have problems, even if these were unidentified, in a forensic context. I take into account his considerable experience and am satisfied his opinion evidence should be taken into account in guiding the court in making its findings in fact.

   

• [97]I was not satisfied CP was a wholly truthful or reliable witness. I do not exclude his evidence entirely for I think I can safely rely on information within his expertise, particularly where it coincides with that of other witnesses.

   

• [98]The reason for this is that while the joint investigative report at page 42 of the bundle refers to a slapping/hitting mechanism, CP sought definitively to persuade me FR slapped CN, by going into this in great and confident detail with reference to the photographs of CN’s injuries.
• [99]I initially found this plausible, until he was cross-examined by Miss P who brought out the inconsistency of that theory with the bruise to CN’s temple. And, decisively for my assessment of CP’s reliability as a witness, FP specifically ruled out slapping in a most definitive manner.

   

• [100]Sadly, I can only conclude CP’s evidence on this point was not the sort to be expected from an expert witness. Further, I was not impressed with his suggestions that items such as a rope or rod might alternatively have been used. There was no evidence such items had been found at the locus.

   

• [101]Finally on this point, I thought his opinion was undermined by his over reliance on the Child Protection Guidance. I have already explained why the court cannot regard that as definitive. It seemed to me an important part of CP’s reasoning. I could not be satisfied he had independently applied his mind to the question of causation.

   

• [102]I do not however exclude all of his evidence. As I have said, there are parts of his evidence within his expertise and which are confirmed by other witnesses. I therefore rely on those parts of his evidence, while rejecting the rest.

   

• [103]I found FP to be a truthful and reliable witness. He had specific forensic training and was willing to be cautious in his approach to causation. He honestly explained why CN could not have been slapped. This showed an independence of mind. I was satisfied his evidence could be taken into account by the court in determining the primary facts.
• [104]I was unable to find FR had been a completely honest witness. I do not place much weight on the apparent contradiction in his evidence as to where he placed CN on the bed- at or near the edge, or in the middle of the bed. He is likely to have been excited and anxious when making the emergency call and some discrepancy might be expected. Moreover, I accept Miss P’s submission FR’s evidence as to what happened to CN was more consistent with itself than not. I detect no material difference between his initial account to the emergency service, his police statement and his evidence under oath.

   

• [105]However, such consistency is one thing; I consider his account is inconsistent with the medical evidence and for that reason cannot be the true reason for CN’s injuries. As will be seen when I discuss causation, I believe he told the truth up to a point. I do not believe his account assists with causation, and to that extent he has omitted to tell the whole truth to the court.

   

• [106]Because I reject FR’s evidence as to causation that does not mean the opposite is true and an irresistible inference can be drawn the he committed a schedule 1 offence in respect of CN. The onus of proof remains on the applicant. That issue requires more detailed analysis of the evidence and I carry that analysis out in Part II of this Note.

   

• [107]But I think it is appropriate to review the medical evidence at this juncture in order to explain this inconsistency in FR’s evidence.

   

• [108]First of all, a caveat.
• [109]It has been noted elsewhere that lawyers and doctors may have different understandings of common language. For there are words commonly used in both disciplines, but with different meanings; for example force, as it is used by lawyers:

   

  “Has connotations of vio­lence and the domination of one person’s will over another, when used in phrases such as “excessive use of force” and “forced entry.” In science, force is something that when applied to a body, causes its speed and direction of motion to change. Also, all forces arise from a few fundamental forces, most notably gravity and the electric force. The word carries no other baggage”[20].

   

• [110]So I shall be careful to understand the doctors’ use of language, which might at first blush mislead the court, in assessing what their evidence means. The key word here must in my opinion be “force” and I shall refer to that in my discussion of causation.

   

• [111]AEC said CN had “discernible pattern bruising” on her right side. He could not understand how that bruising occurred from a “simple fall”. He described her injuries from the photographs in book 2. He thought the “blunt force injury” was quite extensive, requiring “very significant force”, not a “simple fall”.

   

• [112]He explained CN had been born prematurely and although 4 and a half months at the date of the incident, “developmentally” she was 3 and a half months old. At that age, she was non-ambulant and not able to injure herself.

   

• [113]He did not think it “probable” CN had fallen from her bouncy chair. He thought that if she fell from the bed, there would likely to be a single point of bruising. He considered the pattern of her bruising “highly improbable” from such a fall.

   

• [114]He viewed a video recording of CN moving on a mat; he thought she was “a normal vigorous four month old child”, but she would not be able to achieve a roll from a bed.

   

• [115]In re-examination, he said it was improbable CN could roll and roll from the middle of the bed. He thought the bed covers would impede rather than promote that.

   

• [116]I accept the following parts of CP’s evidence as reliable in assessing what may have happened to CN.

   

• [117]He said in his evidence he was not aware a child could roll before five months.

   

• [118]He discounted the injuries being caused by CN falling off the bed as, in that scenario he would have expected only a single bruise, not bleeding under the skin.
• [119]A baby could not roll back and forward at that age. He accepted a baby could fall from a bed, but that did not explain CN’s bruising.

   

• [120]In cross-examination, he accepted if placed at the edge of a bed a baby could fall from it. He referred to “significant force” having been used.

   

• [121]I have accepted FP as a credible witness. Nonetheless I approach his evidence with a degree of caution, as his opinions were in part based on the statistical information which I have rejected and the child protection information previously discussed, but in respect of which I consider that some but not decisive weight should be attached.

   

• [122]He described the bruise at the top of CN’s temple between her eyes and ear, the speckling bruises above her right eye, and the bruising on the left and right hand sides of her face. As CN was not walking, she could not have fallen over and injured herself.

   

• [123]He thought if CN had fallen off the bed she would have got “an egg on the head” or laceration; it would only be one injury. If she had fallen out of the baby bouncer she would not have “directly” bashed her head. She had not reached her developmental milestones so as to have been able to roll off the bed. Her injuries would have been “very painful” for her.

   

• [124]He said the impact had to be “significant” to have caused the bruising. He was thinking: “both hands holding the head and squeezing hard”. However he could not say “for definite”. There was “no pattern to it, just a collection of bruises”. If she had been slapped, he would have expected more bruising.

   

• [125]He believed these were inflicted injuries. A fist or a hand might have been a possible explanation, but not a fall from the bed or bouncy chair.

   

• [126]I asked FP to say if he could explain a possible mechanism for CN’s injuries. He said the injuries were not caused by a single slap. He did not know by what, but there had been direct “blunt force” In his opinion, a hand was involved in inflicting CN’s injuries. It was not a slap; it was more than a slap, possibly a fist.

   

• [127]I draw the following conclusions from this evidence: CN was at an age where she could not roll from the middle of the bed; neither falling from the bed nor the bouncy chair would account for all her injuries, in particular those to each side of her face.

   

• [128]However, if placed at or near the edge of the bed, she might roll or fall off it. She could not self -inflict these injuries. She could not have been injured as a result of falling over as she could not walk.

   

• [129]The injuries to her face were as the result of a blunt object impacting with her face, but not slapping. The degree of force required to cause these injuries was either “very significant” (AEC), or “significant” (CP and FP). Her injuries would have been very painful for her.

   

  1. CAUSATION

      

     Scope of this Part

      

• [130]Broadly speaking, this part of my Note is about causation. In other words, how did CN get her injuries?

   

• [131]To answer that question, I have found it necessary to discuss in some detail in this part of my Note the applicant’s motion to amend the statement of supporting facts appended to the applications, and also some legal issues arising from my consideration of the evidence in the causes and the parties’ submissions thereon.

   

• [132]I have taken into account the parties’ submissions on the evidence in the causes, the statutory and case law applicable to these applications, and the additional case law to which I referred them, including the applicant’s written submissions lodged on 17 June 2014 and 17 July 2014. I have not thought it necessary however to repeat these submissions ad longum in this Note.

  Proposed Amendments

   

• [133]An application to the court under section 93(2)(a) or 94(2)(a) of the 2011 Act is made in Form 60 of the CCMR 1997[21], paragraph 4 of which states:-

   

  “A copy of the statement of grounds by the Principal Reporter setting out the section 67 grounds of referral of the case of the child to the children’s hearing is attached”.

   

• [134]Previously, the court’s power to allow amendment of the grounds was limited: once the grounds had been put to the child and any relevant persons, they could not thereafter be amended either by the reporter or by the sheriff[22]. The rule is now that the sheriff may at any time, on application of any party or on his own motion, allow amendment of any statement of grounds[23]. This suggests that the sheriff may allow amendment of either the ground itself or of the supporting facts[24].

   

• [135]On 17 June 2014 the Applicant moved to amend the applications.

   

• [136]It was proposed to delete in both of them the supporting Statement of Fact 8 that CN had been the victim of an offence of assault, being an offence involving bodily injury to a child under the age of 17[25] as specified in paragraph 3 of schedule 1 to the 1995 Act; or that either FR or the mother had committed an offence contrary to section 12 of the 1937 Act as specified in paragraph 2 of schedule 1 to the 1995 Act; and to substitute for these deleted pleadings new supporting Statements of Fact 8 in each application referring to the offence of assault by injury to CN by FR, an offence under schedule 1 to the 1995 Act; alternatively “the offence of wilful ill treatment of CN by FR in a manner likely to have caused her unnecessary suffering or injury to health”, an offence contrary to section 12 of the 1937 Act specified in paragraph 2 of schedule 1 to the 1995 Act.

   

• [137]I understood the purposes of these proposed changes to be fourfold in nature. The first two of the proposed changes related to the offence of assault: first, it would be specified that an offence of assault had been committed by FR, whereas the current version does not state who may have assaulted CN; secondly, the current statement of facts does not specify in relation to the assault the aggravation “to injury” and the amended ground would.

   

• [138]The third and fourth of the proposed changes related to the alternative of the offence under section 12 of the 1937 Act: third, reference to the alternative offence under section 12 of the 1937 Act was to be restricted to commission of the offence by FR, whereas the current version suggests either FR or the mother may have committed this offence; and fourthly, the proposed amendment would restrict the section 12 offence to the offence of wilful ill treatment, and exclude any consideration by the court of any other offence under section 12.

   

• [139]The proposed amendments were said to reflect the evidence that had been heard in the causes. This seemed to me to be by way of analogy with summary criminal procedure where at the conclusion of the evidence the prosecutor moves to amend the complaint to reflect the evidence heard.

   

• [140]This did not seem to me to be appropriate in these proceedings.

   

• [141]Unlike criminal proceedings, there is no requirement in these proceedings that the perpetrator of the offence be identified; it is sufficient that the elements of a crime be shown to have existed and that the child was a victim of the crime[26].

   

• [142]I refused to allow these amendments for the following reasons:

   

  1. Pleadings should be accurate;
  2. In statutory applications such as these, they should accurately mirror the section 67 ground or grounds to be determined by the sheriff;
  3. So far as CN was concerned that ground was section 67(2)(b);
  4. In terms thereof, it sufficed in my opinion for the applicant to state in the statement of supporting facts: “a schedule 1 offence has been committed in respect of CN”;
  5. If further specification was necessary, then the original supporting Statement of Fact 8 sufficiently supplied that specification by mirroring the statutory language used in ground 67(2)(b);
  6. It did so by referring to an “offence involving bodily injury to a child under the age of 17” in terms of paragraph 3 of schedule 1 to the 1995 Act or “an offence under section 12 of the 1937 Act” in terms of paragraph 2 of schedule 1 to the 1995 Act;
  7. Greater specification than that was unnecessary;
  8. From the perspective of pleadings, it potentially limited the court’s options as to the findings it could make, if the view be taken that a finding in fact must be based on evidence led in support of the applicant’s pleadings;
  9. Principally, on that view, the court would be prevented from considering the “alternative” branch of the section 12 offence as discussed below;
  10. However, there is a specific rule relating to that point.
  11. Where in a statement of grounds it is alleged an offence has been committed by or against any child, the sheriff may determine that any other offence established by the facts has been committed[27].
  12. It was therefore unnecessary to specify specific offences;
  13. The important thing to plead was the facts from which any relevant schedule 1 offence committed against CN might be inferred, whatever that offence might be;
  14. It was unnecessary to plead that FR may have assaulted CN for the reasons given in paragraph [141] of this Note;
  15. Sufficient notice had in any event been given in the preceding Statements of Fact to infer this;
  16. It was unnecessary to remove the reference to the mother in the reference to the alternative section 12 offence, because;
  17. These were pleadings, not evidence or findings in fact;
  18. The court would simply ignore reference to the mother in the pleadings in making its findings in fact as the evidence did not allow it to make such a finding in respect of her;
  19. It was unnecessary to refer to an assault to injury;
  20. The absence of reference to the aggravation would not prevent the court from finding injury;
  21. Although it is difficult to conceive of the court not finding the aggravation established if it found an assault proved, such amendment limited the court’s options;
  22. It was being invited to find the ground established only if the aggravation was established and not if it found a non-aggravated assault.

       

• [143]In summary, applicants in such cases should not seek to anticipate the court’s findings in fact, or seek to limit the court’s options by restricting its potential findings in fact to narrowly circumscribed scenarios.

   

• [144]As things stand, the Applicant’s pleadings, read strictly, limit the court in its findings in relation to the “other” offence involving bodily injury to a child under the age of 17 years in terms of paragraph 3 of schedule 1 to the 1995 Act to a finding of “assault” rather allowing the court the option of considering assault or culpable and reckless conduct or some other offence that might “involve bodily injury” to CN (who is a child under the age of 17 years).

   

   

• [145]That result does not however follow because of the rule that where in a statement of grounds it is alleged an offence has been committed by or against any child, the sheriff may determine that any other offence established by the facts has been committed^[28].
• [146]Further, in applications which have as their object the protection of children from harm, it is in my opinion enough for an applicant relying on the section 67(2)(b) ground to refer in the supporting Statement of Facts either:

   

  • ·only to a schedule 1 offence having been committed against the child; or
  • to focus that further in the pleadings by referring to the description of the offence using the statutory language employed in schedule 1 to the 1995 Act and its paragraph number as contained in that schedule, as done in the original pleadings (which the exception of further refining of paragraph 3 to restrict it to assault).

     

• [147]As I did not consider it wise for the court’s options potentially to be further circumscribed by the proposed amendments in the findings in fact it could make, I accordingly refused to allow them to be made.

   

• [148]None of this means I think restrictive pleadings should necessarily limit what the court may find in fact in cases such as these; that might stand in the way of making a determination that was necessary for the court to make in the best interests of the child.

   

• [149]There is however an important proviso to all of this. That is that the court cannot determine the existence of a section 67 ground not specified in the application.

   

• [150]While the court can ex proprio motu propose an amendment of the grounds or of the supporting facts[29], it is thought that it should be “careful” in exercising those powers:

   

  “to ensure that the grounds found established do not depart so substantially from the statement of grounds (including the factual background) that was originally put to the child and relevant persons at the grounds hearing that in effect a case has been found against them that they were not asked to answer”[30].

   

• [151]Applicants should not seek to amend their pleadings in this restrictive way. It is unnecessary. The court should be trusted to get on with its job and not be asked to give consideration to abstract pleadings issues.

   

• [152]That is especially so where, as in this case, FR’s agent did not suggest the applicant’s pleadings were not up to the job; the applicant should have left this issue alone.

   

  Onus and Standard of Proof

   

• [153]The onus is on the applicant to prove causation[31].

   

• [154]The applicant has to satisfy me, on the balance of probabilities, and on the basis of the evidence led before me and the applicable law, that a schedule 1 offence has been committed in respect of CN^[32]; proof on the balance of probabilities applies to this section 67 ground, notwithstanding the court is concerned with proof of commission of an offence[33].

   

• [155]Proof of primary facts on the balance of probabilities means that in the application in respect of CN, the court is persuaded by the evidence led before it that it is more likely than not that a schedule 1 offence has been committed in respect of CN[34].

  Primary and secondary facts

   

• [156]The applicant referred me to the case of In Re B (Children)[35] and gave me a copy to read and consider in determining whether the applicant had proved that a schedule 1 offence has been committed in respect of CN. While this case gives a useful explanation of what is meant by proof on the balance of probabilities, which I have adopted in this Note, and while it is of assistance in understanding the distinction between primary and secondary facts, I think it is otherwise not a helpful case in the Scottish context.

   

• [157]Care proceedings in England and Wales as is clear from In Re B (Children) are based on a very different set of bases and assumptions than Scottish proceedings before the children’s hearing and on application on referral therefrom to the sheriff to determine the section 67 ground where it is disputed or not understood at the grounds hearing before the children’s hearing.

   

• [158]Section 31 (2) of the Children Act 1989 provides that a court in England and Wales may only make a care order if satisfied inter alia “that the child concerned is suffering or likely to suffer, significant harm”. The “likelihood” of a child suffering significant harm in the future “requires any facts used as the basis of a prediction” that a child is likely to suffer significant harm “to be proved to have happened”[36].
• [159]The contrast between this provision and section 67 of the 2011 Act is in my opinion both significant and important. Section 31(2) of the Children Act 1989 involves the court, first in making primary findings of fact (as they are termed in England and Wales) and then, having done so, secondly, using those findings of fact to establish a secondary, predictive fact, namely whether, based on those primary findings of fact, is it likely the child will suffer significant harm in the future.

   

• [160]In the application in respect of CN however I am required only to make a single, primary, finding in fact: has a schedule 1 offence been committed in respect of CN? I am not required to proceed to make a secondary finding in fact, as in care proceedings in England and Wales under section 31 of the Children Act 1989, such as there is a likelihood of CN suffering significant harm in the future[37]. The applicant, upon whom the onus of proof lies, may however discharge the onus of proving whether a schedule 1 offence has been committed in respect of CN “by direct testimony or by proving facts and circumstances from which an inference in his favour may be drawn”[38].

  Inherent Probabilities

   

• [161]The case of In Re B (Children) to which I was referred by the applicant also discusses the concept of “inherent probabilities” in the context of making findings of fact in care proceedings in England and Wales[39]. This concept features and was relied upon by the applicant in the applicant’s written submissions. It also features to some extent in a Scottish case to which the applicant also referred me[40].
• [162]I have read both of these cases in detail to determine if this line of authority is of any real help to me in deciding the single primary fact in the application in respect of CN, namely whether a schedule 1 offence has been committed in respect of her.

   

• [163]The line of English authority referred to in the speeches in In Re B (Children) includes reference to a brocard that “the more serious the allegation the less likely it is that the event occurred and hence, the stronger should be the evidence that the allegation is established on the balance of probability”, such as “deliberate physical injury is usually less likely than accidental physical injury”[41].

   

• [164]According to Lord Hoffman, this did not lay down any rule of law. There was only one rule of law, namely that the occurrence of the fact in question must be proved to have been more probable than not:

   

  “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 swiftly be dispelled by other compelling evidence”[42].

• [165]Lady Hale referred to a court’s task in making findings of fact as “being guided by many things, including the inherent probabilities”[43]; she stated:

   

  “The standard of proof in finding the facts necessary to establish the threshold under section 31(2) of the Children Act 1989 is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”[44].

   

• [166]I respectfully do not find the concept of “inherent probability” that ”most parents do not abuse their children” of any real help in the Scottish context, where the court’s task is to make a primary finding in fact such that a schedule 1 offence has been committed in respect of a particular child. It does not, as in care proceedings in England and Wales go on to assess the likelihood of significant harm in the future, after finding a schedule 1 offence has been committed in respect of any particular child.

   

• [167]I can understand that at the second stage of predictive fact finding that applies in care proceedings in England and Wales, it may be useful to start from an assumption that “most parents do not abuse their children” and to determine whether it is swiftly or otherwise dispelled by other compelling evidence.

   

• [168]But I see no need for it in the Scottish context.

   

• [169]I think if such an assumption were applied in Scotland, it would only be apt to lead to confusion in the law, as happened in England and Wales prior to In Re B (Children) and give rise to the risk of sheriffs making errors in assessing primary facts in applications under sections 93 (2) (a) and 94 (2) (a) of the 2011 Act[45]. It doesn’t seem to me, on reading no more than In Re B (Children), and being unaware of any subsequent developments in England and Wales, that even that case removed all confusion from this area of the law.

   

• [170]Deliberate parental child abuse, whether physical or sexual in nature, may be statistically rare, but is nonetheless sufficiently common not in my humble opinion to be characterised as “inherently improbable”.

   

• [171]Rather than the court making starting point assumptions about inherent probabilities that beg the question to be determined in referral applications, it should confine itself to the task of considering and weighing the evidence led in the proof and make such inferences that can “naturally and reasonably” be drawn from it.

   

• [172]Such inferences need not be irresistible, but must be more consistent with one view than the other. If more than one inference may be drawn from proved facts, weighing them together, that which is the more probable will prevail[46]. This allows for the possibility causation may not be proved for if an inference pointing one way is equally consistent with one pointing the other the matter is left in even scales and he on whom lies the onus of proof fails^[47].

   

• [173]In England and Wales, the judge must reach such a conclusion only exceptionally[48].

   

• [174]I am unaware of any similar rule in Scots law[49], but I agree with Lady Hale in In Re B (Children) that in most cases “the judge is able to make up his mind where the truth lies without needing to rely on the burden of proof[50].

   

  Sherlock Holmes

   

• [175]The courts in the United Kingdom generally decline to follow as a rule Sherlock Holmes’ opinion that- “when you have eliminated the impossible, whatever remains, however improbable, must be the truth”[51].

   

• [176]There are three reasons usually given for this:

   

  1. The judge is not bound always to make a finding one way or another with regard to the facts averred by the parties as he has open to him the “third alternative” of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden;
  2. The dictum can apply only when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated; and
  3. It does not accord with common sense to say in relation to proof on the balance of probabilities that the cause was an occurrence “however improbable”[52].
• [177]This reasoning was examined by Lord Justice Clerk Carloway in McGlinchey v General Motors UK Ltd[53] :

   

  [33] This, not for the first time, requires the court to consider whether it is appropriate to use the logic, attributed by Sir Arthur Conan Doyle to his fictional detective Sherlock Holmes in, for example, the Sign of Four, that once the impossible has been eliminated, “whatever remains, however improbable, must be the truth”.  This logic is sound as stated, but it is only applicable if all possibilities are known and hence capable of elimination.  In real situations, closed systems of possible cause do not always exist.

   

  [34] The difficulty about a court of law applying the detective’s analysis was thoroughly examined in England in The Popi M [1985] 1 WLR 948.

   

  [35] Lord Brandon’s reasoning was explored in Ide v ATB Sales [2008] PIQR P13 in which Thomas LJ referred to the circumstances of The Popi M (supra) as being very unusual.

   

  [36] This is all somewhat convoluted but no doubt the general sense is clear.  The dictum proposes that an improbable cause cannot, on a balance of probability, be the cause!  However, Holmes’ thinking should not be discounted entirely.  What might, at first sight, be improbable or implausible may become increasingly more probable as and when alternative causes are eliminated.   In a case such as the present, involving a very simple road traffic accident, it can only be regarded as at least unfortunate that the case required to be decided on onus of proof.  This is an echo of Lord Brandon’s comment that judges do not like to decide cases purely on onus of proof.  As Lord Reid stressed, in McWilliams v Sir William Arrol & Co 1962 SC (HL) 70 (at 83):

   

  “In the end when all the evidence has been brought out, it rarely matters where the onus originally lay: the question is which way the balance of probability has come to rest”.

   

• [178]I shall later in this Note consider whether Holmes’ dictum can have any application in assisting the court answer the principal question for determination by the court in these causes, namely- whether the applicant has proved on the balance of probabilities a schedule 1 offence has been committed in respect of CN.

   

   

   

   “A Schedule 1 Offence”

   

• [179]The schedule 1 offences identified in the applications were those specified in paragraphs 3 and 2 of schedule to the 1995 Act. The supporting Statement of Facts 8 in each application does not exactly quote from these paragraphs of schedule 1 to the 1995 Act.

   

• [180]Paragraph 2 refers to – “Any offence under section 12 of the 1937 Act”[54]; and paragraph 3 refers to-“Any other offence involving bodily injury to a child under the age of 17 years”. I emphasise the word “other” in paragraph 3.

   

• [181]I assume that it appeared to the applicant that assault is more serious than an offence under section 12 of the 1937 Act, leading the applicant to put assault first in Statements of Fact 8 and a section 12 offence as an alternative thereto. But this inversion of the paragraph numbers, putting 3 first and 2 second, results in omission of the word “other” in relation to paragraph 3 and in my opinion actually leads to a misunderstanding of the concept of “a schedule 1 offence”, at least insofar as the schedule 1 offence is one “involving bodily injury to a child under the age of 17 years”.
• [182]The omitted word “other” is an important word. Paragraphs 2 and 3 should be read continuously. When they are they deal with a range of offences of the genus “involving bodily injury to a child under the age of 17 years”, of which it might be inferred on offence under section 12 of the 1937 Act is but one example.

   

• [183]I therefore deal with these paragraphs in the order they appear in schedule 1 to the 1995 Act, rather than the order employed in Statement of Fact 8 in each application.

   

• [184]So far as other offences involving bodily injury to a child under the age of 17 years are concerned which the facts might establish to have been committed in respect of CN^[55], I have attempted to apply the law as discussed in Gordon, Criminal Law^[56], in assisting my understanding of the essential elements of these offences[57].

   

   

   

   

  Section 12 of the 1937 Act

   

• [185]Section 12 (1) of the 1937 Act so far as relevant to the present cases provides[58]:

   

  “If any person who has attained the age of sixteen years and who has parental responsibilities in relation to a child or to a young person under that age or has charge or care of a child or such a young person, wilfully ill-treats [or] neglects [the child] in a manner likely to cause him unnecessary suffering or injury to health, that person shall be guilty of an offence”.

   

• [186]I make a number of comments about section 12 (1) of the 1937 Act:

   

  • First, “child” is defined as a person under the age of fourteen years[59].

     

  • Secondly, the person who commits an offence under this section must have attained the age of sixteen years.

     

  • Thirdly, the person who commits an offence under this section must either have parental responsibilities in relation to the child, or, at the time of the offence, had charge or care of the child.

     

  • Fourthly, an offence is committed if that person either, inter alia, wilfully ill-treats or wilfully neglects the child[60].

     

  • Fifthly, the wilful ill-treatment or neglect must be in a manner likely to cause the child unnecessary suffering or injury to health.

     

    Assault

     

• [188]Stellionate means deceit and was the name given to any crime involving dishonesty or real injury not covered by any recognised nominate crime[62].

   

• [189]An example of the crime is deceitfully intoxicating another to render him powerless, and then torturing him. Some form of deceit is essential to the crime^[63].

   

• [190]The term is no longer in use “but it is still the case that a charge of causing physical injury by any means is relevant”[64].

   

  Cruel and unnatural treatment of persons

   

• [191]Any form of cruel and unnatural treatment of persons, such as confining a person in a narrow closet for a long time, confining a child in an outhouse in winter, or throwing a child from a train though no actual injury ensue, is criminal[65].

   

• [192]The crime may be committed intentionally or recklessly, but not negligently[66].

   

   

  Culpable and wilful neglect and bad treatment of a child of tender years, whereby the child is injured in its health

   

• [193]This is a common law crime of intent[67]. It is replicated by the “wilful ill treatment” offence under section 12 of the 1937 Act[68].

   

  Reckless conduct which causes actual injury

   

• [194]Reckless conduct which causes actual injury is a crime at common law[69]. It appears “recklessness” requires gross negligence or “criminal indifference” to the consequences[70]. A “high degree” of culpability is required; there must be an “utter disregard” of the consequences; “simple negligence, or carelessness” will not suffice[71].

   

  Drawing it all together: has a schedule 1 offence been committed in respect of CN?

   

• [195]I start with section 12(1) of the 1937 Act and then go on to consider other offences involving bodily injury, with particular reference to their mens rea.

   

• [196]Firstly, has an offence been committed under section 12(1) of the 1937 Act in respect of CN?

   

• [197]To establish such an offence in respect of CN, the applicant has to prove all five elements of the offence under section 12 of the 1937 Act, discussed previously in this Note.

   

• [198]That includes leading evidence, where relevant, of the person who is alleged to have committed the offence, if known to the applicant, having parental responsibilities in relation to the child. In this case, there was no evidence led by the applicant to allow the court to find FR had parental responsibilities in respect of CN^[72].

   

• [199]However, the evidence does establish FR had “charge” of CN at the relevant time as mother (who qua mother had parental responsibility) had gone out with KN, leaving FR in sole charge of CN[73]; and also that FR had attained the age of sixteen years and CN was under the age of fourteen years.

   

• [200]I am therefore satisfied that the first three elements of the offence have been established.

   

• [201]As to the other two elements of an offence under section 12(1) of the 1937 Act, it (a) must be committed wilfully; i.e deliberately and intentionally, not by accident or inadvertence; and (b) the ill treatment or neglect must have been “in a manner likely to cause unnecessary suffering or injury to health”[74].

   

• [202]The test under head (b) is an objective one[75]. The likelihood referred to under head (b) means a “real or substantial risk that it may occur”, which risk need not be more probable than not, but which should be more than a bare possibility[76]. “Neglect” in the context of “wilful neglect” has been variously described in the authorities as “the want of reasonable care”; or what a “reasonable parent, in all the circumstances, would regard as necessary to provide proper care and attention to the child”. The test is an objective one[77].

   

• [203]So far as wilful ill treatment of CN is concerned, the applicant must establish it more likely than not FR deliberately and intentionally inflicted the injuries on CN. So at this stage I return to the evidence I accepted as credible so far as it relates to causation. AEC said CN had “discernible pattern bruising” on her right side. He could not understand how that bruising occurred from a “simple fall”. He described her injuries from the photographs in book 2. He thought the “blunt force injury” was quite extensive, requiring “very significant force”, not a “simple fall”.

   

• [204]FP was thinking: “both hands holding the head and squeezing hard”. However he could not say “for definite”. There was “no pattern to it, just a collection of bruises”. He did not know what caused the injuries, but there had been direct “blunt force”. In his opinion, a hand was involved in inflicting CN’s injuries. The injuries to CN’s face were as the result of a blunt object impacting with her face, but not slapping. The degree of force required to cause these injuries was either “very significant” (AEC), or “significant” (CP and FP).

   

• [205]Having considered the evidence, and Miss P’s submission that I take the “third alternative” of declaring with FP I do not know what caused the blunt impact to CN, I remind myself that I am entitled, and perhaps indeed obliged if possible to draw such “natural and reasonable inferences” from the evidence as the evidence will permit[78].
• [206]Lord Brandon’s objections to Holmes’s dictum in the judicial context are somewhat diminished in this case because I do think it is possible to draw these inferences. Enough is known about the circumstances surrounding the incident to draw and make a conclusion as to the probable cause of CN’s injuries. Unlike FP I do not have to hesitate because the outcome cannot be certain. I need only be satisfied a particular cause is more likely than not.

   

• [207]And, as to Lord Brandon’s third objection, I respectfully agree with Lord Carloway in McGlinchey that Holmes’ thinking should not be discounted entirely.  What might at first sight be improbable or implausible may become increasingly more probable as and when alternative causes are eliminated.  

   

• [208]The real reason for caution in applying the dictum in this case is that Holmes’s logic is sound as stated, but it is only applicable if all possibilities are known and hence capable of elimination.  In real situations, closed systems of possible cause do not always exist. But certain things can be said to have been impossible: CN could not have inflicted the injuries herself; the injuries could not have been inflicted by a fall from her bouncy chair or the bed; there was no-one else in the flat when CN was injured.

   

• [209]It is known from the medical evidence that a blunt object was used to inflict the injuries; according to FP, a hand was used. The natural and reasonable inference from all this is that the injuries to CN’s face must have been inflicted by FR’s hands. It cannot be excluded however that the bruise on her temple was accidental.

   

• [210]Though FR’s evidence does not explain how CN got her injuries and although the evidence naturally and reasonably points to FR having inflicted those injuries, that does not mean he was lying about CN’s bouncy chair falling over. The doctors discounted CN rocking or falling from her bouncy chair, but FR’s account in his evidence was that that, having gone to sleep with CN in her chair in the bedroom, he was woken because of CN crying after the bouncy chair had toppled over. How that happened I do not know, but FR observed it and was consistent in his account of those observations and I cannot discount this as impossible. Thereafter, he placed her on the side of the bed and she fell off. A single bruise on the top of her head isolated from the bruising on her cheeks is consistent with the medical evidence and FR’s account.

   

• [211]But what happened after that? FR’s claim the fall from the bed was the cause is not consistent with the medical evidence, so there must have been some other cause. It was not by slapping.

   

• [212]But FP thought it might have been by FR by using “both hands holding the head and squeezing hard”.

   

• [213]Such an explanation is in my opinion the only one that naturally and reasonably fits the evidence. There seems to me to be no other explanation than this that naturally and reasonably can be inferred from the evidence. Why FR did this is not known; it is plausible, and would fit in with the evidence however that he panicked when she fell off the bed and began crying, maybe in an ill judged attempt to stop her crying, in the knowledge her mother would be returning soon.

   

• [214]I believe FR’s account of CN falling off the bed while he ran a bath for her. I think this is supported by the evidence of PM and EMT. Though they were sceptical of FR’s explanation, it is obvious from their evidence he was keen to give an explanation and absolve himself from blame.

   

• [215]While I find that the bruising to the side of CN’s face was caused by FR taking hold of her head and squeezing it, I must exercise caution about whether I can infer FR intentionally or wilfully inflicted these injuries. The injuries required “significant” or in AEC’s evidence “very significant” force to have occurred. But force is a relative concept and as I cautioned earlier should be understood as physical force; absent any direct evidence on the point, I think judicial knowledge would instruct me that small babies’ heads are more delicate than other children’s. The amount of force is likely, to have produced these injuries, have been excessive relative to CN’s age. FR appeared from his evidence to a dedicated carer for CN. His mother, whose evidence I found convincing, confirmed that. I therefore do not think in these circumstances it can naturally and reasonably be inferred that FR wilfully inflicted these injuries on CN.
• [216]So far as wilful neglect of CN is concerned, simply leaving CN on the edge of the bed would not have been enough to infer wilful neglect; there must have been something more than “simple negligence”^[79]. I consider however the following facts establish wilful neglect in respect of C within the meaning of head (a) of the section 12(1) test: FR’s decision to put CN on the edge, or near to the edge of the bed, while he went to run a bath for her; FP’s and CP’s concurring and accepted evidence that a child so placed could fall off the bed; leaving her unattended while he did so; this being a deliberate act; he did this despite his mother frequently warning him never to leave a child alone; and on his return to the bedroom, CN was found injured[80]. I consider these decisions amounted to a “want” of reasonable care within the meaning of the authorities and therefore amounted to “neglect”. I consider in relation to head (b) of the section 12(1) test that the evidence establishes leaving such a young baby on or near to the edge of the bed gave rise to a real or substantial risk of her rolling off the bed, to her unnecessary suffering or injury[81].

   

• [217]So far as common law offences involving bodily injury are concerned, I deal first with assault. The applicant referred to a number of cases on the mens rea of assault. I accept what these cases establish and have attempted to apply them to this case.
• [218]The mens rea of assault is intent to strike the child; if CN were struck deliberately by FR, or he deliberately squeezed her head, and injury resulted but was not intended, the mens rea for assault is established. Miss P did not dispute this proposition of law[82]. The question is therefore whether FR deliberately and intentionally squeezed CN’s head. To my mind the squeezing in this case could be consistent with a mens rea of intent, recklessness or negligence. It does not necessarily result in an inference FF intended to squeeze CN’s head with such force as to injure her. Other explanations are plausible and fit the evidence. Moreover, for the reasons previously stated in relation to section 12(1) of the 1937 Act, I do not think it is more likely than not that FR intended to squeeze CN’s head with such force as to injure her. Accordingly, I conclude that no common law offence involving bodily injury and which requires an intentional mens rea, however characterised, can be said to have been committed in respect of CN. This therefore excludes the offences of assault, stellionate and Culpable and wilful neglect and bad treatment of a child of tender years, whereby the child is injured in its health.

   

• [219]But what of the common law offences of cruel and unnatural treatment of persons and reckless conduct which causes actual injury, which may both be committed recklessly?

   

• [220]To establish these offences were committed in respect of CN I have to be satisfied it was more likely than not that FR showed “utter” disregard for the consequences when squeezing CN’s head. This must go beyond “simple negligence” and there must be a high degree of culpability.

   

• [221]Applying those tests to the facts of this case and in particular the evidence of AEC that “very significant force” was applied, I am of the view that the natural and reasonable inference to be drawn from FR’s application of such amount of force to an infant’s head demonstrated a high degree of culpability.

   

• [222]It was more than “simple negligence”. It showed in the circumstances an “utter disregard” for consequences. I accordingly find it established that the common law offences of cruel and unnatural treatment of persons and reckless conduct causing actual injury were committed in respect of CN.

   

  1. DETERMINATION REGARDING K.N.

      

• [223]Earlier in this Note, discussing the proposed amendment of Statements of Facts 8 in each application, I mentioned a certain proviso, namely that, while a strict approach to pleadings is not warranted in applications of this nature, the court should be careful when exercising its powers ex proprio motu to propose amendment of the statement of grounds.
• [224]I was of the opinion it should not do this as to so substantially depart from the original statement of grounds that was put to the child and the relevant persons at the grounds hearing before the children’s hearing that in effect a case was found against them that they were not asked to answer.

   

• [225]For if there is to be a fair hearing with potentially important consequences for the exercise of such parental responsibilities and rights as her parents who are relevant persons may have in relation to KN[83], they ought to know the fundamental nature of the case they have to answer.

   

• [226]In relation to KN the applicant relies on the ground in section 67(2) (d) of the 2011 Act that she:

   

  “Is, or is likely to become, a member of the same household as a child in respect of whom a schedule 1 offence has been committed”.

   

• [227]The concept of “household” as used in this paragraph is interpreted expansively. It is said to be a “matter of fact and degree” if in any given case a child is a member of the household.

   

• [228]What seems to be needed is a “continuing relationship” characterised by “ties of affection and regular contact which hold the parties together as a group”.

   

• [229]While the group of persons need not be living together at the moment, as they might be separated temporarily for any number of reasons, their relationship must be “continuing” and they and the children must still form “a group”.

   

• [230]There must therefore be some living together either presently, or in the past with the possibility of re-establishing the cohabitation[84].

   

• [231]Further, what matters in these proceedings is the current state of affairs. For the court must consider the evidence as at the date when it sits and not as at the time of the grounds hearing before the children’s hearing at which the grounds were denied or not understood^[85].

   

• [232]The court is thus obliged to take account of any changes in KN’s circumstances since the grounds hearing before the children’s hearing[86], so that the question for the court in the application concerning KN is whether the applicant has proved on the balance of probabilities that KN either “is” (i.e currently) a member of the same household as CN or is “likely to become” a member of the same household as CN in the future. The applicant did not specifically lead evidence on either of these possibilities at the proof. The result so far as KN is concerned is that the court is bound to dismiss this application. The court has no choice but to do this and cannot find that other grounds are established. This is because there is not sufficient evidence before the court from which it might determine the section 67(2) (d) ground has been established in respect of KN and there are no other grounds before the court for its consideration in respect of her. It is for the reporter to take such steps as may now be required in respect of KN^[87].

   

  1. EXPENSES

• [187]Assault is a crime of intent and cannot be committed recklessly or negligently[61].

   

  Stellionate

   

 

• [233]No expenses are awarded in these proceedings[88]. No motions were made thereanent. I have accordingly provided that no expenses are due to or by any party in respect of either cause.

[1] As amended by the Act of Sederunt (Children’s Hearings (Scotland) Act 2011) ( Miscellaneous Amendments) 2013, SSI 2013 No. 172

[2] I was not invited to make an incidental finding in fact as to paternity arising from other evidence such as his assertion to that effect made in the course of his evidence or in documentary records made at his or the second respondent’s assertion produced in the course of the conjoined proof tending to show he was the children’s father. The evidential requirements for a finding of paternity contained in section 8 of the 1988 Act were therefore not fulfilled.

[3] It is not disputed that he is a “relevant person”. Although most fathers are relevant persons qua parent by virtue of Article 3 of the Children’s Hearings (Scotland) Act 2011 (Review of Contact Directions and Definition of Relevant Person) Order 2013, SSI 2013, No.193, that does not assist the first respondent since no evidence of presumption of his paternity was put before the court in these proceedings.

[4] Section 5 of the Law Reform (Parent and Child) (Scotland) Act 1986 deals with presumptions as to a man being father of a child; it does not apply to the mother.

[5] But not at that stage the applications, as I did not think that appropriate then as there were different grounds of referral in each case; identical outcomes were assumed by the Applicant, but that did not necessarily follow as a matter of law or logic.

[6] Rhesa Shipping Co SA v Edmunds (The Popi) [1985] 1 WLR 948 (HL) at pp955,956 , per Lord Brandon of Oakbrook

[7] Extra Division,18 July 2001, unreported

[8] Paragraph [17]

[9] Paragraphs [14] and [15]

[10] Paragraph [15]

[11] 1988 Act, section 1

[12] 1988 Act, section 2

[13] I consider the onus and standard of proof in more detail later in this Note.

[14] Sienkiewicz v Grief (UK) Ltd 2 [2011] AC 229 at paragraph [143], per Lord Rodger

[15] Wilson v North Lanarkshire Council [2011] CSOH 178 at paragraphs [99] (c) and (d), per Lord Woolman

[16] In Re B (Children) [2008] UKHL 35, at [59], per Lady Hale

[17] Federal Judicial Center Reference Manual on Scientific Evidence , 3^rd edition (2011), pages 552 and 553

[18] Federal Judicial Center Reference Manual on Scientific Evidence , 3^rd edition (2011), page 566; McTear v Imperial Tobacco Ltd 2005 2 SC at paragraph [6.158], page 475

[19] Dingley v Chief Constable  1998 SC 548 at 570, per Lord Rodger (the decision in this case was approved on appeal - 2000 SC(HL) 77); Sienkiewicz v Grief (UK) Ltd 2 [2011] AC 229 at paragraph [163], per Lord Rodger

[20] Federal Judicial Center Reference Manual on Scientific Evidence , 3^rd edition (2011), page 51

[21] CCMR 1997, rule 3.45(1)

[22] McGregor v D 1977 SLT 182

[23] CCMR 1997, rule 3.48

[24] Norrie, paragraph 8-36

[25] I use here the language employed in Statements of Fact 8, which omit the word “years” after 17. Paragraph 3 of schedule 1 refers to a “child under the age of 17 years”; where I refer to the paragraph in this Note I use the phrase employed in the statute in preference to the abbreviated phrase in the pleadings.

[26] Norrie, paragraph 3-07, page 42

[27] CCMR 1997, rule 3.50

[28] CCMR 1997, rule 3.50

[29] CCMR 1997, rule 3.48

[30] Norrie, paragraph 8-36; the “grounds hearing” in this passage refers of course to the grounds hearing before the children’s hearing when it orders the reporter to refer the ground or grounds to the sheriff for determination if disputed by a relevant person or because the child or a relevant person does not understand or is not capable of understanding an explanation given in relation to any ground.

[31] Sometimes the onus of proof is on a respondent. In Smyth v St Andrew’s Insurance plc [2012] EWHC 2511(QB), the defendant insurance company claimed the fire had been started deliberately by the claimant’s domestic partner. Since it was relying on an exclusion clause to that effect in the insurance policy to escape liability, it had to prove the defendant’s partner started the fire in order to avoid paying out under the policy. It failed do so and was found liable to pay out to the insured.

[32] McTear v Imperial Tobacco Ltd 2005  2 SC1 at [1.6] at page 10

[33] Norrie, paragraph 3-07, page 42 and paragraph 8-17

[34] In Re B (Children) [2008] UKHL 35, per Lord Hoffman at paragraph 4 and Lady Hale at paragraph 32

[35] [2008] UKHL 35

[36] In Re B (Children) [2008] UKHL 35, per Lord Hoffman at paragraph 3

[37] For that reason, I am of the opinion that reported care proceedings cases from England and Wales, even at House of Lords or Supreme Court level, should be treated with caution in the Scottish context. As is apparent from In Re B (Children) [2008] UKHL 35, the courts in England and Wales appear to have gotten themselves into a muddle over the applicable standard of proof in these proceedings, which the Opinions in that case were intended to dispel by making it clear there was only one standard of proof, the balance of probabilities, in such proceedings.

[38] Hendry v Clan Line Steamers Ltd 1949 SC 320 at 328, per Lord Jamieson

[39] At paragraph 5, Lord Hoffman usefully distinguishes three types of case in which the gravity of the conduct or even the seriousness of the consequences for the person concerned had caused “some confusion” that the standard of proof might vary in civil cases according to that gravity or seriousness. The first category which I mention only for the sake of completeness is where the proceedings are civil but “the criminal standard of proof or something like it should be applied”. This is not relevant to the application in respect of CN, but an example in Scottish practice would be proceedings for breach of interdict, where the criminal standard of proof applies though the proceedings are civil in nature. The second type of case is the inherent probability case where “strong evidence may be needed to persuade a tribunal that it more probably happened than not. The third type of case is that in which “judges are simply confused about whether they are talking about the standard of proof or the role of inherent probabilities in deciding whether the burden of proving a fact to a given standard has been discharged”.

[40] JB and BJ v Authority Reporter, Edinburgh Sheriff Court, 26 March 2014, Sheriff Principal Stephen

[41] See paragraphs 11 and 14, per Lord Hoffman

[42] Paragraph 15

[43] Paragraph 32

[44] Paragraph 70; at paragraph 72 she suggested there was no “logical or necessary” connection between seriousness and probability and noted that some seriously harmful behaviour such as murder was sufficiently rare to be inherently improbable in most circumstances whereas other seriously harmful behaviour such as drug abuse was common and not at all improbable

[45] Such facts are not necessarily decided on a weighing of probabilities in the balance as noted by Lord Mackay in Hendry v Clan Line Steamers Ltd 1949 SC 320 at 324 – 327. The test seems more apt when considering inferences to be drawn from other proved facts and circumstances.

[46] Hendry v Clan Line Steamers Ltd 1949 SC 320 at 328, per Lord Jamieson

[47] Hendry v Clan Line Steamers Ltd 1949 SC 320 at 328, per Lord Jamieson; Rhesa Shipping Co SA v Edmunds (The Popi) [1985] 1 WLR 948; McGlinchey v General Motors UK Ltd [2012] CSIH 91 at paragraph [36]; In Re B (Children) [2008] UKHL 35 at paragraph 2, per Lord Hoffman

[48] Stephens v Cannon [2005] EWCA Civ 222

[49] Watters v The Masters Golf Company Ltd and Urathon (Europe) Ltd [2013] CSOH 126

[50] Paragraph 32

[51] Sir Arthur Conan Doyle, The Sign of the Four (1890), ch 6; Famously cited by Lord Brandon of Oakbrook in his speech in Rhesa Shipping Co SA v Edmunds (The Popi) [1985] 1 WLR 948 (HL); See also McTear v Imperial Tobacco Ltd 2005  2 SC1 at [6.148] at page 471; and Patel v Vigh and Vigh [2013] EWCH 3403(Ch) at [44]

[52] Rhesa Shipping Co SA v Edmunds (The Popi) [1985] 1 WLR 948 (HL) at pp955,956 , per Lord Brandon of Oakbrook

[53] [2012] CSIH 91 at paragraphs [33 ] - [36]

[54] Omitting reference to other offences under other specified sections of the 1937 Act mentioned in paragraph 2, which are not immediately relevant to this discussion, and to the intervening paragraphs 2A, 2B and 2C, which are also not immediately relevant to this discussion.

 

[55] CCMR 1997, rule 3.50.

[56] Third Edition (2001) and Supplement (2005), Chapters 29 “Assault and Real Injury” and 31 “Offences Against Children”

[57] The range of offences, in abstract, would include murder, culpable homicide, or torture under section 134(2) of the Criminal Justice Act 1988, but none of these offences appear relevant to these cases.

 

[58] Section 12(1) has been amended by various enactments but most notably by section 51(5) (a) of the Criminal Justice (Scotland) Act 2003 which omitted reference to assaults. I omit reference to wilful exposure and abandonment, which do not appear relevant to these cases.

[59] 1937 Act, section 110(1); a young person is defined by the same section as a person who has attained the age of 14 years but is under the age of 17 years.

[60] Clark v HMA 1968 JC 53 at 56; FB v Procurator Fiscal, Aberdeen [2014] HCJAC 56

[61] Gordon, Criminal Law, paragraph 29.30

[62] Concise Scots Dictionary (Scottish National Dictionary Association, 1985), page 668

[63] Mackenzie, Matters Criminal , chapter 28; Forbes, Institutes of the Law of Scotland, Part I, Book IV, Title 6; Hume, Volume I, 327-328; Alison, Volume I, 633-634. Stellionate, as Forbes explained, is from the Latin stellio, “a subtil Kind of Lizzard having its Back spotted, as it were with Stars”. Using false pretence to entomb another as in EA Poe’s, The Cask of Amontillado provides a fictional example of stellionate.

[64] Gordon, Criminal Law,  29.47 at page 418

[65] Macdonald, Criminal Law, pages 124,125

[66] Gordon, Criminal Law, 29.49 at page 421

[67] McIntosh (1881) 4 Couper 389

[68] Macdonald, Criminal Law, page 126; Gordon, Criminal Law, paragraph 29.49

[69] HMA v Harris 1993 JC 150; cf Terrorism Act 2000, section 61(2)(c)

[70] Paton v HMA 1936 JC 19, at 22, per LJC Aitchison

[71] Quinn v Cunningham 1959 JC 22, at 24, 25 , per LJG Clyde and at 26, per Lord Sorn

[72] See footnotes 2 and 83 (regarding KN, but which points are equally applicable to CN), and supporting text to those footnotes for further explanation.

[73] See 1937 Act, section 27 which defines and creates presumptions as to the concepts of “charge” and “care”; see also Henderson v Stewart 1956 JC 94 for discussion of section 27.

[74] Clark v HMA 1968 JC 53; see the 1995 Act, schedule 5 for a form of complaint in respect of an offence under section 12(1) of the 1937 Act.

[75] Dunn v McDonald 2013 SLT (Sh Ct) 34 at paragraphs [45] – [63]; contra, S v Authority Reporter 2012 SLT (Sh Ct) 89.; neither of these cases are binding on me; but I prefer Sheriff Reid’s thorough analysis of the authorities and respectfully agree with the views of the law as expressed by him in Dunn v McDonald over the approach adopted by the sheriff principal in S v Authority Reporter.

[76]Dunn v McDonald 2013 SLT (Sh Ct) 34 at paragraph [47]

[77] Dunn v McDonald 2013 SLT (Sh Ct) 34 at paragraphs [42] – [44]

[78] As I noted previously, there is no specific Scottish practice to this effect, but it is always unfortunate to decide a case on the onus of proof as Lord Carloway noted in McGlinchey; and as Lord Reid stated in McWilliams v Sir William Arrol & Co 1962 SC (HL) 70 (at 83): “In the end when all the evidence has been brought out, it rarely matters where the onus originally lay: the question is which way the balance of probability has come to rest”.

 

[79] To borrow Lord Sorn’s phrase from Quinn v Cunningham 1959 JC 22 at 26

[80] Cf FB v PF, Aberdeen [2014] HCJAC 56

[81] I refer in this regard to the evidence of FP and the concurring and accepted evidence of CP to this effect.

[82] Kennedy v A 1993 SLT 1134; D v Irvine 2005 SLT (Sh Ct) 131; Peebles v Mac Phail 1989 SCCR 410; Byrd v Wither 1991 SLT 206

[83] Another reason for applicants to produce presumptive evidence of paternity under section 5 of the Law Reform (Parent and Child) (Scotland) Act 1986 in the form of an entry in a United Kingdom birth register in proceedings of this nature, is to let the court know if the father has parental responsibilities and rights in respect of the child in terms of section 1-3 of the Children (Scotland) Act 1995 and section 23 of the Family Law (Scotland) Act 2006. It can only acquire that knowledge by examination of the extract from the birth register confirming an unmarried male partner is registered as the child’s father where the child is born on or after 4 May 2006.

[84] See the extensive discussion in Norrie, paragraphs 3-12 and 3-13. The discussion in this Note of this concept draws upon and adopts the statements of principle at Norrie, paragraph 3-13, page 47.

[85] Norrie, paragraph 8-18 at pages 139, 140

[86] Norrie, paragraph 8-18 at page 140

[87] Norrie, 8-35 at page 150

[88] CCMR 1997, rule 3.19.