Mother referred to children’s hearing proceedings fails in evidential challenge of sheriff’s decision

About this case:

• Citation:
  [2022] SAC (Civ) 14
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff McCartney

It was argued by the appellant CB that the proceedings as a whole had been unfair due to the sheriff’s treatment of written evidence. A further ground raised was whether the sheriff erred in law in his consideration of the evidence of the appellant’s two stepdaughters.

The appeal was heard by Sheriff Principal Craig Turnbull, sitting with Appeal Sheriffs Robert Fife and Thomas McCartney. Brannigan, advocate, appeared for the appellant and Flannigan, solicitor, for the Principal Reporter.

Mutually exclusive

The ground of referral in respect of the appellant in relation to each of three children in her family was that each child had a close connection with a person who had committed a schedule 1 offence under section 67(2) of the Children’s Hearings (Scotland) Act 2011. This referred to allegations that the appellant had assaulted her three stepdaughters, who were now adults, when they were between 12 and 17 years of age.

In respect of this ground, the sheriff heard evidence from two of the appellant’s stepdaughters. He determined that the grounds of referral in respect of each child in the application had been established. It was submitted that their evidence was mutually exclusive, and both could not be accepted as credible and reliable, as the sheriff had done.

It was accepted by the sheriff that it would have been appropriate to amend the supporting facts by deleting references to a cane and a particular street, and the appeal was allowed to that extent. The appellant argued that this acknowledged error meant that anything in the sheriff’s decision flowing from that part of the supporting facts must by extension also contain an error.

Counsel further submitted that the procedure adopted by the sheriff in allowing evidence in chief by written statements rather than oral testimony did not ensure fairness and had resulted in irregularities that vitiated his decision. In a case where the credibility and reliability of witnesses was of fundamental importance, it was preferable that oral evidence be given.

Telling the truth

Appeal Sheriff McCartney, delivering the opinion of the court, observed: “The submission for the appellant that [the] identification by the sheriff of an error on his part undermined the ground of referral is without merit. That submission ignores that the ground of referral is supported by a number of other separate incidents about which the sheriff was satisfied to the required standard.”

On the sheriff’s treatment of the witnesses, he said: “They are now adults and were giving evidence as to matters which occurred in their childhood twenty years or more ago. It is hardly surprising that their recollection in respect of specific events would not be identical and that some discrepancies would arise. The extent to which such discrepancies are material is very much a matter for assessment by the sheriff at first instance.”

He continued: “The sheriff’s conclusion was that any inconsistency did not detract from his view that the witnesses were honest and telling the truth and could be relied on to a high degree. No basis has been identified upon which this court can interfere with that assessment of the evidence.”

Addressing whether it was unfair to allow evidence by written statement, Appeal Sheriff McCartney said: “We do not accept that evidence in the form of a written statement is necessarily of an inferior quality or less reliable than evidence given orally in court. It could be argued that evidence in the form of a written statement that has been carefully considered by the witness could be of a better quality than instant answers to questions in court. There is no doubt as to the competence of evidence by written statement.”

He concluded: “[The sheriff] did ensure that the procedure adopted overall was likely to ensure that the proceedings were fair and his decisions in respect of written statements and recovery of historic records were not likely to result in the proceedings being unfair. He did not err in law in relation to assessment of the evidence of the witnesses and there has been no error such as it would vitiate his decision.”

The appeal was therefore only allowed to the extent of the proposed amendments to the supporting facts, with the Principal Reporter directed to arrange a children’s hearing on the established grounds.