Sheriff Appeal Court refuses mother’s children’s hearing appeals and gives guidance on appointment of safeguarders

About this case:

• Citation:
  [2026] SAC (Civ) 62
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff Shead

The court held that the sheriff had not acted unfairly in proceeding with the appeal after authorities were lodged by the reporter shortly before the hearing, and that the sheriff had correctly applied the relevant legal test in determining whether the decision of the Children’s Hearing was justified.

The appeals were heard by Sheriff Principal N A Ross, Appeal Sheriff Sheehan and Appeal Sheriff Shead, with EF appearing as a party litigant and S Flannigan, instructed by Anderson Strathern LLP, appearing for the respondent.

The appellant, EF, appealed in relation to decisions concerning her two children, AB and CD, who had been subject to compulsory supervision orders since January 2021 requiring them to live with their father.

On 25 February 2026, a Children’s Hearing decided to continue the compulsory supervision orders for a further year. Contact between the appellant and the children was restricted to indirect contact supervised by the social work department. The appellant’s last direct contact with the children had taken place in 2024.

The Children’s Hearing proceeded on the basis of a ground of referral established by the sheriff at Alloa in November 2020 that the children were likely to suffer unnecessarily, or that their health or development was likely to be seriously impaired, because of a lack of parental care provided by both parents.

EF appealed the February 2026 decision to the sheriff under section 154 of the Children’s Hearings (Scotland) Act 2011. Following a hearing in April, the sheriff confirmed the decision of the Children’s Hearing, having been satisfied that it was justified.

The appellant, who is living with an acquired brain injury, had lodged material explaining the nature and effects of her injury. Both the Children’s Hearing and the sheriff were aware of her circumstances and made reasonable adjustments to accommodate her.

Late production of authorities

The appeal to the Sheriff Appeal Court proceeded by stated case under section 163 of the 2011 Act, under which an appeal may be brought only on a point of law or in respect of a procedural irregularity.

In her application for a stated case, EF argued that the sheriff had erred by determining the appeal by reference to the legal test in W v Schaffer after that authority had been lodged late by the reporter. She maintained that she had not been given a fair or realistic opportunity to consider or respond to the case and that reliance on it was inconsistent with procedural fairness and equality of arms.

The sheriff accordingly posed three questions for the opinion of the Sheriff Appeal Court: whether he had erred in proceeding without giving the appellant further time to consider the authorities, whether any such error amounted to a procedural irregularity, and whether he had erred in applying the test in W v Schaffer.

However, in her written submissions to the appeal court, the appellant accepted that the sheriff had been correct to apply W v Schaffer, read with CF v MF 2017 SLT 945.

She also sought to raise a number of additional grounds which had not formed part of her original application for a stated case. These included arguments concerning her effective participation in the Children’s Hearing, the treatment of the children’s views, safeguarding information and her rights under Article 8 ECHR.

During oral submissions, EF clarified that her complaint about effective participation related to the Children’s Hearing rather than the sheriff. She described the sheriff as “very fair”, saying that he had allowed her time to stop and process matters and had tried to enable her to participate effectively.

She nevertheless maintained that she had struggled to understand the significance of W v Schaffer and would have framed her submissions differently had she understood it.

Appeal confined to stated questions

Delivering the opinion of the court, Appeal Sheriff Shead said that the scope of an appeal under section 163 was limited to points of law or procedural irregularities in the hearing before the sheriff.

The court noted that rule 32.3 of the Sheriff Appeal Court Rules restricted the appeal to questions identified in the application for a stated case unless permission was granted to raise additional questions of law or procedural irregularity.

Although the court had allowed EF to address the additional grounds contained in her written submissions, it had done so “as a matter of courtesy only”. There were no exceptional circumstances justifying consideration of those additional grounds as part of the appeal.

Turning to the stated questions, the court noted that the sheriff had been aware of EF’s brain injury and had asked whether she required reasonable adjustments. She had asked to read from prepared written submissions and had been permitted to do so.

The sheriff had also explained the parameters of the appeal and the test derived from W v Schaffer, namely that the court was required to determine whether the decision of the Children’s Hearing was justified.

The appeal court found no substance in the argument that the sheriff ought to have given EF further time to consider the authorities. The matter had been explained to her and she had not asked for additional time to make either oral or written submissions.

The court added that it was not persuaded that more detailed submissions on the relevant case law would have made any difference to the sheriff’s determination. EF had accepted both that the sheriff had correctly applied W v Schaffer and that she had been treated fairly during the hearing.

The first question was therefore answered in the negative. It was unnecessary to answer the second, which depended upon the first being answered affirmatively.

The court also answered the third question in the negative, holding that it had been the sheriff’s duty to apply the test in W v Schaffer and that he could not be criticised for doing so.

The appeals were accordingly refused.

No rehearing of merits

The court added that even if it had been able to consider the appellant’s additional grounds, it would still have refused the appeals.

EF’s essential criticism was that the Children’s Hearing had not properly listened to the points she raised and had been influenced by the submissions of others, particularly the social work department and the children’s advocacy worker.

However, the court said there was no material supporting the contention that the Children’s Hearing had failed properly to consider the issues concerning the welfare of the children.

The appellant had also failed to identify particular defects in the assessment of the material which could amount to an error of law or demonstrate that the decision was unjustified.

The court said: “In essence, this appeal amounted to an attempt by the appellant to compel this court to undertake a rehearing of the merits of the competing arguments presented to the panel.”

Such a course would amount to an illegitimate exercise of the court’s appellate function.

Safeguarder should not normally be appointed

The court made two further observations concerning the procedure followed in the appeal before the sheriff.

First, it noted that the sheriff had not heard evidence. In those circumstances, the court considered that there had been no factual basis upon which to make formal findings in fact and law in the stated case. A narrative of the proceedings would have been sufficient to comply with the applicable rule.

Secondly, the court considered the appointment of a safeguarder.

No safeguarder had been appointed for the proceedings before the Children’s Hearing. However, the sheriff appointed one for the purposes of the appeal because of the high level of conflict between EF and the children’s father and in order to assist the court in representing the children’s interests.

The safeguarder made enquiries and submitted to the sheriff that the decision of the Children’s Hearing should be upheld.

The appeal court said: “Without being prescriptive, in our view a safeguarder should not normally be appointed by the court in an appeal where further evidence is not being led.”

It explained that the narrow appellate jurisdiction exercised by a sheriff in deciding whether a Children’s Hearing decision was justified would not generally be assisted by such an appointment.

In the present case, material containing the children’s views had already been available to the sheriff and had been before the Children’s Hearing. There was therefore nothing to be gained by seeking to ascertain their views again for the purposes of the appeal.

The court also noted that, given the time which had passed since the Children’s Hearing decision, it remained open to EF to seek a review under section 132(3) of the 2011 Act.

Neither party sought expenses and no order was made in that regard.