AW v Principal Reporter
| Jurisdiction | Scotland |
| Judge | Sheriff Principal DCW Pyle,Sheriff S Murphy,Sheriff HK Small |
| Judgment Date | 25 October 2021 |
| Court | Sheriff Appeal Court |
| Docket Number | No 2 |
[2022] SAC (Civ) 6
Sheriff Principal DCW Pyle, Sheriff S Murphy and Sheriff HK Small
Children and young persons — Children's hearing — Appeal — Whether sufficiency of evidence to establish grounds of referral in respect of commission of relevant offence and close connection with person who committed such an offence — Children's Hearings (Scotland) Act 2011 (asp 1), sec 67(2)(b), (c)
Evidence — Children's hearing — Standard of proof — Appropriate standard of proof in referral proceedings where criminal conduct is alleged
Process — Children's hearing — Whether perpetrator of offence ought to be identified
Section 67(2) of the Children's Hearings (Scotland) Act 2011 (asp 1) provides that grounds of referral by the Principal Reporter to the children's hearing in relation to a child include where “(b) a schedule 1 offence has been committed in respect of the child” and “(c) the child has, or is likely to have, a close connection with a person who has committed a schedule 1 offence”.
Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (cap 46) includes any offence involving bodily injury to a child under the age of 17 years as being a sch 1 offence.
Grounds of referral to the children's hearing were established in respect of two children, AA and OA, in terms of sec 67(2)(b) and (c) of the Children's Hearings (Scotland) Act 2011 (asp 1) (‘the 2011 Act’) respectively. The children normally resided with their mother, SS. The appellant was AA's father. Since around April 2018, the appellant and SS had been involved in relationship and the appellant regularly stayed overnight within the family home.
Neither the appellant nor SS accepted the grounds that, on or around 17 January 2019, the appellant assaulted AA, a child under the age of 17 years, within the family home, causing her injury. The summary sheriff heard evidence, including from a key worker who observed AA's injuries at nursery, and from a consultant paediatrician who subsequently examined AA and in whose opinion the injuries were outwith those seen in normal accidental injury. The appellant admitted having been in the family home at the relevant time. The summary sheriff found that the assault had taken place and that it was committed by the appellant. Thus, it was established that the appellant had committed an offence specified in sch 1(3) to the Criminal Procedure (Scotland) Act 1995 (cap 46) in respect of AA, and that OA had, or was likely to have had, a close connection with a person who had committed such an offence.
The questions posed in the stated case were whether the summary sheriff had erred in concluding that there had been a sufficiency of evidence for proof to the relevant civil standard that the appellant was the perpetrator of a sch 1 offence against AA, and in any event, whether she ought to have identified a perpetrator in the circumstances.
Counsel for the appellant ultimately conceded that there was a sufficiency of evidence, and accepted that the summary sheriff had been entitled to name the perpetrator in the application in respect of OA.
Held that: (1) there had been ample sufficiency of evidence, taking account of expert medical evidence, evidence of the key worker, and the appellant's admission that he was in the family home on the relevant night (para 13); (2) the applications in respect of both children having been heard together and on the same evidence, and counsel having conceded the point in respect of OA's application, it was academic whether the appellant should be named in AA's application, but in the modern context of the paramountcy of the welfare of the child, it was both competent and appropriate to do so in applications for grounds of referral in terms of sec 67(2)(b) of the 2011 Act, at least where the perpetrator of criminal conduct was named in the supporting facts; it was difficult to imagine any other information which would be more material for the children's hearing, but where the sheriff was not satisfied on the appropriate standard of proof that the perpetrator had been identified, the grounds may still be proved on the basis that abuse had taken place by one member of a pool of perpetrators, provided the ground had been properly framed, and the identification of the perpetrator or a pool of perpetrators was, in any event, an essential fact in terms of sec 67(2)(c) and there was no reason in principle or practice to differentiate such cases (paras 14, 23–25); (3) it was not the sheriff's role to explain in detail why she accepted or rejected every last piece of evidence; it was sufficient that the parties knew why they won or lost and that no important evidence was ignored, and that had been what the summary sheriff had done and had given cogent reasons for her decision to accept the hearsay evidence of the key worker about what the child said and its meaning (paras 16 19); (4) the law on the standard of proof in referral proceedings where criminal conduct was alleged was contained in Scottish Ministers v Stirton and Anderson (paras 117 et seq) and the criminal standard of proof would apply only when the sheriff was considering grounds under sec 67(2)(j) where it was contended that the child had committed an offence (2011 Act, sec 102) (para 27); and appeals refused and remitted to the summary sheriff with a direction that she direct the Principal Reporter to arrange a children's hearing on the established grounds in terms of sec 108(2) of the 2011 Act.
Observed that it was critically important that, in an application for a stated case, the appellant should state clearly what matters were sought to be brought under review, not only as the appellate court should not stray outside the boundaries of the questions posed, but also as the summary sheriff preparing the case would inevitably and correctly limit it to the issues specified in the application (Child Care and Maintenance Rules 1997 (SI 1997/291 (S 19)), r 3.59; Act of Sederunt (Sheriff Appeal Court Rules) 2015 (SSI 2015/356), r 30.3) (para 13).
Scottish Ministers v Stirton and Anderson 2014 SC 218 considered and A v A2013 SLT 355 and S v Locality Reporter Manager2014 Fam LR 109applied.
A v A [2013] CSIH 7; 2013 SLT 355
B (Children) (Sexual Abuse: Standard of Proof) (Re) [2008] UKHL 35; [2009] 1 AC 11; [2008] 3 WLR 1; [2008] 4 All ER 1; [2008] 2 FLR 141; [2008] 2 FCR 339; [2008] Fam Law 837; [2008] Fam Law 619
B v Scottish Ministers [2010] CSIH 31; 2010 SC 472; 2010 SLT 537
C v Miller 2003 SLT 1379; 2004 SCLR 55
CM v ME-M [2019] SAC (Civ) 30; 2019 Fam LR 125
Edinburgh Council (City of) v GD [2018] CSIH 52; 2019 SC 1; 2018 SLT 1145; 2019 SCLR 228
Henderson v Foxworth Investments Ltd sub nom Liquidator of Letham Grange Development Co Ltd v Foxworth Investments Ltd [2014] UKSC 41; 2014 SC (UKSC) 203; 2014 SLT 775; 2014 SCLR 692; [2014] 1 WLR 2600; 158 (27) SJLB 37
J (Children) (Care Proceedings: Threshold Criteria) (Re) [2013] UKSC 9; [2013] 1 AC 680; [2013] 2 WLR 649; [2013] 3 All ER 1; [2013] 1 FLR 1373; [2013] 2 FCR 149; [2013] Fam Law 375; 157 (8) SJLB 31
JS and PS v Authority Reporter CSIH, 18 July 2001, unreported
McGregor v AB sub nom McGregor v K 1981 SC 328; 1982 SLT 293
McGregor v D 1977 SC 330; 1977 SLT 182
S v Kennedy 1987 SLT 667
S v Locality Reporter Manager [2014] CSIH 70; 2014 Fam LR 109
S-B (Children) (Care Proceedings: Standard of Proof) (Re) [2009] UKSC 17; [2010] 1 AC 678; [2010] 2 WLR 238; [2010] 1 All ER 705; [2010] PTSR 456; [2010] 1 FLR 1161; [2010] 1 FCR 321; [2010] Fam Law 231; (2009) 153 (48) SJLB 33
Scottish Children's Reporter Administration v EM Sh S Collins QC, Sh Ct (Stirling), 15 November 2019, unreported
Scottish Children's Reporter Administration v RT and ors Sh S Collins QC, Sh Ct (Stirling), 20 November 2019, unreported
Scottish Ministers v Stirton and Anderson [2013] CSIH 81; 2014 SC 218; 2013 SLT 1141; [2014] Lloyd's Rep FC 18 2013
T v T sub nom MT v DT 2001 SC 337; 2000 SLT 1442; 2000 SCLR 1057; 2000 Fam LR 125
AW appealed to the Sheriff Appeal Court by way of stated case against the determination of the summary sheriff in applications by the Principal Reporter that grounds of referral in terms of sec 67 of the Children's Hearings (Scotland) Act 2011 had been established.
United Nations, Convention on the Rights of the Child (United Nations, New York, November 1989), Arts 3, 12 (Online: https://www.unicef.org.uk/what-we-do/un-convention-child-rights/ (12 April 2021))
The cause called before the Sheriff Appeal Court, comprising Sheriff Principal DCW Pyle, Sheriff S Murphy and Sheriff HK Small, for a hearing, on 16 September 2021.
At advising, on 25 October 2021, the opinion of the Court was delivered by Sheriff Principal DCW Pyle—
Opinion of the Court—
[1] These are appeals from the determination of the summary sheriff in applications by the Principal Reporter that grounds of referral in terms of sec 67(2)(b) and (c) of the Children's Hearings (Scotland) Act 2011 (asp 1) (‘the 2011 Act’) were established in respect of the children, AA and OA. The mother of the children is SS and was represented at the hearing before the summary sheriff. The appellant is the father of OA.
[2] The questions posed in the stated cases, being identical in each of the two appeals, can be answered in a straightforward fashion, but the appeals offer the opportunity for this court to restate the correct approach to be taken in appeals of this nature, the law on the appropriateness or otherwise of naming the alleged perpetrator and the standard of proof where grounds of referral contain an allegation of criminal conduct.
[3] In respect of AA, the ground of referral was that in terms of sec 67(2)(b) of the 2011 Act, a sch 1 offence had been committed in respect of her. Neither SS nor the appellant accepted the ground. The supporting facts were (following...
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