RG v Glasgow City Council
| Jurisdiction | Scotland |
| Judgment Date | 27 August 2019 |
| Neutral Citation | [2019] CSIH 45 |
| Docket Number | No 1 |
| Date | 27 August 2019 |
| Court | Court of Session (Inner House) |
[2019] CSIH 45
First Division
Sheriff Court
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Children and young persons — Permanence order — Children's hearing — Res judicata — Whether sheriff in adoption proceedings entitled to rely on evidence found by a different sheriff in earlier children's hearing proceedings
Evidence — Relevance — Permanence order — Children's hearing — Whether sheriff in adoption proceedings entitled to rely on findings in fact made in earlier children's referral proceedings
Glasgow City Council applied to the sheriff at Hamilton for a permanence order in relation to a child in terms of the Adoption and Children (Scotland) Act 2007 (asp 4). On 4 February 2019, the sheriff granted Glasgow City Council's motion to allow it to rely, at any subsequent proof in relation to the permanence application, upon grounds of referral which the sheriff at Glasgow had found to be established at an earlier referral proof. The mother of the child appealed against that decision to the Sheriff Appeal Court.
On 4 April 2019, the Sheriff Appeal Court (Sheriff Principal M Lewis, Sheriff NC Stewart and Sheriff N Ross) remitted the appeal to the Court of Session.
The local authority applied to the sheriff at Hamilton for a permanence order in respect of a child. The local authority lodged a motion seeking an order that it was entitled to rely upon the findings of the sheriff at Glasgow in respect of a previously established ground of referral and the facts found in support of it. The sheriff granted the motion. The mother appealed to the Sheriff Appeal Court which remitted the appeal to the Court of Session.
The mother argued that res judicata did not apply because the parties were different and that findings of fact made by a sheriff after a proof on a ground of referral could not be treated as findings for the purposes of a later application for a permanence order. The father argued that facts found or admitted in the referral process did not automatically become binding in the permanence order process. The local authority adopted the father's position and argued that the sheriff's interlocutor only allowed the local authority to rely on the earlier findings in fact but did not determine what evidence the parents could lead.
Held that: (1) the principle of res judicata could be applied in a negative or a positive way, in the former way acting as a bar to prevent a litigation which mirrored an earlier litigation the merits of which had already been determined, in the latter way by allowing facts which had been established in earlier litigation to be founded upon in a subsequent action based upon those facts (para 27); (2) the question to be determined in the permanence proceedings was different from the one answered in the earlier referral proceedings, the media concludendi in the two processes were different, so res judicata could not apply with full force and effect (para 29); (3) it was a matter for the sheriff's discretion to determine what required proof and what other evidence he wished to hear in order to resolve the issues, and he was entitled to take as a starting point the fact that the ground of referral and the supporting facts had already been established after proof without being bound to find the same facts (para 31); (4) if a party's intention was to lead the same or substantially the same evidence as was presented at the referral proof in order to persuade the sheriff to reach a different decision on the same evidence, the sheriff would be entitled to refuse to rehear that evidence and to find those facts established on the basis of the evidence previously heard (para 32); (5) there would be situations in which the findings in fact of the sheriff after a referral proof may legitimately be challenged, and it was for the sheriff hearing the permanence application to weigh in the balance the competing considerations of it not being in the best interests of a child for decisions to be taken based on erroneous fact, with the desire to take decisions on the welfare of children expeditiously, when deciding the legitimate scope of the proof (paras 33, 34); (6) the question was not whether the local authority could rely upon the original findings but whether the sheriff was entitled rely upon them, and it was for him to decide what, if any, new information should be adduced at proof (para 35); and appeal refused.
Observed that in the public law context it was doubtful whether the interests of the reporter in referral proceedings and the local authority in permanence proceedings were truly different for the purposes of res judicata, both being manifestations of the state, and the state could hardly avoid the consequences of a plea of res judicata advanced against it by founding on divisions of its own personality (para 28).
Re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117 considered.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Menzies and Lord Drummond Young, for a hearing on the summar roll, on 17 July 2019.
At advising, on 27 August 2019, the opinion of the Court was delivered by the Lord President (Carloway)—
Opinion of the Court—
[1] This appeal, which has been remitted by the Sheriff Appeal Court, raises the issue of whether a sheriff, when considering an application for a permanence order (Adoption and Children (Scotland) Act 2007 (asp 4), sec 80), may rely on facts established earlier after a proof before the, or another, sheriff on a ground of referral before the children's hearing.
[2] The first respondents applied to the sheriff at Hamilton for a permanence order removing parental rights and responsibilities from a child's mother and father (the appellant and the second respondent) and vesting them in the first respondents and the child's foster carers. In the course of the proceedings, the first respondents lodged a motion for the sheriff to order that they were:
‘entitled to rely upon the original findings of the Sheriff in respect of the grounds of referral established on 26 June 2015 in relation to the established ground and the corresponding statements of fact’.
[3] The application related to an interlocutor (sub nom ‘Note of Reasons’) by the sheriff at Glasgow, dated 26 June 2015, which found the following established:
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‘1. [AB] was born on … 2013. She normally resides at … Glasgow with her mother [the appellant] and her father [the second respondent] …;
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2. [T]hroughout 14 May 2013 up until [AB] was admitted to the Victoria Infirmary … on that date, [AB] was in the sole charge, care and control of her mother and/or father;
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3. On 14 May 2013 [AB] was presented at the Victoria Infirmary … in the company of both her parents because she was red/flushed, fitting and foaming around the mouth and suffering reduced conscious levels. She was transferred to the Royal Hospital for Sick Children … on the same day; where she remained until 18 June 2013;
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4. … [AB] was found to have the following:
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(a) bilateral subdural haematomas;
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(b) swelling of the brain; …
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(d) an extensive hypoxic ischemic brain injury;
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(e) extensive bilateral haemorrhages; and
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(f) a bruise to the anterior abdominal wall;
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5. As a result … [AB's] health and wellbeing has been permanently impaired and she now suffers from the following:
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(a) global development delay and motor deficit;
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(b) cerebral visual impairment; and
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(c)...
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