Article 6 Fairness in Children’s Hearings Referrals: Police-Statement Hearsay Cannot Substitute for Live Evidence Where the Witness Is Available

Precedents Cited

1) “Same household” as a route to “close connection”

The statutory hinge was section 67(3)(a) of the 2011 Act: a child is taken to have a “close connection” if the child is a member of the same household as the person who committed a Schedule 1 offence. The key authority on meaning was Cunningham v M 2005 SLT (Sh Ct) 73, where Sheriff Principal MacPhail QC characterised “household” as a relationship-based concept, not merely co-location, and emphasised that it is a question of fact and degree, focusing on whether “ties of affection and regular contact” continue.

The Inner House also anchored appellate restraint in fact-finding by citing McGraddie v McGraddie [2013] UKSC 58, 2014 SC (UKSC) 12 and noted recent reaffirmation of deference in Greater Glasgow Health Board v Multiplex Construction Europe Limited & Ors [2026] CSIH 16.

AJ relied on McGregor v H 1983 SLT 626 and A v Kennedy 1993 SC 131 to stress that “household” requires something akin to a continuing family unit (not merely biological parenthood). The court accepted that participation in proceedings alone was insufficient, and explicitly disagreed with any contrary implication in T v Scottish Children’s Reporter Administration [2022] SAC (Civ) 25, 2022 SLT (Sh Ct) 179 (paras 31–33) insofar as it suggested a “perversity” in resisting grounds where future connection is sought. However, the court still upheld the sheriff’s household finding on the totality of the historical evidence.

2) Hearsay, Article 6, and the Al-Khawaja/Schatschaschwili framework in children’s referral proceedings

The admissibility backdrop was section 2 of the Civil Evidence (Scotland) Act 1988 (abolishing the general prohibition on hearsay in civil proceedings). But the fairness constraint was framed by Article 6 ECHR (and, in effect, Article 6.3(d) where allegations resemble criminal accusations).

The court applied the European framework from Al-Khawaja v United Kingdom (2012) 54 EHRR 23 and Schatschaschwili v Germany (2016) 63 EHRR 14, as summarised domestically in JS v Children’s Reporter 2017 SC 31. The three-stage enquiry (good reason for absence; sole/decisive nature; counterbalancing safeguards) was treated as contextual, requiring attention to the proceedings “as a whole”.

On the respondent’s attempt to narrow “decisive” by reference to Graham v HM Advocate [2019] HCJAC 51, 2019 JC 26, the Inner House did not ultimately resolve the “decisive” point as the decisive irregularity (in the court’s view) lay earlier: the witness was not absent when the hearsay was tendered, so the justification for substituting untested statements for live evidence fell away.

The court considered the issue “redolent” of JS v Children’s Reporter, where fairness concerns arose when allegations could not be tested by cross-examination. It extracted the principle that, while hearsay may be used, fairness requires “an adequate and proper opportunity to challenge and question” the witness (citing Schatschaschwili at para 105, via JS).

3) “Pool of perpetrators” and amendments to allegations

AJ invoked In Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575 to criticise the move from an uncertain perpetrator (“IS and/or AJ”) to naming AJ alone. The respondent relied on domestic procedural approaches to amendment, including TC v Authority Reporter 2014 Fam LR 72, and pointed to the court’s earlier recognition in AW v Principal Reporter 2022 SC (SAC) 27 that identifying a perpetrator where possible can be appropriate.

Although Strand-Lobben v Norway (2020) 70 EHRR 14 was cited for an “absolute right” to be heard before amendment, the Inner House held there was no unfairness on the facts once it became clear that the amendment had been moved by IS’s counsel in contested proceedings in which AJ was represented and able to oppose.

Legal Reasoning

1) “Same household”: inference from historic family functioning despite state intervention

The court accepted that the sheriff had sufficient evidence of a longstanding pattern: AJ’s repeated presence in IS’s home over years, involvement with the children, and a “part time” role within that family unit. The “unorthodox” clandestine arrangement explained non-continuous residence without negating household membership.

Crucially, the court treated SJ’s removal at birth as explaining the lack of “up to date” evidence: the state intervention itself prevented the ordinary continuation of the arrangement. On that footing, the sheriff was entitled to infer that the household arrangement would have continued but for removal. The court rejected the idea that AJ’s mere opposition to grounds was, by itself, enough to prove household membership, but treated his engagement in proceedings as relevant context.

2) Amendment of the statement of fact: no Article 6 violation once the true procedural history was known

On the papers, the sheriff appeared to have amended the allegation unilaterally and without inviting submissions. The Inner House expressed concerns, but those concerns fell away when it emerged that IS (while present and represented) had expressly moved for deletion of “IS and/or” so that the assault would be found proved against AJ alone.

The court’s conclusion was not that unilateral amendment would always be acceptable, but that no Article 6 breach arose here because the affected party (AJ) had the opportunity to oppose the motion in contested proceedings. The sheriff’s material error was instead a failure of recording in the stated case (mischaracterising the amendment as his own initiative).

3) Hearsay police statements: procedural unfairness where the witness was available for examination

The decisive reasoning was procedural and timing-based. The sheriff heard the contents of IS’s police statements “under reservation” and dealt with the Article 6 objection only at the end. The Inner House held that approach may be pragmatic where a witness is genuinely absent, but was plainly wrong where IS was present and available when the motion was made.

The court viewed the decision to lead police officers to narrate IS’s statements—rather than calling IS to give evidence and be cross-examined (subject to any self-incrimination protections)—as negating the opportunity to test crucial evidence. It described the reporter’s justification (that IS’s reliability “could not be relied on”) as effectively seeking to avoid cross-examination that might undermine the hearsay, which the court regarded as strongly indicative of unfairness.

The irregularity went to the “core of the ultimate outcome” because identifying AJ as sole perpetrator (rather than within a pool) would significantly shape downstream children’s hearing decision-making, where factual disputes are not re-litigated.

4) Remedy: remit for a fresh hearing before a different sheriff

The court refused to “fix” unfairness by reinstating “IS and/or AJ” in the proved fact, because IS had not participated in the appeal and would be prejudiced without being heard. Instead, the proper remedy was to quash and remit for a fresh hearing.

Impact

• Practice in referral proofs: the judgment strongly signals that it is incompatible with Article 6 fairness to tender a key witness’s police statements through officers where the witness is available to be called, especially when that witness’s account is central and contested.
• Timing of fairness objections: it emphasises that the fairness analysis (Al-Khawaja/Schatschaschwili as applied in JS v Children’s Reporter) must be engaged at the point when substitution of hearsay for live evidence is proposed, not postponed in a way that entrenches the inability to test evidence.
• “Same household” findings remain fact-sensitive: the decision maintains the Cunningham approach and the high threshold for appellate interference, while clarifying that participation in proceedings alone is not determinative.
• Stated case accuracy: the court’s criticism of the incomplete procedural narrative highlights the importance of accurate recording of motions, representation, and participation—matters that can be outcome-determinative in procedural fairness appeals.