Article 6 Fairness Requires Calling an Available Witness: Limits on Police-Statement Hearsay in Children’s Hearings Grounds Proofs

1. Introduction

This appeal arose from children’s hearing referral proceedings concerning a young child (SJ). The appellant (AJ, the child’s father) challenged a sheriff’s determination (Dumbarton Sheriff Court, 12 December 2024) that a section 67 ground was established on the basis that SJ had a “close connection” with a person who had committed a Schedule 1 offence—specifically, that AJ had violently assaulted SJ’s older half-sibling (R) in August 2013.

Three issues dominated the appeal:

• Household / close connection: whether SJ could be treated as a member of the “same household” as AJ for the purposes of section 67(2)(c) and (3) of the 2011 Act.
• Amendment of a key fact: whether the sheriff acted unfairly by amending a supporting statement of fact to attribute sole responsibility for the assault to AJ.
• Hearsay and Article 6: whether it was fair to admit and rely on police-statement hearsay of SJ’s mother (IS)—a pivotal witness—without calling her for evidence when she was available, thereby preventing cross-examination.

Although the appeal was framed in terms of a stated case with multiple questions, the Inner House ultimately allowed the appeal on the procedural fairness issue relating to hearsay (question 2), quashed the sheriff’s decision, and remitted for a fresh hearing before a different sheriff.

2. Summary of the Judgment

• Question 4 (same household): answered in the negative. The sheriff was entitled (as a matter of fact and degree) to conclude that SJ was a member of the same household as AJ, applying Cunningham v M 2005 SLT (Sh Ct) 73, and appellate restraint principles (including McGraddie v McGraddie [2013] UKSC 58, 2014 SC (UKSC) 12).
• Question 1 (amendment of statement of fact): answered in the negative. The sheriff’s stated case inaccurately suggested he amended “of his own accord”; in fact, counsel for IS had moved for the amendment, and AJ had the opportunity (through representation) to oppose. No Article 6 breach was made out on this ground.
• Question 2 (hearsay police statements): answered in the affirmative. The sheriff’s handling of AJ’s objection to leading IS’s police statements as hearsay was a serious procedural irregularity going to the core of fairness, because the hearsay was led when IS was present and could have been called, depriving AJ of the chance to test her account by cross-examination.
• Result: the appeal was allowed; the sheriff’s decision was quashed; the case was remitted for a fresh hearing before another sheriff.

3. Analysis

3.1 Statutory Framework Applied

The court focused on three interconnected legal regimes:

• Children’s Hearings (Scotland) Act 2011:
  • Section 67(2)(c): a ground exists where the child “has, or is likely to have, a close connection with a person who has committed a schedule 1 offence”.
  • Section 67(3)(a): “close connection” is deemed where the child is “a member of the same household” as that person.
  • Section 163: appeal by stated case on point of law or procedural irregularity; if allowed, the case must be remitted with directions.
• Schedule 1 to the Criminal Procedure (Scotland) Act 1995: the sheriff treated “any…offence involving bodily injury to a child under the age of 17 years” as encompassing the alleged assault on R.
• Civil Evidence (Scotland) Act 1988, section 2: hearsay is not excluded solely because it is hearsay, but its use remains constrained by overall fairness and (where applicable) Article 6.

3.2 Precedents Cited and Their Influence

A. “Same household” as fact-and-degree; appellate restraint

• Cunningham v M 2005 SLT (Sh Ct) 73: treated as the central Scottish authority on “household”. The Inner House reiterated its key propositions (relationship not locality; separate homes not decisive; “ties of affection and regular contact” may sustain household membership; and the issue is one of fact and degree).
• McGraddie v McGraddie [2013] UKSC 58, 2014 SC (UKSC) 12 and Greater Glasgow Health Board v Multiplex Construction Europe Limited & Ors [2026] CSIH 16: reinforced that appellate courts rarely interfere with first-instance fact assessments absent misdirection or irrationality.
• McGregor v H 1983 SLT 626 and A v Kennedy 1993 SC 131: invoked by AJ to emphasise household as more than biology; the Inner House did not reject them, but found the sheriff had enough evidence to reach his conclusion on household membership.
• T v Scottish Children's Reporter Administration [2022] SAC (Civ) 25, 2022 SLT (Sh Ct) 179: the Inner House expressly disagreed with “the apparently contrary suggestion” (paras 31–33) that mere participation in proceedings/opposition could itself satisfy the test. The court held there is “nothing perverse” about requiring more than opposition/desire for future relationship, while still treating participation as potentially relevant context.
• KH v Children's Reporter Sh Ct, 3 March 2016, unreported (2016 GWD 10-196): appeared indirectly via quotation in T; the Inner House regarded the quoted material as offering “no real analysis” for the proposition advanced by AJ’s counsel.

B. Amendment of grounds / statements of fact; opportunity to be heard

• In Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575: used by AJ to argue for a “pool of perpetrators” approach where the evidence cannot identify a single perpetrator.
• AW v Principal Reporter 2022 SC (SAC) 27: noted for the idea that identifying the perpetrator where named can be appropriate; but the Inner House treated the appeal’s real issue as procedural fairness and the accuracy of what occurred.
• Strand-Lobben v Norway (2020) 70 EHRR 14: cited by AJ to argue an “absolute right” to be heard prior to amendment. The Inner House did not need to determine the full reach of that proposition because, on the true facts, a motion to amend had been made by IS’s counsel in contested proceedings where AJ was represented and had the opportunity to respond.
• TC v Authority Reporter 2014 Fam LR 72: cited by the respondent for the proposition that fairness concerns are sharper where amendment “reconfigures and expands” the case. The Inner House did not rest its reasoning on this distinction; it held question 1 failed because the amendment was not truly “of the sheriff’s own motion” and AJ had a chance to oppose.

C. Hearsay, absent witnesses, and Article 6 fairness in children’s referral proofs

• Al-Khawaja v United Kingdom (2012) 54 EHRR 23 and Schatschaschwili v Germany (2016) EHRR 14: the foundational Strasbourg framework. The Inner House accepted the three-limb fairness inquiry (good reason for non-attendance; sole/decisive nature; counterbalancing safeguards), as previously explained in Scottish children’s referral context.
• JS v Children's Reporter 2017 SC 31: the leading Scottish authority applying Al-Khawaja/Schatschaschwili to children’s hearings grounds proofs, including acceptance that Article 6.3 applies in this sui generis setting. The Inner House treated this case as strongly analogous (“redolent of JS”), particularly on the requirement of an “adequate and proper opportunity” to challenge and question adverse witnesses.
• Graham v HM Advocate [2019] HCJAC 51, 2019 JC 26: relied on by the respondent to construe “decisive” narrowly; the Inner House did not need to decide the precise boundaries of “decisive” in the abstract because the decisive procedural defect was that the witness was not absent when the hearsay application was made.

3.3 The Court’s Legal Reasoning

A. Household membership: inference across time; state intervention does not freeze reality

The Inner House endorsed the sheriff’s approach of inferring that a longstanding familial arrangement—here, an unconventional pattern of repeated visits and involvement in family life—could ground a finding of “same household”, notwithstanding the child’s removal at birth. The court accepted that lack of “up to date” household evidence was not fatal where the absence of later evidence was itself a product of state intervention.

However, the Inner House made an important clarification: participation in proceedings (including opposing grounds) is not, by itself, enough to satisfy the statutory “same household” test. It may be relevant context, but it cannot substitute for the statutory concept derived from relationship, affectional ties, and regular contact.

B. Amendment of fact 6: the true procedural history mattered

The court’s answer on question 1 turned on a forensic point with practical consequences: the stated case was materially misleading. The sheriff’s narrative suggested a unilateral amendment without submissions. In reality, written submissions for IS contained a motion seeking the very amendment made, and AJ was represented throughout. The Inner House held that Article 6 unfairness cannot be established where the “prejudiced” party had the opportunity to oppose the motion.

The decision highlights that in children’s referral appeals—where the appellate court is constrained by the stated case—accuracy about what occurred procedurally is not merely administrative; it can determine whether an Article 6 complaint succeeds or fails.

C. Hearsay police statements: the decisive irregularity was choosing hearsay over available testimony

The Inner House’s central contribution lies in its treatment of question 2. The court held, in substance, that the sheriff’s pragmatism in hearing the hearsay “under reservation” and deferring the Article 6 evaluation might be acceptable where the witness is genuinely absent. But where the witness is present and participating when the hearsay objection is taken, deferral is “plainly wrong”.

Key elements of the court’s reasoning:

• The “good reason for absence” limb collapses if there is no absence at the relevant time. Had the sheriff confronted the objection when it arose, he would have noted that the first Al-Khawaja inquiry (why is the witness not attending?) was inapplicable.
• Cross-examination was avoidably lost. IS had given inconsistent accounts. The proper course was to call her and, if she testified, put the police statements to her; she could then be cross-examined, subject to protections against self-incrimination.
• The justification offered was itself troubling. The reporter’s explanation that IS’s “independence and reliability…could not be relied on” was viewed as pointing in the opposite direction: if reliability is in doubt, testing through examination is more, not less, necessary.
• The irregularity went to the “core” and had downstream effects. The court emphasised that identifying AJ as a single perpetrator (rather than within a pool) would significantly shape later children’s hearing decision-making, because the hearing does not determine contentious facts but proceeds on facts fixed by the sheriff.

On remedy, the Inner House declined to “fix” unfairness by reinstating a pool-of-perpetrators formulation (which would adversely affect IS, a non-participant in the appeal). Instead, it quashed and remitted for a fresh hearing by another sheriff.

3.4 Impact and Significance

A. Practical constraint on “routine” hearsay practices in referrals

The court’s remarks directly challenge any local practice of leading police statements through officers in preference to calling the maker when the maker is available. The judgment signals that such a practice risks:

• being characterised as a “flagrant” Article 6 fairness breach (language used by the court in analysing the implication), and
• producing remits for re-hearings, with obvious consequences for delay and the child’s welfare interests.

B. Timing matters: objections should be decided when the witness is available

A key operational lesson is the importance of deciding the fairness objection at the point it arises. Waiting until after the evidence—where the decisive fact is that the witness was available but not called—can entrench the unfairness rather than manage it.

C. Household test: modest correction of overbroad readings

While deferring to the sheriff’s household finding, the Inner House expressly rejected any suggestion that mere opposition to grounds/participation in proceedings suffices (even as evidence of close connection). This provides a modest but clear recalibration of how T v Scottish Children's Reporter Administration 2022 SLT (Sh Ct) 179 should be read in future.

D. Appellate process: stated case integrity

The case also demonstrates the fragility of stated-case appeals if the stated case omits material procedural facts. The court’s intervention—requesting and examining written submissions from a non-appearing party—was exceptional and underscores the need for first-instance courts to narrate procedure accurately, particularly when Article 6 is in issue.

4. Complex Concepts Simplified

• “Section 67 ground”: a statutory condition which, if established, allows the children’s hearing system to exercise compulsory measures of supervision.
• “Schedule 1 offence”: a category of offences against children under 17 listed in Schedule 1 to the 1995 Act; the sheriff treated serious assault causing bodily injury as falling within it.
• “Close connection” and “same household”: for section 67(2)(c), close connection is deemed if the child is a member of the same household as the offender. “Household” is about a relationship-based domestic group, not simply co-location.
• Hearsay: an out-of-court statement used to prove what it asserts (e.g., a police statement). It is generally admissible in civil proceedings in Scotland, but may still be unfair if it prevents effective challenge where the statement is important.
• Article 6 “fair hearing” in this context: although not a criminal trial, the proceedings can involve grave allegations. Article 6 requires a fair process, which may include the ability to test crucial adverse evidence.
• “Pool of perpetrators”: where evidence shows harm was inflicted by someone within a small group but cannot identify which one; sometimes findings are framed to reflect that uncertainty rather than selecting a single perpetrator.

5. Conclusion

The Inner House’s decision in [2026] CSIH 24 confirms deference to first-instance fact-and-degree assessments on “same household”, while correcting any drift toward treating mere participation in proceedings as sufficient to establish statutory household/connection tests. Its major significance, however, is procedural: where a pivotal witness is present and available, it is ordinarily unfair to proceed by leading that witness’s police statements as hearsay through officers, thereby removing the possibility of cross-examination. The court treated this as a serious procedural irregularity requiring the sheriff’s decision to be quashed and the case reheard.