Factual and Procedural Background
This opinion concerns proceedings under the Children's Hearings (Scotland) Act 2011 in respect of a child referred to in the opinion as SJ (herein "Child"), born June 2022. The Mother was not a participant in the appeal. The Appellant is the Child's father ("Appellant"). In a sheriff court decision of 12 December 2024 the Sheriff found that on 28/29 August 2013 the Appellant violently assaulted the Child's half-brother (herein "Child B"), causing severe injuries, and concluded that the Child had a close connection with a person who had committed a Schedule 1 offence under the Criminal Procedure (Scotland) Act 1995, a finding dependent on the conclusion that the Child was part of the same household as the Appellant. Grounds of referral had been framed in November 2022 and amended in May and June 2023; a prolonged proof under section 93 followed over 13 months, with the Sheriff finding grounds established on 12 December 2024. The Sheriff heard evidence from relatives, police officers, treating physicians, social workers and a foster carer. The Mother did not give evidence before the Sheriff; four police statements she had given in 2013 were relied upon. The Appellant did not give evidence in the sheriff court. The Sheriff amended, on his own account according to the stated case, a statement of fact in the supporting statement of grounds to attribute sole responsibility to the Appellant. The Sheriff posed a stated case to the Inner House presenting questions about that amendment, the admissibility of the Mother's hearsay police statements and whether the Child was a member of the same household as the Appellant.
Legal Issues Presented
- Did the Sheriff violate the Appellant's Article 6 ECHR right to a fair hearing, or otherwise err in law, by amending, on his own motion, Statement of Fact 6 without first giving notice to parties of his intention to do so and inviting submissions?
- Did the Sheriff violate the Appellant's Article 6 ECHR right to a fair hearing, or otherwise err in law, by treating as admissible and relying upon hearsay evidence of the Mother contained in select police statements?
- Did the Sheriff err in law by finding that the Child was a member of the same household as the Appellant?
Arguments of the Parties
Appellant's Arguments
- The Sheriff erred in law in finding the Appellant to be a member of the same household as the Child: insufficient and stale evidence of ongoing ties, no evidence from the Appellant or the Mother, and reliance on opposition to referral did not establish household membership.
- The amendment by the Sheriff of Statement of Fact 6 was procedurally unfair and violated Article 6 because parties were not given notice or an opportunity to oppose removal of the words attributing potential responsibility to the Mother.
- The admission of the Mother's police statements as hearsay violated Article 6 (relying on Schatschaschwili v Germany, Al-Khawaja v UK, and JS v Children's Reporter): the Mother's evidence was decisive, she could have been called, and the Appellant had no realistic opportunity to test her evidence.
Respondent's Arguments
- The Sheriff had sufficient evidence to find membership of the same household: the Appellant was the child's father with parental rights, had a longstanding clandestine relationship with the Mother, had acted in a parental role and visited the household; absence of recent contact was due to state intervention.
- The Sheriff was entitled to amend the Statement of Facts without inviting further submissions because the amendment narrowed the allegation rather than expanded it and left the core allegation (that the Appellant assaulted Child B) intact.
- The Mother's hearsay statements did not render the hearing unfair: there was a good reason for her non-attendance (unknown whereabouts abroad), the statements were not the sole or decisive evidence because of corroborating circumstantial evidence, and sufficient counterbalancing safeguards existed.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Schatschaschwili v Germany (2016) EHRR 14 |
Approach to fairness when hearsay statements of absent witnesses are relied upon under Article 6. |
Identified as part of the established ECtHR framework to assess whether admission of hearsay may render a hearing unfair. |
| Al-Khawaja v United Kingdom (2012) 54 EHRR 23 |
Three-stage test: (i) good reason for witness absence; (ii) whether evidence is sole or decisive; (iii) counterbalancing factors/safeguards. |
The Court applied this framework to assess admissibility and fairness, concluding the Sheriff erred in procedure by not resolving the objection when the Mother was present and that the hearsay use was procedurally problematic. |
| JS v Children's Reporter 2017 SC 31 |
Application of Al-Khawaja in children's hearings and requirement to consider the proceedings as a whole; Article 6 principles in sui generis children's hearings. |
Used to confirm that the Al-Khawaja approach applies to these proceedings and to support the view that hearsay may be admissible but must be assessed in context; the Court found parallels in the concerns raised. |
| Cunningham v M 2005 SLT (Sh Ct) 73 |
Meaning of "household": question of fact and degree; household as group tied by relationship rather than locality; ties of affection and regular contact. |
The Court treated the issue as one of fact and degree and applied Cunningham to uphold the Sheriff’s factual finding that the Appellant had been part of the same household for years, such that removal at birth did not preclude the finding. |
| McGraddie v McGraddie [2013] UKSC 58, 2014 SC (UKSC) 12 |
Appeal courts will only interfere with first-instance findings of fact in limited circumstances; principle of appellate deference. |
Invoked to underscore deference to the Sheriff’s factual assessment of household membership unless no reasonable sheriff could have reached it. |
| Greater Glasgow Health Board v Multiplex Construction Europe Limited & Ors [2026] CSIH 16 |
Recent emphasis on appellate deference to first-instance factual findings. |
Relied on to reinforce the limited scope for appellate interference with the Sheriff’s factual conclusions. |
| AW v Principal Reporter 2022 SC (SAC) 27 |
Commentary that identifying a perpetrator by name in the statement of facts had been commended in certain contexts. |
Cited by parties; the Court noted the authority but distinguished the circumstances here, focusing on the procedural fairness issue rather than the mere act of naming a perpetrator. |
| T v Scottish Children's Reporter Administration [2022] SAC (Civ) 25, 2022 SLT (Sh Ct) 179 |
Consideration that lack of current contact is not necessarily indicative of absence of a future close connection where absence is due to state intervention. |
The Court disagreed with an apparent broad reading of that authority but accepted that past arrangements could be relied on where contact ceased due to state intervention. |
| In Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575 |
Approach to handling cases with uncertain perpetrator(s); discussion of "pool of perpetrators". |
Referenced by appellant's counsel; the Court considered the authorities on how to treat uncertainty about the identity of perpetrator(s) when addressing fairness of amendments. |
| Strand-Lobben v Norway (2020) 70 EHRR 14 |
Principle that there is a right to be heard before amendment of a statement of grounds (characterised in the opinion as an "absolute right"). |
Relied upon by appellant to support argument that amendment without hearing was incompatible with Article 6; the Court considered this in its procedural analysis. |
| McGregor v H 1983 SLT 626 |
Authority on household requiring something akin to a family unit with ties of affection and contact. |
Cited by the Appellant; the Court considered the standard but found the Sheriff had sufficient evidence under that approach. |
| A v Kennedy 1993 SC 131 |
Authority concerning the household concept and family ties. |
Referenced by the Appellant in arguing the household test requires a family-unit-type relationship; the Court nonetheless found the Sheriff’s assessment supportable. |
| KH v Children's Reporter Sh Ct, 3 March 2016 (unreported) (2016 GWD 10-196) |
Authority quoted in T v Scottish Children's Reporter Administration regarding contact and future connection. |
Noted in argument; the Court treated related reasoning with caution and applied its own assessment of facts. |
| TC v Authority Reporter 2014 Fam LR 72 |
Guidance on when procedural fairness requires giving parties an opportunity to make submissions before amendment of grounds. |
Used by respondent to argue that amendment narrowing, rather than expanding, did not require prior submissions; the Court assessed fairness in context. |
| Graham v HM Advocate [2019] HCJAC 51, 2019 JC 26 |
Interpretation that "decisive" in Al-Khawaja should be read narrowly; not every essential element renders evidence decisive. |
Invoked by the respondent to argue the Mother's statements were not necessarily "decisive"; the Court considered this in its balancing exercise but found procedural irregularity. |
Court's Reasoning and Analysis
The Court treated the "same household" issue as one of fact and degree under Cunningham and emphasised appellate deference to first-instance findings. It concluded the Sheriff had sufficient evidence to infer household membership: longstanding clandestine relationship, the Appellant's parental role, historical regular contact up to May 2021, state removal of the Child at birth and the Appellant's parental rights established on registration of the birth. Additional factual material provided at the appeal (unmentioned by the Sheriff) about initial English proceedings and interim care orders did not undermine the Sheriff’s conclusion. Thus question 4 was answered in the negative.
On question 1 (amendment of Statement of Fact 6), the Court expressed concern at the Sheriff’s failure to record the procedural history accurately but, after investigation, found that a written motion by the Mother's counsel asking for deletion of the words "Ms [IS] and/or" had been made and that the Appellant had been represented and had had the opportunity to oppose matters in the sheriff court. The Court therefore concluded there was no Article 6 breach in respect of the amendment, although it criticised the Sheriff for failing to record that he was acceding to a motion made by another party.
On question 2 (admission and reliance on the Mother's police statements), the Court found serious procedural irregularity. The Mother had been present and participating when the objection to leading her statements as hearsay was taken; the appropriate time to resolve the objection was then. The Sheriff heard the police evidence and deferred ruling, rather than resolving the objection when the Mother could have been called and cross-examined. Applying the Al-Khawaja/Schatschaschwili/JS framework, the Court concluded it was inappropriate in the circumstances to treat the hearsay statements as effectively untested evidence; the process denied the Appellant a realistic opportunity to test a crucial witness and thus amounted to unfair procedure that went to the core of the outcome. The Court therefore allowed the appeal on this ground.
Given the procedural unfairness identified, the Court quashed the Sheriff’s decision and remitted the case for a fresh hearing by another Sheriff, noting the need to resolve matters without undue further delay and that it was unknown whether the Mother would re-engage or whether the grounds would be amended.
Holding and Implications
HOLDING: The Court answered question 4 (household membership) in the negative and question 1 (amendment) in the negative, but answered question 2 (admission and reliance on the Mother's hearsay police statements) in the affirmative. The appeal is allowed on the basis of the procedural irregularity relating to the hearsay evidence; the Sheriff’s decision is quashed and the matter is remitted for a fresh hearing by another Sheriff.
Implications: The direct effect is that the sheriff court determination of 12 December 2024 is set aside and the case will be reheard. The Court did not purport to establish a new legal precedent beyond applying established authorities (Al-Khawaja, Schatschaschwili, JS, Cunningham, and appellate deference principles) and focused on remediating the unfair procedure identified.