Summary of Opinion (Anonymised)

Factual and Procedural Background

This appeal arises from proceedings under the Children's Hearings (Scotland) Act 2011 concerning a child (referred to here as "Child") born in June 2022. The Child was removed to a place of safety at birth following events of 28/29 August 2013 involving serious injury to the Child's half‑brother ("Sibling"). Grounds of referral were framed in November 2022 and amended in May and June 2023. A protracted proof under section 93 followed over 13 months. On 12 December 2024 the sheriff found that the Appellant had violently assaulted Sibling on 28/29 August 2013 causing severe injury, and concluded (under section 67(2)(c) and (3) of the 2011 Act) that the Child had a close connection with a person who had committed a Schedule 1 offence; that conclusion depended on a finding that the Child was a member of the same household as the Appellant. The Child's mother (referred to here as "Mother") did not participate in the appeal although the court discovered she had participated in the sheriff court proceedings to a greater extent than the papers disclosed. The Appellant appealed by stated case to the Inner House.

Legal Issues Presented

1. 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 giving notice to parties and inviting submissions?
2. Separatim, 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 Mother contained in select police statements?
3. The stated case contained additional questions not pressed by the Appellant in this appeal.
4. 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 finding the Appellant was a member of the same household as the Child because there was insufficient evidence of ongoing ties of affection and regular contact; there was little or no evidence from the Appellant or Mother about arrangements since May 2021.
• The sheriff breached Article 6 by amending Statement of Fact 6 without putting the Appellant on notice and by treating a "pool of perpetrators" as narrowed to the Appellant without opportunity to oppose that change.
• The sheriff erred in admitting and relying on hearsay police statements of Mother; those statements were decisive, Mother was available to be called, and admission without her attendance denied the Appellant proper testing and cross‑examination.
• If procedural errors are found, the Appellant sought either quashing of the sheriff's findings on the household issue or reinstatement of the original wording of Statement of Fact 6 (including both Mother and the Appellant as possible perpetrators) and remit for further process.

Respondent's Arguments

• The sheriff had sufficient evidence to find the Appellant formed part of the household: he was the Child's father, had parental responsibilities, had a longstanding clandestine relationship with Mother, and had engaged in the care of other children; absence of recent contact was explained by state intervention.
• Rule 3.48 of the Act of Sederunt permitted amendment of the Statement of Grounds; where an amendment narrows rather than expands allegations it may not necessitate prior notice and the Appellant suffered no unfairness from the narrowing.
• On hearsay, there was a good reason for Mother's non‑attendance (unknown whereabouts abroad), the hearsay evidence was not sole or decisive, and there were sufficient counterbalancing safeguards (inconsistent statements available for scrutiny and other circumstantial evidence).
• Accordingly, all stated questions should be answered in the negative and the appeal refused.

Table of Precedents Cited

Court's Reasoning and Analysis

The panel (Judge Wise, Judge Clark and Judge Carmichael) analysed two discrete strands: (A) the "same household" factual question and (B) procedural fairness concerning amendment of the statement of facts and admission of hearsay evidence.

(A) "Same household"

• The court treated the household question as one of fact and degree per Cunningham v M and applied appellate deference to first‑instance findings. The sheriff had evidence that the Appellant was the Child's father with parental rights, had a long‑standing clandestine relationship with Mother, had performed parental roles to other children, and had maintained part‑time presence in the household until state intervention in May 2021. The absence of more recent contact was explained by state intervention and did not preclude an inference that the household ties would have continued but for removal. Having reviewed the material (including additional information disclosed at the appeal hearing about earlier English proceedings and contact), the court concluded the sheriff's factual conclusion was one a reasonable sheriff could reach; question 4 answered in the negative.

(B) Amendment of Statement of Fact and hearsay evidence

• The court scrutinised the sheriff's conduct in amending Statement of Fact 6 to remove reference to Mother and thereby identify the Appellant as sole perpetrator, and in admitting Mother's police statements via police witnesses rather than calling Mother. Initially the stated case suggested the sheriff had acted of his own motion in amending the statement; on further enquiry the court discovered that Mother had been present and had been represented for part of the proof and that written submissions by Mother sought deletion of "Ms [IS] and/or" if an assault was established. The court therefore concluded the sheriff had not acted entirely on his own initiative but should have recorded that he was acceding to a motion made on behalf of Mother and should have made that clear in the stated case. For Article 6 purposes, absence of notice of an amendment can be unfair, but no breach could be made out here because those representing the Appellant had had the opportunity to oppose the motion.
• On hearsay, the court applied the Al‑Khawaja framework (as elaborated in JS). The key issue was that when the reporter sought to lead Mother's statements through police witnesses an objection was taken while Mother remained present and participating. The sheriff proceeded to hear the evidence and deferred determination of admissibility until after evidence was led. The court held that it was plainly wrong to defer determination when the witness was present and available to be called and cross‑examined. That practice risked denying the Appellant an adequate opportunity to test the witness and amounted to a serious procedural irregularity going to the core of the outcome. The court found that the method of tendering hearsay to avoid cross‑examination was objectionable in the circumstances and that the objection should have been resolved at the time; accordingly question 2 was answered in the affirmative.

Remedy

The court found the procedural irregularity in relation to admission of Mother's hearsay was sufficiently serious and material to the outcome that the sheriff's decision must be quashed and the matter remitted for a fresh hearing before another sheriff. The court was cautious about reinstating Mother's name into the statement of fact without giving Mother the opportunity to participate; remittal was preferred to resolve the unfairness.

Holding and Implications

HOLDING: The court answered question 1 (amendment without notice) in the negative, question 2 (admission of Mother's hearsay) in the affirmative, and question 4 (same household) in the negative. The appeal is allowed in part: the sheriff's decision is quashed and the case is remitted for a fresh hearing by another sheriff.

Implications: The direct effect is that the sheriff's determination is set aside and the matter will be re‑heard; the court reserved questions of expenses. The decision emphasises procedural safeguards when admitting hearsay in children's referral proceedings (application of the Al‑Khawaja/JS framework) and the need to resolve contested hearsay objections at the point of objection where the witness is present. The court applied established authority on the factual "household" test and did not purport to establish a new legal principle beyond those applications.