What a sheriff must say by way of reasons when accepting a child’s evidence, and why points not raised in the application for a stated case are difficult to run on appeal.
Background
These were conjoined appeals under section 163(1)(a)(i) of the Children’s Hearings (Scotland) Act 2011 against a sheriff’s decision finding grounds of referral established in respect of two children, C, now aged seventeen, and F, aged six. The first appellant is the father of both children and the second appellant is F’s mother.
The appellants had lived with both children from October 2019 until 26 April 2023, when a child protection order was granted and the children were removed from their care. On 5 May 2023 the Children’s Hearing made an interim compulsory supervision order under section 86 of the 2011 Act, and the children have lived with foster carers since. The Locality Reporter Manager applied to the sheriff at Kirkcaldy under sections 93(2)(a) and 94(2)(a) of the 2011 Act. The ground of referral in relation to C was that an offence under Schedule 1 to the Criminal Procedure (Scotland) Act 1995 had been committed, in terms of section 67(2)(b).
The issue on appeal
The appeals proceeded by way of stated case. The single question for the appeal court was whether the sheriff had given adequate reasons for his decision in respect of contended inconsistencies between the evidence C gave in joint investigative interviews, his position before those interviews, and his evidence at proof.
The decision
The appeal was refused. The court found no error of law and answered both questions posed in the stated case in the negative. The cause was remitted to the sheriff under section 163(10) of the 2011 Act, a referral to the Children’s Hearing having already been made. No expenses were found due to or by either party.
Two strands ran through the reasoning. The first was procedural: the appellants had not identified internal inconsistencies in C’s evidence in their applications for a stated case, and no question addressing them had been posed. The questions were added later by adjustment.
The second was that the sheriff had in fact explained himself. He had set out why he preferred one account over another, including where C had been silent about the explanation for his injuries or had given conflicting accounts, and why he found C credible and reliable, describing him as articulate, thoughtful and careful. The appeal court held that a fair reading of the reasons as a whole left the informed reader in no doubt who had won and why.
What it means in practice
Referral proceedings are not a soft alternative to court. Grounds are established on evidence, tested at proof, and a sheriff’s assessment of a child’s credibility is difficult to disturb on appeal where the reasoning has been set out.
The procedural point deserves equal attention. An appeal by stated case is shaped by the questions posed in the application, and a ground of appeal introduced later by adjustment starts at a disadvantage. Anyone considering an appeal should identify every point at the application stage rather than developing the argument afterwards. Our page on children and family law explains how these proceedings work.