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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MT v DJ [2000] ScotCS 190 (10 July 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/190.html Cite as: [2000] ScotCS 190

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[1] This is an appeal from the interlocutor of the Sheriff at Linlithgow dated 25 August 1999 refusing the pursuer access to his daughter, E, and depriving him of all parental rights and responsibilities in respect of her. The Sheriff's decision was based on certain findings in fact which he made about conduct of the pursuer towards his daughter.

[2] A critical element in the Sheriff's decision was evidence given by a police officer about answers given by E at an interview in August 1998 when she had only recently passed her fourth birthday. This evidence was led under reference to Section 2(1)(b) of the Civil Evidence (Scotland) Act 1988 which provides that in any civil proceedings

At the proof, it was accepted that evidence of what E had said would be admissible only if she herself would have been a competent witness. There was, however, a divergence between counsel as to the time when her competence as a witness should be tested. Counsel for the pursuer contended that evidence of her answers should be admissible only if she would have been a competent witness at the time of the second interview in August 1998. Counsel for the defender contended, under reference to the decision of Lord Hamilton in L. v. L 1996 S.L.T. 767, that the evidence would be admissible if E would have been a competent witness at the proof. The Sheriff accepted the contention of counsel for the defender and, having examined E briefly at the proof, he held that she was a competent witness. He therefore held that the police officer's evidence of E's answers at the interview in August 1998 was admissible.

[3] In support of the appeal, counsel for the pursuer submitted that the Sheriff had fallen into two errors. First, he had simply asked himself whether E knew the difference between telling the truth and telling lies. He should have asked himself whether E was likely to give trustworthy evidence: M v. Kennedy 1993 S.C.C.R. 69 at p. 76 E per Lord President Hope. Secondly, the Sheriff had been wrong to hold that, under Section 2(1)(b) of the 1988 Act, the question of competency fell to be determined by reference to E's abilities at the time of the proof in March 1999. The admissibility of the hearsay evidence of E's replies in August 1998 should be tested by asking whether she would have been a competent witness at that date. In this particular case the Sheriff's examination of E in March 1999 was of no value in determining that matter since she had attended nursery school in the intervening period and would have developed accordingly. Counsel submitted that on this point Lord Hamilton's decision in L v. L had been wrong. By contrast, counsel for the defender submitted that Lord Hamilton had correctly interpreted Section 2(1)(b). His interpretation might leave the law in an unsatisfactory state, but that was what the legislation provided.

[4] Counsel for both parties deprecated the situation where, in the light of the decision in F v. Kennedy 1992 S.C. 28 at p. 32, it appeared to be accepted that, before a party could lead hearsay evidence of what a child had said, the child had to be put into the witness box and examined. This apparent requirement had caused difficulties in the present case and, more generally, it had caused difficulties for many practitioners in this field and for Children's Reporters.

[5] From the submissions of counsel it was apparent that the proper interpretation of Section 2(1 Act is indeed a matter of doubt among practitioners and is causing significant difficulties, especially in cases involving children. We have mentioned the two opposing interpretations of that provision advanced before us. In addition, as Lord Hamilton indicated in L v. L 1996 S.L.T. at p. 770 F, there may be room for a view that the provision was designed to ensure that a statement would not be admissible if it related to a particular matter on which evidence from the person concerned would not have been admissible, for example, because it was confidential or sought to contradict the terms of a written contract. We refer to paragraph 3.37 of the Report of the Scottish Law Commission on Corroboration, Hearsay and Related Matters in Civil Proceedings (No. 100 1986).

[6] Since the proper interpretation of Section 2(1)(b) is a matter of general importance, not least in relation to the statements of children, we shall remit the matter to a larger court so that the whole question can be reconsidered.