E C & Anor v. Miller [2003] ScotCS 181 (26 June 2003)

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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> E C & Anor v. Miller [2003] ScotCS 181 (26 June 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/181.html
Cite as: 2004 SCLR 55, [2003] ScotCS 181

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EC & Anor v. Miller [2003] ScotCS 181 (26 June 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Hamilton

Lord Carloway

XA101/01

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL

STATED CASE

under section 51(11) of the children (Scotland) Act 1995

(FIRST) E C and (SECOND) MRS. M C

Appellants;

against

ALAN D. MILLER, Principal Reporter, Scottish Children's Reporter Administration

Respondent;

_______

Act: Kelly; Balfour & Manson, SSC (Appellant, E C): O'Brien, Q.C., Sheldon; Drummond Miller WS (Appellant M C): McNair, Q.C.; Drummond Miller, WS (Appellant A C)

Alt: Dorrian, Q.C., Hughes; Biggart Baillie, WS (Reporter): Ennis; Simpson & Marwick, WS (Safeguarder)

26 June 2003

The background to the appeals:
[1] The first and second named appellants were married on 18 February 1983. They have three children, RC, who was born on 11 October 1983, AC, who was born on 16 October 1985 and CC, who was born on 18 December 1995. The family occupied residential premises in Dunoon.

[2] The respondent, hereinafter referred to as "the Reporter", having concluded that compulsory measures of supervision were necessary in respect of the three children, in terms of section 56(6) of the children (Scotland) Act 1995, arranged a children's hearing to which the cases of the three children were referred for consideration and determination. In the case of RC, the reasons stated for the referral were

" ... that the child is likely:

(i) to suffer unnecessarily; or

(ii) be impaired seriously in her health or development, due to a lack of

parental care being grounds for referral in terms of section 52(2)(c) of the children (Scotland) Act 1995

and that the child is a child in respect of whom any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (offences against children to which special provisions apply) has been committed being grounds for referral in terms of section 52(2)(d) of the children (Scotland) Act 1995."

The grounds of referral were accepted by the child, but denied by both of her parents.

[3] In support of the referral in the case of RC certain statements of fact were made. Some of these facts were not controversial, while others were. The controversial facts, which were denied by both the appellants, were in the following terms:

" ... 3. that between the age of five and fifteen years the child has been forced by her father to engage in abusive practices of a shamelessly indecent nature.

4(a) that in particular on or around New Year's Eve 1988 the child was

forced to engage in oral sex with her father within their then family home at [address], Dunoon, and on a regular basis thereafter until around the age of eight years.

(b) that in or around the summer of 1991, exact dates unknown to the

reporter, the child was forced to engage in anal intercourse with her father within the then family home at [another address], Dunoon, and on a regular basis thereafter until around the age of fifteen years.

her father both orally and anally.

5. that during the course of the above incidents and at other times the child has been subjected to physical and verbal abuse from her father.

6. that on occasions during her childhood the child has suffered physical and verbal abuse from her mother and that in particular on or around 20 November 1994 the child was assaulted by her mother within [address], Dunoon, and verbally abused.

7. that during the course of her childhood the child has suffered significant emotional and mental damage as a result of her parents' behaviour towards her."

The referral relating to RC was dated 9 August 1999. On 17 August 1999, a children's hearing for Argyll & Bute Council considered this referral. In view of the position taken up by the appellants, it gave a direction to the Reporter under section 65(7) of the 1995 Act. One Jane MacLeod was appointed as safeguarder. Accordingly, in pursuance of the direction given to him, the Reporter made an application, dated 18 August 1999, to the sheriff to find whether the grounds for referral not accepted were established.

[4] The Reporter also arranged for the children's hearing to consider a referral in relation to AC, which was dated 10 August 1999. The grounds of referral in this case were:

" ... that the child is, or is likely to become, a member of the same household as a person who has committed an offence mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995, being grounds for referral in terms of section 52(2)(f) of the children (Scotland) Act 1995 and

that the child is a child in respect of whom any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (offences against children to which special provisions apply) has been committed being grounds for referral in terms of section 52(2)(d) of the children (Scotland) Act 1995."

In support of this referral certain statements of fact were made. Some of these were accepted by the appellants and the child, others were not. Those which were not accepted were in the following terms:

" ... 3. that between the age of five and fifteen years the child's sister RC was forced by her father to engage in abusive practices of a shamelessly indecent nature, (specified in grounds for referral at Statement-of-Fact 3 relating to RC dated 9 August 1999 and attached and incorporated herein).

4. that on occasions the child's sister RC has suffered physical and verbal abuse from her mother and that in particular on or around 20 November 1994 the child RC was ill-treated and assaulted by her mother within [address], Dunoon. ...

6. that when the child was around that age of three years he was dangled out of a window by his father at the then family home at [address], Dunoon to the child's danger and extreme alarm."

On 17 August 1999 this referral also came before the children's hearing for Argyll & Bute Council, which gave a direction to the Reporter under section 65(7) of the 1995 Act in respect of AC. Elspeth Black was appointed as safeguarder. Accordingly, the Reporter made an application, dated 18 August 1999, to the sheriff to find whether the grounds for referral not accepted by the child and the appellants were established.

[5] The Reporter also arranged for the children's hearing to consider a referral in relation to CC, also dated 10 August 1999. The ground of that referral was:

In support of that referral certain statements of fact were made. Some of these were accepted, but others were not. Those which were controversial were in the following terms:

" ... 3. that between the age of five and fifteen years the child's sister RC was forced by her father to engage in abusive practices of a shamelessly indecent nature (specified in grounds for referral at Statement-of-Fact 4 relating to RC dated 9 August 1999 and attached and incorporated herein).

5. that as stated above CC normally resides in the same household (currently [address], Dunoon) as, inter alia, MC and EC."

Once again on 17 August 1999 the children's hearing for Argyll & Bute Council gave a direction to the Reporter under section 65(7) and (9) of the 1995 Act in respect of CC. Elspeth Black was appointed as safeguarder. Accordingly, the Reporter thereafter made an application to the sheriff, dated 18 August 1999, to find whether the grounds for referral not accepted by the appellants were established.

[6] Following the making of these three applications to the sheriff, proceedings commenced in Dunoon Sheriff Court with a view to the sheriff finding whether such grounds for referral as were not accepted were established. In view of the close connection between the three applications, they were conjoined. The hearings commenced on 22 November 1999 and ran over many days, which were interrupted by frequent adjournments. On 26 September 2000, the sheriff, in respect of RC, found both grounds established and in support of those grounds found the following statements of fact established: 1 and 2, which related to the personal particulars of the members of the family and to the fact that at all material times both parents had custody, charge and care of the child, accepted and established; 3, established but amended as follows to read:

"that between the age 5 and 15 years, exact dates unknown to the reporter, the child has been forced by her father to engage in abusive practices of a shamelessly indecent nature within family homes at [address], Dunoon and at [address], Dunoon, which practices included both anal and oral abuse";

4, deleted; 5, 6 and 7, established. She then remitted the case to the Reporter to arrange a children's hearing to dispose of it.

[7] The sheriff in respect of AC found the first ground established and the second ground not established. She found the following statements of facts established: 1 and 2, which related to the personal particulars of the members of the family and to the fact that at all material times both parents had custody, charge and care of the child, accepted and established; 3, established but amended as follows to read:

"That between the age of 5 and 15 years (exact dates unknown to the reporter) the child's sister RC has been forced by her father to engage in abusive practices of a shamelessly indecent nature (specified in grounds for referral at statement-of-fact 3 relating to RC, dated 9 August 1999 and attached and incorporated herein);

4, established but under deletion of the words "ill-treated and" where they occur in the second and third lines; 5, which related to the fact that AC normally resided in the same household as his sister RC and their parents, accepted and established; 6, established under deletion of the word "dangled" and insertion thereto of the word "hung" in the first line, and under deletion of the word "extreme" in the second line. In this case also the sheriff remitted the case to the Reporter to arrange a children's hearing to dispose of it.

[8] In the case of CC, the sheriff found the ground established and in support of that ground found the following statements of facts established: 1 and 2, which related to the formal particulars of the members of the family and to the fact that at all material times both parents had custody, charge and care of the child, accepted and established; 3, established but amended as follows to read:

"That between the age of 5 and 15 years, exact dates unknown to the Reporter, the child has been forced by her father to engage in abusive practices of a shamelessly indecent nature (specified in the grounds for referral at Statement-of-fact 3 relating to RC dated 9 August 1999 and attached and incorporated herein); under deletion of the figure 4, where it occurs in line 3 and substitute therefor the figure 3; ...".

The sheriff, apparently inadvertently, did not formally record in the stated case her findings in respect of statements-of-fact 4 and 5 in this referral, which were in equivalent terms to those in the referral in respect of AC. Thereafter, in this case also the sheriff remitted the case to the Reporter to arrange a children's hearing for the disposal of it. In relation to the finding as to CC, it is necessary also to recognise the obvious error in the finding, so far as it relates to statement-of-fact 3. In the finding there is a reference to the fact that "the child has been forced by her father to engage in abusive practices of a shamelessly indecent nature ... ", which, of course, had never been alleged. We understood that the reference should have been to the child's sister RC having been so forced.

Preliminary Submissions:
[9] At the outset of the hearing before us, we were informed by senior counsel for the Reporter that all of the referrals, with which the case had been concerned, had been discharged. That relating to AC had been discharged on 18 December 2001, that relating to CC continued until 17 December 2002 but had then been discharged, and, in relation to RC, she, having attained the age of 16 years on 11 October 1999, no supplementary supervision requirement had been made. It was submitted that, as a result of these events, the present proceedings had no practical effect. An exclusion order had been made against the first-named appellant, but the appellants had, in any event, separated, CC continuing to live with her mother.

[10] Junior counsel for the safeguarder to CC informed us that her client's responsibilities in relation to CC had endured until 17 December 2002. However, it was considered that she now had no function to perform. The appeal had no practical consequences so far as CC was concerned. The appellants had not yet been divorced, but any new proceedings relating to CC would require to have a fresh basis. A limited finding had been made against the second-named appellant relating to an assault upon RC, but that was not now a concern. In all of these circumstances counsel for the safeguarder sought leave to withdraw.

[11] Counsel for the first-named appellant, the father, contended that the proceedings were not academic in relation to his client. While there was no enduring supervision requirement, a finding had been made against him which he disputed. This had a bearing on the first-named appellant's position in relation to CC, who had many years of childhood ahead of her. It was accepted that the first and second-named appellants were living apart, but the first-named appellant wished, in due course, to have contact with CC, although he had not yet sought that. The interlocutor which had been pronounced by the sheriff would constitute a barrier to a finding allowing him contact with her. If contact occurred between the first-named appellant and CC, the Reporter might make a referral to the children's hearing. The previous finding could be relevant to such a situation. In these circumstances, the first-named appellant continued to have an interest in the determination of the appeal.

[12] At this point senior counsel for the Reporter made certain further submissions. She indicated that certain contact arrangements had been made involving the first-named appellant and CC, involving supervised contact once a week. However, contact by the first-named appellant with CC had not in fact taken place. The ending of the supervision requirement had terminated those arrangements on 17 December 2002. It was doubtful whether the Reporter would be able to make a referral in relation to contact with CC, because she was not a child against whom any relevant offence had been committed. However, it was considered that the findings made by the sheriff, following a proof, might assume some significance in future proceedings. In this connection reference was made to M v. Constanda 1999 S.L.T. 494; M. v. Kennedy 1995 S.C. 61, and McGregor v. H. 1983 S.L.T. 626. The real issue in any subsequent proceedings would be whether CC might become a member of the same household as the first-named appellant, who had been held to be a Schedule 1 offender. That was most improbable in the circumstances of this case.

[13] Senior counsel for the second-named appellant then made submissions to the court. She drew attention to the provisions of section 52 of the 1995 Act and to the circumstances that the sheriff had made a finding of assault by the second-named appellant on RC and had also made finding-in-fact 103. Accordingly, the second-named appellant had to be treated as a Schedule 1 offender. Paragraphs 1 and 3 of Schedule 1 to the Criminal Procedure (Scotland) Act 1995 would cover the offence of assault. The second-named appellant had de facto custody of CC. In these circumstances there could be a referral under section 52(2)(f) of the Children (Scotland) Act 1995. The finding of assault against the second-named appellant was contained in finding-in-fact 29. The Reporter could rely upon the findings which the sheriff had made of Schedule 1 offences in new proceedings. Accordingly, the present appeals were not academic. Furthermore, senior counsel for the second-named appellant indicated that there was a further argument which would be addressed to the court relating to the infringement of the second-named appellant's human rights in consequence of unreasonable delay. That was a matter which stood alone. There were criticisms to be made of the sheriff's evaluation of the evidence. The assault which she had found proved had been trivial and should not have given rise to a finding such as was made.

[14] Counsel for AC then addressed the court. Although AC was now over 16, he remained a "child", since the proceedings relating to him had not been concluded. There were no findings relating to offences committed against him specifically. Nevertheless, potentially orders could be made by the children's hearing in relation to him until he became 18, on account of the endurance of the present proceedings. In addition to that, there existed the human rights point relating to delay. AC had a live interest in the proceedings because of that aspect of them.

[15] Senior counsel for the Reporter then responded. She contended that the orders made by the children's hearing in relation to CC were orders which would remain relevant to any future proceedings in relation to that child. She referred to Children's Hearings in Scotland, Norrie at pages 110-111.

Decision on preliminary submissions:
[16] In the light of the foregoing arguments, we reached the conclusion that the present proceedings could not be regarded as completely academic in relation to the appellants and AC; however, we were satisfied that no useful purpose would be served by the continued representation of the safeguarder, whose representatives were accordingly given leave to withdraw.

Minute relating to human rights issues:

[17] Following upon the communication of this decision to the parties, senior counsel for the second-named appellant drew attention to a Minute lodged on her client's behalf, No. 19 of process. This Minute contained conclusions, a condescendence and pleas-in-law. The conclusions were in the following terms:

"(1) For declarator that the proceedings initiated on or about 18 August 1999 by way of an application by the Children's Reporter to the sheriff at North Strathclyde at Dunoon to establish certain grounds and supporting statements of fact relating to RC, AC and CC, violate the second-appellant's right to a fair trial under Article 6 of the European Convention of Human Rights;

(2) For reduction of the sheriff's decision dated 26 September 2000."

The condescendence contained averments in detail concerning the background to the matter, already explained above, the provisions of the European Convention on Human Rights, criticisms of the Scottish Ministers in respect of their alleged failure to organise the domestic legal system in an appropriate way, criticism of the non-availability of shorthand notes of the evidence, which was heard over a total of 49 days, criticism of the rigid requirements of the stated case procedure, and other criticisms. The plea-in-law contained in the Minute was in these terms:

"(1) The minuter's Convention rights having been violated all as condescended upon, she is entitled to declarator et separatim reduction as concluded for."

Thereafter senior counsel for the second-named appellant summarised the history of the case, under reference to a chronological record of events. We were informed that this court, on 4 December 2002, had refused in hoc statu the second-named appellant's motion for a warrant for service of this Minute upon the Scottish Ministers, the Lord Advocate and the Advocate General. A similar motion had also been refused simpliciter on 30 November 2001, apparently on the view that human rights points could not be raised in this stated case.

[18] Senior counsel for the second-named appellant stated that she regarded intimation of this Minute as essential, but, despite that, was making no motion for it, in view of what had previously occurred. She accepted that the Minute had no statutory authority. She explained that her purpose was to make submissions concerning the contents of the Minute in the present appeals. In connection with the Minute reference was made to section 7(1)(b) of the Human Rights Act 1998, which authorises a person who claims that a public authority had acted in a way which was made unlawful by virtue of section 6(1) of that Act to "rely on the Convention right or rights concerned in any legal proceedings". There then ensued a discussion concerning the Minute. The positions of other parties represented were explained.

[19] Following upon this discussion we indicated that we wished to be addressed on the following matters: (1) the contents of the Minute, with a view to ascertaining whether there had been a prima facie breach of the human rights of the second-named appellant; (2) how the alleged breach of human rights related to the determination of these appeals; and (3) who might be the proper contradictors of the arguments to be presented. Thereafter we were addressed by senior counsel for the second-named appellant upon these matters. Once again she referred in detail to the chronological record of events in the proceedings. There had been substantial delay in the Court of Session consequent upon the discharge of an earlier diet for the appeals. That delay was supplemental to the delay which had occurred in the earlier stages of the case. The submission was that the appeals had not been determined within a reasonable time. In this connection reference was made to Johansen v. Norway (1997) 23 EHRR 33, Warnes v. Her Majesty's Advocate 2002 S.L.T. 34, H. v. The United Kingdom (1987) 10 E.H.R.R. 95, Eckle v. Federal Republic of Germany (1982) 5 EHRR 1. In the circumstances of the present case, the period of time taken to deal with the matter was unreasonable. It was accepted that the time occupied by the hearing before the sheriff was exceptional, being 49 days. However, that period had been spaced over a long period, due to the inadequacy of resources in the Sheriff Court. There had also been accommodation problems at Dunoon Sheriff Court, on account of the pressure of business there.

[20] A number of factors were founded upon in support of this submission: (1) at the start of proceedings RC had been an in-patient in a mental hospital; (2) two other children were involved in the proceedings; AC was much distressed; (3) RC had been very worried regarding giving evidence and her evidence might as a result have been affected; (4) there was in existence an exclusion order affecting the first-named appellant; (5) the second-named appellant had been under strain and had been unfairly branded a child abuser; (6) there had been long periods of inactivity in the proceedings while parties waited for dates; (7) the first-named appellant had been suspended from his employment as a care worker; he was subsequently dismissed; (8) the abolition of the system of temporary sheriffs had been a factor; (9) the conduct of the parties themselves had had no material effect; (10) the case was a complex one in which there had been much expert evidence. A large part of the delay involved in the case had been attributable to the period of waiting for the present appeal hearing.

[21] Senior counsel for the second-named appellant next turned to the second of the three questions upon which the court had indicated it wished to be addressed. This question, it was said, raised the issue of an appropriate remedy. The court might make a declarator with no further order. Alternatively the court could make the declarator and reduce the sheriff's decision. Again, there could be a claim against the Scottish Ministers for damages in favour of the second appellant, although it was recognised that no such claim had yet been advanced. That might require to be done in a separate action. The issue of delay, it was contended, was raised in question 9 in the stated case. The issue of delay could be considered at a separate hearing, although it remained true that the delay had had an effect upon the present proceedings themselves. Reference was made to Mills v. Her Majesty's Advocate (No. 2) 2002 SLT 939. If the appeals on the merits failed, the court could still consider the effect of delay. Even if the court were to allow the appeals on "domestic grounds", the declarator formulated in the Minute would still be insisted upon. Apart from delay, there were certain human rights arguments based upon the shortcomings in the proceedings themselves.

[22] Turning to the issue of a proper contradictor, senior counsel for the second-named appellant submitted that, in relation to issues of general fairness under Article 6 of the Convention, no contradictor was required. So far as delay was concerned, it was plain that the criticisms were directed at the Scottish Ministers, who should be the contradictors. A devolution issue would be involved in the proceedings. Intimation to the Lord Advocate and the Advocate General would be appropriate.

[23] Counsel for the first-named appellant associated himself with the above submissions. His client had been subjected to the harmful consequences of delay in the appeal proceedings. Efforts had been made to obtain an early hearing, which had failed. Reference was made to Mills v. Her Majesty's Advocate (No. 2), reported in the High Court in 2001 S.C.C.R. 821. Complex issues existed in relation to the possible remedies for delay.

[24] Counsel for AC pointed out that in terms of section 51(11) of the Children (Scotland) Act 1995 there was an appeal to this court "on a point of law or in respect of any irregularity in the conduct of the case". A breach of human rights would involve such an irregularity. There was a particular remedy available in relation to AC. There could be a remit to the sheriff to delete that part of her interlocutor which remitted the matter of AC's position to a further children's hearing. It was not necessary in all the circumstances that there should be intimation to other parties not as yet involved in the appeals, as appeared from Gillespie v. Her Majesty's Advocate 29 November 2002, now reported at 2003 S.C.C.R. 82. A variety of courses might be available to the court.

[25] Senior counsel for the Reporter replied. She contended that the issue of a remedy was fundamental. It should be noted that the Reporter had not been criticised in the Minute, No. 19 of process, as responsible for any delay. However, if the second-named appellant was applying to the court for the decision of the sheriff to be quashed on account of delay, the Reporter would have a position to express. In the context, a number of factors had to be considered. First, the period of time which had elapsed in the handling of the case was only one factor. Secondly, the nature of the case was relevant; it was one of some complexity. Thirdly, the conduct of the parties themselves had to be considered. Fourthly, the manner of the handling of the case by the judicial and administrative authorities was relevant. Fifthly, there was a public, as well as a private, interest in the case, in respect that there was a public interest in a child receiving compulsory measures of supervision, where that was appropriate. In addition, there existed private interests of parents and children, who were entitled to protection. In the assessment of delay, the decision in Dyer v. Watson 2002 SC (PC) 89 was helpful. It had been made clear in that case that the existence of periods of inactivity did not necessarily lead to the conclusion that a breach of Article 6(1) had occurred. The court ought not to attempt to adopt some criterion in respect of the period of time which the average case should occupy. There were no minimum or maximum periods. It was necessary to look at the time taken against the background of the whole circumstances of the case. The approach ought to be to examine the time taken in any particular case in the light of the background circumstances. The question was whether the delay gave grounds for real concern, in which event an explanation for it would be necessary. The threshold which had to be crossed was a high one. In this connection reference was made to R. v. Her Majesty's Advocate and Another [2002] UKPC D3 now reported at 2003 SCCR 19. Caution ought to be exercised in drawing conclusions relating to the application of Article 6 based on decisions in criminal cases, since, in such cases, time limits were of great importance. Looking at the particular circumstances of the present case several factors required to be recognised: (1) the complex nature of the case; (2) complex medical issues arising; (3) the number of expert witnesses involved in the case; (4) the number of parties represented in the proceedings; and (5) the number of witnesses from whom evidence had been led. This case had been very much more complicated than the normal child protection case. In relation to procedure in this court, it ought to be recognised that, while early disposal of the case was desirable, it was exceptional as regards the length of time which it was likely to occupy.

[26] There had been some discussion regarding possible remedies which might be available in the event of a breach of Article 6 being established. Among those mentioned were first, a declarator of breach, second, a finding that a breach had occurred and the reduction of the sheriff's decision, and third, damages. It was indicated that the Reporter was concerned regarding the possibility of the second remedy mentioned. If reduction was not available in the present proceedings, it was questionable whether any remedy for delay could be available in these proceedings. If the appellants could not show what effect delay might have had in these proceedings, then it should not be an issue. The position of the Reporter was that reduction could not be an appropriate remedy because of the multiplicity of interests involved in the appeal. In that respect the present proceedings could be contrasted with criminal proceedings or other civil proceedings. In a criminal process, the prosecution might be ended if there had been a breach of Article 6(1). However, in civil cases, a breach of that Article did not bring the proceedings to an end.

[27] An additional difficulty in the case was that, in the Minute, No. 19 of process, criticism had been directed at more than one authority. While ultimately the provision of resources for the Scottish judicial system was the responsibility of the Scottish Ministers, different persons and bodies were responsible for the prioritisation of demands made on the system. What was quite plain was that this court could not simply proceed to make a decision on these matters on the basis of its own understanding of the issues involved, without hearing from those actually responsible for the system so far as it had impacted upon the present case. As to the absence of shorthand notes and to criticism of stated case procedure as a mode of review, it was well-known that there were numerous situations in which appeals were taken by way of stated case. The implications of the raising of the present issue in this case would be far-reaching.

Decision as to procedure relating to Minute:
[28] Having heard the foregoing arguments on the contents of the Minute, No. 19 of process, we reached the decision that the question of whether intimation of that Minute should be made to other persons and, if so, to whom, should be deferred until at least the close of the present hearing. It appeared to us that the priority was for the court to hear the appeals on their merits. Such a hearing, we considered, ought not to be impeded or delayed by the intimation of the Minute to appropriate persons, which would inevitably have the effect of bringing the present appeals to a halt. Having indicated this decision to the parties, counsel for AC then indicated that, having taken instructions from his client, he intended to make no submissions on the merits of the appeals themselves.

Submissions in the appeals themselves:
[29] Counsel for the first-named appellant then proceeded to make submissions on his appeal. He began by drawing attention to the terms of the stated case and also to the provisions of section 51(11) of the Children (Scotland) Act 1995, which provided for "an appeal ... on a point of law or in respect of any irregularity in the conduct of the case ... ". He also drew our attention to the provisions of section 52(2)(c) and (d) of the Act of 1995, which had been invoked in the referral relating to RC. The sheriff had found both of these grounds of referral established, although she had amended the statements of fact supporting them. In particular statement-of-fact 3 had been amended and statement-of-fact 4 deleted. Statements of fact 5, 6 and 7 were established, all as appeared from page 28 of the stated case. In relation to AC section 52(2)(d) and (f) had been invoked by the Reporter. Only the ground of referral in which the latter provision had been relied upon was held established. The sheriff's treatment of the statements of fact relied upon in relation to AC could be seen from page 29 of the stated case. So far as CC was concerned, once again section 52(2)(f) of the Act of 1995 had been relied upon. The sheriff's treatment of the application relating to CC contained an obvious clerical error in relation to statement-of-fact 3. Statements of fact 4 and 5 appeared to have been ignored by the sheriff.

[30] Counsel for the first-named appellant then turned to deal with the issues arising in the stated case, commencing with the matter referred to in question 1 for the Opinion of the Court, as it stood at that stage of the proceedings, which was in these terms: "Did I err in law in refusing the motion of 21 July to discharge the referral?". He explained that this matter arose out of material which had come to light and to the attention of the Reporter during the course of the hearing before the sheriff. It became known to the parties only during the cross-examination of a witness, Dr.. Hammond, which disclosed that further allegations had been made by RC. The question was whether there had been an irregularity in the conduct of the case by the Reporter in respect of her failure to disclose the fresh allegations between 5 June and 19 July 2000. A further question arose of whether there should have been a discharge of the referral in the light of those circumstances. Even if there had been no irregularity in the proceedings in this respect and the referral should not have been discharged, the matter concerned would remain for consideration in association with other matters.

[31] In submitting that the decision of the sheriff to refuse a motion of 21 July 2000 to discharge the referral was erroneous, reliance was placed on section 53 of the 1995 Act, which provided for information to be submitted to the Reporter. Reference was also made to pages 54-65 of the stated case, where the sheriff explained her decision that a discharge was not appropriate. Instead the sheriff had allowed an adjournment to enable parties to examine relevant records. This matter had been very significant because the new allegations were very serious and had been made against the first-named appellant. A related matter was the conduct of the Reporter, which, it was submitted, was unfair to the first-named appellant, on account of lack of disclosure of the fresh allegations over a period of time. In support of the submissions counsel referred to McMichael v. The United Kingdom (1995) 20 EHRR 205, which showed the importance of the disclosure of relevant documentary material to parties to a proceeding such as this, although it was accepted that the circumstances of the case were very different from those of the present one. Reliance was also placed on McLeod v. Her Majesty's Advocate (No. 2) 1998 JC 67, which dealt with the disclosure of documentation in criminal cases. It demonstrated that it was the duty of the Crown to disclose exculpatory material to the advisers of the panel. It was submitted that the principles set out in that case applied with equal force to the Reporter. In these circumstances question 1 ought to be answered in the affirmative. In response to questions by the court, counsel accepted that the information to which he had been referring was ultimately disclosed, although it could have been disclosed earlier than it was. However, he was unable to say that that delay in disclosure had made a difference. On its being pointed out by the court that question 1 contemplated the possibility of a discharge of the referral by the sheriff, counsel accepted that the sheriff had no statutory power to follow that course in dealing with an application for a finding as to whether grounds of referral were established. It was contended that there was a common law power to discharge the referral in such circumstances in the event of the occurrence of irregularities.

[32] Counsel for the first-named appellant then turned to deal with the matters to which questions 2, 3, 4 and 5 related, which he said could be taken together. These questions were as follows:

"2. Did I apply the correct test in respect of the credibility and reliability

of RC?

3. Was I entitled to discriminate between certain parts of RC's evidence

and other parts thereof?

4. Did I err in law in accepting aspects of RC's evidence relating to

sexual abuse by her father when, at the same time, I did not find established other allegations made by her?

5. Was I entitled to accept the evidence of RC as reliable in part?".

It was contended that all of these questions raised the issue of the proper approach to the evaluation of the evidence. While it might appear that these questions did not raise a question of law, in reality counsel submitted that they did. An appellate court might interfere if certain features could be shown. These were: (1) the existence of an error of law; (2) that the sheriff had taken account of irrelevant considerations; (3) that the sheriff had failed to give adequate reasons; and (4) that the sheriff was "plainly wrong". In support of this contention reference was made to Thomas v. Thomas 1947 S.C. (H.L.) 45, at page 59; Wordie Property Company Limited v. Secretary of State for Scotland 1984 S.L.T. 345, at page 347; Morrison v. J. Kelly & Sons Limited 1970 S.C. 65 at pages 90-91. The sheriff had failed to give adequate and satisfactory reasons for her conclusions about RC's testimony.

[33] Following a normal adjournment in the hearing before us, counsel for the first-named appellant, after referring to F. v. Constanda 1999 S.L.T. 421, in which this court had held that a sheriff should be slow to end proceedings of a similar nature to those involved in this case, proposed an amendment to question 1 in the stated case, which took the form of the deletion of that question and its substitution by a new question in the following terms:

"Was the failure of the Reporter to disclose to the other parties the allegations of RC which came to her notice on 5 June 2000 an irregularity in the conduct of the case?".

Since there was no objection to this amendment, it was allowed.

[34] This amendment having been effected, counsel for the first-named appellant returned to the issues related to questions 2-5 inclusive in the stated case and, in particular, to the question of whether they raised questions of law. In this connection he referred to Children's Hearings and the Sheriff Court, Kearney, 2nd Edition, paragraphs 54.02-52.04. He then proceeded to examine how the sheriff had dealt with the evidence of RC. She had found certain of the allegations made by RC not established. In this connection he referred to findings-in-fact 39 and 89, which showed that there had been evidence that RC had made a statement of the kind described in finding-in-fact 89 on 14 January 2000. The statement in written form appeared at page 22/1 of the appendix and following pages. However, the sheriff did not accept that the second-named appellant had abused RC sexually. Accordingly, RC had not been found credible in that regard. Further, it was established that the first-named appellant had had a vasectomy in 1996. RC later accepted that she could not therefore have been made pregnant by her father, contrary to what she had said. While it was open to any tribunal of fact, in the evaluation of evidence, to believe a part of a witness's evidence but not some other part, reasons ought to be given for such a decision. Thus the answers to questions 3, 4 and 5 could only be in the affirmative. It was submitted that the sheriff should have explained why she was "picking and choosing" parts of RC's evidence. She had not adequately explained her reasons. In connection with this submission, reference was made to the sheriff's observations at pages 51, 52, 87, 91 and 92 of the stated case. It was not contended that the sheriff was disentitled from accepting any part of RC's evidence, however, there had been established a record of untruthfulness on her part, as appeared from findings-in-fact 45-47. Against the background described by the sheriff, any reasonable sheriff would not have accepted her evidence on any matter unless there was a cogent reason to do so. There were further findings-in-fact, 51 and 52, which demonstrated RC's lack of credibility. It was accepted that the sheriff had approached RC's evidence with "extreme caution" as appeared from page 46 of the stated case, but, having regard to RC's acknowledged shortcomings as a witness, the sheriff had not given sufficiently cogent reasons for accepting those parts of her evidence that she did. This was particularly necessary in view of RC's acknowledged mental condition, as appeared from findings-in-fact 82, 84, 86, 87 and 88.

[35] At this point in the submissions, senior counsel for the Reporter intervened to say that a medical certificate had been obtained relating to RC's fitness to give evidence. It established that she had been fit to give evidence. Summarising his position on this part of the case, counsel for the first-named appellant accepted that the court must answer questions 3 to 5 inclusive in the affirmative. However, question 2 should be answered in the negative. On being asked what was "the correct test", counsel observed that the question was not a very good one and that it also might require to be answered in the affirmative. Question 4 was the crucial question. It had to be answered in the affirmative, since the sheriff had gone plainly wrong in relation to RC's evidence.

[36] As regards question 6, which is in these terms: "On the evidence I accepted, was I entitled to find the grounds established?", it was submitted that the answer should be in the negative. However, there was a qualification to that, since finding-in-fact 33 was accepted, as was what was stated at page 49 concerning the first-named appellant's position. It was not disputed that the sheriff was entitled to find that the first-named appellant had verbally abused, and on occasions struck, RC, though that had been in the context of her abusive conduct towards him. In general it was accepted that there were certain difficulties in advancing the criticism made of the sheriff's approach, since the court was concerned only with an appeal on a point of law.

[37] As regards question 7 which is in these terms: "Did I err in finding the Ground of Referral under section 52(2)(f) to be established in the case of AC and based on my Findings in Fact above?", it was contended that the sheriff should have held statement-of-fact 6 not proved, because she had decided to delete the word "dangled" and substitute for it the word "hung". So far as question 8 was concerned, which is in these terms: "Was I entitled to find established paragraphs 6 and 7 of the Statements of Facts supporting the grounds of referral?", it should be answered according to the previous submissions. At this stage counsel for the first-named appellant made certain further submissions in response to points raised by members of the court. Having been referred to the observations of Lord President Emslie in Melon v. Hector Powe Limited 1980 S.C. 188 at page 198, counsel for the first-named appellant accepted those observations as relevant to the circumstances of this case. He contended that his position fell within the limits imposed by those observations where there was an appeal confined to a question of law. In particular, it was submitted that the sheriff had taken into account irrelevant matters. Further, she had failed to give adequate reasons for her decision. In addition, it was submitted that the whole decision was one which no reasonable sheriff could have reached, in other words it was "so extravagant that no reasonable tribunal properly directing itself on the law could have arrived at" it.

[38] Counsel for the first-named appellant went on to deal with certain other miscellaneous matters, firstly, finding-in-fact 71. According to notes which were available, RC had not mentioned the matter of ejaculation in her evidence-in-chief. She had said in cross-examination that she did not remember ejaculation in her mouth on any occasion. The general matter of inconsistencies in RC's evidence of alleged sexual abuse by the first-named appellant had been raised with the sheriff in the form of a proposed adjustment to the stated case on behalf of the first-named appellant. As appeared from paragraph 20 of the proposed note of adjustments, a question had been proposed in relation to what is now finding-in-fact 102 which reflected the sheriff's finding on this matter. However, the sheriff had declined to incorporate the desiderated question. At this point, counsel for the first-named appellant moved the court to be permitted to add the second question in paragraph 20 of the proposed note of adjustments to the case. This motion was opposed by senior counsel for the Reporter, who contended that it was not a proper question of law. Furthermore, it was absurd that the proposed question should be sought to be introduced at this late stage. However, she accepted that, in a sense, there would be no prejudice arising from its addition, in view of what the sheriff had said at pages 88-89 of the stated case. In this connection reference was made to R. v. Grant 2000 S.L.T. 372, at pages 374 to 375, where the necessity of the inclusion of appropriate questions in a stated case was emphasised.

[39] Following upon this discussion of the proposed additional question, we allowed a question 11 to be added to the stated case in the following terms:

"11. On the evidence adduced, principally of RC with its patent inconsistencies, was I entitled to make finding-in-fact 102?".

We considered that the matter focused in this question had indeed been a live issue before the sheriff. Following upon that decision, counsel for the first-named appellant contended that this questions should be answered in the negative.

[40] Turning to the issues raised by question 9, counsel for the first-named appellant pointed out that there were two parts to the question. That question is in these terms:

"Did the applicant (sic) have a fair hearing before an independent and impartial tribunal in respect that

(a) the Proof took place on 49 days spread out between 20 November 1999

and 26 September 2000 in relation to alleged incidents ending in May 2000 (sic) and during which period Mr. C was excluded from the family home; and

(b) in respect that the applicant (sic), Mr. C, perceived that my assessment

of his credibility was informed by my observations of him outwith the context of the court hearing, despite my saying, when making that observation, that I acknowledged that such observation was not evidence, but confirmed a view that I had already formed of him?".

At this stage he indicated that he did not intend to make any submissions regarding the first part of the question. As regards the second part of the question, which was related to the sheriff's assessment of the credibility of the first-named appellant, he observed that it raised the issue of the test of the "independent observer". What was involved here was a procedural "irregularity" within the meaning of section 51(11) of the 1995 Act. The matter was dealt with by the sheriff at pages 81-83 of the stated case. She there indicated that she did not regard what she had observed outside the court as playing any part in her assessment of the credibility of the first-named appellant. It appeared that the sheriff had made observations of the appellants outside the court when they were not witnesses. It was submitted that this constituted an irregularity in the conduct of the proceedings. The first-named appellant had not received a fair hearing, since the sheriff had gained an adverse impression of him from her observations of him otherwise than when he was giving evidence.

[41] Turning to the subject-matter of question 10, which is in these terms: "Did I err in not arranging to have the evidence recorded by a shorthand writer?", counsel for the first-named appellant indicated that he intended to say nothing about it at this stage.

[42] As regards the disposal of the case, it was submitted that in consequence of irregularities and misdirection of herself by the sheriff, finding-in-fact 102 had been wrongly made. In these circumstances, the case should be remitted to the sheriff with appropriate directions in terms of section 51(14) of the Act of 1995. If finding-in-fact 102 had to go, statement-of-fact 3 in support of the Reporter's referral in relation to RC would not have been established, as amended. Also statement-of-fact 7 would not have been established. There remained to be considered statement-of-fact 5. There had been two "assaults", but the sheriff had not dealt with them significantly. The appropriate ground of referral would be the second, in terms of section 52(2)(d) of the 1995 Act, which would stand, but only on the very limited factual basis of verbal abuse and occasional minor assaults. The first ground of referral would not have been established. Statement-of-fact 6 was a matter for the second-named appellant.

[43] In relation to the position of AC, if the submissions made were sustained, statement-of-fact 3 in the referral relating to him would not have been established. Statement-of-fact 4 would be a matter for the second-named appellant. The first ground of referral would not have been established, unless statement-of-fact 4 were established.

[44] So far as CC was concerned, statement-of-fact 3 would not have been established. The ground of referral would depend upon the fate of statement-of-fact 4.

[45] Finally counsel for the first-named appellant reminded us that the exclusion order which had affected his client was not before the court. It had ceased to have effect.

[46] Senior counsel for the second-named appellant indicated that she would be making submissions on two broad areas. The first of these related to errors of law, the second to human rights. Her motion was that the appeal should be allowed in relation to both of these matters. She began by drawing attention to the terms of statements-of-fact 6 and 7 in the referral relating to RC. It was to be observed that statement-of-fact 6 related to "occasions" and an "occasion" on 20 November 1994. There were no findings-in-fact, save in relation to assault on the date mentioned, relating to physical or verbal abuse. Thus the findings-in-fact related only to one occasion. Statement-of-fact 4 in the referral relating to AC was in identical terms. In relation to CC, statement-of-fact 4, which was concerned with the same subject-matter, had not been dealt with by the sheriff, nor had statement-of-fact 5.

[47] It was submitted that there were only two findings-in-fact which had to be considered in relation to the second-named appellant; these were 29 and 103. It was submitted that there was no evidence entitling the sheriff to make those findings, on a proper view of the law. There were other findings-in-fact in which RC was mentioned however. The sheriff had commented on the credibility of the second-named appellant, but the submissions being made did not depend on that. The issue of the single assault had been canvassed by Mrs. Nicholson on behalf of the second-named appellant at the hearing before the sheriff, but her submissions had not been recorded in the stated case. In the stated case questions 6 and 8 were potentially involved in relation to the submission being made. There were no specific questions raised in relation to the assault, despite the terms of the application for the stated case made on behalf of the second-named appellant, which appeared at the appendix item 24/1 to 3.

[48] Before addressing the adequacy of the findings-in-fact, it was appropriate to consider the decision in B. v. Harris 1990 S.L.T. 208. In that case it was held that the mere fact that a parent was angry when punishing a child, using moderate force, could not, by itself demonstrate the existence of the evil intent which was an essential ingredient for the crime of assault. In finding-in-fact 29, it was narrated that " ... Mrs. C admitted that she had assaulted her daughter by slapping her hard on the back". It was submitted that this finding was based on a misunderstanding of the evidence, as appeared from pages 83-84 of the stated case. There was no dispute that the second-named appellant had admitted hitting RC, but the sheriff had failed to address the question of mens rea. In holding that an assault had occurred, the sheriff had misdirected herself in law by finding that what had occurred amounted to an assault in law. The event concerned was capable of being interpreted as reasonable chastisement, as opposed to an assault. It had been quite wrong for the sheriff to find statement-of-fact 6 established in the referral relating to RC, which referred to "occasions" in the plural. Furthermore, it was submitted that finding-in-fact 103 could not stand. That finding-in-fact is in these terms: "During the course of her childhood RC has suffered and continues to suffer from significant mental damage as a result of her parents' abuse towards her". There was no doubt that RC had suffered mental damage, but there was no evidence to the effect that the causation of that damage was attributable to anything done by the second-named appellant. In addition, it was submitted that no rational sheriff could have held established statements-of-fact 6 and 7 in relation to RC but not found statement-of-facts 4 established in relation to CC.

[49] Senior counsel for the second-named appellant then turned to deal with the human rights issues which she said arose in the case. She referred first to section 7 of the Human Rights Act 1998 which authorised reliance on Convention rights in any legal proceedings. It followed from this provision that such issues as this might be raised, albeit that no question in the stated case existed to focus the issue concerned. Essentially the issue was whether the proceedings as a whole were fair. In this connection reference was made to Clayton and Tomlinson, The Law of Human Rights paragraphs 11.204-205 and 11.214 and 218. What had gone wrong in the present case was that, although the argument as between assault and reasonable chastisement was fundamental, it had been ignored by the sheriff. In this connection reliance was placed upon Khan v. The United Kingdom 12 May 2000 (unreported), at paragraphs 29, 34 and 38. However, it was made clear that what was in issue here was not a matter of admissibility of evidence under the law of evidence, but a failure by the sheriff to consider the impact of the evidence in the case. Reference was also made to Van de Hurk v. The Netherlands (1994) 18 EHRR 481, particularly paragraphs 56, 58, 59 and 61 of the judgment. Article 6(1) of the Convention placed a duty on a tribunal to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they were relevant to its decision. The complaint was that the submissions of Mrs. Nicholson and Mr. Cubie had not even been recorded by the sheriff. The submissions for the safeguarder and the Reporter were recorded at some length. It was submitted that the decision of the sheriff, in relation to the assault, did not measure up to the standard required by Article 6(1). If these submissions were correct, the result would be that the appeal at the instance of the second-named appellant should be allowed.

[50] In any event, a further submission of a more general nature was made to the effect that the standards of fairness of the proceedings had fallen below the requirements of Article 6(1) of the Convention. The position was that the second-named appellant had domestic parental rights in relation to the children, in relation to the exercise of which Article 6(1) applied, as appeared from McMichael v. The United Kingdom (1995) 20 EHRR 205. Children's rights were also involved (S. v. Miller 2001 S.L.T. 531). The court should bear in mind three elements in relation to Article 6(1), first, the right to a fair and public hearing; second, the right to a hearing by an independent and impartial tribunal; and third, the right to have the proceedings determined in a reasonable time. According to Mills v. Her Majesty's Advocate (No. 2) 2002 SLT 939, these were separate but related rights of an absolute nature, as appeared from paragraphs 8, 9 and 46 of the report. That reflected what had been said in Brown v. Stott 2001 SC (PC) 43 at pages 60B and 76E-F. Against this background two separate and distinct arguments were to be advanced, the first relating to delay and the second to the requirement of a fair trial. In relation to the second of these two arguments, the complaint was that Mrs. Nicholson's submissions had not been noted or evaluated in any way by the sheriff, who had given no reasons for her finding of the commission of an assault by the second-named appellant, as opposed to the infliction of reasonable chastisement. Furthermore, the sheriff had given no reasons indicating why she had made finding-in-fact 103, other than to make finding-in-fact 29, which was an insufficient basis for finding-in-fact 103. This failure by the sheriff infringed both (i) the second-named appellant's right to a fair hearing and (ii) her right that that hearing should be by an independent and impartial tribunal. In support of these submissions senior counsel referred to Hadjianastassiou v. Greece (1992) 16 E.H.R.R. 219 at pages 222 and 237, Van de Hurk v. The Netherlands (1994) 18 EHRR 481 at page 500, Hiro Balani v. Spain (1994) 19 E.H.R.R. 566, at pages 573 to 575 and Ruiz Torija v. Spain (1994) 19 E.H.R.R. 553 at pages 561 to 563.

[51] In connection with the foregoing matter certain more detailed submission were then made. First, the submission to the effect that the single slap had been reasonable chastisement was relevant and material in considering whether the statement-of-fact regarding assault had been established. Secondly, the decision of the sheriff was silent on this matter and, accordingly, it was not possible to tell whether the court had neglected to deal with the submission, or had dismissed it as ill-founded. Thirdly, a finding of reasonable chastisement would have been decisive of the issue which the sheriff had to determine relating to this appellant; accordingly she had a duty to deal with it. Fourthly, no adequate reason had been given by the sheriff for finding statement-of-fact 7 established, that is to say, abuse of the child by both parents causing long-term damage to her.

[52] In response to questions by the court to elicit what actually constituted the sheriff's decision, whether it was the oral decision which she had given in terms of Rule 3.51(1) of the Child Care and Maintenance Rules 1997, or whether it was the stated case itself, it was pointed out that the sheriff's oral decision had been given prior to the coming into force of the Human Rights Act 1998. It would be fair to the sheriff to take the stated case as being the decision, or at least an expression of the decision in detail.

[53] Proceeding on the basis that the stated case reflected the sheriff's decision, the submission was repeated to the effect that the sheriff had dealt with the arguments for the first and second-named appellants before her in one sentence on page 66, whereas the submissions of Mrs. Black, the safeguarder, ran from page 66 to the end of page 74. However, it was accepted that in the narrative of Mrs. Black's submissions there were references to what had been said by Mrs. Nicholson. This treatment by the sheriff of the arguments presented to her demonstrated clearly a lack of impartiality on her part. At page 72 it was made clear that Mrs. Black argued that, on any view of the evidence, that there had been but one assault. Mrs. Black's submissions in relation to general physical and verbal abuse had been directed against the father only. At pages 74-75 of the stated case, the sheriff went out of her way to commend the Reporter's submissions which were narrated at some length. This was in marked contrast to her approach to the appellants' submissions. The inference could be drawn from these circumstances that the sheriff had not been impartial; or, in any event, there was a legitimate doubt about her impartiality. In this connection reference was made to Millar v. Dickson 2002 SC (PC) 30 at pages 41 and 42. Any tribunal had to be subjectively free of personal prejudice or bias and required also to be impartial from an objective viewpoint. It might be suggested that, on account of Mrs. Nicholson's failure to raise the issue of an appropriate question in the stated case, there had been a waiver of the complaint regarding the approach of the sheriff. That would be an unsound contention. In that connection reference was made to Millar v. Dickson at paragraphs 52, 58, 63, 79 and 81.

[54] Senior counsel for the second-named appellant then reverted to dealing with the issue of delay. An issue had been raised relating to the effect of the observations of Lord Woolf C.J. in Attorney General's Reference (No. 2) of 2001 [2001] E.W.C.A. Crim. App. 1568 at page 1875. It was apparent that what had been said there could not safely be accepted as the law of England, as appeared from the observations of Lord Hope and Lord Rodger in R. v. Her Majesty's Advocate at paragraphs 71, 82, 129 and 146. It was emphasised that the submissions which had been made on the matter of delay related to decisions of the Scottish Ministers. Even if the court were to grant the present appeal, there would still be an application for a declarator of breach of Article 6(1) on account of delay. The issue ought to be dealt with in the present proceedings and not in others.

[55] Senior counsel for the Reporter commenced her submissions by dealing with the issues raised in question 1 of the stated case, as amended. The issue was whether there had occurred a procedural "irregularity in the conduct of the case", within the meaning of section 51(11) of the 1995 Act. That matter was dealt with in Children's Hearings in Scotland, Norrie, at pages 183 to 185 and also in Children's Hearings and the Sheriff Court, Kearney, second edition, paragraph 28.11. It was wrong to draw an analogy between the position of a prosecutor in a criminal court, as explained in McLeod v. Her Majesty's Advocate, and the position of the Reporter before a children's hearing, as appeared from Norrie, op. cit., page 10. While there could be a finding made by a children's hearing of a criminal nature, that was beside the point; the proceedings before the children's hearing were a civil proceeding sui generis. (Kearney, op. cit. paragraph 28.11). In this connection reference was made to S. v. Miller 2001 S.C. 977 at pages 988-990. It appeared from that case that the proceedings could not properly be regarded as involving a penal element. A fair balance had to be struck between the general interest of the community and the personal rights of the children and others involved in the hearing.

[56] Against that background, it was plain that the Reporter had to have regard to the circumstances of any case as they developed. Looking at the circumstances here, as described at pages 58 and 59 of the stated case, it was apparent that the initial information which came to the attention of the Reporter was vague and had been given by RC under the influence of alcohol. The police had taken the responsibility of investigation of the fresh allegations and they had advised the Reporter that nothing should be said until those investigations had progressed. Plainly the situation was very sensitive. What happened could not be seen as a procedural irregularity. Furthermore, it had to be recognised that the grounds of referral did not involve an allegation of vaginal penetration, with which the fresh allegations had been, in part, concerned.. Eventually the information did emerge in the proceedings and was available to all parties to be considered in relation to the issue of RC's credibility, although by that stage she had given evidence. Before this court could interfere, any irregularity had to be material, causing real prejudice to a party. In this connection reference was made to Kearney, op. cit., paragraph 49.07. The information had emerged when Dr.. Hammond was in the witness box. Had it been thought appropriate, there might have been an adjournment beyond what occurred and a recall of witnesses who had given evidence. What the sheriff had done was to grant a commission for the recovery of documents being records of the An Cala Children's Home, Lochgilphead, where RC then resided. Nothing of significance emerged from the subsequent commission, as appeared from page 66 of the stated case. Looking at what had happened, the sheriff had done what was necessary and appropriate in the circumstances. No adjournments or recalls of witnesses were sought and not granted. McMichael v. The United Kingdom could be distinguished from the circumstances of the present case. While there had been a motion for the discharge of the proceedings before the sheriff, there had been no real basis for that. Otherwise the parties had taken no action.

[57] In the present procedure by way of stated case it was pertinent to recognise that certain grounds of appeal were provided for by statute by section 51(11) of the 1995 Act. It was clear that, under the stated case procedure, there was no general review by this court of the evidence and the facts. There could be only a limited factual review, upon the basis that the factual error alleged had to be such as could constitute an error of law or an irregularity in the conduct of the case. In this connection the observations of Lord President Emslie in Melon v. Hector Powe Limited were relevant. So, if there was evidence to support a decision by the sheriff, that was the end of the matter, subject to what had already been said. Furthermore, if the contention was that there was no evidence upon which a particular conclusion or decision could be based, that issue should have been made the subject of a specific question in the stated case. It was well-recognised in stated case procedure that it was of importance that there should be specific questions raising issues sought to be ventilated, as appeared from R. v. Grant, at pages 374-375. The need for precise questions had been repeatedly emphasised. An example of that was G.R. v. Kennedy (unreported) 2 February 1996.

[58] In the present appeal arguments had been presented in several areas where what had been argued had not been raised at all, or sufficiently, in the application for the stated case, or in the adjustments proposed to the draft case. In relation to the new question 11 in the stated case, added by the interlocutor of the court of 10 January 2003, no relevant ground of appeal was raised. The question related to the evaluation of the evidence of RC, which was a matter for the sheriff and not for this court. Matters of credibility and reliability of witnesses were for the sheriff. While, no doubt, she had to give reasons in general for decisions on those matters, she was not required, unless a specific question was proposed, to give reasons for making particular findings.

[59] It was the position of the Reporter that, while allegations of breach of Convention rights might be raised in any legal proceedings in terms of section 7(1) of the 1998 Act, that required to be done within the discipline of the procedure concerned, in this case procedure by stated case. That had not been done. It would be unjust to the sheriff, to other parties and to the children involved and damaging to the whole system for the court to entertain issues, such as allegations of lack of impartiality, without due notice being given of such allegations.

[60] In any event, judging the sheriff's conduct of the case against the criterion of fairness, it had not been shown that the proceedings breached Article 6(1) of the Convention. While the sheriff had expressed some enthusiasm for the submissions of the safeguarder, those submissions had in fact been rejected. The sheriff had been discriminating in her approach to the evidence and had achieved a judicial balance. She had referred to the submissions made by the appellants' solicitors at pages 66, 67, 69, 73 and 74 of the stated case. There was nothing to justify an allegation of lack of impartiality. While it was true that the credibility and reliability of RC had been central to the proceedings, decisions on those matters were essentially for the sheriff. In the application for the stated case at the instance of the first-named appellant, certain questions had been posed concerning it. Neither in the application for the stated case at the instance of the first-named appellant nor in that of the second-named appellant were questions sought to be included involving a criticism of the reasoning or impartiality of the sheriff.

[61] Reliance had been placed upon the case of Thomas v. Thomas. It was submitted that that case was not directly relevant in the context of stated case procedure. It had been a case where there was a general review on fact. The principles there set out were applicable to that situation, which had been contrasted with the situation in a stated case by Viscount Simon at page 47. It had to be borne in mind that there was no record of the evidence here beyond that provided by the sheriff. While a complaint had been raised relating to the absence of a shorthand writer, that complaint had not been insisted in. In any event, it appeared from Thomas v. Thomas how rarely an appellate court would interfere with findings of fact made by a court of first instance, even where it was not constrained by stated case procedure.

[62] It was submitted that the sheriff had dealt satisfactorily with the issues of the credibility and reliability of RC, as appeared from pages 88-89 of the stated case, where the sheriff expressed her conclusions. It was plain from pages 46-52 of the stated case that the sheriff had given very careful consideration to these matters. It was for her and not expert witnesses to evaluate the evidence. Even if it were to be accepted that such issues as these had been properly raised in the case, it could not be successfully contended that the sheriff had reached a conclusion which was demonstrably wrong.

[63] Criticisms had been directed against the sheriff's approach in relation to the second-named appellant whom, it appeared, she had observed outwith the context of the court hearing, a matter dealt with at pages 82-83 of the stated case. However, the sheriff had made it very clear that she had not relied upon her observation of the appellants at that time in the assessment of evidence. In making the observations, to which she referred at pages 82 and 83, the sheriff had simply been "sweetening the pill" constituted by her decision, which was adverse to the appellants. In any event, at page 86, the sheriff described the second-named appellant's demeanour, as it appeared when she was giving evidence; that was a perfectly legitimate matter for the sheriff's consideration. At pages 35 to 36 of the stated case the sheriff narrated evidence which she had heard concerning the relationship between the appellants. She had also stated that she had watched the second-named appellant carefully, while the latter was in court, either giving evidence or listening to evidence given by others, and had formed certain impressions as to her character and as to her relationship with her husband. Again these were legitimate matters for her consideration. There were no indications in the case that the sheriff had reached conclusions relating to the appellants' credibility or reliability on the basis of some illegitimate sources of information.

[64] Senior counsel next turned to the submissions made on behalf of the second-named appellant relating to assault. Question 8 in the stated case was related to statements-of-fact 6 and 7 in the grounds for referral relating to RC. Statement-of-fact 6 related to occasions of physical and verbal abuse as well as the incident on 20 November 1994. However, looking at question 8 in the second-named appellant's application for a stated case which was item 24/3 in the Appendix, the sheriff would have assumed a challenge only in relation to that particular incident. More generalised abuse had not been put in issue. Furthermore, it was to be observed that no question had been posed relating to mens rea. In these circumstances, the sheriff would have supposed that there would have been no need for evidence relating to generalised abuse to be deployed in the stated case. Furthermore, in the absence of any challenge to finding-in-fact 29, which referred to an admission of assault by the second-named appellant, the sheriff would have had no reason to suppose that the mens rea issue was being raised. This court ought not to have to struggle to draw out from the stated case the real issues, which ought to have been focused in its preparation. It was difficult to say how real this particular issue was before the sheriff. Notes of the submissions made on behalf of the second-named appellant to the sheriff were available to the Reporter. A number of matters were raised, but the Reporter had no note of any submissions relating to reasonable chastisement, although it could not be said that such a submission was not made. However, there was no reference to that concept or to the mens rea of assault in the records which were available. That was a most unsatisfactory situation. The problem considered in R. v. Grant existed here. If it had been desired to raise this particular issue in the appeal, it should have been focused in an appropriate question. Had that been done, the sheriff would have had the opportunity to set out material relevant to the matter in the stated case.

[65] Turning to the matter of "physical and verbal abuse" referred to in statement-of-fact 6 in the grounds for referral relating to RC, that matter had not been focused at all in the stated case, although there had been evidence regarding it at the hearing. Again, the Reporter had available notes of submissions made on behalf of the second-named appellant. There were references to a number of pieces of evidence relating to verbal abuse by both parents. There had also been some evidence regarding the consequences of those matters, including evidence about a stammer. There had been concerns expressed by a teacher of RC at school. All of those matters had been discussed in evidence and mentioned in the sheriff's oral decision. In addition, there had been much evidence relating to RC's statements made to the police. In the context of evidence of that kind, which the sheriff may or may not have accepted, since this issue had not been focused by questions in the stated case, it was wrong to suggest that there was no evidence of physical and verbal abuse beyond the incident of 20 November 1994. It had to be noted that, at pages 78 and 83 of the stated case, the sheriff made reference to material which suggested that there had been abuse beyond that incident. None of the eight questions posed in the application for the stated case at pages 24/1 to 3 of the appendix focused this matter.

[66] Reverting to the categorisation of the incident of 20 November 1994, the sheriff had used the word "assault". That had a technical meaning. When the word was used by a sheriff in the context of court proceedings, it could safely be assumed that the word had been used in the correct technical sense. At pages 83 and 84 of the stated case, and indeed in the sheriff's oral decision, there was a reference to the fact that, on the occasion in question, the second-named appellant had "snapped". That description of the incident militated against the concept of reasonable chastisement, which involved the deliberate infliction of punishment, as opposed to an assault following a loss of personal control.

[67] Senior counsel for the Reporter then proceeded to deal with the human rights arguments raised on behalf of the second-named appellant. The question arose of whether the Human Rights Act of 1998 applied. That Act had come into force on 2 October 2000. The decision of the sheriff was that given in terms of Rule 3.51 of the Child Care and Maintenance Rules 1997 orally at the conclusion of the hearing on 26 September 2000. Thus the provisions of the Act had had no direct effect upon the hearing before the sheriff. On the basis of the decision in R. v. Lambert [2001] UKHL 37, the Act did not apply retrospectively where an appeal was taken after the coming into force of the legislation from a decision reached before that time. Reference was made particularly to the observations of Lord Slynn of Hadley at paragraphs 7-10. It appeared that the arguments for the appellants relied upon the fact that the stated case had been signed on 30 March 2001, after the coming into force of the Act. Accordingly, if the appellants' complaint was as to things done or not done in the investigation into the facts before the sheriff, or at the time of the oral decision, the Act had no application. If, however, the concern was with things done or not done in stating the case, then the Act did apply, provided that the matter in question did not simply relate to the recording of something already done before the Act came into effect. In this case the fundamental basis of the decision was the assessment of the credibility of RC, which had plainly been undertaken prior to 2 October 2000.

[68] A point had been made in relation to the evidence of Dr.. Hammond, against the background that no vaginal penetration had originally been alleged. However, no question had been directed to this point in the stated case. Accordingly, it should not be considered. Furthermore, the position of the Reporter in relation to the issue of waiver had to be made clear. Failure to raise an issue in a stated case by means of a question did not mean that any rights were waived under the Convention. It was simply an indication that no alleged breach of Convention rights was being put before the court. As regards the issue of the alleged partiality of the sheriff, it was quite plain that that issue was not reflected in the terms of question 9 in the stated case. Indeed, it was to be observed that both of the matters which were raised in question 9 in the stated case as human rights matters pre-dated the coming into effect of the Human Rights Act 1998. Accordingly, it was difficult to see on what basis those matters could be the subject of relevant argument based upon the Convention.

[69] Junior counsel for the first-named appellant replied. As regards the issue relating to the initial non-disclosure by the Reporter of information concerning fresh allegations made by RC, it was contended that there was a duty upon the Reporter to impart relevant information of assistance to other parties to them. Indeed, the Reporter had a discretion to abandon proceedings before the sheriff, in terms of Rule 3.46(1) of the Child Care and Maintenance Rules 1997. That was apparent from what appeared in Kearney, op. cit. paragraph 30.02 - 30.03 and 30.28. In the present case, the Reporter had not disclosed the relevant information, which had been disclosed by another route. The Reporter ought to have ignored the advice which was received from the police and disclosed the matter to the other parties. However, it was accepted that this failure had had no practical effect save that there was a loss of confidence in the Reporter. The sheriff had had the power to dismiss the application, in terms of section 68(9) of the Act of 1995. In any event, the proceedings could have been stopped by the sheriff on account of this irregularity.

[70] Senior counsel for the second-named appellant also replied. First, it was pointed out that there was no material in the stated case relating to a development by RC of a stammer. The causation of that condition had been a live issue at the hearing before the sheriff, but there was no finding-in-fact relating to it. Secondly, we were informed that Mrs. Nicholson had stated that she had made submissions on the subject of reasonable chastisement and had notes confirming that situation. That had been done in the context of credibility and reliability. It was recognised that this statement put the court in a difficult position and demonstrated the inadequacy of the case which had been stated. Thirdly, in relation to alleged incidents of other abuse by the second-named appellant, referred to in police statements given by RC, the sheriff had made a conscious decision not to accept that evidence and not to make a finding-in-fact relating to it, as appeared from page 86 of the stated case. The sheriff had heard a wealth of evidence, but had made no further findings in fact on this subject. Fourthly, on the issue of the alleged partiality of the sheriff, the point being made was that there was legitimate cause for doubt regarding the sheriff's impartiality based on the form of the stated case. The submission was not that the sheriff was not in fact impartial, but that she had given the appearance of not being so. Fifthly, on the impact of R v. Lambert, it was accepted that, if the sheriff's oral decision was truly the decision, then the second-named appellant's fair trial argument was damaged; however, it did not affect the delay argument. In any event, the stating of a case was an "act" within the meaning of section 6 of the Human Rights Act 1998. Since that had happened after the coming into force of that Act, the stating of the case required to be Convention compliant.

The decision:
[71] The first aspect of the appeal with which we intend to deal is that raised in question 1 of the stated case, as now amended. That question now stands in this form:

"Was the failure of the Reporter to disclose to the other parties the allegations of RC which came to her notice on 5 June 2000 an irregularity in the conduct of the case?"

The words "... any irregularity in the conduct of the case ..." are, of course, to be found in section 51(11) of the Children (Scotland) Act 1995. Before coming to consider whether such an irregularity has occurred in the context of this case, it is appropriate to reach a view on the scope of the concept of irregularity in this context. In Children's Hearings in the Sheriff Court, Kearney, second edition, at paragraph 49.07 it is said:

"For an appeal based on such grounds to succeed, however, it would seem that the defect must be 'material' in the sense of causing real prejudice to the person affected by the irregularity or, presumably, to the interests of the child."

We consider that that passage properly describes what is intended in the legislation. It appears to us that, before an irregularity in the conduct of the case could found a successful appeal, it would be necessary for it to be shown that the occurrence concerned was damaging to the justice of the proceedings. Following the amendment of question 1 before us, the issue of a possible irregularity has become focused upon the actings of the Reporter, as opposed to those of the sheriff in refusing the motion of 21 July to discharge the referral. We are prepared to accept that, in view of the importance of the position of the Reporter, in appropriate circumstances, the act, or the failure to act, of the Reporter might amount to an irregularity in the conduct of the proceedings. In these circumstances, it is appropriate to examine the conduct of the Reporter complained of here.

[72] The factual background to this matter is set out in the stated case between pages 54 and 66 by the sheriff in her Note. It must, of course, be recognised that that passage was framed against the background of the existing question 1 in which the conduct of the sheriff herself in refusing the motion to discharge the referral was put in issue. However, it is possible from the passage mentioned to discern the history of events as they developed. The matter commenced, as is described on page 58 of the stated case, when the Reporter was informed on 5 June 2000 that she should contact the police. When she did so she was told that RC, under the influence of alcohol, had said that she had gone with her father to other men for sex, an allegation not previously made in this case. At that stage the Reporter was told by the police to say nothing about the matter to anyone because they wished to make further enquiries. After taking advice from her superiors and from the procurator fiscal at Dunoon, the Reporter decided that, at that particular stage, the information should not be passed on to other parties in the case. Thereafter, the Reporter continued to make enquiries of the police as to the progress made in their investigations. The matter of the fresh allegations eventually came to the notice of all parties involved in the case in consequence of things said during the cross-examination of Dr. Hammond on 19 July 2000.

[73] Looking at these circumstances and the procedure which was adopted before the sheriff, a number of features emerge. First, although there was delay in the communication of the fresh allegations to the parties to the case, ultimately those allegations were disclosed. Secondly, it was not said - and we can see no basis for supposing - that the delay between 5 June and 19 July 2000 in disclosure made a material difference to the handling and determination of the case. In particular, RC, to whose credibility her further allegations were potentially relevant, had completed her evidence well before 5 June 2000. Thirdly, no motions for adjournment for further enquiries in relation to the matter were made which were not granted; a commission for the recovery of possibly relevant documentation was granted and the proof adjourned while the commission was executed. Fourthly, no party sought to lead additional evidence in consequence of receiving the information concerned. Fifthly, no party sought the recall of any witness in consequence of having received the relevant information. Sixthly, the sheriff, quite properly in our view, decided not to discharge the referral. We should say that we have considerable doubt as to whether it would have been within the power of the sheriff to grant such a motion; section 68(9) defines circumstances in which a sheriff dealing with an application of the kind involved here may dismiss it and discharge the referral to the children's hearing and take certain other steps there defined. That power is available only

"where a sheriff decides that none of the grounds for referral in respect of which an application has been made are established".

Bearing in mind that the procedure on an application to the sheriff under the Act of 1995 is a statutory procedure and bearing in mind that one of the grounds of appeal available from a decision of a sheriff, provided for under section 51(11), is an "irregularity in the conduct of the case", we consider that it is difficult to conclude that the sheriff has some power additional to that conferred in section 68(9), presumably derived from common law, to discharge a referral. In any event the circumstances were clearly not such as would have justified the exercise of any such power, assuming it existed.

[74] It was contended before us that the Reporter's conduct in relation to this matter and her handling of the information which had been conveyed to her had undermined the confidence of parties in her. We are unable to accept that there is any real basis for that contention. It is clear from the narrative of the sheriff that the Reporter had been faced with a difficult and delicate situation and we see no reason why what she did in the circumstances should have undermined confidence in her on the part of any reasonable person. In any event, even if that did happen, such a situation does not necessarily lead to the conclusion that the proceedings are flawed.

[75] In the course of the hearing before us reliance was placed by the appellants upon McMichael v. United Kingdom. In that case, it was conceded by the United Kingdom that, in the context of Article 6(1) of the Convention, the care proceedings possessed an unfair character on two specified occasions by reason of the inability of the second applicant, or the first applicant, acting as her representative, to have sight of certain documents considered by the children's hearing and the Sheriff Court. We consider that the circumstances described are far removed from those of the present case, in which, ultimately, the information which forms the subject matter of this argument was disclosed to all parties and opportunities afforded to them to deal with it.

[76] The appellants also relied upon MacLeod v. Her Majesty's Advocate (No.2) 1998 JC 67, a case concerned with the recovery of documentation in the hands of the Crown, as prosecuting authority under criminal procedure. In that case certain observations are made concerning the responsibility of the Crown as the public prosecutor to disclose information to the defence. In our view it is important to recognise the context in which those observations were made, which is quite different from the context of the present proceedings. In this connection we refer to what was said by the Lord President in S v. Miller at paragraphs 19 and 20, where it was emphasised that children's hearing proceedings have always been regarded as civil in character and not involving a penal element, although certain grounds of referral may involve an allegation of criminal activity. Standing these different contexts, we do not consider that it is appropriate to equiparate the position of the Reporter in children's hearing proceedings with that of the Crown in criminal prosecutions, although, no doubt, the Reporter is under a duty to act fairly in the handling of cases referred to the children's hearing.

[77] In all of these circumstances, we have reached the conclusion that the events founded upon by the first-named appellant and the conduct of the Reporter in handling those events do not constitute an "irregularity in the conduct of the case", within the meaning of section 51(11) of the 1995 Act. Accordingly, we shall answer question 1, as amended, in the negative.

[78] We turn next to deal with the attack mounted, particularly by the first named appellant, on the sheriff's treatment of the evidence of RC. This attack is reflected, in one way or another, in questions 2, 3, 4, 5 and 11 of the stated case.

[79] Before dealing with these matters, in view of certain of the arguments which were addressed to us during the course of the appeal, we consider that it is necessary to emphasise the nature of the present appeal. It is, of course, one brought under section 51(11) of the 1995 Act, which provides that, in circumstances such as those existing here, "an appeal shall lie by way of stated case either on a point of law or in respect of any irregularity in the conduct of the case" to the Court of Session. Thus, the basis of such an appeal must be either an issue on a point of law, or one arising from an irregularity, such as we have already mentioned. What is perfectly clear, but has unfortunately been frequently overlooked, as it was in this case, is that such an appeal as this cannot involve a general review of the decisions of fact made by the sheriff. There is, however, a limited scope in an appeal under this enactment for the ventilation of certain issues of fact, but the only factual issues which can properly be raised are those which are associated with an alleged error of law. This matter was explained by Lord President Emslie in Melon v. Hector Powe Ltd. At page 198 he said this:

"It hardly requires to be mentioned that an appeal lies from a decision of the industrial tribunal to the Employment Appeal Tribunal, and from a decision of that Tribunal, to this Court, only upon a question of law. This being so I am happy to say that the parties are not in dispute as to the extent to which the appellate tribunal, or this Court, is entitled to interfere with a decision of first instance, and to substitute their own decision for that arrived at by the industrial tribunal. The law is clear that where it cannot be shown that the tribunal of original jurisdiction has either misdirected itself in law, entertained the wrong issue, or proceeded upon a misapprehension or misconstruction of the evidence, or taken into account matters which were irrelevant to its decision, or has reached a decision so extravagant that no reasonable tribunal properly directing itself on the law could have arrived at, then its decision is not open to successful attack. It is of no consequence that the appellate tribunal or court would itself have reached a different conclusion on the evidence. If there is evidence to support the decision of the tribunal of first instance then in the absence of misdirection in law - which includes the tribunal's selection of the wrong question to answer - that is an end of the matter."

[80] It is a corollary of these principles expounded by the Lord President that, in a stated case such as this, it is essential that specific and relevant questions must be posed in the case in order to focus the error or errors of law which it is contended have been made by the sheriff. This court has required to emphasise that point on numerous occasions. In G.R. v. Kennedy, 2 February 1996, (unreported) an appeal to this court under the provisions of the predecessor of the 1995 Act, the Social Work (Scotland) Act 1968, the Lord Justice Clerk emphasised the importance of specific questions of law in a stated case such as this. More recently, in R v. Grant, Lord Prosser, in delivering the Opinion of the Court, at pages 374 to 375 said this:

"We can well appreciate the difficulty which a parent may have in accepting a finding that grounds of referral have been established. And like the sheriff in the present case, we can appreciate that a legal adviser who (as here) did not hear the evidence may well have difficulty in framing a point of law. But in stated case procedure, as was pointed out by the Lord Justice Clerk in Drummond v. Hunter, at 1948 J.C., page 113: 'If a legal issue is to be raised, it ought to be properly raised by a question defining the issue precisely. Unless this rule is followed, there is no real guarantee that a point taken in this Court was a live point in the lower Court, nor is there any guarantee that, when the case was being stated, the Judge stating it had in view the points sought to be argued here.' In such situations, there is in our opinion a real risk that as the Lord Justice Clerk put it: 'The ingenuity of counsel can, by searching for gaps and discrepancies in the stated case, raise arguments which were not live issues either at the trial or at the adjustment of the case.' Despite their different contexts, these observations seem to us to be of fundamental importance where stated cases are sought in relation to a finding that grounds of referral have been established."

We might add that, unless the proper practice is followed, the sheriff will be likely not to appreciate exactly what question of law is intended to be raised. In such a situation as that, there is a real risk that a stated case will not contain material which is pertinent to the resolution of the question concerned, such as a narrative of the evidence available to justify a particular finding-in-fact, or may not deal as specifically as desirable with such material.

[81] Against the background of these considerations we now examine the questions which have been posed in relation to the attack on the sheriff's treatment of RC's evidence. Question 2 is the first of these. It refers to "the correct test in respect of the credibility and reliability of RC". During the course of the argument, we raised the issue of what that test was supposed to be. We did not receive any clear answer. In particular, it was not indicated that the sheriff had adopted some test in relation to credibility and reliability which was inappropriate. For that reason, we regard this question as inept in the context. Questions 3, 4 and 5 all raise the issue of whether the sheriff was entitled to accept a part of the evidence of RC, while rejecting another part. Once again, these questions are self-evidently inept. It is indisputably open to a tribunal of fact - and therefore the sheriff here - to accept a part of the evidence of any witness and reject other parts, having conducted an appropriate evaluation of the evidence concerned. Question 11 in the stated case, authorised to be added by the interlocutor of 10 January 2003, raises an issue of a similar nature, simply referring in other language to the fact that there existed certain inconsistencies in the evidence of RC. Plainly, albeit that the evidence of a witness may involve some inconsistencies, a tribunal of fact would be entitled to accept parts of that evidence, with the proviso that an appeal court might interfere, if the tribunal of fact had misapprehended or misconstrued the evidence, or had reached a conclusion which no reasonable tribunal of fact could have reached. In all of these circumstances, although we do not regard the questions mentioned as raising relevant questions of law, we shall nevertheless answer them; as regards question 2, in the affirmative; question 3, in the affirmative; question 4, in the negative; question 5, in the affirmative and question 11 in the affirmative.

[82] Having thus disposed of the questions which were posed relating to the sheriff's evaluation of RC's evidence, which we consider was plainly a matter for the sheriff, we now address certain arguments deployed before us related, in effect, to questions which were not posed. The essence of these was to the effect that, upon the assumption that the evaluation of RC's evidence was a matter for the sheriff, she had failed to give any, or sufficient, reasons for accepting those parts of RC's evidence which she did. In these circumstances, despite the absence of an appropriate question, we are prepared to deal with those matters. Having carefully considered the terms of the sheriff's Note, we cannot agree that she has given no reasons, or inadequate reasons, for reaching the decision which she did in relation to the evidence of RC. On the contrary, it appears to us that the sheriff gave the most anxious consideration to the evidence of RC before accepting certain parts of it. In this connection we refer to what she has said at pages 40-42, 44 and 46-52 of the stated case. As she herself observes at page 46, she approached RC's evidence with "extreme caution". Despite that, she felt able, for the numerous reasons which she gives, to accept certain important parts of her evidence, while rejecting other parts. The parts which the sheriff accepted were, broadly speaking, those allegations which RC had made at an early stage after being received into medical care. The distinctions which the sheriff drew were based, not only on the internal characteristics of RC's evidence, but also on her demeanour in the witness box and the whole other evidence in the case. Thus we do not consider that the sheriff's decision can properly be criticised on the basis that she has failed adequately to explain her approach to that evidence. Nor do we think that the sheriff's approach to RC's evidence can properly be criticised upon the basis that it is one which no reasonable sheriff could have adopted.

[83] During the course of this part of the first-named appellant's arguments, reliance was placed upon passages in the well-known case of Thomas v. Thomas. We should make clear that we did not find this reference relevant or helpful. That case was concerned with circumstances in which an appellate court, which was a court of review on fact, might disturb conclusions of fact reached by the court of first instance. We are not in such a situation, as we have been at pains to point out. Indeed the contrast between such a situation and the situation existing in an appeal by way of stated case was highlighted by Viscount Simon at page 47 of the report.

[84] We now turn to deal with the criticisms which were advanced on behalf of the second-named appellant of the decision of the sheriff holding established statements-of-fact 6 and 7 in the grounds for referral relating to RC, and statement-of-fact 4, under deletion of the words "ill treated and" in the grounds for referral relating to AC. These matters are raised in a very general way in question 8 of the stated case. As the argument was developed, attention was focused upon findings-in-fact 29 and 103 of the sheriff. In finding-in-fact 29 reference is made to the incident in 1994, after which RC had complained to her teacher that she had been assaulted by her mother. It is found that the incident was fully investigated by the social work department and at that time

" ... Mrs. Campbell admitted that she had assaulted her daughter by slapping her hard on the back. RC stumbled and fell against a bicycle propped up in the hall of the family home and then fell to the floor."

[85] The argument was that, before the sheriff, there had been a live issue as to whether this incident could properly be characterised as an assault, or whether it was to be seen as reasonable chastisement of RC by the second-named appellant. The criticism was that the sheriff nowhere in the stated case reflected this controversy. Particularly, there was no mention of it in any narrative of the submissions made to her, nor was the issue of proof of mens rea dealt with. Although the word "assault" was used in finding-in-fact 29, it was contended that it could not be taken that the word had been used in the technical sense of an assault in law.

[86] In relation to finding-in-fact 103 the criticism was that, so far as the stated case was concerned, there was no material from which the sheriff had been entitled to hold it proved that RC had suffered and continued to suffer from significant mental damage as a result of, particularly, the second-named appellant's abuse towards her. Again, it was pointed out that the issue of causation was not dealt with by the sheriff in her Note. Against that background, it was contended that question 8 should be answered by this court in the negative.

[87] We have come to the conclusion that we cannot give effect to these submissions, because the factual issues to which they relate have not properly been raised in the stated case. As regards the issue of the characterisation of the incident of 20 November 1994, we were given different accounts from different sides of the bar as to whether, and, if so, to what extent, the issue of mens rea was in fact argued before the sheriff. It is quite impossible for us, relying, as we must, upon the contents of the stated case, to resolve such a conflict. Had it been considered that the sheriff had erred in law in relation to the matter of the characterisation of the incident, this ought to have been specifically focused in a question in the stated case. There is no such question and we note from the application for the stated case made on behalf of the second-named appellant, document 24/1-3 in the appendix to this appeal, that no such question was suggested to the sheriff. Question 8 in that document does not begin to address the issues which were sought to be argued. In these circumstances it is hardly surprising that the sheriff has not dealt specifically with the controversy which we were informed existed before her on this topic. Our approach to this matter is no arid formalism, but an insistence that, if questions of law are to be ventilated before this court, we must be furnished with the relevant factual material relating to them, which the court of first instance can do only if proper notice is given to it of the point to be raised, in the form of a specific question for inclusion in the stated case. If the proper and well-understood procedure is not followed, there is a real risk that any attempt by an appeal court to deal with the matter on an inadequate or disputed factual basis will simply lead to injustice to one or more parties and to the children who are the subject of the referrals.

[88] So far as the matter of the causation of the mental damage referred to in finding-in-fact 103 is concerned, the position is similar. We were given indications during the course of the debate about evidence which had been available on that topic. However, once again, no specific question has been included in the stated case raising the issue. Once again, we observe that it is hardly surprising that the sheriff has not addressed herself to that matter in particular. No doubt, had she been made aware that it was desired to ventilate the matter in some way as a question of law before this court, she could have narrated the evidence which was available to her. However, she was not made aware of that intention and has not done so. In these circumstances, we do not consider that the submissions made to us on the matter can be given effect. In our opinion, it is wholly unrealistic to suppose that, without notice, a sheriff, who dealt with a hearing which lasted for 49 days can reasonably be expected to narrate in detail all of the evidence which she heard on all topics raised before her in a stated case, without notice being given to her that some particular matter remains controversial. In this connection we would refer to what we have already said concerning the cases of G.R. v. Kennedy and R. v. Grant.
[89] We now turn to consider the range of arguments deployed before us depending, in one way or another, upon the European Convention on Human Rights. These matters arise in two ways in connection with these proceedings. In the first place, question 9 in the stated case is framed in such a way as to indicate a reliance upon Article 6(1) of the Convention, although, surprisingly, it makes no reference to the words "within a reasonable time" contained in Article 6(1). Nevertheless, the gravamen of the first part of question 9 appears to be a desire to raise the issue of delay in that context. So far as the second part of this question is concerned, the reference is to a specific matter which is related to the entitlement to a "fair ... hearing" by an "impartial tribunal".

[90] In the second place, as we have already narrated, there has been lodged, on behalf of the second-named appellant, the Minute No. 19 of Process which contains the two conclusions set forth above, a condescendence and pleas-in-law. In the condescendence of this Minute complaints are made concerning the time which has been taken to bring the proceedings to a determination and also it is complained that, viewed as a whole, the proceedings have been flawed to the point of unfairness. Among the matters relied upon in relation to this latter assertion are the fact that no shorthand notes were taken of the evidence and the failure of the sheriff to provide the second-named appellant with reasons for her decision which have sufficient clarity to enable her to exercise her right of appeal. General criticism is also directed against the system of appeals by way of stated case.

[91] We note, in connection with these matters, that on 30 November 2001 a motion came before this court under Rule of Court 25A.5(3) for intimation to the Advocate General and the Lord Advocate. That motion was refused, presumably upon the basis that the court did not consider that a devolution issue had arisen. On 4 December 2002 the Minute for the second-named appellant was allowed to be received in process. Also on that date the court refused the second-named appellant's motion for a warrant for the service of that Minute upon the Scottish Ministers, the Lord Advocate and the Advocate General, in hoc statu. Having regard to the provisions of paragraph 5 of Schedule 6 to the Scotland Act 1998, it may be supposed that, on that occasion also, the view was taken that a devolution issue had not arisen in these proceedings. It may be that the imminence of the hearing was also a factor in that decision. Before us senior counsel for the second-named appellant specifically refrained from making any motion for intimation under Rule of Court 25A.5(3). Accordingly, as matters stand, no intimation of these proceedings has been made to the Scottish Ministers, the Lord Advocate and the Advocate General.

[92] It is to be noted that, while the matters focused in question 9 of the stated case may not depend upon facts which are disputed by any party to these proceedings, it is plain that several of the matters adverted to in the Minute, No. 19 of Process, raise issues of fact which might well be the subject of controversy, in the event of those who are the subjects of criticism in that Minute becoming parties to the proceedings.

[93] Against this background, as the appeal in this case proceeded, we became increasingly concerned as to the question of what remedies might be available to the appellants in these proceedings, in the event of their complaints of breach of their human rights being made out, about which we shall have more to say below. There is, however, one matter which we consider can readily be dealt with in the context of this appeal, namely the second issue raised in question 9 in the stated case. In our view, that issue does not necessarily depend upon the first-named appellant's rights under Article 6(1) of the Convention. The criticism implicit in that part of the question is one which could as much be founded upon the common law, as opposed to that Article. Accordingly, it is a matter which we consider can, without difficulty, be resolved in this appeal. It is to that matter that we now turn.

[94] The question raised is to this effect:

"Did the Applicant (sic) have a fair hearing before an independent and impartial tribunal ...

(b) in respect that the applicant (sic), Mr. C, perceived that my

assessment of his credibility was informed by my observations of him outwith the context of the court hearing, despite my saying, when making that observation, that I acknowledged that such observation was not evidence, but confirmed a view that I had already formed of him?"

The subject-matter of this part of question 9 is dealt with by the sheriff at pages 81-83 of the stated case. She says at page 83 that, so far as the first-named appellant was concerned, the assessment which she had made of his credibility had not been informed by her observation of him outwith the context of the court hearing. It is obvious from what the sheriff says in the passage concerned that she had decided to make the remarks which she did, when giving in court her oral explanation of her decision, upon which this part of the case rests, for reasons of compassion, particularly towards the second-named appellant. In these circumstances, and having regard to what she says about the issue, we have no reason to doubt that the sheriff's observations of the first-named appellant outside the court building did indeed play no part in the assessment made of his credibility. As regards perceptions, whatever may be the perception of the first-named appellant, who was not personally present when the remarks were made, in our opinion an objective and informed observer of the proceedings would not have reached the conclusion that they had been rendered unfair by reason of what the sheriff had observed and what she subsequently said. In this situation we feel able to answer part (b) of question 9 in the affirmative.

[95] Reverting to part (a) of question 9, it, in effect, duplicates some of the subject-matter of the Minute, 19 of Process. As regards that, the question arises of how those matters can be handled, if at all, in the context of the present proceedings. In that connection, we are of the view that the subject-matter of the Minute and part (a) of question 9, prima facie, give rise to a devolution issue, within the meaning of paragraph 1 of Schedule 6 to the Scotland Act 1998. If that be so, then paragraph 5 of that Schedule requires intimation to be given to the Advocate General and the Lord Advocate. Although the matter was barely touched upon in the argument before us, we have considered the impact of chapter 25A of the Rules of Court upon the present situation. Rule of Court 25A.3(1) provides:

"It shall not be competent for any party to any proceedings to raise a devolution issue otherwise than in the pleadings before any evidence is led, unless the court, on cause shown otherwise determines."

That Rule appears to be concerned, at least primarily, with proceedings at first instance in the Court of Session. Plainly, in the present case, having regard to the nature of the issues now sought to be raised, it would have been impossible for them to have been raised prior to the leading of any evidence, since the apparent basis for them did not exist at that stage. Nevertheless, it appears that Rule of Court 25A.3(2) confers upon the court a power to "make such orders as to the procedure to be followed as appear to it to be appropriate". However, we should observe that chapter 25A of the Rules of Court makes no express provision for the ventilation of a devolution issue in any appellate process, including an appeal by way of stated case, such as is now before the court. Be that as it may, approaching the matter without the assistance of any procedural guidance, we consider that how this matter may properly be handled depends very much upon the remedies sought and the extent to which any particular remedy may properly be made available in the context and within the discipline of this stated case under section 51(11) of the Children (Scotland) Act 1995. In considering that matter we are mindful of the need for a degree of flexibility, indeed maybe creativity, in seeking to secure remedies for breaches of human rights in the context of novel situations, such as this. The Minute, No. 19 of Process, seeks two remedies, declarator in the terms there set forth, which curiously make no reference to the issue of a "reasonable time" in relation to Article 6, and reduction of the sheriff's decision dated 26 September 2000. The declarator sought is couched in very general terms and, as we have observed, does not appear to raise the issue of the delay which has occurred in this case and which, it was contended, has become unreasonable.

[96] In these proceedings this court has the task of answering the questions of law which have properly been raised in the stated case and dealing with the issue of any irregularity in the conduct of the case in terms of section 51(11) of the 1995 Act. We have the greatest difficulty in appreciating how the performance of that task can be affected, in any way, by the granting, without more, of a declarator in the terms currently sought. We consider that, unless the granting of such a declarator were potentially able to affect the performance of the task which the court has under section 51(11), it would be inappropriate for it to be pronounced in these proceedings. That could only be if the alleged infringement could properly be seen as affecting the decision made by the sheriff. In the absence of some practical outcome, such as the reduction or reversal of the sheriff's decisions, we consider that the pronouncement of a bare declarator would be inappropriate.

[97] However, the second remedy sought in the Minute, No. 19 of Process, is, of course, one of reduction of the sheriff's decision of 26 September 2000. That must be the decision which the sheriff gave orally at the conclusion of the proceedings before her, in terms of Rule 3.51(1) of the Child Care and Maintenance Rules 1997. In considering the appropriateness of the remedy of reduction of that decision, in our opinion, it is necessary to have regard to the purpose of the proceedings which took place before the sheriff. As to that, we can do no better than refer to what was said by Lord President Rodger in S. v. Miller, at page 988:

"On the contrary, in a section 52(2)(i) case, as in any other, the aim of all the measures in chapter 3 of the 1995 Act is, as its title proclaims, the 'Protection and Supervision of Children'. More particularly, section 52 deals with 'Children requiring compulsory measures of supervision' and so the aim of all such proceedings is for the hearing to determine whether the child concerned requires such compulsory supervision in his own interests, the decision always being taken with the child's welfare as the paramount consideration (section 16(1)). ... In my view such proceedings which are instituted to promote the child's welfare and have no penal element at all do not involve 'the determination ... of any criminal charge ... '"

Having regard to the purpose of such proceedings as these, there explained, we have the greatest difficulty in accepting that a reduction of the sheriff's decision, at the instance of a party who is not the child whose welfare is sought to be promoted in the proceedings, could ever by appropriate where the nature of the complaint is one of unreasonable delay. If indeed, in such proceedings, the human rights of some other individual or individuals, such as the appellants, had been shown to have been breached, it appears to us that any remedy to be granted would require to avoid undermining the primary purpose of the proceedings themselves. In this connection, it is appropriate to have regard to what was said by Lord Woolf, C.J. in Attorney-General's Reference (No. 2 of 2001):

"18. ... [section 6(1)] provides that is unlawful for a public authority to act in a way which is incompatible with a Convention right. A public authority includes a court. The approach of the judge, reflected in Mr. Watson's submissions, is that if there has been unreasonable delay, to go on and proceed to try a defendant results in the court acting in a way which is incompatible with the defendant's rights. There is no discretion about the matter. Once the court has come to the conclusion that the reasonable time requirement in Article 6(1) has been contravened, the court has to stay the proceedings.

19. The illogicality of this approach, or the nonsense it produces, is illustrated when the position is looked at where it is not a party to criminal proceedings who is complaining about a contravention of the reasonable time requirement in Article 6, but a defendant to civil proceedings. The position of such a defendant was put to Mr. Watson. The defendant would say: 'because of the delay my Article 6 rights have been infringed. Section 6(1) means that you cannot proceed with the trial of the claim which is brought against me' but what about the claimant? The claimant is also entitled to Article 6(1) rights. The claimant says that he is entitled to have his rights determined within a reasonable time. If Mr. Watson is correct, the court would not be entitled to proceed with the trial because of its effect upon the defendant. With the greatest respect, that approach cannot be right. ... As is the case with many of the rights which are contained in the Convention, the courts are called upon to hold the balance between the rights of the individual and the rights of the public."

We consider that, in principle, this passage, in so far as it is directed to civil proceedings, is pertinent in the context of the present situation; criminal proceedings in Scotland give rise to different considerations (R. v. Her Majesty's Advocate and Another). The question which has to be asked is, if reduction were to be granted, what would then happen concerning the interests of the children involved and the interests of the public in seeing that, where necessary, compulsory measures of supervision are made available. The answer must be that the interests of those children and of the public would not be served; the primary purpose of these proceedings would be undermined.

[98] Although the remedy of damages is not claimed in the Minute, No. 19 of Process, in the event of a breach of either of the appellants' human rights being established, it may be that an award of damages might be appropriate. However, in our opinion, the determination of an entitlement to damages and, if appropriate, their quantification would be a peculiarly inappropriate exercise to be conducted in the present proceedings.

[99] The problems with which we have endeavoured to deal in this part of our Opinion were not fully addressed in the course of the argument before us. However, the conclusion which we have reached is that, having regard to the nature and purpose of the present proceedings, it would not be appropriate for the issues sought to be raised in the Minute, No. 19 of Process, and in part (a) of question 9, to be ventilated and resolved in them. For that reason, we shall not order intimation of these proceedings in terms of chapter 25A of the Rules of Court. Having reached this conclusion, and having heard no submissions from any party who might have an interest to contradict any of the assertions in the Minute, No. 19 of Process, and the contentions reflected in question 9(a) of the stated case, it would be inappropriate for us to express any opinion upon the merits of those issues and contentions. For that reason we shall not answer question 9(a) in the stated case. An answer to question 10 was not insisted in.

[100] It remains for us to deal with several miscellaneous matters which arose in the course of the debate before us. The first of these is the contention that the terms of the stated case demonstrate a lack of impartiality on the part of the sheriff as between the appellants on the one hand and the Reporter and the safeguarder on the other. This contention can be seen both as one made at common law and as one founded upon Article 6(1) of the Convention. However, in our opinion, it is doubtful whether a Convention point can properly be taken on this issue, since no devolution issue arises under the Scotland Act 1998 and the Human Rights Act 1998 came into force only after the sheriff had heard and considered parties' submissions and announced, in open court, her decisions on the referrals. Nevertheless, since the matter is a relevant criticism, quite apart from the terms of the Convention, it is one which we consider can be dealt with now, albeit that, yet again, no question focusing the issue was included in the stated case. The foundation of this criticism was the manner in which the sheriff has summarised the submissions of parties to her at page 66 and following pages of the stated case. At page 66, the sheriff observes that she did not propose to rehearse at length the submissions that were made to her. However, the point was made that thereafter she had gone on to rehearse at length the submissions of Mrs. Black, the safeguarder, and of Mrs. Roberts, the Reporter, while she had not accorded to the submissions of Mr. Cubie, for the first-named appellant, and Mrs. Nicholson, for the second-named appellant, similar prominence. We would reject this criticism for two reasons. First, the exclusive basis for it appears to be the form of the stated case itself, as opposed to anything said or done by the sheriff in the course of the proceedings themselves, or in her decision which was given orally, as already explained, on 26 September 2000. It appears to us that the manner in which submissions may be recorded in a stated case, which, after all, is a vehicle for appeal, must depend very much upon the issues sought to be raised in the appeal and other factors. We consider that no inference can properly be drawn regarding the impartiality of the sheriff, or lack of it, from the form of the narrative of the submissions which the stated case contains. Secondly, perusal of the sheriff's narrative from page 66 onwards indicates that, in fact, she made frequent references to the submissions made on behalf of the appellants, albeit in an oblique manner. It was not suggested that the sheriff was in fact other than impartial, the criticism being that her treatment gave that appearance. We are satisfied that, viewed from the perspective of the objective and informed observer, there is no substance in this criticism. We are also satisfied that, regard being had to the nature of the stated case procedure, including the facility and need for an appellant to focus issues sought to be raised on appeal, no valid criticism can be made of the adequacy of the reasons given by the sheriff for her decisions.

[101] We have not dealt so far with question 6 in the stated case. We consider that it follows from what we have already said that it should be answered in the affirmative, with this qualification. In dealing with the case of CC at page 29 of the stated case the sheriff has made what appears to be a clerical error in relation to statement-of-fact 3 and, in particular, in relation to the amendment which she made to it. As we have pointed out elsewhere in this Opinion the passage ought to refer not to "the child", but to RC. It also seems plain that the sheriff inadvertently failed to make findings in respect of statements of facts 4 and 5 in the referral in relation to CC. These statements are in the same terms as statements 4 and 5 in the referral in respect of AC and plainly fall to be dealt with in the same way. The sheriff's findings must, therefore, be altered in these respects. Question 7, for the reasons already given, must be answered in the negative.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> E C & Anor v. Miller [2003] ScotCS 181 (26 June 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/181.html Cite as: 2004 SCLR 55, [2003] ScotCS 181