Appeal challenging sheriff’s findings in fact in making residence order refused as ‘entirely devoid of merit’

The note of appeal challenged the sheriff’s approach to evidence led at a child welfare hearing, but in refusing the appeal as “incompetent” the Sheriff Appeal Court issued a reminder to parties and prospective appellants that a sheriff’s findings in fact which have not been recorded or agreed by the parties are “not open to challenge”.

Sheriff Principal Craig Scott QC, Sheriff Principal Marysia Lewis and Sheriff Nigel Morrison QC heard that the appeal by “LA” was brought to challenge the decision of the sheriff at Falkirk to grant a residence order in terms of section 11(2)(c) of the Children (Scotland) Act 1995, providing that the child JH should reside with his father, “JJH”, the respondent.

It was contended that the sheriff erred in making certain findings in fact following a child welfare hearing, but there was no suggestion in the note of appeal as to what course of action should be adopted should the appeal be upheld.

The respondent submitted, inter alia, that the findings in fact were binding and could not competently be challenged since the evidence – which was not the subject of agreement between the parties – had not been recorded.

It was also argued that that there was, in any event, evidence to support the findings in fact, and that that the note of appeal failed to propose alternative findings in fact.

Further, in arriving at her findings in fact and conclusions on the evidence, the sheriff had “properly exercised her judicial discretion”, and there was no challenge to the judgment of the sheriff on the basis that she had erred in law or had been so plainly wrong in the exercise of her discretion as to merit interference by an appellate court.

Faced with the difficulty in seeking to challenge the findings in fact in circumstances where no transcript was available, the solicitor for the appellant was invited by the court to identify any error of law on the part of the sheriff.

She submitted that the sheriff had erred in law in failing to take account of the views of the child, but that argument did not feature in the grounds of appeal.

“Similarly, the court’s attempt to elicit any argument based upon supposedly unwarranted conclusions drawn by the sheriff caused the solicitor for the appellant to revert back to criticism of the findings in fact themselves. Therefore, no relevant or meaningful argument was presented to challenge the sheriff’s conclusions on the evidence,” Sheriff Principal Scott said.

In such circumstances, the appeal sheriff ruled that the appeal was “entirely devoid of merit”.

Sheriff Principal Scott added: “At one stage during the appeal hearing, the solicitor for the appellant mentioned what she ‘hoped’ would be the court’s ability to review the evidence and the sheriff’s findings. She was reminded that this court is not a court of review; it is a court of appeal.”

In light of the court’s experience in the context of the present case, the appeal sheriffs considered it necessary to issue a reminder to parties and practitioners intent upon bringing an appeal to challenge a sheriff’s findings in fact.

In a written opinion, Sheriff Principal Scott said: “A prospective appellant must be aware that when the evidence has not been recorded (and absent agreement on all issues of fact canvassed in evidence) the sheriff’s findings in fact are not open to challenge.

“They are binding upon the appellate court, which cannot make different, or further, findings in fact. In such circumstances, an appeal cannot competently be brought for that purpose.

“More generally, where the findings in fact cannot be challenged, for the sheriff’s decision to be the subject of a viable appeal, an appellant must be able to point to a clear error of law on the part of the sheriff or to conclusions reached by the sheriff which are plainly wrong or unwarranted.

“An appellant must also have a clear understanding as to what the consequences ought to be (should the appeal be upheld) and the note of appeal must set out in specific terms what course the appellate court is being asked to follow.”