Exclusive: ‘Wake-up call’ on evidential child hearings

John Forsyth discusses the status of evidential child welfare hearings in the wake of LA v JJL.

In general appeal judges tend to be reasonably generous about the best efforts of the lawyers appearing before them even when giving their arguments short shrift in upholding a lower court decision on some matter.

Not always.

In a sheriff appeal court decision published in May but little reported even in the legal media Sheriff Principal CAL Scott excoriated the solicitor who wanted them to overturn a sheriff’s decision following an “evidential child welfare hearing” in a residence and contact case.

More than that, sitting with him, Sheriff Morrison raised a fundamental question mark about the status of evidential child welfare hearings per se. He said: “There is no such process as an evidential child welfare hearing provided for in the Ordinary Cause Rules: one may have a child welfare hearing or a proof. If it were possible to have an evidential child welfare hearing, it may only be, in my opinion, with the consent of parties. … This case highlights dangers in even agreeing to such a procedure.“

In recent years, Sheriff Principal Scott acknowledged: “… the expedient of determining discrete issues in family actions through evidence being led in the context of a child welfare hearing is regarded by certain sheriffs as a valuable case management tool.”

Under pressure to ‘manage’ contact and residence cases to stop them from dragging on over months and years at the expense of court time, legal costs and a child’s relationship often with both parents, the evidential child welfare hearing has become relatively common (though no statistics are collected) across Scotland even without any underpinning of rules. Sometimes it is the sheriff who makes the suggestion to hurry things along. Sometimes it is the parties who jointly propose it.

The case of LA v JJL sounds a clear warning.

The essence of an evidential child welfare hearing is that witnesses will give testimony under oath, allowing the sheriff to making findings of fact on specified issues that have been beyond the parties to resolve in a succession of conventional child welfare hearings. Being more focussed it is likely to be quicker and cheaper than a full proof. A major saving is in the cost of instructing the attendance of a shorthand writer - where they still exist.

The absence however of a transcript from the original proceedings before a sheriff in Falkirk was fatal to the appeal raised by her solicitor on behalf of a mother against the decision to grant residence to the child’s father.

In his leading judgment Sheriff Principal Scott said: “The solicitor for the appellant in her oral submissions struggled, particularly, with the difficulty posed by the lack of any transcript of evidence. Initially, at least, she clung to the misguided notion that this court might, in some way, be able to place reliance upon her own ex parte statements as to what the evidence led had amounted to, all with a view to inviting the court to interfere with the sheriff’s decision. The nature and extent of any such interference (should it have been merited at all) was somewhat vague in itself. At one stage, the appellant’s solicitor suggested that the whole matter should be remitted back to the sheriff for all the evidence to be led anew. Inevitably, the solicitor for the appellant was forced to confront the difficulty in seeking to challenge the findings in fact in circumstances where no transcript was available. … 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.”

Sheriff Morrison concurred with the dismissal of the appeal and drew particular attention to the fact if there is no record of the evidence delivered in the court of first instance then any prospective appeal could be on a point of law only: “It so restricts the grounds of appeal because, without the recording of evidence, an appellate court cannot go behind the facts found by the sheriff. I do not think that rule 33.22A(4) (or rule 33A.23(4)) of the Ordinary Cause Rules 1993, which allows a sheriff to seek to secure the expeditious resolution of disputes, entitles a sheriff, at his or her own instance, to restrict a party’s right of appeal by ordering this procedure without that consent.”

Despite the question mark apparently raised against the phenomenon it is apparent evidential child welfare hearings are still taking place.

And just as the sheriff appeal court judges were clearly torn - Sheriff Principals Scott and Lewis were reluctant to condemn a useful tool of case management while Sheriff Morrison emphasised the absence of rules to protect the parties who might be persuaded to give it a try - so a straw poll of family lawyers reveals a range of experiences with the evidential child welfare hearing.

One solicitor reported that the absence of rules meant the solicitors effectively sorted some out between them, “From a procedural perspective, the case went straight from a Child Welfare Hearing to an Evidential Child Welfare Hearing. There was no Options Hearing or Case Management Hearing in advance. There was not even a date fixed for lodging productions and lists of witnesses. Fortunately, with sensible agents, those dates were agreed, but I could foresee difficulties in other cases involving other agents where lists of witnesses and productions would be lodged on the day which would obviously create difficulties.”

John Fotheringham, family law solicitor a Shoosmiths, says: “I can understand the objections to them. However, it may be that there are some simple matters of fact that can be safely dealt with in that manner in order to help clarify the parties’ arguments. I don’t believe that a ‘best interests’ question at large will be suitable for that treatment.”

A solicitor who preferred not to have his view attributed said sometimes evidential child welfare hearings can be a short cut to a ‘best interests’ decision: “I think that in general they are a good thing, but only if the evidence is recorded. You cannot appeal facts if it is not, which could be problematic if the sheriff gets the evidence wrong, as has been known to happen more often than you would think. The reason they have developed is because they are not a final interlocutor, and as such there can be further hearings after them. This is useful in many cases, particularly ones where there is no contact taking place at all. The sheriff then decides if contact should take place, and has a further ‘normal’ CWH to decide the mechanics of the contact.” That is, a decision is made and the parties know what it is as opposed to prolonged wrangling over detail that intentionally or otherwise postpones the point where a decision is reached.

Janys Scott QC, convener of the Faculty of Advocates Family Law Group, says: “In the Falkirk case parties both agreed to the leading of evidence at a child welfare hearing and agreed it should not be recorded (as there was no legal aid available to instruct a shorthand writer). There could be no appeal about the form of process as they had agreed to it. Sheriff Morrison says they were unwise to agree. The case does not develop the law, but it should give practitioners a ‘wake-up call’ about the use of child welfare hearings.”