Sheriff can rely on findings established at referral hearing in adoption proceedings

The Inner House of the Court of Session refused a legal challenge by the mother of a child who was found by a sheriff to have been subjected to “severe violent and wilful shaking”, in allowing a proof in adoption proceedings brought by a local authority.

The Lord President, Lord Carloway, sitting with Lord Menzies and Lord Drummond Young, heard that the first respondents Glasgow City Council had applied to the sheriff at Hamilton for a permanence order removing parental rights and responsibilities from the child’s mother “RG”, the appellant, and the child’s father “SA”, the second respondent, and vesting them in the local authority and the child “AB’s” foster carers.

In the course of the proceedings, the council lodged a motion for the sheriff to order that they were “entitled to rely upon the original findings of the sheriff in respect of the grounds of referral established on 26 June 2015.

The sheriff held the ground of referral, that an offence under schedule 1 of the Criminal Procedure (Scotland) Act 1995 had been committed in respect of AB, to be established under section 67(2)(b) of the Children’s Hearings (Scotland) Act 2011, and he directed the Principal Reporter to arrange a Children’s Hearing to decide whether to make a compulsory supervision order.

The sheriff had found that the baby, while in the care of her mother and/or father, was admitted to the Victoria Infirmary and transferred to the Royal Hospital for Sick Children, where she was diagnosed as suffering an extensive hypoxic ischemic brain injury, as a result of “significant backwards and forwards movement of the head”, and that her health and wellbeing has been “permanently impaired”.

On 4 February 2019 the sheriff at Hamilton ordered “the petitioner is entitled at any proof to follow hereon to rely upon the original findings by way of certified copy interlocutor of the sheriff … at Glasgow in respect of the grounds of referral relating to the child [AB] … established on 26 June 2015 in relation to the established ground and the corresponding supporting facts…”.

However, the appellant maintained that, in the absence of a plea of res judicata, which the other parties were not advancing, or a statutory provision, a finding of fact in an earlier litigation was not admissible to establish fact in a subsequent litigation.

In particular, it was argued that the findings of fact made by a sheriff after a proof on ground of referral could not be treated as findings for the purposes of a later application for a permanence order.

Refusing the appeal which had been remitted from the Sheriff Appeal Court, the Court of Session held that the sheriff’s reasoning was “sound”.

Delivering the opinion of the court, the Lord President said: “The principle of res judicata can be applied in either a negative or a positive way. In the former, it acts as a plea of bar to prevent a litigation which mirrors an earlier one whose merits have already been determined. In the latter it operates to allow facts, which have been established in earlier litigation, to be founded upon conclusively to support a subsequent action based upon those facts.

“The essential question in limine in this process is whether AB’s residence with her parents, or one or other of them ‘… is, or is likely to be, seriously detrimental to the welfare of the child’.

“It is for the sheriff to ascertain what issues are in dispute (rule 35(1)(b)(i)). Thereafter it is entirely a matter for the discretion of the sheriff to determine what requires proof (rule 36(3)(b)) and what evidence, whether oral, documentary or otherwise, he or she wishes to hear in order to resolve such issues as he or she considers ought to be addressed before determining whether the statutory tests have been met, and with what effect.”

Lord Carloway continued: “In a case such as the present, the sheriff is entitled, when determining what evidence to hear, to take as a starting point the fact that the ground of referral and the supporting facts have already been established after proof. That is not to say that the sheriff is bound to find the same facts.

“If it is a party’s intention to lead the same, or substantially the same, evidence as was presented at the ground of referral proof, and to seek only to persuade the sheriff to reach a different decision on the same evidence, the sheriff would be entitled to refuse to rehear that evidence and to find these facts established on the basis of the evidence previously heard.

“There will be situations in which the findings in fact of the sheriff after a ground of referral proof may legitimately be challenged. In so far as they involve the introduction of different evidence, they are of the same nature as would be allowed to support a plea of res noviter veniens ad notitiam in the context of an appeal or an action of reduction on the merits.

“In a case involving the future welfare of a child and the rights and responsibilities of her parents, a broad approach to this has to be taken. It would not be in the best interests of a child for decisions to be taken which are based on erroneous fact. It is also in the best interests of a child that final decisions upon his or her welfare are taken expeditiously. It is for the sheriff to weigh these considerations in the balance and to make a decision at the pre-proof hearing concerning the legitimate scope of the proof.”

He concluded: “In the present case, for example, if the appellant does seek to adduce the evidence of a new consultant paediatric neurosurgeon, she will have to provide the sheriff, at the pre-proof hearing, with a report from the neurosurgeon which at least outlines that evidence. The sheriff will have to decide whether it is of such quality and strength that it may successfully undermine the material findings of non-accidental injury made by the sheriff after the ground of referral proof. If it has that capacity, the sheriff may determine that this should be heard first before affording the first respondents the opportunity to lead such evidence in replication as might be allowed.

“The question is not, as the motion and the relative interlocutor suggest, one of whether the first respondents are ‘entitled to rely upon the original findings’, but whether the sheriff can do so.

“Nevertheless, the sheriff’s reasoning is essentially sound. He may rely on the original findings. It is for him to decide what, if any, new information should be adduced at the proof. If it is speculation or repetition, it may be excluded at the pre-proof hearing.”