Sheriff did not err in law in finding child’s evidence of parental sex abuse ‘not trustworthy’

The Sheriff Appeal Court, sitting in Edinburgh, heard an appeal by CM, the defender at first instance, against the decision to grant ME-M, the respondent and pursuer, a contact order in relation to their daughter, “A”.

The appeal was heard by Sheriff Principal Abercrombie, sitting with Appeal Sheriffs Braid and Small.

‘Sexualised comments’

The appellant and the respondent were in a relationship from 2000 to 2015 and had “A” together, who was born in 2011. Following the couple’s separation, A lived with her mother. In 2016, the respondent applied for an order for contact under the Children (Scotland) Act 1995, which was opposed by the appellant but granted in January 2019.

The application was opposed by the appellant on the basis of her child beginning to report matters to her in 2015 which suggested that she was possibly the target of sexual abuse, which the appellant was concerned was at the instance of her father. A was the subject of a joint interview by police and social workers, after which A began to claim that her father was involved. The respondent was not charged with any offence following the interview, and had never been charged with any such offence in the past. However, following the interview the parties separated.

In the years following the interview, the appellant contended that A expressed a fear of the respondent to her mother and made reference to a number of instances of alleged inappropriate sexual contact, to the respondent showing her a number of sexual images on an iPad, and to threats of physical violence. It was also alleged that A had made a number of sexualised comments to her school friends that she said she had learned from the pursuer and drawn a picture containing sexual imagery. The respondent denied any responsibility for this conduct.

The sheriff at first instance weighed A’s hearsay evidence against other findings in fact in which A repeated little of this information in later joint investigative interviews by the police and social workers, and found that he was unable to accept it as trustworthy. He also found the pursuer’s evidence to be credible. There was no evidence of sufficient quality and weight to allow him to conclude that A’s father had sexually abused her. On this basis, and that the interim contact granted prior to the case had gone satisfactorily, he found that it was in A’s best interest to continue to have contact with her father.

‘Undue weight on the consequences’

On appeal, it was argued that the trial sheriff had erred in his evaluation of the evidence by placing undue weight on the consequences for the respondent of a finding that he sexually abused A, and by considering such consequences in isolation, erring in the application of B v Scottish Ministers. It was also argued that he failed to attach due weight to the evidence of a clinical psychologist, Dr Edward, who gave evidence at trial.

Dr Edward supplied two reports for the court. In the first, from October 2017, she found no evidence of A’s direct abuse by her father, but the second, from November 2017, referred to further disclosures that could not have been tainted by outside factors and increased her concerns for the child. Dr Edward also testified that further comments made after the reports would give her considerable concerns as a clinician.

It was submitted by the appellant that this evidence, taken in conjunction with A’s hearsay evidence, should have caused him to find A’s evidence trustworthy, following the approach in A v A and T v T, the latter of which commented on the importance of viewing children’s testimony through the “prism of the expert evidence”.

‘No reasonable judge’

Delivering the opinion of the court, Sheriff Small, noting the required standard for the appeal to succeed, said: “For an appellate court to interfere with a decision of this kind, it is not enough to disagree with the court below, in the sense that it would have reached a different decision. Absent some clear error, such as applying the wrong test, an appellate court can interfere only if the decision is plainly wrong, in the sense that no reasonable judge could have reached it.”

Examining the trial sheriff’s approach to the case, he concluded it was not reached in error, saying “we are satisfied that the sheriff’s decision cannot be categorised as unjustifiable, inexplicable, one that he reached in error, or as one which was plainly wrong”. Furthermore, on a reading of the judgment as a whole, it was clear that he “correctly identified and applied the observations of Lord President Rodger in T v T and of Lady Dorrian in A v A”.

In examining the trial sheriff’s consideration of the evidence of both the appellant and the respondent, the Sheriff stated: “It is of particular relevance to note that he found the respondent generally credible and reliable and was not prepared to disbelieve him in relation to his denials of abuse. While he found the appellant’s evidence credible, he had reservations about the reliability of her evidence, having regard to other evidence in the case accepted by him that she was overprotective, and to his finding that she had convinced herself that abuse of A by the respondent had taken place.”

In regards to the expert evidence, he said: “The sheriff clearly has not ignored Dr Edward’s evidence. In a lengthy section of his judgment he analyses the evidence of A, under reference to the evidence given by Dr Edward. This can be seen on a consideration of pages 84 and 85 of his judgement. An expert witness’s evidence cannot be determinative by itself in any case. It is for the fact finder to consider and assess that evidence and give it the weight he or she considers it deserves.”

In this case, the evidence was not of sufficient “quality and weight to lead him to the conclusion that the pursuer abused A. Nothing in his approach, nor his conclusion, can be faulted”. Thus, the appeal was refused.