Evidential evaluation of hearsay statements of sexual abuse/inappropriate sexual contact from a child in civil proceedings

CM V ME-M [2019] SAC (CIV) 030

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019-sac-(civ)-0303c436ba7898069d2b500ff0000d74aa7.pdf (Sheriff Appeal Court, 24 July 2019)

Regarding the evidential evaluation of hearsay statements of sexual abuse/inappropriate sexual contact from a child in civil proceedings. Appeal by the child (A)’s mother refused as the Sheriff Appeal Court held that the Sheriff had not erred in his overall approach to the decision-making process; due regard had been given to all relevant factors when granting a section 11 order to allow A’s father to have contact with the child.

This was an appeal by the mother of a child (A), whom A lived with. In 2016, A’s father raised proceedings seeking an order for contact. The Sheriff Court granted contact—initially supervised but progressing to unsupervised— after deciding that it would be in A’s best interests. A’s mother appealed this decision on the basis that the Sheriff had erred in the consideration of the evidence. The Sheriff had accepted that A had made varied and contradictory statements of sexual abuse against her father but was not satisfied as to the trustworthiness of these statements. At appeal, A’s mother argued, inter alia, that the Sheriff had placed undue weight on the consequences A’s father would face if it was found that he had sexually abused A when determining the trustworthiness of the disclosures. This was not accepted by the Appeal Court. The Appeal Court accepted that the Sheriff had correctly applied observations made in B v Scottish Ministers 2010 SC 472 when he stated at para [42] of the initial judgement that:

“Where an allegation of criminal conduct is made in civil proceedings, the standard of proof is the balance of probabilities; but the nature of the allegation may be such as to call for evidence of quality and weight and for that evidence to be carefully examined and scrutinised in the course of the forensic process.”

The Appeal Court held that in light of the observations made in B v Scottish Ministers, the seriousness of the allegations made by A and the consequences for A’s father if they were proved were to be considered relevant factors to which the Sheriff could take account when assessing the quality of the evidence.