LA v. JJH [2016] SAC (Civ) 002 (Sheriff Appeal Court, 10 May 2016)

Background: A Falkirk Sheriff granted a residence order providing that the child should reside with his father, the respondent. The appellant argued that the Sheriff’s decision had erred on findings of fact, based on evidence led at a child welfare hearing. However, there was no transcript of evidence available, as legal aid had been refused for the cost of recording it.

Held: The appeal was found to be “entirely devoid of merit”. The court issued a reminder to practitioners that when evidence has not been recorded, and if there has not been agreement on all issues of fact by the parties, the Sheriff’s findings of fact are not open to challenge and are binding on the appellate court. If findings of fact cannot be challenged, an appellant must point either to a clear error of law or to conclusions reached by the Sheriff which are plainly wrong or unwarranted. The appellant must also clearly set out what course the appellate court ought to follow.

Two of the Sheriffs sitting on the court refused to comment on the practice of Sheriffs using evidential child welfare hearings. A third Sheriff commented that evidential child welfare hearings are not provided for by court rules, and if allowable should only be used if both parties agree, since such a hearing would restrict a party’s grounds of appeal to questions of law only, if evidence is not recorded.