Reliance of facts established at a grounds referral proof when considering a permanence order

RG v Glasgow City Council and SA [2019] CSIH 45

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csih45.pdf (Inner House, Court of Session, 27 August 2019)

Regarding the reliance of facts established at a grounds of referral proof when considering a permanence order.

The Inner House of the Court of Session has refused an appeal against a Sheriff’s reliance on facts established at a grounds of referral proof when considering a permanence order. In doing so, the Court determined that it was competent for a Sheriff to consider facts established at a previous grounds of referral hearing as established for the purposes of later permanence proceedings.

The Inner House reached this conclusion by reference to the Sheriff Court’s active role in case management in family cases. Citing rule 35(1)(b)(i) of the Sheriff Court Adoption Rules 2009, the Inner House found that a Sheriff’s duty to ascertain the issues in a given dispute gave the Sheriff a wide discretion to determine which issues required to be heard at proof. The upshot of this finding was that the Sheriff was also entitled to determine which issues did not require proof and were therefore established. As such, the Inner House found that: “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”.

The Inner House also indicated circumstances in which a Sheriff ought to exercise their discretion to allow an issue to proof, even if the facts had been established at a previous grounds of referral proof. Such circumstances included situations where new information— not previously available or known at the time of the grounds of referral hearing—had come to light and such information could prove decisive in the establishment of facts. Conversely, if the new information was speculative or repetitious, the Sheriff ought to exclude the issue from proof.