An appeal from a sheriff's decision on appeal from a children's hearing "should be an exceptional event", because a review can be required of the original decision after three months, the Sheriff Appeal Court has stated in a new judgment.
Sheriff Principal Mhairi Stephen QC, Sheriff Principal Marysia Lewis and Appeal Sheriff Nigel Ross made the comment in refusing an appeal by NR, the mother of two children aged five and four, against a sheriff's decision to uphold a decision by the children's hearing to terminate NR's contact with her children.
Appeal Sheriff Ross, delivering the opinion of the court, also reiterated, as among "three central points" relevant to this and other cases, that the bare fact of absence of evidence such as a parenting report or an expert report was insufficient to justify an appeal: the hearing decision had to be shown to be "one which could not, upon any reasonable view, be regarded as being justified"; and that that rights under the European Convention on Human Rights "are not intended to provide a catch-all position to support an otherwise groundless argument". "'Fighting on' is no justification for an appeal", he remarked.
In the present case the grounds of appeal appeared to be no more than "a dispute on the facts, misdescribed as an error of law". None of the alleged failures by the hearing – a failure to obtain a parenting assessment, not refraining from varying the order to nil, and a failure to engage a child psychologist – were by themselves errors of law.
He observed in conclusion: "We would add that we would expect this type of appeal, namely an appeal from an earlier appeal to a sheriff, to be a rare procedure. That is because any “relevant person” has an entitlement to request a review of a compulsory supervision order, or variation thereof, after three months [Children's Hearings (Scotland) Act 2011, s 132(3)]. We observe that such a review, by way of a further children’s hearing, could have been heard at least seven months ago. Future appeals should receive robust and careful consideration by lawyers and funders alike."