In the case of LA v JJH, an appeal was brought to challenge the decision of the sheriff at Falkirk Sheriff Court to grant a residence order providing that the child ought to reside with his father.
This decision had been made at an evidential child welfare hearing.
The appellant sought to overturn the decision on the basis that the sheriff had erred in making certain findings of fact.
The difficulty which arose was that the evidence had not been recorded at the child welfare hearing.
In his opinion, Vice President of the Sheriff Appeal Court, Sheriff Principal C.A.L Scott, QC took the opportunity to issue a reminder to parties and practitioners intent upon bringing appeals to challenge a sheriff's findings in facts.
He made clear that where no evidence has been recorded the sheriff's findings in fact are not open to challenge.
They are binding upon the appellate court.
In the absence of the ability to challenge the findings in fact, the appellant must be able to point to an error in law.
The appellant in the case of LA v JJH was unable to do so.
The appeal was therefore refused and expenses were awarded in favour of the respondent.
Whilst his Lordship reserved his opinion as to the use of evidential child welfare hearings, he acknowledged that it did restrict the scope of appeal.
Sheriff NMP Morrison, QC (sitting with him) went further, stating:
"There is no such process as an evidential child welfare hearing provided for in the Ordinary Cause Rules: one may have a child welfare hearing or a proof. If it were possible to have an evidential child welfare hearing, it may only be, in my opinion, with the consent of the parties. The reason for this is that such a hearing, without the recording of evidence, would restrict a party's grounds of appeal to questions of law only. An "evidential child welfare hearing" does not attract, automatically, the provisions of Chapter 29 (Proof), in particular the authority to cite witnesses and the rules which arise from it, or the recording of evidence. It so restricts the grounds of appeal because, without the recording of evidence, the appellate court cannot go behind the facts found by the sheriff. I do not think that Rule 33.22 A (4) (or Rule 33 A.23 (4)) of the Ordinary Cause Rules 1993, which allows the sheriff to seek to secure the expeditious resolution of disputes, entitles a sheriff, at his or her own instance, to restrict a party's right to appeal by ordering the procedure without that consent".
This serves as a warning to parties and practitioners on the use of evidential child welfare hearings.