M v Constanda [1998] ScotCS 94 (4 December 1998)

M v Constanda [1998] ScotCS 94 (4 December 1998)

The sheriff erred in holding that the ground of referral was established for J. M. based solely on prior interlocutors reflecting acceptance of facts in relation to L. B. and M. M.; such interlocutors are evidence only of prior acceptance, not of the underlying facts, and do not dispense with the need for appropriate evidence where the relevant person does not accept the ground in the current proceedings.

Citation
[1998] ScotCS 94
Parties
Appellant: S. M.; First Respondent: Lia Constanda; Second Respondent: Ann Marie McGinley, curator ad litem to the child J. M.
Jurisdiction
Scotland
Judgment Date
04 December 1998
Procedural Posture
Appeal by Way of Stated Case Under Section 51(11) of the Children (scotland) Act 1995 / Opinion of the Court of Session on Appeal From Sheriff's Decision
Outcome
Appeal allowed; sheriff's decision overturned.
Legal Topics
Children's Hearings, Grounds of Referral, Evidentiary Requirements, Acceptance of Facts, Supervision Orders
Child Law Family Law Administrative Law Children's Hearings Grounds of Referral Evidentiary Requirements Acceptance of Facts Supervision Orders

Case Brief

Summary, issues, holding and outcome

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Parties

S. M.

Appellant

Lia Constanda

First Respondent

Ann Marie McGinley, curator ad litem to the child J. M.

Second Respondent

Procedural Posture

Appeal by Way of Stated Case Under Section 51(11) of the Children (scotland) Act 1995 / Opinion of the Court of Session on Appeal From Sheriff's Decision

Legal Issues

  1. 1 Whether a sheriff can hold a ground of referral established for one child based solely on a prior interlocutor where facts were accepted (not proved by evidence) in relation to another child in the same household
  2. 2 Whether certified copy interlocutors alone constitute sufficient evidence under section 68(10) of the Children (Scotland) Act 1995

Ratio Decidendi

The sheriff erred in holding that the ground of referral was established for J. M. based solely on prior interlocutors reflecting acceptance of facts in relation to L. B. and M. M.; such interlocutors are evidence only of prior acceptance, not of the underlying facts, and do not dispense with the need for appropriate evidence where the relevant person does not accept the ground in the current proceedings.

Court Disposition

Appeal allowed; sheriff's decision overturned.

Orders

  • First question of law answered in the affirmative; second question answered in the negative.