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Act of Sederunt (Children’s Hearings (Scotland) Act 2011) (Miscellaneous Amendments) 2013

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Scottish Statutory Instruments

2013 No. 172

Sheriff Court

Act of Sederunt (Children’s Hearings (Scotland) Act 2011) (Miscellaneous Amendments) 2013

Made

28th May 2013

Laid before the Scottish Parliament

30th May 2013

Coming into force

24th June 2013

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971(1), section 91 of the Children (Scotland) Act 1995(2) and section 43(1)(f) of the Children’s Hearings (Scotland) Act 2011(3) and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the said Act of 1971, do hereby enact and declare:

Citation, commencement and interpretation

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Children’s Hearings (Scotland) Act 2011) (Miscellaneous Amendments) 2013 and subject to paragraph 8, comes into force on 24th June 2013.

(2) A certified copy of this Act of Sederunt is to be inserted in the Books of Sederunt.

(3) In this Act of Sederunt—

“the 1987 Act of Sederunt” means the Act of Sederunt (Legal Aid Rules) (Children) 1987(4);

“the 1997 Act of Sederunt” means the Act of Sederunt (Child Care and Maintenance Rules) 1997(5);

“the Ordinary Cause Rules” means the Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 1907(6);

“the Sheriff Court Adoption Rules 2009” means the Sheriff Court Adoption Rules 2009 in the Schedule to the Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009(7).

Amendment of Chapter 1 of the 1997 Act of Sederunt

2.—(1) Chapter 1 of the 1997 Act of Sederunt is amended in accordance with the following subparagraph.

(2) In rule 1.2 (interpretation) for the definition of “Principal Reporter” substitute—

“Principal Reporter” is the person referred to in section 14 of the Children’s Hearings (Scotland) Act 2011 or any person carrying out the functions of the Principal Reporter by virtue of paragraph 10(1) of schedule 3 to that Act;.

Amendment of Chapter 3 of the 1997 Act of Sederunt

3.—(1) Chapter 3 of the 1997 Act of Sederunt is amended in accordance with the following subparagraphs.

(2) The title of Chapter 3 becomes “Children’s Hearings: Applications to the sheriff”.

(3) In rule 3.1 (interpretation)—

(a)in paragraph (1)—

(i)the following definitions are inserted in the appropriate sequential order—

1995 Act” means the Children (Scotland) Act 1995 and (except where the context otherwise requires) references to terms defined in that Act have the same meaning here as given there;

2011 Act” means the Children’s Hearings (Scotland) Act 2011 and (except where the context otherwise requires) references to terms defined in that Act have the same meaning here as given there;

“relevant person” means—

(aa)

a person referred to in section 200(1) of the 2011 Act or

(bb)

a person deemed a relevant person by virtue of section 81(3) or 160(4)(b) of the 2011 Act;;

(ii)omit the defined term “the Act” and its related definition;

(b)for paragraph (2) substitute—

(2) In this Chapter any reference, however expressed, to disputed grounds shall be construed as a reference to a statement of grounds which forms the subject of an application under section 93(2)(a) or 94(2)(a) of the 2011 Act.

(3) Except as otherwise provided, this Chapter applies to applications to the sheriff (including reviews and appeals) under the 1995 Act or the 2011 Act.

(4) All hearings in respect of applications to the sheriff must be held in private..

(4) For rule 3.2 (application) substitute—

Application of rules 3.3 to 3.5A

3.2.(1) Rules 3.3 to 3.5 apply where a sheriff is coming to a decision about a matter relating to a child within the meaning of section 27 of the 2011 Act.

(2) Rule 3.5A applies in the circumstances referred to in paragraph (1) and in respect of applications under Part V of this Chapter..

(5) For rule 3.3 (power to dispense with service on child) substitute—

Power to dispense with service on child

3.3.  Where the sheriff is satisfied, so far as practicable and taking account of the age and maturity of the child, that it would be inappropriate to order service on the child, the sheriff may dispense with service on the child.

Child to attend hearing

3.3A.(1) This rule applies where an application is made to the sheriff under the 2011 Act, other than where section 103 or 112 of the 2011 Act applies.

(2) A child must attend all hearings, unless the sheriff otherwise directs.

(3) A child may attend a hearing even if the child is excused from doing so.

(4) If the child is not excused from attending the hearing but does not attend the sheriff may grant a warrant to secure attendance in relation to the child.

(5) Paragraph (6) applies if—

(a)the hearing of the application is to be continued to another day; and

(b)the sheriff is satisfied that there is reason to believe that the child will not attend on that day.

(6) The sheriff may grant a warrant to secure attendance in relation to the child..

(6) In rule 3.4 (service on child)—

(a)in paragraph (1)(b) for “set aside” substitute “terminate”;

(b)omit paragraph (1)(e);

(c)for paragraph (1)(f) substitute—

(f)subject to subparagraph (g), in Form 31 in respect of an application under section 93(2)(a) or 94(2)(a) of the 2011 Act;

(g)Form 31A in respect of an application under section 94(2)(a) of the 2011 Act where a procedural hearing has been fixed; and

(h)Form 31B in respect of an application under section 110(2) of the 2011 Act..

(7) In rule 3.5 (procedure where child wishes to express a view)—

(a)in paragraph (1)—

(i)for the first line of paragraph (1) substitute “Subject to section 27(3) of the 2011 Act, the sheriff—”;

(ii)for subparagraph (b) substitute—

(b)shall not come to a decision about a matter relating to a child within the meaning of section 27 of the 2011 Act unless an opportunity has been given for the views of that child to be obtained or heard.;

(b)in paragraph (2)(c) omit—

(i)“or curator ad litem appointed by the court”;

(ii)omit “or” at the end of the paragraph;

(c)after paragraph (2)(c) insert—

(ca)by any curator ad litem;;

(d)the heading becomes “Procedure for obtaining a child’s view”.

(8) After rule 3.5 insert—

Confidentiality

3.5A.(1) Unless the sheriff otherwise directs, all documents lodged in process are to be available only to the sheriff, the reporter, the safeguarder, the curator ad litem and the parties; and such documents must be treated as confidential by all persons involved in, or party to, the proceedings and by the sheriff clerk.

(2) The safeguarder and the curator ad litem must—

(a)treat all information obtained in the exercise of their duties as confidential; and

(b)not disclose any such information to any person unless disclosure of such information is necessary for the purpose of their duties.

(3) This rule is subject to rule 3.5..

(9) In rule 3.6 (application of rules for safeguarders)—

(a)for “to 3.10” substitute “to 3.9”;

(b)for “proceedings under section 57 of the Act” substitute “an application under section 37 of the 2011 Act”.

(10) In rule 3.7 (appointment of safeguarder)—

(a)in paragraph (1) for “The sheriff” substitute “Where a safeguarder has not been appointed for the child, the sheriff”;

(b)for paragraph (2) substitute—

(2) Where a sheriff appoints a safeguarder, the appointment and the reasons for it must be recorded in an interlocutor..

(11) In rule 3.8 (rights, powers and duties of safeguarder etc.) after paragraph (e) insert—

(f)whether or not a party, be entitled to receive from the sheriff clerk all interlocutors subsequent to his or her appointment..

(12) The heading of rule 3.9 becomes “Representation of safeguarder”.

(13) Rule 3.10 (provision where safeguarder intimates his decision not to become a party to the proceedings) is omitted.

(14) In rule 3.11 (assigning of diet for hearing) after “Form 32” insert “, Form 32A”.

(15) In rule 3.12 (service and notice to persons named in application)—

(a)in paragraph (1)—

(i)in subparagraph (b) for “set aside” substitute “terminate”;

(ii)omit subparagraph (e);

(iii)in subparagraph (f) substitute—

(f)subject to subparagraph (g), in Form 39 in respect of an application under section 93(2)(a) or 94(2)(a) of the 2011 Act made under Part VII of this Chapter; or

(g)in Form 39A where a procedural hearing has been fixed in respect of an application under section 94(2)(a) of the 2011 Act made under Part VII of this Chapter.;

(b)in paragraph (2) after “safeguarder” insert “or curator ad litem”.

(16) In rule 3.13 (period of notice) in paragraph (2)—

(a)for subparagraph (a) substitute—

(a)an appeal referred to in section 157(1), 160(1), 161(1) or 162(3) of the 2011 Act;;

(b)for subparagraph (c) substitute—

(c)a hearing on an application to vary or terminate a child protection order;.

(17) In rule 3.14 (citation of witnesses etc.) in paragraph (1)(a) for “first diet” substitute “hearing on evidence”.

(18) In rule 3.16 (persons who may effect service)—

(a)in paragraph (1)(b) for “or (f)” substitute “to (g)”;

(b)for paragraph (3) substitute—

(3) Where required by the sheriff, the sheriff clerk shall cite the Principal Reporter, the authors or compilers of any reports or statements and any other person whom the sheriff may wish to examine under section 155(5) of the 2011 Act (procedure in appeal to sheriff against decision of children’s hearing)..

(19) In rule 3.17 (production of certificates of execution of service) in paragraph (1)(b) for “the post office” substitute “a”.

(20) For rule 3.22 (applications for evidence of children by television link) substitute—

Applications for evidence by live link

3.22.(1) On cause shown, a party may apply in the form prescribed in paragraph (3) for authority for the whole or part of—

(a)the evidence of a witness or party; or

(b)a submission,

to be made through a live link.

(2) In paragraph (1)—

“witness” means a person who has been or may be cited to appear before the sheriff as a witness (including a witness who is outwith Scotland), except in circumstances where such witness is a vulnerable witness within the meaning of section 11(1) of the Vulnerable Witnesses (Scotland) Act 2004;

“submission” means any oral submission which would otherwise be made to the court by the party or such party’s representative in person including an oral submission in support of an application;

“live link” means a live television link or such other arrangement as may be specified in the application by which the witness, party or representative, as the case may be, is able to be seen and heard in the proceedings or heard in the proceedings and is able to see and hear or hear the proceedings while at a place which is outside the courtroom.

(3) An application under paragraph (1) shall be made—

(a)in Form 44A in the case of a witness or party;

(b)in Form 44B in the case of a submission.

(4) The application shall be lodged with the sheriff clerk prior to the hearing at which the witness is to give evidence or the submission is to be made (except on special cause shown).

(5) The sheriff shall—

(a)order intimation of the application to be made to the other party or parties to the proceedings in such form as he or she prescribes; and

(b)hear the application as soon as reasonably practicable..

(21) In rule 3.25 (child assessment orders: interpretation) for “section 55 of the Act” substitute “section 35(1) of the 2011 Act”.

(22) In rule 3.27 (orders) in paragraph (3) for “section 55(2) of the Act” substitute “section 36(3) of the 2011 Act”.

(23) In rule 3.29 (child protection orders: interpretation) for “section 57 of the Act” substitute “section 37 of the 2011 Act”.

(24) In rule 3.31 (determination of application) in paragraph (2) for “section 58 of the Act” substitute “section 40, 41 or 42 of the 2011 Act”.

(25) In rule 3.32 (intimation of making of order) for subparagraph (b) substitute—

(b)the persons referred to in section 43(1)(a), (c), (d) and (e) of the 2011 Act, along with a notice in Form 51; and

(c)such other persons as the sheriff may direct and in such manner as he or she may direct..

(26) In rule 3.33 (application to vary or set aside a child protection order)—

(a)in paragraph (1)—

(i)for “section 60(7) of the Act” substitute “section 48 of the 2011 Act”;

(ii)for “setting aside” substitute “termination”;

(iii)omit from “or a direction” to “section 59(4) of the Act”;

(b)in paragraph (2)—

(i)for “section 60(7) of the Act” substitute “section 48 of the 2011 Act”;

(ii)for “setting aside” substitute “termination”;

(c)in paragraph (3) after “is made” insert “under section 49 of the 2011 Act”;

(d)in paragraph (4) omit “Subject to section 60(11) of the Act”;

(e)the heading becomes “Application to vary or terminate a child protection order”.

(27) In each of the following rules, wherever reference is made to “the Act” substitute “the 1995 Act”—

(a)rule 3.34 (exclusion orders: interpretation);

(b)rule 3.36 (hearing following interim order);

(c)rule 3.38 (certificates of delivery of documents to chief constable);

(d)rule 3.40 (variation or recall of an exclusion order).

(28) For rule 3.39 (power to make child protection order in an application for an exclusion order) substitute—

Power to make child protection order in an application for an exclusion order

3.39.  Where the sheriff, in terms of section 76(8) of the 1995 Act, has decided to make a child protection order under Part 5 of the 2011 Act pursuant to an application, rules 3.31 to 3.33 shall apply..

(29) Part VI (Warrant for further detention of a child) is omitted.

(30) The heading of Part VII becomes “PROCEDURE IN APPLICATIONS UNDER SECTION 93(2)(a) OR 94(2)(a) OF THE 2011 ACT”.

(31) In rule 3.44 (interpretation) for “section 65(7) or (9) of the Act (establishment of grounds for referral)” substitute “section 93(2)(a) or 94(2)(a) of the 2011 Act”.

(32) In rule 3.45 (lodging of application, etc.)—

(a)for paragraph (1) substitute—

(1) Within a period of 7 days beginning with the date on which the Principal Reporter was directed in terms of section 93(2)(a) or 94(2)(a) of the 2011 Act to make an application to the sheriff, the Principal Reporter shall lodge an application in Form 60 with the sheriff clerk of the sheriff court district in which the child is habitually resident.

(1A) Paragraph (1) is subject to the terms of section 102(2) of the 2011 Act.

(1B) The sheriff may, on cause shown, remit any application to another sheriff court.

(1C) Not later than 28 days after the day on which the application is lodged the sheriff clerk shall fix a hearing on evidence as required under section 101(2) of the 2011 Act..

(b)in paragraph (2) omit “the chairman at”;

(c)after paragraph (2) insert—

(3) Paragraphs (4) to (7) apply where an application under paragraph (1) is made by virtue of section 94(2)(a) of the 2011 Act.

(4) The sheriff may fix a procedural hearing to determine whether or not the section 67 grounds in the statement of grounds are accepted by each relevant person.

(5) Such procedural hearing must take place before the expiry of the period of 7 days beginning with the day on which the application is lodged.

(6) The sheriff shall appoint service and intimation of the procedural hearing as the sheriff thinks fit.

(7) Subject to paragraph (9)(a) and (b), subsequent to the procedural hearing the sheriff may discharge the hearing on evidence and determine the application.

(8) Where paragraph (7) applies the sheriff shall make such orders for intimation as the sheriff thinks fit.

(9) Where—

(a)a relevant person does not accept the section 67 grounds in the statement of grounds at the procedural hearing;

(b)section 106(2)(a) or (b) of the 2011 Act applies; or

(c)the sheriff has not fixed a procedural hearing;

a hearing on evidence must take place in accordance with rule 3.47..

(33) In rule 3.46 (abandonment of application)—

(a)in paragraph (1) for “abandon” substitute “withdraw”;

(b)in paragraph (2) and (3) for “abandonment” substitute “withdrawal”;

(c)in paragraph (2)(c) for “appointed by the sheriff” substitute “and curator ad litem”;

(d)the heading of that rule becomes “Withdrawal of application”.

(34) After rule 3.46 insert—

Expeditious determination of application

3.46A.  Prior to or at a hearing on evidence under rule 3.47 (or any adjournment or continuation thereof under rule 3.49), the sheriff may order parties to take such steps as the sheriff deems necessary to secure the expeditious determination of the application, including but not limited to—

(a)instructing a single expert;

(b)using affidavits;

(c)restricting the issues for proof;

(d)restricting witnesses;

(e)applying for evidence to be taken by live link in accordance with rule 3.22..

(35) In rule 3.47 (Hearing of evidence)—

(a)before paragraph (1) insert—

(A1) If, at a hearing on evidence (or any adjournment or continuation thereof under rule 3.49), the section 67 grounds (or as they may be amended) are no longer in dispute, the sheriff may determine the application without hearing evidence.;

(b)in paragraph (1)—

(i)for “any condition mentioned in section 52(2) of the Act (conditions relative to compulsory measures of supervision)” substitute “every section 67 ground”;

(ii)omit “of referral”;

(c)in paragraph (2)—

(i)for “condition mentioned in paragraph (i) of section 52(2) of the Act is satisfied” substitute “ground set out in section 67(2)(j) of the 2011 Act applies”;

(ii)for “condition is satisfied” substitute “ground”;

(d)in paragraph (3) for “finding” substitute “determination”;

(e)for paragraph (4) substitute—

(4) Paragraph (4A) applies where—

(a)paragraph (2) applies and the sheriff is satisfied that sufficient evidence has been led;

(b)any other section 67 ground is in dispute.

(4A) The child, the relevant person and any safeguarder may give evidence and may, with the approval of the sheriff, call witnesses with regard to the ground in question..

(f)For paragraph (5) substitute—

(5) Where the sheriff excuses the child from attending all or part of the hearing in accordance with section 103(3) of the 2011 Act, the following persons shall be permitted to remain during the absence of the child—

(a)any safeguarder appointed in relation to the child;

(b)any curator ad litem appointed in relation to the child;

(c)any relevant person;

(d)the child’s representative.;

(g)in paragraph (8) omit “in a referral”;

(h)the heading of that rule becomes “Hearing on evidence”.

(36) In rule 3.48 (amendment of grounds for referral)—

(a)for “statement supporting the conditions of the grounds for referral” substitute “statement of grounds”;

(b)the heading of that rule becomes “Amendment of the statement of grounds”.

(37) In rule 3.49 (adjournment for inquiry, etc.)

(a)omit “Subject to the provisions of section 68(2) of the Act (applications to be heard within twenty-eight days of lodging)”;

(b)after “hearing” insert “fixed under rule 3.45(1B)”.

(38) In rule 3.50 (power of sheriff in making findings as to offences)—

(a)for “ground of referral” substitute “statement of grounds”;

(b)for “find” substitute “determine”.

(39) In rule 3.51 (decision of sheriff)—

(a)in paragraph (2)(c) for “appointed by the sheriff; and” substitute “and curator ad litem;”;

(b)after paragraph (2)(d) insert—

and

(e)such other persons as the sheriff may direct..

(40) For rule 3.52 (signature of warrants) substitute—

3.52.(1) Subject to paragraph (3) a warrant granted under the 2011 Act may be signed by the sheriff or the sheriff clerk.

(2) A warrant signed by the sheriff clerk shall be treated for all purposes as if it had been signed by the sheriff.

(3) A warrant to secure attendance must be signed by the sheriff..

(41) The heading of Part VIII becomes “PROCEDURE IN APPEALS TO THE SHERIFF AGAINST DECISIONS OF CHILDREN’S HEARINGS”.

(42) In rule 3.53 (form of appeal)—

(a)for paragraph (1) substitute—

(1) This Part applies to appeals to the sheriff under sections 154(1), 160(1), 161(1) and 162(3) of the 2011 Act.

(1A) An appeal to the sheriff under the sections of the 2011 Act prescribed in paragraph (1B) must be—

(a)made in the form prescribed in paragraph (1B);

(b)accompanied by a copy of the decision complained of and any document relevant to it that was before the children’s hearing; and

(c)lodged with the sheriff clerk of the sheriff court district in which the child is habitually resident or, on cause shown, such other court as the sheriff may direct.

(1B) The prescribed sections and form of appeal are—

(a)in the case of an appeal under section 154(1) (appeal to sheriff against decision of children’s hearing), in Form 61;

(b)in the case of an appeal under section 160(1) (appeal to sheriff against relevant person determination), in Form 62;

(c)in the case of an appeal under section 161(1) (appeal to sheriff against decision affecting contact or permanence order), in Form 63;

(d)in the case of an appeal under section 162(3) (appeal to sheriff against decision to implement secure accommodation authorisation), in Form 63A.;

(b)in paragraph (3) omit “appointed by the children’s hearing”;

(c)after paragraph (3) insert—

(4) Where leave to appeal is required by virtue of section 159(2) of the 2011 Act, such application for leave shall be—

(a)made by letter addressed to the sheriff clerk setting out the grounds on which the application is made;

(b)accompanied by a copy of the decision referred to in section 159(2) of the 2011 Act;

(c)lodged with the sheriff clerk with the relevant form of appeal.

(5) On receipt of such application the sheriff clerk shall forthwith fix a hearing and intimate the application and the date of the hearing to the other parties to the proceedings.

(6) Where leave to appeal is granted, the appeal will proceed in accordance with rule 3.54..

(43) In rule 3.54 (appointment and intimation of first diet)—

(a)in paragraph (1)—

(i)in subparagraph (c) for “the relevant person” substitute “any relevant person”;

(ii)in subparagraph (d) omit “appointed for the purposes of the appeal by the sheriff or appointed by the chairman of the children’s hearing; and”;

(iii)in subparagraph (e) for “thinks necessary” substitute “considers necessary, including those referred to in section 155(5)(c) and (e) of the 2011 Act”;

(iv)after subparagraph (e) insert—

(f)in the case of appeals under section 162(3), the chief social work officer of the relevant local authority for the child.;

(b)in paragraph (5) after “shall be” insert “within the time limits prescribed in, or by virtue of, the 2011 Act and in any event,”.

(44) In rule 3.55 (answers) for paragraph (1) substitute—

(1) Subject to paragraph (1A), if any person on whom service of the appeal has been made wishes to lodge answers to the appeal, he or she must do so not later than 7 days before the diet fixed for the hearing of the appeal.

(1A) Paragraph (1) does not apply to those appeals referred to in section 157(1), 160(1), 161(1) or 162(3) of the 2011 Act..

(45) In rule 3.56 (procedure at hearing of appeal)—

(a)in paragraph (1) omit “in accordance with section 51(3) of the Act”;

(b)in paragraph (2) for “a further report called for under section 51(3)(c) of the Act” substitute “any further report required by the sheriff under or by virtue of the 2011 Act”;

(c)in paragraph (4), (5) and (6) for “the relevant person” substitute “any relevant person”;

(46) In rule 3.57 (adjournment of appeals)—

(a)after “adjourn” insert “or continue”;

(b)the existing rule becomes paragraph (1);

(c)after paragraph (1) insert—

(2) In the event of such adjournment or continuation the sheriff may make such order as the sheriff deems necessary to secure the expeditious determination of the appeal.;

(d)the heading of the rule becomes “Adjournment or continuation of appeals”.

(47) In rule 3.58 (decision of sheriff in appeals)—

(a)at the end of paragraph (1) insert “, subject to the provisions of, or by virtue of, the 2011 Act”;

(b)in paragraph (2) for “decides to follow the course of action provided for in sub-paragraph (i) or (iii) of section 51(5)(c) of the Act” substitute “takes any of the steps referred to in section 156(2) or (3) of the 2011 Act”;

(c)in paragraph (4)—

(i)for “the relevant person” substitute “any relevant person”;

(ii)for “and to any safeguarder appointed by the sheriff” substitute “, any safeguarder and such other persons as the sheriff may direct”;

(iii)for “by virtue of section 51(2) or (3) of the Act” substitute “with the sheriff clerk”;

(d)after paragraph (4) insert—

(5) Where section 159 of the 2011 Act applies the sheriff clerk shall send a copy of the interlocutor containing the decision of the sheriff to the Scottish Legal Aid Board.

(48) After rule 3.58 insert—

PART VIIIAAPPLICATIONS FOR REVIEW BY LOCAL AUTHORITY

Review applications by local authority

3.58A.(1) This Part of Chapter 3 applies to applications to the sheriff for a review under section 166(2) of the 2011 Act.

(2) An application shall be made in Form 64A and must contain—

(a)the name and address of the local authority;

(b)the name of the child in respect of whom the duty was imposed and the child’s representative (if any);

(c)the name and address of any relevant person in relation to the child and such person’s representative (if any);

(d)the name and address of any safeguarder;

(e)the name and address of any curator ad litem;

(f)the name and address of any other party to the application;

(g)the name and address of any other local authority with an interest;

(h)the date and determination made and the place of the sheriff court which made the determination, or alternatively the date and decision made by the children’s hearing;

(i)the grounds for the making of the application;

(j)any reports, affidavits and productions upon which the applicant intends to rely.

Hearing on application

3.58B.(1) After lodging the application in terms of rule 3.58A, the sheriff clerk shall assign a date for hearing the application and shall issue a warrant to cite in Form 64B, which shall require any party to lodge answers if so advised within such time as the sheriff shall appoint.

(2) Subject to the provisions of rule 3.3 (power to dispense with service on child), after the issue of the warrant to cite, the applicant shall forthwith give notice of the application by serving a copy and the warrant on the persons referred to in rule 3.58A.

(3) At the hearing the sheriff may determine the application or allow such further procedure as the sheriff thinks fit.

(4) The provisions of rule 3.51 shall apply to any order made under this Part..

(49) The heading of Part IX becomes “PROCEDURE IN APPEALS BY STATED CASE UNDER PART 15 OF THE 2011 ACT”.

(50) In rule 3.59 (appeals)(8)—

(a)before paragraph (1) insert—

(A1) This Part applies to appeals by stated case under section 163(1), 164(1), 165(1) and 167(1) of the 2011 Act.;

(b)in paragraph (1)—

(i)for “under section 51(11)(a) of the Act” substitute “to the sheriff principal to which this Part applies”;

(ii)for “irregularity in the conduct of the case concerned” substitute “procedural irregularity”;

(c)in paragraph (2)—

(i)after “sheriff” insert “to”;

(ii)for subparagraphs (a) to (c) substitute—

(a)the Principal Reporter;

(b)the child (if not the appellant), except where service on the child has been dispensed with in terms of rule 3.3;

(c)any relevant person (if not the appellant);

(d)any safeguarder;

(e)any other party to proceedings.;

(d)in paragraph (3)—

(i)for “14” substitute “21”;

(ii)in subparagraph (b) before “irregularity” insert “procedural”;

(e)in paragraph (4) in subparagraph (b) and (c) after “point of law” insert “or procedural irregularity”;

(f)in paragraph (7)(c) for “irregularity in the conduct of the case” substitute “procedural irregularity”;

(g)in paragraph (9) for “irregularities in the conduct of the case” substitute “procedural irregularities”.

(51) In rule 3.60 (lodging of reports and statements with sheriff)—

(a)in each place where it occurs, for “statement” substitute “information”;

(b)in subparagraph (a), for “section 51(2) or (3) of the Act” substitute “section 155(2) of the 2011 Act”;

(c)the heading of that rule becomes “Lodging reports and information in appeals”.

(52) After rule 3.61 (hearing) insert—

Leave of the sheriff principal to appeal to the Court of Session

3.61A.(1) This rule applies to applications for leave to appeal under section 163(2), 164(2) or 165(2) of the 2011 Act.

(2) An application shall be made by letter addressed to the sheriff clerk, which must—

(a)state the point of law or procedural irregularity upon which the appeal is to proceed;

(b)be lodged with the sheriff clerk before the expiry of the period of 7 days beginning with the day on which the determination or decision appealed against was made.

(3) On receipt of such application the sheriff clerk shall—

(a)forthwith fix a hearing which should take place no later than 14 days from the date of receipt of the application;

(b)intimate the application and the date of the hearing to the other parties to the proceedings.

(4) Where leave to appeal is granted, the appeal shall be lodged in accordance with the timescales prescribed in the relevant section of the 2011 Act..

(53) The heading of Part X becomes “APPLICATIONS FOR REVIEW OF GROUNDS DETERMINATION”.

(54) For rule 3.62 (application) substitute—

Application

3.62.(1) An application under section 110 of the 2011 Act for a review of a grounds determination made in terms of section 108 of the 2011 Act (determination that grounds for referral established) shall contain—

(a)the name and address of the applicant and his or her representative (if any);

(b)the name and address (if known) of the person who is the subject of the grounds determination (even if that person is no longer a child), if not the applicant;

(c)the name and address of the safeguarder (if any);

(d)the name and address of the curator ad litem (if any);

(e)the name and address of any person who is, or was at the time the grounds determination was made, a relevant person in relation to the child, if not the applicant;

(f)the date and grounds determination made and the place of the sheriff court which made the grounds determination;

(g)the grounds for the making of the application;

(h)specification of the nature of evidence in terms of section 111(3) of the 2011 Act not considered by the sheriff who made the grounds determination;

(i)the explanation for the failure to lead such evidence on the original application; and

(j)any reports, affidavits and productions upon which the applicant intends to rely.

(2) Where the applicant does not wish to disclose the address or whereabouts of the child or any other person to persons receiving notice of the application, the applicant shall set out his or her reasons for this..

(55) In rule 3.63 (hearing on application)—

(a)for paragraph (1) substitute—

(1) Where an application has been lodged in terms of rule 3.62, the sheriff clerk shall—

(a)assign a diet for hearing the application;

(b)issue a warrant to cite in Form 65 requiring the Principal Reporter to lodge answers if so advised within such time as the sheriff shall appoint..

(b)in paragraph (2) after “rule 3.62” insert “and such other persons as the sheriff directs”;

(c)for paragraph (3) substitute—

(3) After hearing parties and having considered the terms of section 111(3) of the 2011 Act and allowing such further procedure as the sheriff thinks fit to secure the expeditious determination of the application, the sheriff shall make an order as appropriate.

(4) The provisions of rule 3.51 shall apply to any order made under paragraph (3)..

(56) Rule 3.64 (hearing to consider the evidence) is omitted.

(57) Before Part XI (Vulnerable Witnesses (Scotland) Act 2004) insert—

PART XAORDERS UNDER THE CHILDREN’S HEARINGS (SCOTLAND) ACT 2011

Interim compulsory supervision order

3.64A.(1) Where a sheriff makes an interim compulsory supervision order under section 100, 109 or 156(3)(d) of the 2011 Act, such order shall be in Form 65A and, subject to rule 3.3, shall be intimated forthwith to the child by the Principal Reporter in Form 65B.

(2) An application for the extension or extension and variation of an interim compulsory supervision order shall be made to the sheriff in Form 65C.

(3) An application for the further extension or further extension and variation of an interim compulsory supervision order shall be made to the sheriff in Form 65D.

(4) Subject to rule 3.3, an application under paragraph (2) or (3) must be intimated forthwith by the applicant to the child and each relevant person and such other persons as the sheriff determines and in such manner as the sheriff determines.

(5) Where the sheriff grants an application under paragraph (2) or (3), the interlocutor shall state the terms of such extension or extension and variation and subject to rule 3.3, shall be intimated forthwith to the child by the Principal Reporter in Form 65B.

(6) Subject to paragraphs (1) and (5), where the sheriff—

(a)makes an interim compulsory supervision order under paragraph (1); or

(b)grants an application under paragraph (2) or (3),

the Principal Reporter shall intimate the order forthwith to the implementation authority and to such other persons as the sheriff determines in Form 65E.

Compulsory supervision order

3.64B.  Where a sheriff varies or continues a compulsory supervision order, the interlocutor shall state the terms of such variation or continuation and shall be intimated forthwith by the sheriff clerk to the parties and the relevant implementation authority.

Medical examination order

3.64C.  Where a sheriff varies or continues a medical examination order, the interlocutor shall state the terms of such variation or continuation and shall be intimated forthwith by the sheriff clerk to the parties and the relevant local authority or establishment..

(58) In rule 3.65 (vulnerable witnesses: interpretation) omit the defined term “admission application” and its related definition.

(59) In rule 3.66 (extent of application of this Part)(9) for “in an appeal under section 51(1) or applications under section 65(7) or (9) or 85(1) of the Act” substitute “where an application is made to the sheriff under section 93(2)(a), 94(2)(a) or 110 of the 2011 Act or an appeal is made under Part 15 of the 2011 Act”.

(60) In rule 3.75 (lodging of video record and documents)(10)—

(a)in paragraph (1) for “the video record” substitute “any audio or audio-visual recording”;

(b)in paragraph (2) for “the video record” substitute “any audio or audio-visual recording”;

(c)the heading of that rule becomes “Lodging audio and audio-visual recordings and documents”.

(61) In rule 3.76 (custody of video record and documents)(11)—

(a)in paragraph (1) for “The video record” substitute “The audio or audio-visual recording”;

(b)in paragraph (2) for “the video record” substitute “the audio or audio-visual recording”;

(c)the heading of that rule becomes “Custody of audio or audio-visual recordings and documents”.

(62) After rule 3.76 insert—

PART XIACASES INVOLVING SEXUAL BEHAVIOUR

Interpretation and application of this Part

3.76A.(1) This Part of Chapter 3 applies to proceedings where—

(a)an application is made to the sheriff under section 93(2)(a), 94(2)(a) or 110 of the 2011 Act or an appeal is made under Part 15 of the 2011 Act; and

(b)the section 67 ground involves sexual behaviour engaged in by any person.

(2) In the case of relevant appeals the provisions of sections 173 to 175 of the 2011 Act shall be deemed to apply as they apply to applications.

(3) The evidence referred to in section 173(2) of the 2011 Act may be in writing or take the form of an audio or audio-visual recording.

(4) In this Part an “admission application” means an application to the sheriff for an order as to evidence pursuant to section 175(1) of the 2011 Act..

(63) In each of the following rules omit “who has been appointed by the court”—

(a)rule 3.68(1)(12);

(b)rule 3.69B(1)(13);

(c)rule 3.71(1)(14);

(d)rule 3.78(1)(15).

(64) In rule 3.78(1) for “is in Form 79” substitute “is made under rule 3.77”.

(65) In rule 3.79(16) for paragraph (1)(a) substitute—

(a)grant the admission application in whole or in part;.

(66) After rule 3.81 insert—

Lodging restricted evidence

3.81A.(1) Where the sheriff makes an order under section 175(1)(or (c) of the 2011 Act, the applicant shall lodge any relevant recording and documents with the sheriff clerk.

(2) On the recording and documents being lodged the sheriff clerk shall—

(a)note—

(i)the evidence lodged;

(ii)by whom they were lodged;

(iii)the date on which they were lodged; and

(b)intimate what he or she has noted to all parties concerned.

(3) The recording and documents referred to in paragraph (1) shall, subject to paragraph (4), be kept in the custody of the sheriff clerk.

(4) Where the recording of the evidence of a witness is in the custody of the sheriff clerk under this rule and where intimation has been given to that effect under paragraph (2), the name and address of that witness and the record of his or her evidence shall be treated as being in the knowledge of the parties; and no party shall be required, notwithstanding any enactment to the contrary—

(a)to include the name of that witness in any list of witnesses; or

(b)to include the record of his or her evidence in any list of productions..

(67) The Index to the Arrangement of Rules is amended accordingly.

Amendment of Schedule 1 to the 1997 Act of Sederunt

4.—(1) Schedule 1 (forms) to the 1997 Act of Sederunt is amended in accordance with the following subparagraphs.

(2) In Form 26 (Notice to child of application for a Child Assessment Order)—

(a)for “CASE NUMBER” substitute “Court ref. no.:”;

(b)for “0800 317 500” substitute “0800 328 8970”;

(c)for “9.00am and 5.00pm” substitute “9.30am and 4.00pm”;

(d)the title of the Form becomes “Notice to child of application for a Child Assessment Order under section 35 of the Children’s Hearings (Scotland) Act 2011”.

(3) In Form 27 (Notice to child of application to vary or terminate a child protection order)—

(a)for “CASE NUMBER” substitute “Court ref. no.:”;

(b)for “0800 317 500” substitute “0800 328 8970”;

(c)for “9.00am and 5.00pm” substitute “9.30am and 4.00pm”;

(d)the title of the Form becomes “Notice to child of application to vary or terminate a Child Protection Order – section 48 of the Children’s Hearings (Scotland) Act 2011”.

(4) In Form 28 (Notice to child of application for an Exclusion Order)—

(a)for “CASE NUMBER” substitute “Court ref. no.:”;

(b)for “0800 317 500” substitute “0800 328 8970”;

(c)for “9.00am and 5.00pm” substitute “9.30am and 4.00pm”.

(5) In Form 29 (Notice to child of application to vary an Exclusion Order)—

(a)for “CASE NUMBER” substitute “Court ref. no.:”;

(b)for “0800 317 500” substitute “0800 328 8970”;

(c)for “9.00am and 5.00pm” substitute “9.30am and 4.00pm”.

(6) For Form 31 (Citation of child) substitute Forms 31, 31A and 31B set out in the Schedule to this Act of Sederunt.

(7) In Form 32 (Form of first order)—

(a)after the title of the Form insert—

Court ref. no.:;

(b)omit—

(i)“SECTION 55 (Application for Child Assessment Order),”;

(ii)“SECTION 60 (Application to vary or set aside Child Protection Order),”;

(iii)“SECTION 67 (Application for warrant for further detention of child)”;

(c)in the Note, between “section 76” and “for” insert “of the Children (Scotland) Act 1995”.

(8) After Form 32 insert Form 32A set out in the Schedule to this Act of Sederunt.

(9) In Form 33 (Form of warrant to cite child)—

(a)after the title of the Form insert—

Court ref. no.:;

(b)at the end of paragraph 1 insert “*[and fixes a procedural hearing to take place on [insert date] at [insert time] within [name court] in chambers at [place]]”;

(c)in paragraph 2—

(i)after “insert name of relevant person or persons” insert “(within the meaning of Rule 3.1(1))”;

(ii)for “[AB] (name and design) the safeguarder appointed by the sheriff” substitute “[CD] (name and design) the safeguarder *[and [EF] (name and design) the curator ad litem];

(d)the title of the Form becomes “Form of warrant to cite child and to give notice/intimate to relevant person(s), curator ad litem and safeguarder in applications under section 93(2)(a) or 94(2)(a) of the Children’s Hearings (Scotland) Act 2011”.

(10) In Form 34 (Notice of application for a Child Assessment Order)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)for “under section 55 of the Children (Scotland) Act 1995” substitute “under section 35 of the Children’s Hearings (Scotland) Act 2011”;

(c)the title of the Form becomes “Notice of application for a Child Assessment Order to a person named in an application under section 35(1) of the Children’s Hearings (Scotland) Act 2011”.

(11) In Form 35 (Notice of application to vary or recall a Child Protection Order)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)for “recall” substitute “terminate”;

(c)for “section 60 of the Children (Scotland) Act 1995” substitute “section 48 of the Children’s Hearings (Scotland) Act 2011”;

(d)the title of the Form becomes “Notice of application to vary or terminate a Child Protection Order to person named in application under section 48 of the Children’s Hearings (Scotland) Act 2011”.

(12) In Form 36 (Notice of application for an exclusion order) for “Case No” substitute “Court ref. no.:”.

(13) In Form 37 (Notice of application to vary or recall an exclusion order) for “Case No” substitute “Court ref. no.:”.

(14) In Form 39 (Notice to relevant persons)—

(a)after the title of the Form insert—

Court ref. no.:;

(b)after “of relevant person” insert “(within the meaning of Rule 3.1(1))”;

(c)the title of the Form becomes “Notice to relevant person in application under section 93(2)(a) or 94(2)(a) of the Children’s Hearings (Scotland) Act 2011 (no procedural hearing)”.

(15) After Form 39 insert Form 39A set out in the Schedule to this Act of Sederunt.

(16) In Form 40 (Notice to safeguarder)—

(a)after the title of the Form insert—

Court ref. no.: ;

(b)after “safeguarder” insert “and/or curator ad litem”;

(c)after “hearing of” insert “evidence in respect of”;

(d)after the line “Time of hearing” insert—

*(In addition, a procedural hearing has been fixed to take place on [insert date] at [insert time] within [name court] in chambers at [place]);

(e)for “rules 3.6 - 3.10” substitute “rules 3.6 to 3.9 of the”;

(f)at the end of the Form insert—

(*delete as appropriate);

(g)the title of the Form becomes “Notice to safeguarder/curator ad litem in application under section 93(2)(a) or 94(2)(a) of the Children’s Hearings (Scotland) Act 2011”.

(17) In Form 41 (Citation of witness or haver)—

(a)after the title of the Form insert—

Court ref. no.: ;

(b)for “finding as to grounds for the referral of the case of [name of child] to a children’s hearing]” substitute “determination of whether the section 67 grounds in the case of [insert name of child] are established”;

(c)the title of the Form becomes “Citation of witness or haver under the Children’s Hearings (Scotland) Act 2011 or the Children (Scotland) Act 1995”.

(18) In Form 42 (Certificate of execution of citation)—

(a)the Form is renumbered Form 43 and its position in the Schedule is reordered accordingly;

(b)for “Rule 3.14(3)” substitute “Rule 3.17(1)”;

(c)after the title of the Form insert—

Court ref. no.: ;

(d)omit each reference to “post office” (however the term is expressed);

(e)the title of the Form becomes “Certificate of execution of service under the Children’s Hearings (Scotland) Act 2011 or the Children (Scotland) Act 1995”.

(19) In Form 43 (Certificate of citation of witness or haver)—

(a)the Form is renumbered Form 42 and its position in the Schedule is reordered accordingly;

(b)for “Rule 3.17(1)” substitute “Rule 3.14(3)”;

(c)after the title of the Form insert—

Court ref. no.: ;

(d)omit each reference to “post office” (however the term is expressed);

(e)the title of the Form becomes “Certificate of execution of citation under the Children’s Hearings (Scotland) Act 2011 or the Children (Scotland) Act 1995”.

(20) For Form 44 substitute Forms 44A and 44B set out in the Schedule to this Act of Sederunt.

(21) In Form 45 (Application for Child Assessment Order)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)before Part 1 for “section 55 of the Children (Scotland) Act 1995” substitute “section 35 of the Children’s Hearings (Scotland) Act 2011)”;

(c)in Part 1—

(i)for “section 93(2)(b) of the Act” substitute “Rule 3.1(1)”;

(ii)in the entry for “SAFEGUARDER” omit “appointed by a children’s hearing or court in respect of the child”;

(iii)in the entry for “PRINCIPAL REPORTER” omit “name,”;

(d)in Part 3—

(i)for “section 55(3)” substitute “section 35(2)”;

(ii)for the first paragraph denoted “a.” substitute “The type of assessment is [provide details of the type of assessment that is sought including information on the child’s health or development or the way in which the child has been or is being treated or neglected].”;

(iii)at the end of the first paragraph denoted “b.” insert “(which must be no later than 24 hours after the order is granted).”;

(iv)at the end of paragraph denoted “c.” insert “(which must not exceed the maximum period of 3 days).”;

(v)for “section 55(4) or (5)” substitute “section 35(3)”;

(vi)for “section 55(4)” substitute “section 35(3)(b)”;

(vii)for “there for [insert number of days] days” substitute “at that place or any other place for [specify period]”;

(viii)for “section 55(5) substitute “section 35(3)(c)”;

(e)the title of the Form becomes “Application for a Child Assessment Order under section 35 of the Children’s Hearings (Scotland) Act 2011”.

(22) In Form 46 (Child Assessment Order)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)for “The assessment is to begin on [insert date] and shall have effect for [insert number of days] from that date.” substitute “This order has effect from [insert time and date (to be no later than 24 hours after the order is granted)] until [insert time and date (not exceeding 3 days from time the order took effect)].”;

(c)for “In terms of section 55(4) the sheriff permits the child to be taken to [insert details of the place] for the purpose of the assessment, and authorises the child to be kept there for [insert number of days] days” substitute “In terms of section 35(3)(b) the sheriff permits the child to be taken to [insert details of the place] for the purpose of the assessment, and authorises the child to be kept at that place or any other place for [specify period].”;

(d)for “section 55(5)” substitute “section 35(3)(c)”;

(e)for the paragraph starting “For the purpose of enforcing this order warrant etc.” substitute—

(f)in the signing provisions—

(i)for “Sheriff at” substitute “Sheriff”;

(ii)after that line insert—

Time………………………………………;

(g)the title of the Form becomes “Child Assessment Order under section 35 of the Children’s Hearings (Scotland) Act 2011”.

(23) In Form 47 (Application for a Child Protection Order by a local authority)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)for “section 57(2) of the Children (Scotland) Act 1995” substitute “section 37(1) of the Children’s Hearings (Scotland) Act 2011”;

(c)in Part 1—

(i)for “section 93(2)(b) of the Act” substitute “Rule 3.1(1)”;

(ii)in the entry for “SAFEGUARDER” omit “appointed by a children’s hearing or court in respect of the child”;

(iii)in the entry for “THE PRINCIPAL REPORTER” omit “name,”;

(d)in Part 2 for “sections 57(1) and (2)” substitute “sections 38(2) and 39(2)”;

(e)in Part 3—

(i)omit “*TERMS AND CONDITIONS TO BE ATTACHED TO ORDER”;

(ii)for “section 57(4)” substitute “section 37”;

(iii)after “insert details of the order sought” insert “including details of the specified person (if appropriate)”;

(iv)for “section 58(4) or (5)” substitute “section 42(1)”;

(v)for the words “*ANY OTHER ORDER(S)” to “service of restricted documents on child.]” substitute—

”;

(vi)the heading of Part 3 becomes “DETAILS OF ORDER AND DIRECTION(S) ETC. SOUGHT”;

(f)in Part 4—

(i)in the paragraph denoted “a.” for “on the terms and conditions” to the end, substitute “including any authorisation, requirement or direction set out in Part 3 of the application.”;

(ii)in the subparagraph denoted “b.ii.” after “the” insert “other”;

(g)the title of the Form becomes “Application for a Child Protection Order by local authority under section 37 of the Children’s Hearings (Scotland) Act 2011”.

(24) In Form 48 (Application for a Child Protection Order (other than by a local authority))—

(a)for “Case No” substitute “Court ref. no.:”;

(b)for “section 57(1) of the Children (Scotland) Act 1995” substitute “section 37(1) of the Children’s Hearings (Scotland) Act 2011”;

(c)in Part 1—

(i)for “section 93(2)(b) of the Act” substitute “Rule 3.1(1)”;

(ii)in the entry for “SAFEGUARDER” omit “appointed by a children’s hearing or court in respect of the child”;

(iii)in the entry for “PRINCIPAL REPORTER” omit “name,”;

(d)in Part 2 for “section 57(1)” substitute “section 39(2)”;

(e)in Part 3—

(i)omit “*TERMS AND CONDITIONS TO BE ATTACHED TO ORDER”;

(ii)for “section 57(4)” substitute “section 37”;

(iii)after “insert details of the order sought” insert “including details of the specified person (if appropriate)”;

(iv)for “section 58(4) or (5)” substitute “section 42(1)”;

(v)for the words “*ANY OTHER ORDER(S)” to “service of restricted documents on child.]” substitute—

”;

(f)the heading of Part 3 becomes “DETAILS OF ORDER AND DIRECTION(S) ETC. SOUGHT”;

(g)in Part 4—

(i)in subparagraph “a” for “on the terms and conditions” to the end, substitute “including any authorisation, requirement or direction set out in Part 3 of the application.”;

(ii)in the subparagraph denoted “b.ii.” after “the” insert “other”;

(h)the title of the Form becomes “Application for a Child Protection Order (other than by local authority) under section 37 of the Children’s Hearings (Scotland) Act 2011”.

(25) In Form 49 (Child Protection Order)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)for “unless order made re non disclosure” substitute “unless an information non-disclosure direction made”;

(c)omit “TERMS AND CONDITIONS”;

(d)for “to the applicant [insert name and address of the applicant]” substitute “to a specified person [insert name and address of the specified person]”;

(e)for “by the applicant” substitute “by the specified person”;

(f)for the paragraph starting “*The sheriff orders that the locality of the place of safety” substitute—

*The sheriff authorises the carrying out (subject to section 186) of an assessment of—

(a)the child’s health or development, or

(b)the way in which the child has been or is being treated or neglected.;

(g)under the heading “DIRECTIONS” insert—

The Sheriff directs that—

(a)*the location of any place of safety; and

(b)*any other information [specify information]

must not be disclosed (directly or indirectly) to the following persons (specify person or class of persons)

(*delete as applicable);

(h)for “section 58(1) and (2)” substitute “section 41”;

(i)for “section 58(4), (5) or (6)” substitute “section 42”;

(j)for the paragraph starting “For the purpose of enforcing this order” substitute—

”.

(k)in the signing provisions—

(i)for “Sheriff at” substitute “Sheriff”;

(ii)after that line insert—

Time………………………………………;

(l)the title of the Form becomes “Child Protection Order under section 37 of the Children’s Hearings (Scotland) Act 2011”.

(26) In Form 50 (Notice of Child Protection Order to child)—

(a)after “ARRANGEMENTS TO KEEP YOU SAFE” insert—

Court ref. no.:;

(b)for “order or any directions” on each occasion substitute “order or any authorisation, requirement or direction”;

(c)for “0800 317 500” substitute “0800 328 8970”;

(d)for “9.00am and 5.00pm” substitute “9.30am and 4.00pm”;

(e)for “a copy of the application which was made to the court” substitute “[a copy of the application which was made to the court (delete if appropriate)]”;

(f)the title of the Form becomes “Notice of Child Protection Order to a child in terms of section 37 of the Children’s Hearings (Scotland) Act 2011”.

(27) In Form 51 (Notice of Child Protection Order to a named person)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)for “section 57 of the Children (Scotland) Act 1995” substitute “section 37 of the Children’s Hearings (Scotland) Act 2011”;

(c)for “ORDER AND ANY DIRECTIONS” substitute “ORDER AND ANY AUTHORISATION, REQUIREMENT OR DIRECTION”;

(d)for “SECTION 81 OF THE CHILDREN (SCOTLAND) ACT 1995” substitute “SECTION 59 OF THE CHILDREN’S HEARINGS (SCOTLAND) ACT 2011”;

(e)the title of the Form becomes “Notice of Child Protection Order to a named person under section 37 of the Children’s Hearings (Scotland) Act 2011”.

(28) In Form 52 (Application to vary or terminate a Child Protection Order)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)for “or recall a Child Protection Order under section 60(7) of the Children (Scotland) Act 1995” substitute “or terminate a Child Protection Order under section 48 of the Children’s Hearings (Scotland) Act 2011”;

(c)in Part 1—

(i)in the entry for “SAFEGUARDER” omit “appointed by a children’s hearing or court in respect of the child”;

(ii)in the entry for “THE PRINCIPAL REPORTER” omit “name,”;

(iii)for “section 93(2)(b) of the Act” substitute “Rule 3.1(1)”;

(iv)after the entry for “RELEVANT PERSON” insert—

”;

(v)after “at the time of the application being made,” insert “any person who applied for the child protection order or any person specified in the order under section 37(2)(a), unless the person is the applicant”;

(d)in Part 2—

(i)for “order and conditions” substitute “order, including any authorisation, requirement or direction”;

(ii)for “ORDER(S) OR CONDITIONS THE VARIATION OR RECALL OF WHICH ARE SOUGHT” substitute “ORDER(S), INCLUDING ANY AUTHORISATION, REQUIREMENT OR DIRECTION THE VARIATION OR TERMINATION OF WHICH ARE SOUGHT”;

(iii)for “setting aside” substitute “termination”;

(e)in Part 3—

(i)in subparagraph b.iv. after “The” insert “other”;

(ii)for “recall” substitute “terminate”;

(f)the title of the Form becomes “Application to vary or terminate a Child Protection Order under section 48 of the Children’s Hearings (Scotland) Act 2011”.

(29) In Form 53 (Variation of Child Protection Order)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)for “recall” substitute “terminate”;

(c)for “TERMS AND CONDITIONS” substitute “AUTHORISATIONS, REQUIREMENTS AND DIRECTIONS”;

(d)for “to the applicant [insert name and address of the applicant]” substitute “to the specified person [insert name and address of the specified person]”;

(e)for “by the applicant” substitute “by the specified person”;

(f)for the paragraph starting “*The locality of the place of safety” substitute—

*the carrying out (subject to section 186 of the Act) of an assessment of—

(a)the child’s health or development, or

(b)the way in which the child has been or is being treated or neglected

is authorised.;

(g)under the heading “DIRECTIONS” insert—

”;

(h)for “section 58(1) and (2) the sheriff has given” substitute “section 41 the sheriff gives”;

(i)for “section 58(4), (5) or (6) the sheriff has given” substitute “section 42 the sheriff gives”;

(j)for the paragraph starting “For the purpose of enforcing any of these orders” substitute—

”.

(k)in the signing provisions—

(i)for “Sheriff at” substitute “Sheriff”;

(ii)after that line insert—

Time………………………………………;

(l)the title of the Form becomes “Variation or termination of Child Protection Order under section 48 of the Children’s Hearings (Scotland) Act 2011”.

(30) In Form 54 (Application for exclusion order by local authority)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)for “section 93(2)(b) of the Act” substitute “Rule 3.1(1)”;

(c)in the entry for “THE PRINCIPAL REPORTER” omit “name and”.

(31) In Form 55 (Exclusion Order)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)in the signing provisions—

(i)for “Sheriff at” substitute “Sheriff”;

(ii)after that line insert—

Time……………………………………….

(32) In Form 56 (Certificate of delivery)—

(a)after the title of the Form, insert “Court ref. no.:”;

(b)for “(insert name and address) Chief Constable of (insert name of constabulary)” substitute “the chief constable of the Police Service of Scotland”.

(33) In Form 57 (Application to vary or recall an Exclusion Order)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)after the entry for “APPROPRIATE PERSON(S)” insert—

”;

(c)in the entry for “THE PRINCIPAL REPORTER” omit “name,”.

(34) In Form 58 (Variation of Exclusion Order)—

(a)for “Case No” substitute “Court ref. no.:”;

(b)in the signing provisions—

(i)for “Sheriff at” substitute “Sheriff”;

(ii)after that line insert—

Time……………………………………….

(35) For the following Forms, substitute the relevant Form(s) set out in the Schedule to this Act of Sederunt—

(a)for Form 60, substitute Form 60;

(b)for Form 61, substitute Form 61;

(c)for Form 62, substitute Form 62;

(d)for Form 63, substitute Forms 63 and 63A.

(36) For Form 64 (Intimation to child) substitute Forms 64, 64A and 64B set out in the Schedule to this Act of Sederunt.

(37) In Form 65 (Form of warrant to cite Principal Reporter)—

(a)after the title of the Form insert—

Court ref. no.:;

(b)in paragraph numbered “2” for “Appellant” substitute “Applicant”;

(c)in paragraph numbered “3”—

(i)for “Appellant” substitute “Applicant”;

(ii)in subparagraph (i) after “relevant person or persons” insert “(within the meaning of Rule 3.1(1) (if not the Applicant))”;

(iii)after subparagraph (ii) insert—

(iia)[YZ] (name and design) any curator ad litem;

(iv)after subparagraph (iii) insert—

(iv)[CD]* (insert name of child (if not the Applicant));

(d)the title of the Form becomes “Application under section 110 of the Children’s Hearings (Scotland) Act 2011: Form of warrant to cite Principal Reporter”.

(38) After Form 65 insert Forms 65A, 65B, 65C, 65D and 65E set out in the Schedule to this Act of Sederunt.

(39) In Form 75 (Child witness notice) for paragraph numbered “1” substitute—

1.  [A.B.] (the Applicant) is a party to an [application under section [93(2)(a), 94(2)(a) or 110] of the Children’s Hearings (Scotland) Act 2011] or [an appeal under Part 15 of the 2011 Act]. [State the nature of the interest of the party]..

(40) In Form 76A (Vulnerable witness application) for paragraph numbered “1” substitute—

1.  [A.B.] (the Applicant) is a party to an [application under section [93(2)(a), 94(2)(a) or 110] of the Children’s Hearings (Scotland) Act 2011] or [an appeal under Part 15 of the 2011 Act]. [State the nature of the interest of the party]..

(41) In Form 77 (Application for review of arrangements for vulnerable witness) for paragraph numbered “1” substitute—

1.  [A.B.] (the Applicant) is a party to an [application under section [93(2)(a), 94(2)(a) or 110] of the Children’s Hearings (Scotland) Act 2011] or [an appeal under Part 15 of the 2011 Act]. [State the nature of the interest of the party]..

(42) In Form 79 (Application for admission of evidence or allowance of questioning)—

(a)for paragraph numbered “1” substitute—

1.  [A.B.] (the Applicant) is a party to an [application under section [93(2)(a), 94(2)(a) or 110] of the Children’s Hearings (Scotland) Act 2011] or [an appeal under Part 15 of the 2011 Act] in relation to the child [C.D.]. [State the nature of the interest of the party].;

(b)in paragraph numbered “3”—

(i)after “designed to elicit,” insert “or enable to be taken by commissioner,”;

(ii)for “[other witness]” substitute “[other person]”;

(iii)for “ground of referral” substitute “statement of grounds”;

(iv)for the third bullet point substitute—

*has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject-matter of the ground), engaged in behaviour (not being sexual behaviour), that might found an inference that the person is not credible or the person’s evidence is not reliable;;

(v)for the fourth bullet point substitute—

*has, at any time, been subject to any condition or predisposition that might found the inference that the person is not credible or the person’s evidence is not reliable.;

(c)in paragraph numbered “4” for “section 68B(1)(a), (b) and (c) of the Act” substitute “section 175 of the 2011 Act”;

(d)at the end of the Form insert “(*delete as appropriate)”;

(e)the title of the Form becomes “Application to sheriff for order as to evidence under section 175 of the Children’s Hearings (Scotland) Act 2011”.

(43) The title of Form 80 becomes “Certificate of intimation under section 175 of the Children’s Hearings (Scotland) Act 2011”.

(44) The following Forms are revoked—

(a)Form 30 (Notice to child of application for a further Detention Warrant);

(b)Form 38 (Notice of application for further detention of child);

(c)Form 59 (Application by Principal Reporter for further detention of child).

Amendment of the Ordinary Cause Rules

5.—(1) The Ordinary Cause Rules are amended in accordance with the following subparagraphs.

(2) Before Chapter 34 (actions relating to heritable property)(17) insert—

CHAPTER 33CREFERRALS TO PRINCIPAL REPORTER

Application and interpretation of this Part

33C.1.(1) In this Chapter—

“2011 Act” means the Children’s Hearings (Scotland) Act 2011;

“relevant proceedings” means those proceedings referred to in section 62(5)(a) to (j) and (m) of the 2011 Act, ;

“section 62 statement” has the meaning given in section 62(4) of the 2011 Act;

“Principal Reporter” is the person referred to in section 14 of the 2011 Act or any person carrying out the functions of the Principal Reporter by virtue of paragraph 10(1) of schedule 3 to that Act.

(2) This Chapter applies where a sheriff, in relevant proceedings, makes a referral to the Principal Reporter under section 62(2) of the 2011 Act (“a referral”).

Intimation to Principal Reporter

33C.2.   Where a referral is made, there shall be attached to the interlocutor a section 62 statement, which shall be intimated forthwith by the sheriff clerk to the Principal Reporter.

Intimation of decision by Principal Reporter

33C.3.(1) Where a referral is made and the Principal Reporter considers that it is necessary for a compulsory supervision order to be made in respect of the child and arranges a children’s hearing under section 69(2) of the 2011 Act, the Principal Reporter shall intimate to the court which issued the section 62 statement the matters referred to in paragraph (2).

(2) The matters referred to in paragraph (1) are—

(a)the decision to arrange such a hearing;

(b)where no appeal is made against the decision of that children’s hearing prior to the period for appeal expiring, the outcome of the children’s hearing; and

(c)where such an appeal has been made, that an appeal has been made and, once determined, the outcome of that appeal.

(3) Where a referral has been made and the Principal Reporter determines that—

(a)none of the section 67 grounds apply in relation to the child; or

(b)it is not necessary for a compulsory supervision order to be made in respect of the child

the Principal Reporter shall intimate that decision to the court which issued the section 62 statement..

(3) The following provisions are revoked—

(a)Part XIV of Chapter 33 (referrals to Principal Reporter)(18);

(b)Part XII of Chapter 33A (referrals to Principal Reporter)(19).

Adoption Rules

6.—(1) The Sheriff Court Adoption Rules 2009 are amended in accordance with the following subparagraphs.

(2) In rule 1(2) (citation and interpretation)—

(a)after the defined term “the 2007 Act” and associated definition insert—

“the 2011 Act” means the Children’s Hearings (Scotland) Act 2011 and (except where the context otherwise requires) references to terms defined in that Act have the same meaning here as given there;;

(b)for the definition of “Principal Reporter” substitute ““Principal Reporter” is the person referred to in section 14 of the Children’s Hearings (Scotland) Act 2011 or any person carrying out the functions of the Principal Reporter by virtue of paragraph 10(1) of schedule 3 to that Act”;

(c)before the definition of “Registrar General” insert—

“referral” means where a sheriff, in relevant proceedings, makes a referral to the Principal Reporter under section 62(2) of the 2011 Act;

(d)after the definition of “Registrar General” insert—

“relevant person” means—

(a)

a person referred to in section 200(1) of the 2011 Act or

(b)

a person deemed a relevant person by virtue of section 81(3) or 160(4)(b) of the 2011 Act;

“relevant proceedings” means those proceedings referred to in section 62(5)(k) and (l) of the 2011 Act;

“section 62 statement” has the meaning given in section 62(4) of the 2011 Act..

(3) For rule 3 (intimation to Principal Reporter) substitute—

Referrals to Principal Reporter

3.(1) Where a referral is made, there shall be attached to the interlocutor a section 62 statement, which shall be intimated forthwith by the sheriff clerk to the Principal Reporter.

(2) Where a referral is made and the Principal Reporter considers that it is necessary for a compulsory supervision order to be made in respect of the child and arranges a children’s hearing under section 69(2) of the 2011 Act, the Principal Reporter shall intimate to the court which issued the section 62 statement the matters referred to in paragraph (3).

(3) The matters referred to in paragraph (2) are—

(a)the decision to arrange such a hearing;

(b)where no appeal is made against the decision of that children’s hearing prior to the period for appeal expiring, the outcome of the children’s hearing; and

(c)where such an appeal has been made, that an appeal has been made and, once determined, the outcome of that appeal.

(4) Where a referral has been made and the Principal Reporter determines that—

(a)none of the section 67 grounds apply in relation to the child; or

(b)it is not necessary for a compulsory supervision order to be made in respect of the child

the Principal Reporter shall intimate that decision to the court which issued the section 62 statement..

(4) For rule 8(4)(s) (application for adoption order) substitute—

(s)whether the child is subject to a compulsory supervision order and, if so, what steps have been taken to comply with sections 131 and 141 of the 2011 Act;.

(5) In rule 12(3)(k) (duties of reporting officer and curator ad litem) for “supervision requirement under section 70 of the 1995 Act” substitute “compulsory supervision order”.

(6) For rule 29(4)(o) (Convention adoption orders: process and form of application) substitute—

(o)whether the child is subject to a compulsory supervision order and, if so, what steps have been taken to comply with sections 131 and 141 of the 2011 Act;.

(7) In each of the following rules for “supervision requirement under section 70 of the 1995 Act” substitute “compulsory supervision order”—

(a)rule 31(2)(b)(xv);

(b)rule 40(2)(g);

(c)rule 41(2)(c)(iv);

(d)rule 42(2)(g);

(e)rule 44(3)(e).

(8) In rule 39(1)(b) (final procedure) for “revocation of supervision requirement” substitute “revocation of compulsory supervision order”.

(9) In rule 50 (intimation to Principal Reporter) for “supervision requirement under the 1995 Act” substitute “compulsory supervision order”.

(10) In rule 51(1)(b)(ii) and 51(8)(c) omit in each case “within the meaning given by section 93(2) of the 1995 Act”.

(11) In the Appendix—

(a)in each of the following Forms for “supervision requirement under section 70 of the Children (Scotland) Act 1995” substitute in each case “compulsory supervision order”—

(i)Form 11;

(ii)Form 16;

(iii)Form 17;

(iv)Form 20.

(b)in Form 25 for “supervision requirement in respect of the child may not be made, or modified under paragraph (c) or (d) of section 73(9) of the Children (Scotland) Act 1995” substitute “compulsory supervision order may not be made or varied (other than by interim variation, as defined in section 140 of the Children’s Hearings (Scotland) Act 2011, in respect of the child”.

Revocation

7.  The 1987 Act of Sederunt is revoked.

Transitional and saving provision

8.—(1) The 1987 Act of Sederunt, the 1997 Act of Sederunt, the Sheriff Court Adoption Rules 2009 and the Ordinary Cause Rules as they applied immediately before 24th June 2013 continue to have effect for the purpose of any proceedings raised but not concluded prior to that date.

(2) In relation to the 1997 Act of Sederunt, paragraph (1) is subject to articles 6 to 11 of the Children’s Hearings (Scotland) Act 2011 (Transitional, Savings and Supplementary Provisions) Order 2013(20).

BRIAN GILL

Lord President

Edinburgh

I.P.D.

28th May 2013

Paragraph 4

SCHEDULE 1

EXPLANATORY NOTE

(This note is not part of the Act of Sederunt)

This Act of Sederunt makes amendments to—

  • the Act of Sederunt (Child Care and Maintenance Rules) 1997 (“the 1997 Act of Sederunt”);

  • the Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 1907 (“the Ordinary Cause Rules”); and

  • the Sheriff Court Adoption Rules 2009 in the Schedule to the Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 (“the Sheriff Court Adoption Rules 2009”)

in consequence of the Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”).

Paragraph 2 amends Chapter 1 of the 1997 Act of Sederunt in order to amend the definition of “Principal Reporter”.

Paragraph 3 contains consequential amendments to Chapter 3 of the 1997 Act of Sederunt in virtue of the 2011 Act. Chapter 3 presently prescribes the procedure to be followed in applications under the Children (Scotland) Act 1995. It is amended so as to prescribe the procedure to be followed under the 2011 Act as well as under that Act. In particular:

  • paragraph 3(5) inserts a new rule 3.3A about the attendance of children at hearings under the 2011 Act;

  • paragraph 3(8) inserts a new rule 3.5A about the confidentiality of documents lodged in process;

  • paragraph 3(20) substitutes new provision about applications for evidence by live link;

  • paragraph 3(28) omits Part VI of Chapter 3 (warrants for further detention of a child) in consequence of the repeal of section 67 of the 1995 Act by schedule 6 to the 2011 Act;

  • paragraph 3(34) inserts a new rule 3.46A enabling sheriffs to make orders securing the expeditious determination of applications;

  • paragraph 3(48) inserts a new Part VIIA of Chapter 3 in respect of applications by local authorities under section 166(2) of the 2011 Act for review of a decision or determination to impose a duty on the local authority;

  • paragraph 3(52) inserts a new rule 3.61A which specifies the procedure to be followed in applications under sections 163(2), 164(2) or 165(2) of the 2011 Act to the sheriff principal for leave to appeal the sheriff principal’s decision to the Court of Session;

  • paragraph 3(54) substitutes new provision about applications for review of a grounds determination;

  • paragraph 3(57) inserts a new Part XA of Chapter 3 concerning intimation requirements for certain orders under the 2011 Act;

  • paragraph 3(62) inserts a new rule 3.76A and includes it (and the following rules 3.77 to new rule 3.81A) in a new Part XIA which applies where an application is made for the admission of restricted evidence in proceedings where the section 67 ground involves sexual behaviour engaged in by any person.

Paragraph 4 makes amendments to the Forms in Schedule 1 to the 1997 Act of Sederunt. In particular:

  • paragraph 4(6) substitutes Forms 31, 31A and 31B for Form 31 (Citation of child);

  • paragraph 4(8) inserts a new Form 32A (Form of First Order under the Children’s Hearings (Scotland) Act 2011);

  • paragraph 4(15) inserts a new Form 39A (Notice to relevant person in application under section 94(2)(a) of the Children’s Hearings (Scotland) Act 2011 (procedural hearing fixed));

  • paragraph 4(20) substitutes Forms 44A and 44B for Form 44 (Application for authorisation of the giving of evidence by a child by means of a live television link);

  • paragraph 4(35) substitutes new Forms 60 to 63 for the existing Forms 60 to 63, and inserts a new Form 63A;

  • paragraph 4(36) substitutes new Forms 64, 64A and 64B for Form 64 (Intimation to child in application under section 51 of the Children (Scotland) Act 1995);

  • paragraph 4(38) inserts new Forms 65A, 65B, 65C, 65D and 65E; and

  • paragraph 4(43) revokes Forms 30, 38 and 59 (which concern the further detention of a child under section 67 of the 1995 Act).

Paragraph 5 amends the Ordinary Cause Rules by inserting a new Chapter 33C on referrals by the court to the Principal Reporter. It also revokes Part XIV of Chapter 33 and Part XII of Chapter 33A, which presently make provision of this nature.

Paragraph 6 amends the Sheriff Court Adoption Rules, principally to amend the terminology used. Paragraph 6(3) substitutes a new rule 3 concerning referrals by the court to the Principal Reporter.

Paragraph 7 revokes the Act of Sederunt (Legal Aid Rules) (Children) 1987 in consequence of the revocation of the Legal Aid (Scotland) (Children) Regulations 1997 by the Children’s Hearings (Scotland) Act 2011 (Transitional, Savings and Supplementary Provisions) Order 2013.

Paragraph 8 contains transitional and saving provisions: the Act of Sederunt (Legal Aid Rules) (Children) 1987, the 1997 Act of Sederunt, the Sheriff Court Adoption Rules and the Ordinary Cause Rules continue to have effect as they did before 24th June 2013 for the purpose of any proceedings raised but not concluded prior to that date, subject to the provisions of articles 6 to 11 of the Children’s Hearings (Scotland) Act 2011 (Transitional, Savings and Supplementary Provisions) Order 2013.

(1)

1971 c. 58. Section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), Schedule 2, paragraph 12; the Civil Evidence (Scotland) Act 1988 (c.32), section 2(4); the Children (Scotland) Act 1995 (c.36), Schedule 4, paragraph 18(2); the Adults with Incapacity (Scotland) Act 2000 (asp 4) (the “2000 asp”), schedule 5, paragraph 13; the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), section 43; the Vulnerable Witnesses (Scotland) Act 2004 (asp 3), section 14(2); the Consumer Credit Act 2006 (c.14), section 16(4); the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (the “2007 asp”) section 33 and schedule 5, paragraph 10 (in part). Section 32 is amended prospectively by the Children’s Hearings (Scotland) Act 2011 (asp 1) (the “2011 asp”), section 185. Section 32 was extended by the Debtors (Scotland) Act 1987 (c.18), section 97; the Child Support Act 1991 (c.48), sections 39(2) and 49; and section 2(4) of the 2000 asp.

(6)

1907 c.51. Schedule 1 was substituted by S.I. 1993/1956 and amended by S.I. 1996/2167 and 2445; S.S.I. 2000/239 and 408; 2001/8 and 144; 2002/7, 128 and 560; 2003/25, 26 and 601; 2004/197 and 350; 2005/20, 189, 638 and 648; 2006/198, 207, 293, 410 and 509; 2007/6, 339, 440 and 463; 2008/121, 223 and 365; 2009/107, 164, 284, 285, 294 and 402; 2010/120, 279, 324, 340 and 416; 2011/193, 289 and 386; 2012/188, 221 and 271; and 2013/91, 135 and 139.

(7)

S.S.I. 2009/284, as amended by S.S.I. 2012/271 and 2013/139.

(8)

Rule 3.59 was amended by S.S.I. 1998/2130.

(9)

Rule 3.66 was inserted by S.S.I. 2005/190.

(10)

Rule 3.75 was inserted by S.S.I. 2005/190 and amended by S.S.I. 2006/75.

(11)

Rule 3.76 was inserted by S.S.I. 2005/190.

(12)

Rule 3.68 was inserted by S.S.I. 2005/190.

(13)

Rule 3.69B was inserted by S.S.I. 2006/75.

(14)

Rule 3.71 was inserted by S.S.I. 2005/190.

(15)

Rule 3.78 was inserted by S.S.I. 2005/190.

(16)

Rule 3.79 was inserted by S.S.I. 2005/190.

(17)

Chapter 34 was last amended by S.S.I. 2010/324.

(18)

Part XIV of Chapter 33 was inserted by S.I. 1996/2167 and amended by S.S.I. 2005/648.

(19)

Part XII of Chapter 33A was inserted by S.S.I. 2005/638.

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