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Act of Sederunt (Child Support Rules) 1993

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Statutory Instruments

1993 No. 920 (S.127)

SHERIFF COURT, SCOTLAND

Act of Sederunt (Child Support Rules) 1993

Made

26th March 1993

Coming into force

5th April 1993

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 32 of the Sheriff Courts (Scotland) Act 1971(1) and of all other powers enabling them in that behalf, having approved, with modifications, draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of that Act, do hereby enact and declare:

Citation and commencement

1.  –

(1) This Act of Sederunt may be cited as the Act of Sederunt (Child Support Rules) 1993 and shall come into force on 5th April 1993.

(2) This Act of Sederunt shall be inserted in the Books of Sederunt.

(3) In this Act of Sederunt–

“the Act of 1991” means the Child Support Act 1991(2);

“deduction from earnings order” means an order under section 31(2) of the Act of 1991;

“liability order” means an order under section 33(2) of the Act of 1991; and

“liable person” means a person liable to make payments of child support maintenance.

(4) A reference in rules 1 to 6 of this Act of Sederunt to a numbered form is a reference to the form so numbered in the Schedule to this Act of Sederunt or a form substantially to the same effect, with such modifications as circumstances may require.

Application for a liability order

2.  (1)  An application by the Secretatry of State for a liability order under section 33(2) of the Act of 1991 shall be by summary application in Form 1, and rule 3 and Form A of the Ordinary Cause Rules of the sheriff court(3) shall not apply to such an application.

(2) The sheriff clerk shall, on receiving an application under paragraph (1) above, order the application to be served on the liable person with a notice in Form 2; and service of the application and notice shall be by a solicitor or officer of court, who shall complete an execution of service.

(3) Where the liable person wishes to object to the grant of the application he shall do so by completing Form 2 and returning it to the sheriff clerk within 21 days after the date of service of the application.

(4) The sheriff clerk, on receipt of an objection which is in accordance with paragraph (3) above, shall–

(a)put out the cause for hearing; and

(b)intimate the hearing to the parties.

(5) The sheriff may consider the application, and any objection which has been received, on the date fixed for hearing, or at any continuation of it, whether or not any of the parties appear.

(6) Where no objection to the grant of the application in accordance with paragraph (3) above has been received within 21 days after the date of service, the applicant may return the application, together with a duly completed execution of service, to the sheriff clerk requesting the sheriff to make a liability order.

(7) A liability order shall be in Form 3.

(8) An extract of the liability order, or other order of the sheriff, may be issued on the expiry of 14 days from the date of making of the order.

(9) An extract of the liability order shall be in Form 4.

Enforcement of non-Scottish liability orders within Scotland

3.  Where a liability order made by a court in England and Wales or any corresponding order made by a court in Northern Ireland is, by virtue of regulations made under section 39(1) of the Act of 1991, to be enforced in Scotland, the liability order or corresponding order shall be registered for enforcement by the sheriff clerk appending to it a docquet in the following terms:–

”.

Service of charge following the making of a liability order

4.  (1)  Where a liability order has been made, a charge for payment under section 38 of the Act of 1991 shall be in Form 5.

(2) The period for payment specified in any charge under this rule shall be–

(a)14 days where the person on whom it is served is within the United Kingdom; and

(b)28 days where the person on whom it is served is outwith the United Kingdom or his whereabouts are unknown.

Appeal against a deduction from earnings order

5.  (1)  An appeal against a deduction from earnings order as provided for in regulations made under section 32(5) of the Act of 1991 shall be by summary application in Form 6, and rule 3 and Form A of the Ordinary Cause Rules of the sheriff court shall not apply to such an appeal.

(2) The sheriff clerk, on receiving an application under paragraph (1) above, shall–

(a)fix a date for the hearing of the appeal; and

(b)order service of the application on the Secretary of State.

Representation

6.  (1)  A party to an application for a liability order or to an appeal against a deduction from earnings order may be represented by–

(a)an advocate;

(b)a solicitor; or

(c)subject to the following paragraphs of this rule, any other person (hereinafter referred to as an “authorised lay representative”), where the sheriff is satisfied that such person is a suitable representative and is duly authorised to represent the party.

(2) An authorised lay representative shall not represent a party at any diet appointed for the leading of evidence or for debate but may do all other things in the preparation and conduct of a claim as may be done by an individual who conducts his own claim.

(3) A party who is, or has been, represented by an authorised lay representative, and who would have been found entitled to expenses and outlays if he had been represented by an advocate or a solicitor, may be allowed the expenses and outlays to which a party litigant may be found entitled by virtue of the Litigants in Person (Costs and Expenses) Act 1975(4) or any enactment made under that Act.

Amendment

7.  (1)  The forms in the Schedule to the Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988(5) shall be amended in accordance with the following paragraphs.

(2) In Form 37 omit the words “to three instalments” and substitute “one instalment”.

(3) In–

(a)paragraph (2) of the Notes in Form 30;

(b)paragraph (1) of the Notes for Employer in Form 34; and

(c)paragraph (1) of the Notes in Form 45,

after the words “section 73 of the Act” insert the words “as amended by the Child Support Act 1991”.

J.A.D. Hope

Lord President, IPD

Edinburgh,

26th March 1993

SCHEDULE

Rule 2(1)

FORM 1Form of summary application for a liability order under section 33 of the Child Support Act 1991

Rule 2(2)

FORM 2Form of notice to a liable person in an application for a liability order under the Child Support Act 1991

Rule 2(7)

FORM 3Form of liability order under Child Support Act 1991

Rule 2(9)

FORM 4Form of extract of liability order under the Child Support Act 1991

Rule 4(1)

FORM 5Form of charge for payment following the making of a liability order under the Child Support Act 1991

Rule 5(1)

FORM 6Form of application for appeal against a deduction from earnings order

Explanatory Note

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

This Act of Sederunt lays down rules to govern applications for a liability order under section 33(2) of the Child Support Act 1991. It prescribes the form of application for a liability order, the form of notice to be served on the liable person along with that application, the form of liability order and of the extract liability order (Rule 2).

It makes provision for the registration for enforcement within Scotland of non-Scottish liability orders (Rule 3).

It provides for service of a charge following the making of a liability order and specifies the period for payment to be given in the charge (Rule 4).

It prescribes the form of appeal (by way of summary application) against a deduction from earnings order (Rule 5).

It makes provision as to representation in applications for a liability order and appeals against deductions from earnings orders, and sets out the consequences for expenses and outlays where representation is by an authorised lay representative in those two procedures (Rule 6).

It also makes minor consequential amendments to the forms in the Schedule to the Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988 (Rule 7).

(1)

1971 c. 58; section 32 was extended by the Child Support Act 1991 (c. 48) sections 39(2) and 49.

(3)

1907 c. 51; First Schedule, substituted by S.I. 1983/747; relevant amendments are contained in S.I. 1984/255, 1986/1230 and 1946, 1988/1978 and 1992/249.

(5)

S.I. 1988/2013; relevant amending instrument is S.I. 1991/1920.

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