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Act of Sederunt (Family Proceedings in the Sheriff Court) 1996

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Statutory Instruments

1996 No. 2167 (S.174)

SHERIFF COURT, SCOTLAND

Act of Sederunt (Family Proceedings in the Sheriff Court) 1996

Made

15th August 1996

Coming into force

1st November 1996

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), section 91 of the Children (Scotland) Act 1995(2) 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 the said Act of 1971, do hereby enact and declare:

Citation and commencement

1.  (1)  This Act of Sederunt may be cited as the Act of Sederunt (Family Proceedings in the Sheriff Court) 1996 and shall come into force on 1st November 1996.

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

Amendments to Ordinary Cause Rules 1993

2.  Schedule 1 to the Sheriff Courts (Scotland) Act 1907(3) (Ordinary Cause Rules 1993) shall be amended in accordance with the Schedule to this Act of Sederunt.

Amendment to Judicial Factors Rules

3.  In paragraph 3(1) of the Act of Sederunt (Judicial Factors Rules) 1992(4)–

(a)at the end of sub-paragraph (b), omit the word “and”;

(b)at the end of sub-paragraph (c), for the full-stop, substitute “; and”; and

(c)after sub-paragraph (c), insert the following sub-paragraph:–

(d)judicial factors appointed under section 11(2)(g) of the Children (Scotland) Act 1995(5), except where such appointment is sought in the crave of a family action within the meaning of rule 33.1(1) of the Ordinary Cause Rules 1993..

Summary applications to appoint or remove guardian under Children (Scotland) Act 1995

4.  An application for the appointment or removal of a person as a guardian under section 11(2)(h) of the Children (Scotland) Act 1995 (except where such appointment or removal is sought in the crave of a family action within the meaning of rule 33.1(1) of the Ordinary Cause Rules 1993) shall be made by summary application.

Hope of Craighead

Lord President, I.P.D.

Edinburgh,

15th August 1996

Paragraph 2

SCHEDULEAMENDMENT TO ORDINARY CAUSE RULES 1993

1.  In rule 7.2 (minute for granting of decree without attendance), in paragraph (2)(b)(iii), for the words “parental rights”, substitute the words “a section 11 order”.

2.  In rule 9.1 (notice of intention to defend), in paragraph (1), after the words “Form O7”, insert the words “and, at the same time, send a copy to the pursuer”.

3.  In rule 9.6 (defences)–

(a)in paragraph (1), after the word “shall”, insert the words “(subject to paragraph (3))”; and

(b)after paragraph (2), insert the following paragraph:–

(3) In a family action (within the meaning of rule 33.1(1)), neither a crave nor averments need be made in the defences which relate to any order under section 11 of the Children (Scotland) Act 1995..

4.  In rule 33.1 (interpretation of Chapter 33)–

(a)for paragraph (1)(h), substitute the following paragraph:–

(h)an action or application for, or in respect of, an order under section 11 of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.), except–

(i)an application for the appointment of a judicial factor mentioned in section 11(2)(g) of the Act of 1995 to which Part I of the Act of Sederunt (Judicial Factors Rules) 1992 applies; and

(ii)an application for the appointment or removal of a person as a guardian mentioned in section 11(2)(h) of the Act of 1995 to which paragraph 4 of the Act of Sederunt (Family Proceedings in the Sheriff Court) 1996 applies;;

(b)in paragraph (2)–

(i)after the definition of “the Act of 1985”, insert the following definitions:–

“the Act of 1995” means the Children (Scotland) Act 1995;

“contact order” has the meaning assigned in section 11(2)(d) of the Act of 1995;;

(ii)omit the definition of “child”;

(iii)for the definition of “local authority”, substitute the following definition–

“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994(6);; and

(iv)for the definition of “parental rights”, substitute the following definitions–

“parental responsibilities” has the meaning assigned in section 1(3) of the Act of 1995;

“parental rights” has the meaning assigned in section 2(4) of the Act of 1995;

“residence order” has the meaning assigned in section 11(2)(c) of the Act of 1995;

“section 11 order” means an order under section 11 of the Act of 1995.;

(c)in paragraph (3), for the word “custody”, substitute the words “section 11 order”.

5.  In rule 33.3 (averments where custody sought)–

(a)for the heading to the rule, substitute the following heading:–

Averments where section 11 order sought;

(b)in paragraph (1), for the words from “action for a custody order” to “Family Law Act 1986”, substitute the words “action for a section 11 order”;

(c)in paragraph (1)(a) and paragraph (2), for the words “custody order” wherever they occur, substitute the words “section 11 order”.

6.  In rule 33.7 (warrants and forms for intimation)–

(a)in paragraph (1)–

(i)at the beginning of the paragraph, for the words “In the initial writ”, substitute the words “Subject to paragraphs (5) and (7), in the initial writ”;

(ii)in sub-paragraph (e), for the words “an order for any parental rights”, substitute the words “a section 11 order”;

(iii)in head (iii) of sub-paragraph (e), for the words “exercises such rights de facto”, substitute the words “in fact exercises care or control”;

(iv)in sub-paragraph (f), for the words “the custody of a child”, substitute the words “a section 11 order”;

(v)in sub-paragraph (g), for the words “the custody”, substitute the words “a residence order in respect”; and

(vi)for sub-paragraph (h), substitute the following sub-paragraph–

(h)in an action which includes a crave for a section 11 order, to the child to whom such an order would relate if not a party to the action, and a notice of intimation in Form F9 shall be intimated to that child;;

(b)in paragraph (4), for sub-paragraphs (a) and (b), substitute the following sub-paragraphs:–

(a)craves a residence order in respect of a child,

(b)is not a parent of the child, and

(c)is not resident in Scotland when the initial writ is lodged for warranting,; and

(c)after paragraph (6), insert the following paragraph:–

(7) Where a pursuer considers that to order intimation to a child under paragraph (1)(h) is inappropriate, he shall–

(a)include a crave in the initial writ to dispense with intimation to that child, and

(b)include in the initial writ averments setting out the reasons why such intimation is inappropriate;

and the sheriff may dispense with such intimation or make such other order as he thinks fit..

7.  In rule 33.9 (productions in action of divorce or where order for custody may be made)–

(a)in the heading to the rule, for the words “order for custody”, substitute the words “section 11 order”; and

(b)in paragraph (b), for the words “in an action where the sheriff may make an order in respect of the custody of a child”, substitute the words “in a family action which includes a crave for a section 11 order”.

8.  In rule 33.12 (execution of service on, or intimation to, local authority)–

(a)in paragraph (1), for the word “custody” wherever it occurs, substitute the words “residence order”;

(b)paragraph (3) shall become paragraph (4);

(c)after paragraph (2), insert the following paragraph–

(3) In any family action, the sheriff may, if he thinks fit, order intimation to a local authority; and such intimation shall be in Form F8.; and

(d)in new paragraph (4), for the words “rule 33.7(1)(g), 33.7(4) or 33.15(2), intimation of an application for custody”, substitute the words “paragraph (3) of this rule or rule 33.7(1)(g) or 33.7(4), intimation of an application for a residence order”.

9.  For rule 33.15 (orders for intimation by sheriff), substitute the following rule:–

Orders for intimation

33.15.  (1)  In any family action, the sheriff may, at any time–

(a)subject to paragraph (2), order intimation to be made on such person as he thinks fit;

(b)postpone intimation, where he considers that such postponement is appropriate and, in that case, the sheriff shall make such order in respect of postponement of intimation as he thinks fit; or

(c)dispense with intimation, where he considers that such dispensation is appropriate.

(2) Where the sheriff is considering whether to make a section 11 order by virtue of section 12 of the Act of 1995 (restrictions on decrees for divorce, separation or annulment affecting children), he shall, subject to paragraph (1)(c) and without prejudice to paragraph (1)(b) of this rule, order intimation in Form F9 to the child to whom the section 11 order would relate unless–

(a)intimation has been given to the child under rule 33.7(1)(h); or

(b)the sheriff considers that the child is not of sufficient age or maturity to express his views.

(3) Where a party makes a crave or averment in a family action which, had it been made in an initial writ, would have required a warrant for intimation under rule 33.7, that party shall include a crave in his writ for a warrant for intimation or to dispense with such intimation; and rule 33.7 shall, with the necessary modifications, apply to a crave for a warrant under this paragraph as it applies to a crave for a warrant under that rule..

10.  For rules 33.19 and 33.20, substitute the following rules:–

Procedure in respect of children

33.19.  

(1) In a family action, in relation to any matter affecting a child, where that child has–

(a)returned to the sheriff clerk Form F9, or

(b)otherwise indicated to the court a wish to express views on a matter affecting him,

the sheriff shall not grant any order unless an opportunity has been given for the views of that child to be obtained or heard.

(2) Where a child has indicated his wish to express his views, the sheriff shall order such steps to be taken as he considers appropriate to ascertain the views of that child.

(3) The sheriff shall not grant an order in a family action, in relation to any matter affecting a child who has indicated his wish to express his views, unless due weight has been given by the sheriff to the views expressed by that child, having due regard to his age and maturity.

Recording of views of the child

33.20.  (1)  This rule applies where a child expresses a view on a matter affecting him whether expressed personally to the sheriff or to a person appointed by the sheriff for that purpose or provided by the child in writing.

(2) The sheriff, or the person appointed by the sheriff, shall record the views of the child in writing; and the sheriff may direct that such views, and any written views, given by a child shall–

(a)be sealed in an envelope marked “Views of the child–confidential”;

(b)be kept in the court process without being recorded in the inventory of process;

(c)be available to a sheriff only;

(d)not be opened by any person other than a sheriff; and

(e)not form a borrowable part of the process..

11.  In rule 33.21 (appointment of local authority or reporter to report on a child):–

(a)for sub-paragraph (a) of paragraph (1), substitute the following sub-paragraph–

(a)a local authority, whether under section 11(1) of the Matrimonial Proceedings (Children) Act 1958(7) (reports as to arrangements for future care and upbringing of children) or otherwise, or; and

(b)in paragraph (6), for the words “the custody”, substitute the words “a section 11 order in respect”.

12.  For rule 33.22 (referral to family mediation and conciliation service), substitute the following rules:–

Referral to family mediation

33.22.  In any family action in which an order in relation to parental responsibilities or parental rights is in issue, the sheriff may, at any stage of the action, where he considers it appropriate to do so, refer that issue to a mediator accredited to a specified family mediation organisation.

Child Welfare Hearing

33.22A.  (1)  Where–

(a)on the lodging of a notice of intention to defend in a family action in which the initial writ seeks or includes a crave for a section 11 order, a defender wishes to oppose any such crave or order, or seeks the same order as that craved by the pursuer,

(b)on the lodging of a notice of intention to defend in a family action, the defender seeks a section 11 order which is not craved by the pursuer, or

(c)in any other circumstances in a family action, the sheriff considers that a Child Welfare Hearing should be fixed and makes an order (whether at his own instance or on the motion of a party) that such a hearing shall be fixed,

the sheriff clerk shall fix a date and time for a Child Welfare Hearing on the first suitable court date occurring not sooner than 21 days after the lodging of such notice of intention to defend, unless the sheriff directs the hearing to be held on an earlier date.

(2) On fixing the date for the Child Welfare Hearing, the sheriff clerk shall intimate the date of the Child Welfare Hearing to the parties in Form F41.

(3) The fixing of the date of the Child Welfare Hearing shall not affect the right of a party to make any other application to the court whether by motion or otherwise.

(4) At the Child Welfare Hearing (which may be held in private), the sheriff shall seek to secure the expeditious resolution of disputes in relation to the child by ascertaining from the parties the matters in dispute and any information relevant to that dispute, and may–

(a)order such steps to be taken, or

(b)make such order, if any, or

(c)order further procedure,

as he thinks fit.

(5) All parties (including a child who has indicated his wish to attend) shall, except on cause shown, attend the Child Welfare Hearing personally.

(6) It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the Child Welfare Hearing..

13.  In rule 33.24 (applications in relation to removal of children), in paragraph (1), for the word “custody”, substitute the words “a residence order”.

14.  In rule 33.25 (intimation to local authority before supervised access)–

(a)in the heading, for the word “access”, substitute the words “contact order”;

(b)for the words “of his own motion”, substitute the words “at his own instance”;

(c)for the words “an award of access or interim access”, substitute the words “a contact order or an interim contact order”;

(d)for the words “for access or interim access”, substitute the words “for such an order”; and

(e)in paragraph (b), for the word “access”, substitute the words “the contact order”.

15.  In rule 33.26 (joint minutes)–

(a)in paragraph (a), for the words “any parental rights in respect of a child”, substitute the words “a section 11 order”; and

(b)for the words “and the sheriff”, substitute the words “and, subject to rule 33.19(3) (no order before views of child expressed), the sheriff”.

16.  In rule 33.28 (evidence in certain undefended family actions), in paragraph (1)(a)(i), for the words “any parental rights or”, substitute the words “a section 11 order or for”.

17.  In rule 33.31 (procedure in undefended family actions for parental rights)–

(a)in the heading to the rule, for the words “parental rights”, substitute the words “section 11 order”; and

(b)in paragraph (1), for the words “any parental rights or any right or authority relating to the welfare or upbringing of a child”, substitute the words “a section 11 order”.

18.  In rule 33.34 (notice of intention to defend and defences):–

(a)in paragraph (1)(b)(iii), for the words “an order relating to parental rights”, substitute the words “a section 11 order”; and

(b)after paragraph (2), insert the following paragraph–

(3) Where a defender intends to make an application for a section 11 order which, had it been made in an initial writ, would have required a warrant for intimation under rule 33.7, the defender shall include a crave in his notice of intention to defend for a warrant for intimation or to dispense with such intimation; and rule 33.7 shall, with the necessary modifications, apply to a crave for a warrant under this paragraph as it applies to a crave for a warrant under that rule..

19.  In rule 33.38(application and interpretation of this Part)–

(a)after “33.38.”, omit “-(1)”; and

(b)omit paragraph (2).

20.  In 33.39 (applications in actions to which this Part applies), in paragraph (2)(a), for the words “any parental rights”, substitute the words “a section 11 order”.

21.  Rule 33.40 (intimation before committal to care or supervision) shall be omitted.

22.  Rule 33.41 (care or supervision orders) shall be omitted.

23.  Rule 33.42 (intimation of certain applications by local authorities and other persons) shall be omitted.

24.  For rule 33.43 (applications in depending actions by motion), substitute the following rule:–

Applications in depending actions by motion

33.43.  An application by a party in an action depending before the court to which this Part applies for, or for variation of, an order for–

(a)interim aliment for a child under the age of 18, or

(b)a residence order or a contact order,

shall be made by motion..

25.  In rule 33.44 (applications after decree relating to parental rights, care or supervision)–

(a)in the heading to the rule, for the words “parental rights, care or supervision”, substitute the words “a section 11 order”; and

(b)for paragraph (1), substitute the following paragraph–

(1) An application after final decree for, or for the variation or recall of, a section 11 order shall be made by minute in the process of the action to which the application relates..

26.  In Part IX of Chapter 33, for the cross-heading to the Part, substitute the following cross-heading:–

APPLICATIONS FOR ORDERS UNDER SECTION 11 OF THE CHILDREN (SCOTLAND) ACT 1995..

27.  For rule 33.60 (application and interpretation of this Part), substitute the following rule:–

Application of this Part

33.60.  This Part applies to an application for a section 11 order in a family action other than in an action of divorce or separation..

28.  In rule 33.61 (form of applications)–

(a)for the words “an order for any parental rights in respect of a child”, substitute the words “a section 11 order”; and

(b)in paragraph (a), for the words “parental rights”, substitute the words “a section 11 order”.

29.  For rule 33.62 (defences in actions for parental rights), substitute the following rule:–

Defences in action for a section 11 order

33.62.  In an action for a section 11 order, the pursuer shall call as a defender–

(a)the parents or other parent of the child in respect of whom the order is sought;

(b)any guardian of the child;

(c)any person who has treated the child as a child of his family;

(d)any person who in fact exercises care or control in respect of the child; and

(e)in any case where there is no person falling within paragraphs (a) to (d), the Lord Advocate..

30.  In rule 33.63 (applications relating to interim orders in depending actions), for the words “interim custody and interim access”, substitute the words “an interim residence order or an interim contact order.”.

31.  Rule 33.64 (care and supervision by local authorities) shall be omitted.

32.  In rule 33.65 (applications after decree), for paragraph (1), substitute the following paragraph:–

(1) An application after final decree for variation or recall of a section 11 order shall be made by minute in the process of the action to which the application relates..

33.  After Part XIII of Chapter 33 (Child Support Act 1991), insert the following Parts:–

PART XIVREFERRALS TO PRINCIPAL REPORTER

Application and interpretation of this Part

33.92.  (1)  This Part applies where a sheriff, in a family action, refers a matter to the Principal Reporter under section 54 of the Act of 1995 (reference to the Principal Reporter by court).

(2) In this Part, “Principal Reporter” has the meaning assigned in section 93(1) of the Act of 1995.

Intimation to Principal Reporter

33.93.  Where a matter is referred by the sheriff to the Principal Reporter under section 54 of the Act of 1995, the interlocutor making the reference shall be intimated by the sheriff clerk forthwith to the Principal Reporter; and that intimation shall specify which of the conditions in paragraph (2)(a) to (h), (j), (k) or (l) of that section it appears to the sheriff has been satisfied.

Intimation of decision by Principal Reporter

33.94.  (1)  Where a matter has been referred by the sheriff to the Principal Reporter under section 54 of the Act of 1995 and the Principal Reporter, having made such investigation as he thinks appropriate and having reached the view that compulsory measures of supervision are necessary, arranges a children’s hearing under section 69 of that Act (continuation or disposal of referral by children’s hearing), the Principal Reporter shall intimate to the court which referred the matter to him–

(a)the decision to arrange such children’s hearing;

(b)where there is no appeal made against the decision of that children’s hearing once the period for appeal has expired, 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.

(2) Where a matter has been referred by the sheriff to the Principal Reporter under section 54 of the Act of 1995 and the Principal Reporter, having made such investigation as he thinks appropriate and having considered whether compulsory measures of supervision are necessary, decides not to arrange a children’s hearing under section 69 of that Act, the Principal Reporter shall intimate that decision to the court which referred the matter to him.

PART XVMANAGEMENT OF MONEY PAYABLE TO CHILDREN

33.95.  Where the sheriff has made an order under section 13 of the Act of 1995 (awards of damages to children), an application by a person for an order by virtue of section 11(1)(d) of that Act (administration of child’s property) may be made in the process of the cause in which the order under section 13 of that Act was made..

34.  In rule 36.14 (orders for payment and management of money), in paragraph (1), after the words “legal disability”, insert the words “(other than a person under the age of 18 years)”.

35.  In appendix 1 (forms)–

(a)for Forms F5, F6, F7, F8, F9, F19, F21, F23, F24 and F26, substitute the forms so numbered respectively in the appendix to this Schedule;

(b)Form F25 shall be omitted; and

(c)after Form 40, insert Form 41 in the appendix to that Schedule.

APPENDIX

Schedule, paragraph 35

Rule 33.7(1)(e)(i) and (ii)

FORM F5Form of intimation to a local authority or third party who may be liable to maintain a child

Rule 33.7(1)(e)(iii)

FORM F6Form of intimation to person who in fact exercises care or control of a child

Rule 33.7(1)(f)

FORM F7Form of notice to parent or guardian in action for a section 11 order in respect of a child

Rules 33.7(1)(g), 33.7(4) and 33.12(2) and (3)

FORM F8Form of notice to local authority requesting a report in respect of a child

Rules 33.7(1)(h)

FORM F9Form of intimation in an action which includes a crave for a section 11 order

Rule 33.14(1)(a)(i)

FORM F19Form of notice to defender where it is stated that defender consents to the granting of decree of divorce

Rule 33.14(1)(a)(ii)

FORM F21Form of notice to defender where it is stated that defender consents to the granting of decree of separation

Rule 33.14(1)(b)(i)

FORM F23Form of notice to defender in an action of divorce where it is stated that there has been five years' non-cohabitation

Rule 33.14(1)(b)(ii)

FORM F24Form of notice to defender in an action of separation where it is stated that there has been five years' non-cohabitation

Rules 33.11(1) and 33.34(2)(a)

FORM F26Form of notice of intention to defend in a family action

Rule 33.22A(2)

FORM F41Form of intimation to parties of a Child Welfare Hearing

Explanatory Note

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

This Act of Sederunt amends the Ordinary Cause Rules 1993 and the Judicial Factors Rules of the Sheriff Court in relation to, and makes provision for, proceedings under Part I of the Children (Scotland) Act 1995 (c. 36). Part I of the Act makes new provision for parental responsibilities and parental rights, guardianship, the administration of a child’s property and court orders with respect to these matters.

(1)

1971 c. 58; section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1958 (c. 73), Schedule 2, paragraph 12, by the Civil Evidence (Scotland) Act 1988 (c. 32), section 2(4) and by the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 18(2).

(3)

1907 c. 51; Schedule 1 was substituted by S.I. 1993/1956 and amended by S.I 1993/3218.

(4)

S.I. 1992/272, amended by S.I. 1994/2354.

(6)

1994 c. 39; section 2(2) was amended by the Environment Act 1995 (c. 25), Schedule 22, paragraph 232(1).

(7)

1958 c. 40; section 11(1) was amended by the Social Work (Scotland) Act 1968 (c. 49), Schedule 8, paragraph 43, the Law Reform (Parent and Child) (Scotland) Act 1986 (c. 9), Schedule 2, the Family Law Act 1986 (c. 55), Schedule 1, paragraph 7 and by the Children (Scotland) Act 1995, Schedule 4, paragraph 9.

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