Act of Sederunt (Child Care and Maintenance Rules) Amendment 2009

Explanatory Note

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

This Act of Sederunt makes amendments to Parts III and V of Chapter 5 of the Child Care and Maintenance Rules 1997 in consequence of four Orders in Council:

(a) the Reciprocal Enforcement of Maintenance Orders (United States of America) (Scotland) Order 2007 (S.S.I.

2007/354),

(b) the Recovery of Maintenance (United States of America) (Scotland) Order 2007 (S.S.I.

2007/355),

(c) the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 (S.I. 2007/2005), and

(d) the Recovery of Maintenance (United States of America) Order 2007 (S.I. 2007/2006).

All four of these Orders in Council, which came into force on 1st October 2007, modified provisions in the Maintenance Orders (Reciprocal Enforcement) Act 1972.

Paragraphs 2(1) to (4) amend references in rules 5.1 and 5.16A of the 1997 Rules to reflect the fact that there is now a single federal authority in the United States of America in relation to the reciprocal enforcement of maintenance orders, rather than the previous system whereby individual states had their own central authority to deal with such matters.

Paragraph 2(5) inserts a new rule 5.17A into the 1997 Rules, requiring confirmation of the lawful service of notice of certain types of proceedings raised in Scotland on payers who reside in the USA.

Paragraph 2(6) amends rule 5.22 of the 1997 Rules so as to provide that an application brought under section 5 of the 1972 Act as applied to the USA shall proceed as an ordinary cause in accordance with either Chapter 33 or 33A of the Sheriff Court Ordinary Cause Rules.

Paragraph 2(7) inserts a new rule 5.22A into the 1997 Rules to make provision regarding the applicable procedure for the sheriff court in taking into account any representations or evidence from a payer residing in the USA, after notices are issued under section 5(4) of the 1972 Act, as applied to the USA.

Paragraph 2(7) also inserts a new rule 5.22B setting out the requirements to give notice of the institution of proceedings where an application for variation or revocation of an order is made under section 5(6) of the 1972 Act, as applied to the USA.

Paragraph 2(8) amends rule 5.23 of the 1997 Rules so as to provide for evidence taken under specified provisions of the 1972 Act to be recorded by tape recording or other mechanical means.

Paragraph 2(9) inserts new rules 5.23A, 5.23B, 5.23C and 5.23D into Part III of Chapter 5 of the 1997 Rules. These rules relate to the procedure for the taking of evidence by a sheriff at the request of a court in the USA, the procedure for making an application to request that a court in the USA takes or provides evidence, communication with courts in the USA and the disapplication of certain rules in Part III of Chapter 5 of the 1997 Rules in cases where a payer under a maintenance order made by a court in Scotland is residing or has assets in the USA.

Paragraph 2(10) inserts new rules 5.37A, 5.37B and 5.37C into Part V of Chapter 5 of the 1997 Rules. These rules relate to the procedure for the taking of evidence by a sheriff at the request of a court in the USA, communication with courts in the USA and the disapplication of certain rules in Part V of Chapter 5 of the 1997 Rules in cases where a payer under a maintenance order made by a court in the USA is residing or has assets in Scotland.