Sheriff Courts (Scotland) Act 1907

PART IV S APPLICATIONS AND ORDERS RELATING TO CHILDREN IN CERTAIN ACTIONS

Application and interpretation of this Part S

33A.38. This Part applies to an action of dissolution [F1 or declarator of nullity] of civil partnership or separation of civil partners.

Textual Amendments

F1 Words in Sch. 1 rule 33A.38 inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(50)}

Applications in actions to which this Part applies S

33A.39. (1) An application for an order mentioned in paragraph (2) shall be made–

(a) by a crave in the initial writ or defences, as the case may be, in an action to which this Part applies; or

(b) where the application is made by a person other than the pursuer or defender, by minute in that action.

(2) The orders referred to in paragraph (1) are:–

(a) an order for a section 11 order; and

(b) an order for aliment for a child.

Applications in depending actions by motion S

33A.40. 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.

Applications after decree relating to a section 11 order S

33A.41. (1) An application after final decree for, or for the variation or recall of, a section 11 order or in relation to the enforcement of such an order shall be made by minute in the process of the action to which the application relates.

(2) Where a minute has been lodged under paragraph (1), any party may apply by motion for any interim order which may be made pending the determination of the application.

Warrants for intimation to child and permission to seek views S

[F2 33A.41A. (1) Subject to paragraph (2), when lodging a minute under rule 14.3 (lodging of minutes) which includes a crave after final decree for, or the variation or recall of, a section 11 order in respect of a child who is not a party to the action, the minuter must—

(a) include in the minute a crave for a warrant for intimation and the seeking of the child’s views in Form F9;

(b) when lodging the minute, submit a draft Form F9, showing the details that the minuter proposes to include when the form is sent to the child.

(2) Where the minuter considers that it would be inappropriate to send Form F9 to the child (for example, where the child is under 5 years of age), the minuter must include in the minute—

(a) a crave to dispense with intimation and the seeking of the child’s views in Form F9;

(b) averments setting out the reasons why it is inappropriate to send Form F9 to the child.

(3) The sheriff must be satisfied that the draft Form F9 submitted under paragraph (1)(b) has been drafted appropriately.

(4) The sheriff may dispense with intimation and the seeking of views in Form F9 or make any other order that the sheriff considers appropriate.

(5) An order granting warrant for intimation and the seeking of the child’s views in Form F9 under this rule must—

(a) state that the Form F9 must be sent in accordance with rule 33A.41A(6);

(b) be signed by the sheriff.

(6) The Form F9 must be sent in accordance with—

(a) rule 33A.41B (views of the child – unopposed minutes relating to a section 11 order), where the minute is unopposed;

(b) rule 33A.41C (views of the child – craves relating to a section 11 order sought by minuter only), where the minute is opposed and a section 11 order is sought by the minuter only; or

(c) rule 33A.41D (views of the child – craves relating to a section 11 order sought by both minuter and respondent), where a section 11 order is sought by both the minuter and the respondent.

Textual Amendments

F2 Sch. 1 rules 33A.41A-33A.41D inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(18) (with para. 4)

Views of the child – unopposed minutes relating to a section 11 order S

33A.41B. (1) This rule applies to minutes which include a crave after final decree for, or the variation or recall of, a section 11 order in respect of which no notice of opposition or answers are lodged and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

(2) The minuter must—

(a) send the child the Form F9 that was submitted and approved under rule 33A.41A (warrants for intimation to child and permission to seek views);

(b) on the same day, lodge a certificate of intimation in Form F9A;

(c) not send the child a copy of the minute.

(3) Except on cause shown, the sheriff must not determine the minute in the period of 28 days following the date on which the Form F9 was sent to the child.

Textual Amendments

F2 Sch. 1 rules 33A.41A-33A.41D inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(18) (with para. 4)

Views of the child – craves relating to a section 11 order sought by minuter only S

33A.41C. (1) This rule applies where a notice of opposition or answers have been lodged in respect of a minute after final decree and a crave for, or the variation or recall of, a section 11 order is sought by the minuter only and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

(2) The minuter must—

(a) no later than 14 days after the notice of opposition or answers are lodged, send the child the Form F9 that was submitted and approved under rule 33A.41A (warrants for intimation to child and permission to seek views);

(b) on the same day, lodge a certificate of intimation in Form F9A;

(c) not send the child a copy of the minute, the notice of opposition or answers.

Textual Amendments

F2 Sch. 1 rules 33A.41A-33A.41D inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(18) (with para. 4)

Views of the child – craves relating to a section 11 order sought by both minuter and respondent S

33A.41D. (1) This rule applies where a notice of opposition or answers have been lodged in respect of a minute after final decree and craves for, or the variation or recall of, a section 11 order are sought by both the minuter and the respondent and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

(2) The minuter must—

(a) no later than 14 days after the notice of opposition or answers are lodged, send the child the Form F9 that was submitted and approved under rule 33A.41A (warrants for intimation to child and permission to seek views), amended so as also to narrate the section 11 order sought by the respondent;

(b) on the same day—

(i) lodge a certificate of intimation in Form F9A;

(ii) send the respondent a copy of the Form F9 that was sent to the child;

(c) not send the child a copy of the minute, the notice of opposition or answers.]

Textual Amendments

F2 Sch. 1 rules 33A.41A-33A.41D inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(18) (with para. 4)

Applications after decree relating to aliment S

33A.42. (1) An application after final decree for, or for the variation or recall of, an order for aliment for a child shall be made by minute in the process of the action to which the application relates.

(2) Where a minute has been lodged under paragraph (1), any party may lodge a motion for any interim order which may be made pending the determination of the application.

Applications after decree by persons over 18 years for aliment S

33A.43. (1) A person–

(a) to whom an obligation of aliment is owed under section 1 of the Act of 1985;

(b) in whose favour an order for aliment while under the age of 18 years was made in an action to which this Part applies, and

(c) who seeks, after attaining that age, an order for aliment against the person in that action against whom the order for aliment in his favour was made,

shall apply by minute in the process of that action.

(2) An application for interim aliment pending the determination of an application under paragraph (1) shall be made by motion.

(3) Where a decree has been pronounced in an application under paragraph (1) or (2), any application for variation or recall of any such decree shall be made by minute in the process of the action to which the application relates.