Act of Sederunt (Rules of the Court of Session 1994) 1994

PART IV APPLICATIONS AND ORDERS RELATING TO CHILDREN IN CERTAIN ACTIONS

Application and interpretation of this Part

49.35.—(1) This Part applies to an action of divorce, separation or declarator of nullity of marriage.

(2) In this Part, “the Act of 1958” means the Matrimonial Proceedings (Children) Act 1958(1).

Applications in actions to which this Part applies

49.36.—(1) An application for an order mentioned in paragraph (2) shall be made–

(a) by a conclusion in the summons 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 any parental rights; and

(b) an order for aliment for a child.

Intimation before committal to care or supervision

49.37.—(1) Where the court is considering making an order under section 10(1) of the Act of1958(2) (committal of care of child to an individual other than one of the parties to the marriage or to a local authority) or Under section 12(1) of that Act(3) (placing child under supervision of a local authority), it shall ordain one of the parties to intimate to that person or to the chief executive of the appropriate local authority, as the case may be, where not already a party to the action and represented at the hearing at which the issue arises–

(a) a copy of the pleadings (including any adjustments and amendments);

(b) the terms of any relevant motion;

(c) a notice of intimation in Form 49.37 requiring any representations which that person or that local authority wishes to make to the court to be made by minute in the process of the action within such period as the court has determined.

(2) Before lodging a minute under paragraph (1)(c), the minuter shall intimate to every other party a copy of the minute and the date on which it will be lodged.

Care or supervision orders

49.38.  Where the court makes, varies or recalls an order under section 10(1) (committal of care of child to an individual other than one of the parties of the marriage or to a local authority), or section 12(1) (placing child under supervision of a local authority), of the Act of 1958, it shall send a copy of the interlocutor making the order and a notice in Form 49.38 to the chief executive of the local authority or other person concerned.

Intimation of certain applications to local authorities or other persons

49.39.  Where a child is subject to an order under section 10(1) (committal of care of child to an individual other than one of the parties to the marriage or to a local authority), or section 12(1) (placing child under supervision of a local authority), of the Act of 1958, any motion enrolled or minute lodged which relates to that child shall be intimated to the chief executive of the local authority or other person concerned.

Applications in depending actions by motion

49.40.—(1) An application by a party in an action depending before the court to which this Part applies–

(a) for, or for variation of, an order–

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

(ii) for interim custody of, or interim access to, a child, or

(b) for variation or recall of an order under section 10(1) (committal of care of child to another individual other than one of the parties to the marriage or to a local authority), or section 12(1) (placing child under supervision of a local authority), of the Act of 1958,

shall be made by motion.

(2) Written intimation of a motion under paragraph (1) shall be given to every other party not less than 7 days before the date on which the motion is enrolled.

Applications after decree relating to parental rights or care

49.41.—(1) Subject to rule 49.42 (applications after decree relating to access or supervision), an application after final decree–

(a) for, or for the variation or recall of, an order relating to parental rights other than access, or

(b) for an order under section 10(1) of the Act of 1958 (committal of care of child to an individual other than one of the parties to the marriage or to a local authority),

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–

(a) may apply by motion for any interim order which may be made pending the determination of the application; and

(b) shall intimate any such motion to every other party not less than 7 days before the date on which the motion is enrolled.

Applications after decree relating to access or supervision

49.42.—(1) An application after final decree for, or for the variation or recall of–

(a) an order for access to a child, or

(b) an order under section 12(1) of the Act of 1958 (placing child under supervision of a local authority),

shall be made by motion in the process of the action to which the application relates.

(2) A motion under paragraph (1) shall–

(a) include a brief statement of the reasons for the order sought, and

(b) be intimated by registered post or the first class recorded delivery service to–

(i) any person concerned or a solicitor known to be acting on behalf of that person, and

(ii) where appropriate, the local authority concerned, not less than 14 days before the date on which the motion is enrolled.

(3) On enrolling a motion under paragraph (1), the applicant shall lodge in process–

(a) a copy of the letter of intimation; and

(b) the Post Office receipt or certificate of posting of that letter.

(4) At the hearing of a motion under paragraph (1), the court may order that the application be made by minute; and, in such a case, shall make an order for the lodging of answers to the minute in process within such period as it thinks fit.

(5) Where the court makes an order under paragraph (4), any party may apply by motion for an interim order pending the determination of the application.

Applications after decree relating to aliment

49.43.—(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 motion in the process of the action to which the application relates.

(2) A motion under paragraph (1) shall–

(a) include a brief statement of the reasons for the order sought; and

(b) be intimated by registered post or the first class recorded delivery service to any person concerned or a solicitor known to be acting on behalf of that person, not less than 14 days before the date on which the motion is enrolled.

(3) On enrolling a motion under paragraph (1), the applicant shall lodge in process–

(a) a copy of the letter of intimation;

(b) the Post Office receipt or certificate of posting of that letter; and

(c) written evidence of the earnings or other income of the applicant or, if not employed, written evidence of that fact.

(4) At the hearing of a motion under paragraph (1), the court may order that the application be made by minute; and, in such a case, shall make an order for the lodging of answers to the minute in process within such period as the court thinks fit.

(5) Where the court makes an order under paragraph (4), any party–

(a) may apply by motion for an interim order pending the determination of the application; and

(b) shall give written intimation of any such motion to every other party not less than 7 days before the date on which the motion is enrolled.

Applications after decree by persons over 18 years for aliment

49.44.—(1) A person–

(a) to whom an obligation of aliment is owed under section 1 of the Act of 1985(4),

(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 a 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 motion; and rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this paragraph as it applies to a motion under that rule.

(1)

1958 c. 40.

(2)

Section 10(1) of the Act of 1958 was amended by the Law Reform (Parent and Child) (Scotland) Act 1986 (c. 9), Schedule 2; and the Family Law Act 1986 (c. 55), Schedule 1, paragraph 6.

(3)

Section 12(1) of the Act of 1958 was amended by the Social Work (Scotland) Act 1968 (c. 49), Schedule 9.

(4)

1985 c. 37.