Act of Sederunt (Child Care and Maintenance Rules) 1997
CHAPTER 1PRELIMINARY
Citation and commencement1.1
(1)
This Act of Sederunt may be cited as the Act of Sederunt (Child Care and Maintenance Rules) 1997 and shall come into force on 1st April 1997.
(2)
This Act of Sederunt shall be inserted in the Books of Sederunt.
Interpretation1.2
(1)
In this Act of Sederunt, unless the context otherwise requires–
F1“Principal Reporter” is the person referred to in section 14 of the Children’s Hearings (Scotland) Act 2011 or any person carrying out the functions of the Principal Reporter by virtue of paragraph 10(1) of schedule 3 to that Act;
“sheriff clerk” includes sheriff clerk depute.
(2)
Unless the context otherwise requires, any reference in this Act of Sederunt to a specified Chapter, Part or rule shall be construed as a reference to the Chapter, Part or rule bearing that number in this Act of Sederunt, and a reference to a specified paragraph, sub-paragraph or head shall be construed as a reference to the paragraph, sub-paragraph or head so numbered or lettered in the provision in which that reference occurs.
(3)
Any reference in this Act of Sederunt to a numbered Form shall be construed as a reference to the Form so numbered in Schedule 1 to this Act of Sederunt and includes a form substantially to the same effect with such variation as circumstances may require.
Affidavits1.3
An affidavit required in terms of any provision of this Act of Sederunt may be emitted–
(a)
in the United Kingdom, before a notary public or any other competent authority;
(b)
outwith the United Kingdom, before a British diplomatic or consular officer, or any person authorised to administer an oath or affirmation under the law of the place where the oath or affirmation is made.
Revocations and transitional provisions1.4
(1)
Subject to paragraphs (2) and (3), the Acts of Sederunt mentioned in column (1) of Schedule 2 to this Act of Sederunt are revoked to the extent specified in column (3) of that Schedule.
(2)
Nothing in paragraph (1) or in Chapter 2 shall affect any cause which has been commenced before 1st April 1997 and to which that Chapter would otherwise apply, and such a cause shall proceed according to the law and practice in force immediately before that date.
(3)
Nothing in paragraph (1) shall affect any cause to which paragraph 8(1) of Schedule 3 to the Children (Scotland) Act 1995 applies, and such a cause shall proceed according to the law and practice in force immediately before 1st April 1997.
F2Vulnerable witnesses1.5.
(1)
This rule shall apply to proceedings under these rules, except those proceedings to which the rules in Part XI of Chapter 3 apply.
(2)
At any hearing on an application under these rules, the sheriff shall ascertain whether there is or is likely to be a vulnerable witness who is to give evidence at or for the purposes of any proof or hearing, consider any child witness notice or vulnerable witness application that has been lodged where no order has been made under section 12(1) or (6) of the Vulnerable Witnesses (Scotland) Act 2004 and consider whether any order under section 12(1) of that Act requires to be made.
(3)
Except where the sheriff otherwise directs, where a vulnerable witness is to give evidence at or for the purposes of any proof or hearing in an application under these rules, any application in relation to the vulnerable witness or special measure that may be ordered shall be dealt with in accordance with the rules within Chapter 45 of the Ordinary Cause Rules.
(4)
In this rule, “vulnerable witness” means a witness within the meaning of section 11(1) of the Vulnerable Witnesses (Scotland) Act 2004.
F3Lodging audio or audio-visual recordings of children1.6.
(1)
In this rule “child” is a person under the age of 16 on the date of commencement of the proceedings and “children” shall be construed accordingly.
(2)
Except where the sheriff otherwise directs, where a party seeks to lodge an audio or audio-visual recording of a child as a production in an application under this Act of Sederunt, this shall be done in accordance with and regulated by Chapter 50 of the Ordinary Cause Rules.
(3)
A party who has lodged a recording of a child shall—
(a)
within 28 days after the final determination of the application, where no subsequent appeal has been F4made, or
(b)
within 28 days after the disposal of any appeal F5made in relation to the final determination of the application,
uplift the recording from process.
(4)
Where a recording has not been uplifted as required by paragraph (3), the sheriff clerk shall intimate to—
(a)
the solicitor who lodged the recording, or
(b)
where no solicitor is acting, the party or such other party as seems appropriate,
that if he or she fails to uplift the recording within 28 days after the date of such intimation, it will be disposed of in such a manner as the sheriff directs.
CHAPTER 2ADOPTION OF CHILDREN
PART IGENERAL
Interpretation2.1
In this Chapter, unless the context otherwise requires–
F6...
F6...
F7“Her Majesty’s Forces” means the regular forces as defined in section 374 of the Armed Forces Act 2006; and
“Registrar General” means the Registrar General of Births, Deaths and Marriages for Scotland.
Expenses2.2
The sheriff may make such an order with regard to the expenses, including the expenses of a reporting officer and a curator ad litem or any other person who attended a hearing, of an application under this Chapter as he thinks fit and may modify such expenses or direct them to be taxed on such scale as he may determine.
Intimation to Principal ReporterF82.3
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Timetables under section 25A of the ActF92.4
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10PART IIAPPLICATION FOR AN ORDER DECLARING A CHILD FREE FOR ADOPTION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10PART IIIREVOCATION ORDERS, ETC.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10PART IVADOPTION ORDERS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10PART IVACONVENTION ADOPTION ORDERS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10PART VPARENTAL RESPONSIBILITIES ORDERS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F12PART VIHUMAN FERTILISATION AND EMBRYOLOGY
Interpretation2.45
In this Part—
“2007 Act” means the Adoption and Children (Scotland) Act 2007;
“2008 Act” means the Human Fertilisation and Embryology Act 2008;
“parental order” means an order under section 54 F13or 54A(5) of the 2008 Act; and
“the Regulations” means the Human Fertilisation and Embryology (Parental Orders) Regulations 2010.
Form of application and productions2.46
(1)
An application for a parental order is to be made by petition in Form 22.
(2)
The following documents must be lodged in process along with the petition—
(a)
an extract or a certified copy of the entry in the Register of Births relating to the child who is the subject of the application;
(b)
extracts or certified copies of any entries in the Register of Births relating to the birth of each of the petitioners;
(c)
in the case of an application under section 54(2)(a) of the 2008 Act, an extract or a certified copy of the entry in the Register of Marriages relating to the marriage of the petitioners;
(d)
in the case of an application under section 54(2)(b) of the 2008 Act, an extract or a certified copy of the entry in the Register of Civil Partnerships relating to the civil partnership of the petitioners; and
(e)
any other document founded on by the petitioners in support of the terms of the petition.
Confidentiality2.47
(1)
Unless the sheriff otherwise directs, all documents lodged in process (including the reports by the curator ad litem and reporting officer) are to be available only to the sheriff, the curator ad litem, the reporting officer and the parties; and such documents must be treated as confidential by all persons involved in, or party to, the proceedings and by the sheriff clerk.
(2)
The reporting officer and the curator ad litem—
(a)
must treat all information obtained in the exercise of their duties as confidential; and
(b)
must not disclose any such information to any person unless disclosure of such information is necessary for the purpose of their duties.
(3)
This rule is subject to rule 2.53.
Orders for evidence2.48
(1)
The sheriff may, before determining the cause, order—
(a)
production of further documents (including affidavits); or
(b)
parole evidence.
(2)
A party may apply by motion for the evidence of a person to be received in evidence by affidavit; and the sheriff may make such order as the sheriff thinks fit.
Protection of identity of petitioners2.49
(1)
Where persons who propose to apply for a parental order wish to prevent their identities being disclosed to any person whose agreement to the parental order is required, they may, before presenting the petition, apply by letter to the sheriff clerk for a serial number to be assigned to them for all purposes connected with the petition.
(2)
On receipt of an application under paragraph (1), the sheriff clerk must—
(a)
assign a serial number to the applicants; and
(b)
enter a note of the number opposite the name of the applicants in a register of serial numbers kept by the sheriff clerk.
(3)
The contents of the register of serial numbers and the names of the persons to whom each number relates must be treated as confidential by the sheriff clerk and must not be disclosed to any person other than the sheriff.
(4)
Where a serial number has been assigned under paragraph (2)(a), any form of agreement to a parental order under section 54(6) F14or 54A(5) of the 2008 Act—
(a)
must refer to the petitioners by means of the serial number assigned to them;
(b)
must not contain the names and designation of the petitioners; and
(c)
must specify the year in which and the court by which the serial number was assigned.
Appointment of a curator ad litem and reporting officer2.50
(1)
The sheriff must on the lodging of a petition under rule 2.46, appoint a curator ad litem and reporting officer.
(2)
The same person may be appointed as curator ad litem and reporting officer in the same petition, if the sheriff considers that doing so is appropriate in the circumstances.
(3)
The sheriff may appoint a person who is not a member of a panel established under regulations made by virtue of section 101(1) of the 1995 Act to be curator ad litem or a reporting officer.
(4)
The sheriff may, on cause shown, appoint a reporting officer prior to the lodging of such a petition.
(5)
An application for an appointment under paragraph (4) is to be made by letter addressed to the sheriff clerk specifying the reasons for the appointment, and shall not require to be intimated to any other person.
(6)
The sheriff clerk must intimate the appointment of a curator ad litem and reporting officer under paragraph (1) or (4) to the petitioner and to the person or persons appointed.
(7)
Where the curator ad litem is not also the reporting officer, the sheriff may order the reporting officer to make available to the curator ad litem any report or information in relation to the child.
Duties of reporting officer and curator ad litem2.51
(1)
The other duties of a reporting officer appointed under rule F15rule 2.50 prescribed for the purposes of section 108(1)(b) of the 2007 Act as modified and applied in relation to applications for parental orders by regulation 4 of, and Schedule 3, to the Regulations (rules: appointment of curators ad litem and reporting officers) are—
(a)
to ascertain the whereabouts of all persons whose agreement to the making of a parental order in respect of the child is required;
(b)
to ascertain whether there is any person other than those mentioned in the petition upon whom notice of the petition should be served;
(c)
in the case of each person who is not a petitioner and whose agreement to the making of a parental order is required under section 54(6) F16or 54A(5) of the 2008 Act—
(i)
to ascertain whether that person understands the effect of the parental order;
(ii)
to ascertain whether alternatives to a parental order have been discussed with that person;
(iii)
to confirm that that person understands that he or she may withdraw his or her agreement at any time before an order is made;
(iv)
to ascertain whether that person suffers or appears to suffer from a mental disorder within the meaning of section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003; and
(d)
to ascertain whether the conditions in subsections (2) to F17(8A) of section 54 or subsections (2) to (8) of section 54A of the 2008 Act have been satisfied;
(e)
to draw to the attention of the court any matter which may be of assistance; and
(f)
to report in writing on the matters mentioned in subparagraphs (a) to (e) to the sheriff within 4 weeks from the date of the interlocutor appointing the reporting officer, or within such other period as the sheriff in his or her discretion may allow.
(2)
A curator ad litem appointed under rule 2.50(1) must—
(a)
have regard to safeguarding the interests of the child as his or her paramount duty;
(b)
enquire, so far as he or she considers necessary, into the facts and circumstances stated in the petition;
(c)
establish that the petitioners understand the nature and effect of a parental order and in particular that the making of the order will render them responsible for the maintenance and upbringing of the child;
(d)
ascertain whether any money or other benefit which is prohibited by section 54(8) F18or 54A(7) of the 2008 Act (prohibition on gift or receipt of money or other benefit) has been received or agreed upon;
(e)
ascertain whether it may be in the interests of the welfare of the child that the sheriff should make the parental order subject to particular terms and conditions or require the petitioners to make special provision for the child and, if so, what provision;
(f)
ascertain whether it would be better for the child that the court should make the order than it should not make the order;
(g)
establish whether the proposed parental order is likely to safeguard and promote the welfare of the child throughout the child’s life; and
(h)
ascertain from the child whether he or she wishes to express a view and, where a child indicates his or her wish to express a view, ascertain that view.
(3)
Subject to paragraph (4), the curator ad litem must report in writing on the matters mentioned in paragraph (2) to the sheriff within 4 weeks from the date of the interlocutor appointing the curator, or within such other period as the sheriff in his or her discretion may allow.
(4)
Subject to any order made by the sheriff under rule 2.53(1), the views of the child ascertained in terms of paragraph (2)(h) may, if the curator ad litem considers appropriate, be conveyed to the sheriff orally.
(5)
The reporting officer must, on completion of his or her report in terms of paragraph (1), in addition send to the sheriff clerk—
(a)
a copy of his or her report for each party; and
(b)
any agreement for the purposes of section 54(6) F19or 54A(5) of the 2008 Act.
(6)
The curator ad litem must, on completion of his or her report in terms of paragraph (3), in addition send a copy of it for each party to the sheriff clerk.
Agreement2.52
(1)
The agreement of a person required by section 54(6) F20or 54A(5) of the 2008 Act is to be in Form 23.
(2)
The form of agreement mentioned in paragraph (1) must be witnessed—
(a)
where it is executed in Scotland, by the reporting officer appointed under F21rule 2.50;
(b)
where it is executed outwith Scotland but within the United Kingdom, by a justice of the peace or commissioner for oaths;
(c)
where it is executed outwith the United Kingdom—
(i)
if the person who executes the agreement is serving in Her Majesty’s Forces, by an officer holding a commission in any of those forces; or
(ii)
in any other case, by a British diplomatic or consular official or any person authorised to administer an oath or affirmation under the law of the place where the agreement is executed.
Procedure where child wishes to express a view2.53
(1)
Where a child to whom section 54(11) F22or 54A(11) of the 2008 Act applies indicates his or her wish to express a view, the sheriff, without prejudice to rule 2.51(2)(h)—
(a)
may order such procedural steps to be taken as the sheriff considers appropriate to ascertain the views of that child; and
(b)
must not make an order under this Part unless an opportunity has been given for the views of that child to be obtained or heard.
(2)
Where the views of a child, whether obtained under this rule or under rule 2.51(2)(h) have been recorded in writing, the sheriff may direct that such a written record is to—
(a)
be sealed in an envelope marked “Views of the child – confidential”;
(b)
be available to a sheriff only;
(c)
not be opened by any person other than a sheriff; and
(d)
not form a borrowable part of the process.
Hearing2.54
(1)
On receipt of the reports referred to in rule 2.51, the sheriff must fix a hearing.
(2)
The sheriff may—
(a)
order any person whose agreement is required to attend the hearing;
(b)
order intimation of the date of the hearing to any person not mentioned in paragraph (3)(a), (b) or (c); and
(c)
order the reporting officer or curator ad litem to perform additional duties to assist him or her in determining the petition.
(3)
The petitioners or, where a serial number has been assigned under rule 2.49, the sheriff clerk, must intimate the date of the hearing in Form 24 by registered post or recorded delivery letter to—
(a)
every person whose whereabouts are known to them and whose agreement is required;
(b)
the reporting officer appointed under F23rule 2.50;
(c)
the curator ad litem appointed under rule 2.50(1); and
(d)
any person on whom intimation has been ordered under paragraph (2)(b).
(4)
At the hearing—
(a)
the petitioners, the reporting officer and the curator ad litem must, if required by the sheriff, appear and may be represented;
(b)
any other person required by the sheriff to attend the hearing must appear and may be represented; and
(c)
any other person to whom intimation was made under paragraph (3)(a) or (d) may appear or be represented.
Applications under sections 22 and 24 of the 2007 Act2.55
(1)
An application under section 22(3) (restrictions on removal: application for parental order pending), section 24(1) (return of child removed in breach of certain provisions) or section 24(2) (order directing person not to remove child) of the 2007 Act all as modified and applied in relation to applications for parental orders by regulation 4 of, and Schedule 3 to, the Regulations, is to be made by minute in the process of the petition for a parental order to which it relates.
(2)
A minute under paragraph (1) must include an appropriate crave and statement of facts.
(3)
On receipt of a minute under paragraph (1), the sheriff must—
(a)
order a diet of hearing to be fixed; and
(b)
ordain the minuter, or where a serial number has been assigned under rule 2.49, the sheriff clerk, to send a notice of such hearing in Form 25 together with a copy of the minute, by recorded delivery letter to the curator ad litem in the original petition, to any person who may have care and possession of the child and to such other persons as the sheriff considers appropriate.
Amendment of parental order2.56
(1)
An application under paragraph 7 of Schedule 1 to the 2007 Act, as modified and applied in relation to parental orders by regulation 4 of, and Schedule 3 to, the Regulations (amendment of orders and rectification of registers) is to be made by petition to the court which made the parental order.
(2)
The sheriff may order the petitioners to intimate the petition to such persons as the sheriff considers appropriate.
Communication to the Registrar General2.57
The communication to the Registrar General of a parental order required to be made by the sheriff clerk under paragraph 4(1) of Schedule 1 to the 2007 Act, as modified and applied in relation to parental orders by regulation 4 of, and Schedule 3 to, the Regulations (registration of parental orders), is to be made by sending a certified copy of the order to the Registrar General either by recorded delivery post in an envelope marked “Confidential”, or by personal delivery by the sheriff clerk in a sealed enveloped marked “Confidential”.
Extract of order2.58
An extract of a parental order must not be issued except by order of the court on an application to it—
(a)
where there is a petition for the parental order depending before the court, by motion in that process; or
(b)
where there is no such petition depending before the court, by petition.
Final procedure2.59
(1)
After the granting of a parental order the court process must, immediately upon the communication under rule 2.57 being made or, in the event of an extract of the order being issued under rule 2.58, immediately upon such issue, be sealed by the sheriff clerk in an envelope marked “Confidential”.
(2)
The envelope referred to in paragraph (1) is not to be unsealed by the sheriff clerk or by any other person having control of the records of that or any court, and the process is not to be made accessible to any person for one hundred years after the date of the granting of the order except—
(a)
to the person who is the subject of the parental order after he or she has reached the age of 16 years; and
(b)
to a person on the granting of an application made by him or her to the sheriff setting forth the reason for which access to the process is required.
F24Appeals2.60.
An appeal to the Sheriff Appeal Court against an order of the sheriff under this Part is to be made in accordance with Chapter 6 of the Act of Sederunt (Sheriff Appeal Court Rules) 2015.
CHAPTER 3F25Children’s hearings, secure accommodation, etc.: application to the sheriff
PART IINTERPRETATION
Interpretation3.1
(1)
In this Chapter, unless the context otherwise requires–
F26“1995 Act” means the Children (Scotland) Act 1995 and (except where the context otherwise requires) references to terms defined in that Act have the same meaning here as given there;
F26“2011 Act” means the Children’s Hearings (Scotland) Act 2011 and (except where the context otherwise requires) references to terms defined in that Act have the same meaning here as given there;
F27“CPSA 1995” means the Criminal Procedure (Scotland) Act 1995 and (except where the context otherwise requires) references to terms defined in that Act have the same meaning here as given there;
F28...
“service” includes citation, intimation or the giving of notice as required in terms of this Chapter.
F30(2)
In this Chapter any reference, however expressed, to disputed grounds shall be construed as a reference to a statement of grounds which forms the subject of an application under section 93(2)(a) or 94(2)(a) of the 2011 Act.
(3)
Except as otherwise provided, this Chapter applies to applications to the sheriff (including reviews and appeals) under F31the 1995 Act, the 2011 Act or section 44A of the CPSA 1995.
(4)
All hearings in respect of applications to the sheriff must be held in private.
PART IIGENERAL RULES
PROCEDURE IN RESPECT OF CHILDREN
F32Application of rules 3.3 to 3.5A3.2
(1)
Rules 3.3 to 3.5 apply where a sheriff is coming to a decision about a matter relating to a child within the meaning of section 27 of the 2011 Act.
(2)
Rule 3.5A applies in the circumstances referred to in paragraph (1) and in respect of applications under Part V of this Chapter.
F33(3)
Rules 3.3, 3.3A, 3.5 and 3.5A apply in respect of appeals to the sheriff under section 44A of the CPSA 1995.
F34Power to dispense with service on child3.3
Where the sheriff is satisfied, so far as practicable and taking account of the age and maturity of the child, that it would be inappropriate to order service on the child, the sheriff may dispense with service on the child.
Child to attend hearing3.3A.
F35(1)
This rule applies where an application is made to the sheriff under—
(a)
the 2011 Act, other than where section 103 or 112 of the 2011 Act applies; or
(b)
section 44A of the CPSA 1995.
(2)
A child must attend all hearings, unless the sheriff otherwise directs.
(3)
A child may attend a hearing even if the child is excused from doing so.
(4)
If the child is not excused from attending the hearing but does not attend the sheriff may grant a warrant to secure attendance in relation to the child.
(5)
Paragraph (6) applies if—
(a)
the hearing of the application is to be continued to another day; and
(b)
the sheriff is satisfied that there is reason to believe that the child will not attend on that day.
(6)
The sheriff may grant a warrant to secure attendance in relation to the child.
Service on child3.4
(1)
Subject to rule 3.3 and to paragraph (2), after the issue of the first order or warrant to cite, as the case may be, the applicant shall forthwith serve a copy of the application and first order or warrant to cite on the child, together with a notice or citation in–
(a)
Form 26 in respect of an application for a child assessment order under Part III of this Chapter;
(b)
Form 27 in respect of an application to vary or F36terminate a child protection order in terms of rule 3.33;
(c)
Form 28 in respect of an application for an exclusion order in terms of rules 3.34 to 3.39;
(d)
Form 29 in respect of an application to vary or recall an exclusion order in terms of rule 3.40;
F37(e)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F38(f)
subject to subparagraph (g), in Form 31 in respect of an application under section 93(2)(a) or 94(2)(a) of the 2011 Act;
(g)
Form 31A in respect of an application under section 94(2)(a) of the 2011 Act where a procedural hearing has been fixed; and
(h)
Form 31B in respect of an application under section 110(2) of the 2011 Act.
(2)
The sheriff may, on application by the applicant or of his own motion, order that a specified part of the application is not served on the child.
F39Procedure for obtaining a child’s view3.5
F40(1)
Subject to section 27(3) of the 2011 Act and regulation 11A(5) and (6) of the Secure Accommodation (Scotland) Regulations 2013, the sheriff—
(a)
may order such steps to be taken as he considers appropriate to ascertain the views of that child; and
(b)
shall not come to a decision about a matter relating to a child within the meaning of section 27 of the 2011 Act or in respect of an appeal under section 44A of the CPSA 1995 unless an opportunity has been given for the views of that child to be obtained or heard.
(2)
Subject to any order made by the sheriff under paragraph (1)(a) and to any other method as the sheriff in his discretion may permit, the views of the child may be conveyed–
(a)
by the child orally or in writing;
(b)
by an advocate or solicitor acting on behalf of the child;
F43(ca)
by any curator ad litem;
(d)
by any other person (either orally or in writing), provided that the sheriff is satisfied that that person is a suitable representative and is duly authorised to represent the child.
(3)
Where the views of the child are conveyed orally to the sheriff, the sheriff shall record those views in writing.
(4)
The sheriff may direct that any written views given by a child, or any written record of those views, 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.
F44Confidentiality3.5A.
(1)
Unless the sheriff otherwise directs, all documents lodged in process are to be available only to the sheriff, the reporter, the safeguarder, the curator ad litem and the parties; and such documents must be treated as confidential by all persons involved in, or party to, the proceedings and by the sheriff clerk.
(2)
The safeguarder and the curator ad litem must—
(a)
treat all information obtained in the exercise of their duties as confidential; and
(b)
not disclose any such information to any person unless disclosure of such information is necessary for the purpose of their duties.
(3)
This rule is subject to rule 3.5.
SAFEGUARDERS
Application3.6
Appointment of safeguarder3.7
(1)
F47Where a safeguarder has not been appointed for the child, the sheriff—
(a)
shall, as soon as reasonably practicable after the lodging of an application or the commencing of any proceedings, consider whether it is necessary to appoint a safeguarder in the application or proceedings; and
(b)
may at that stage, or at any later stage of the application or proceedings, appoint a safeguarder.
F48(2)
Where a sheriff appoints a safeguarder, the appointment and the reasons for it must be recorded in an interlocutor.
Rights, powers and duties of safeguarder on appointment3.8
A safeguarder appointed in an application shall–
(a)
have the powers and duties at common law of a curator ad litem in respect of the child;
(b)
be entitled to receive from the Principal Reporter copies of the application, all of the productions in the proceedings and any papers which were before the children’s hearing;
(c)
subject to rule 3.5(1)(a), determine whether the child wishes to express his views in relation to the application and, if so, where the child so wishes transmit his views to the sheriff;
(d)
make such enquiries so far as relevant to the application as he considers appropriate; and
(e)
without delay, and in any event before the hearing on the application, intimate in writing to the sheriff clerk whether or not he intends to become a party to the proceedings.
F49(f)
whether or not a party, be entitled to receive from the sheriff clerk all interlocutors subsequent to his or her appointment.
F50Representation of safeguarder3.9
(1)
A safeguarder may appear personally in the proceedings or instruct an advocate or solicitor to appear on his behalf.
(2)
Where an advocate or a solicitor is appointed to act as a safeguarder, he shall not act also as advocate or solicitor for the child in the proceedings.
Provision where safeguarder intimates his intention not to become a party to the proceedingsF513.10
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
FIXING OF FIRST HEARING
Assigning of diet for hearing3.11
Except where otherwise provided in these Rules, after the lodging of any application the sheriff clerk shall forthwith assign a diet for the hearing of the application and shall issue a first order or a warrant to cite in Form 32 F52, Form 32A or Form 33, as the case may be.
SERVICE, CITATION AND NOTICE
Service and notice to persons named in application3.12
(1)
Subject to the provisions of rule 3.4 (service on child), after the issue of the first order or warrant to cite, as the case may be, the applicant shall forthwith give notice of the application by serving a copy of the application and the first order or warrant to cite together with a notice or citation, as the case may be, on the persons named in the application or, as the case may be, a person who should receive notice of the application (subject to paragraph (2)) in–
(a)
Form 34 in respect of an application for a child assessment order under Part III of this Chapter;
(b)
Form 35 in respect of an application to vary or F53terminate a child protection order in terms of rule 3.33;
(c)
Form 36 in respect of an application for an exclusion order in terms of rules 3.34 to 3.39;
(d)
Form 37 in respect of an application to vary or recall an exclusion order in terms of rule 3.40;
F54(e)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F55(f)
subject to subparagraph (g), in Form 39 in respect of an application under section 93(2)(a) or 94(2)(a) of the 2011 Act made under Part VII of this Chapter; or
(g)
in Form 39A where a procedural hearing has been fixed in respect of an application under section 94(2)(a) of the 2011 Act made under Part VII of this Chapter.
(2)
Notice of the application shall be given in the case of a safeguarder F56or curator ad litem by serving a copy of the application and the first order or warrant to cite together with notice in Form 40.
Period of notice3.13
(1)
Subject to paragraph (2), citation or notice authorised or required by this Chapter shall be made not later than forty-eight hours, or in the case of postal citation seventy-two hours, before the date of the diet to which the citation or notice relates.
(2)
Paragraph (1) shall not apply in relation to citation or notice of the following applications or proceedings–
F57(a)
an appeal referred to in section 157(1), 160(1), 161(1) or 162(3) of the 2011 Act;
F58(aa)
an appeal under section 44A of the CPSA 1995;
(b)
a hearing in respect of an exclusion order where an interim order has been granted in terms of rule 3.36;
F59(c)
a hearing on an application to vary or terminate a child protection order;
(d)
an application for a child assessment order,
in which cases the period of notice and the method of giving notice shall be as directed by the sheriff.
Citation of witnesses, parties and persons having an interest3.14
(1)
The following shall be warrants for citation of witnesses, parties and havers:–
(a)
the warrant for the F60hearing on evidence in an application;
(b)
an interlocutor fixing a diet for the continued hearing of an application; and
(c)
an interlocutor assigning a diet for a hearing of an appeal or application.
(2)
In an application or an appeal, witnesses or havers may be cited in Form 41.
(3)
The certificate of execution of citation of witnesses and havers shall be in Form 42.
Modes of service3.15
(1)
Service authorised or required by this Chapter shall be made by any mode specified in paragraphs (2) and (3).
(2)
It shall be deemed legal service to or on any person if such service is–
(a)
delivered to him personally;
(b)
left for him at his dwelling-house or place of business with some person resident or employed therein;
(c)
where it cannot be delivered to him personally and he has no known dwelling-house or place of business, left for him at any other place at which he may at the time be resident;
(d)
where he is the master of, or a seaman or other person employed in, a vessel, left with a person on board or connected with the vessel;
(e)
sent by first class recorded delivery post, or the nearest equivalent which the available postal service permits, to his dwelling-house or place of business, or if he has no known dwelling-house or place of business to any other place in which he may at the time be resident;
(f)
where the person has the facility to receive facsimile or other electronic transmission, by such facsimile or other electronic transmission; or
(g)
where the person has a numbered box at a document exchange, given by leaving at the document exchange.
(3)
Where service requires to be made and there is not sufficient time to employ any of the methods specified in paragraph (2), service shall be effected orally or in such other manner as the sheriff directs.
Persons who may effect service3.16
(1)
Subject to paragraphs (2) and (3), service shall be effected–
(a)
in the case of any of the modes specified in rule 3.15(2), by a sheriff officer;
(b)
in the case of any of the modes specified in rule 3.15(2)(e) F61to (g), by a solicitor, the sheriff clerk, the Principal Reporter or an officer of the local authority; or
(c)
in the case of any mode specified by the sheriff in terms of rule 3.15(3), by such person as the sheriff directs.
(2)
In relation to the citation of witnesses, parties and havers in terms of rule 3.14 or service of any application, “officer of the local authority” in paragraph (1)(b) includes any officer of a local authority authorised to conduct proceedings under these Rules in terms of rule 3.21 (representation).
F62(3)
Where required by the sheriff, the sheriff clerk shall cite the Principal Reporter, the authors or compilers of any reports or statements and any other person whom the sheriff may wish to examine under section 155(5) of the 2011 Act (procedure in appeal to sheriff against decision of children’s hearing).
Production of certificates of execution of service3.17
(1)
The production before the sheriff of–
(a)
a certificate of execution of service in Form 43; and
(b)
additionally in the case of postal service, F63a receipt of the registered or recorded delivery letter,
shall be sufficient evidence that service was duly made.
(2)
It shall be sufficient to lodge the execution of service at the hearing, unless the sheriff otherwise directs or on cause shown.
Power to dispense with service3.18
Subject to rule 3.3, the sheriff may, on cause shown, dispense with service on any person named.
MISCELLANEOUS
Expenses3.19
No expenses shall be awarded in any proceedings to which this Chapter applies.
Record of proceedings3.20
Proceedings under this Chapter shall be conducted summarily.
Representation3.21
(1)
In any proceedings any party may be represented by an advocate or a solicitor or, subject to paragraphs (2) and (3), other representative authorised by the party.
(2)
Such other representative must throughout the proceedings satisfy the sheriff that he is a suitable person to represent the party and that he is authorised to do so.
(3)
Such other representative may in representing a party do all such things for the preparation and conduct of the proceedings as may be done by an individual on his own behalf.
F64Applications for evidence by live link3.22.
(1)
On cause shown, a party may apply in the form prescribed in paragraph (3) for authority for the whole or part of—
(a)
the evidence of a witness or party; or
(b)
a submission,
to be made through a live link.
(2)
In paragraph (1)—
“witness” means a person who has been or may be cited to appear before the sheriff as a witness (including a witness who is outwith Scotland), except in circumstances where such witness is a vulnerable witness within the meaning of section 11(1) of the Vulnerable Witnesses (Scotland) Act 2004;
“submission” means any oral submission which would otherwise be made to the court by the party or such party’s representative in person including an oral submission in support of an application;
“live link” means a live television link or such other arrangement as may be specified in the application by which the witness, party or representative, as the case may be, is able to be seen and heard in the proceedings or heard in the proceedings and is able to see and hear or hear the proceedings while at a place which is outside the courtroom.
(3)
An application under paragraph (1) shall be made—
(a)
in Form 44A in the case of a witness or party;
(b)
in Form 44B in the case of a submission.
(4)
The application shall be lodged with the sheriff clerk prior to the hearing at which the witness is to give evidence or the submission is to be made (except on special cause shown).
(5)
The sheriff shall—
(a)
order intimation of the application to be made to the other party or parties to the proceedings in such form as he or she prescribes; and
(b)
hear the application as soon as reasonably practicable.
Orders and transfer of cases3.23
(1)
The sheriff who hears an application under rule 3.22 shall, after hearing the parties and allowing such further procedure as the sheriff thinks fit, make an order granting or refusing the application.
(2)
Where the sheriff grants the application, he may–
(a)
transfer the case to be heard in whole; or
(b)
hear the case himself or such part of it as he shall determine,
in another sheriff court in the same sheriffdom.
Exclusion of certain enactments3.24
The enactments specified in column (1) of Schedule 3 to this Act of Sederunt (being enactments relating to matters with respect to which this Chapter is made) shall not, to the extent specified in column (3) of that Schedule, apply to an application or appeal.
PART IIICHILD ASSESSMENT ORDERS
Interpretation3.25
In this Part, “application” means an application for a child assessment order in terms of F65section 35(1) of the 2011 Act.
Form of application3.26
An application shall be made in Form 45.
Orders3.27
(1)
After hearing parties and allowing such further procedure as he thinks fit, the sheriff shall make an order granting or refusing the application.
(2)
Where an order is made granting the application, that order shall be made in Form 46 and shall contain the information specified therein.
(3)
Where the sheriff, in terms of F66section 36(3) of the 2011 Act, has decided to make a child protection order pursuant to an application, rules 3.31 to 3.33 shall apply.
Intimation3.28
The local authority shall intimate the grant or refusal of an application to such persons, if any, as the sheriff directs.
PART IVCHILD PROTECTION ORDERS
Interpretation3.29
In this Part, “application” means, except in rule 3.33, an application for a child protection order in terms of F67section 37 of the 2011 Act.
Form of application3.30
An application made by a local authority shall be in Form 47 and an application made by any other person shall be in Form 48.
Determination of application3.31
(1)
On receipt of an application, the sheriff, having considered the grounds of the application and the supporting evidence, shall forthwith grant or refuse it.
(2)
Where an order is granted, it shall be in Form 49 and it shall contain any directions made under F68section 40, 41 or 42 of the 2011 Act.
Intimation of making of order3.32
Where an order is granted, the applicant shall forthwith serve a copy of the order on–
(a)
the child, along with a notice in Form 50;
F69(b)
the persons referred to in section 43(1)(a), (c), (d) and (e) of the 2011 Act, along with a notice in Form 51; and
(c)
such other persons as the sheriff may direct and in such manner as he or she may direct.
F70Application to vary or terminate a child protection order3.33
(1)
(2)
(3)
Without prejudice to rule 3.5, any person on whom service is made F76under section 49 of the 2011 Act may appear or be represented at the hearing of the application.
(4)
F77... The sheriff, after hearing parties and allowing such further procedure as he thinks fit, shall grant or refuse the application.
(5)
Where an order is made granting the application for variation, that order shall be in Form 53.
(6)
Where the sheriff so directs, intimation of the granting or refusing of an application shall be given by the applicant to such person as the sheriff shall direct.
PART VEXCLUSION ORDERS
Interpretation3.34
In this Part, “application” means, except in rule 3.40, an application by a local authority for an exclusion order in terms of sections 76 to 80 of F78the 1995 Act; and “ancillary order” and “interim order” shall be construed accordingly.
Form of application3.35
An application shall be made in Form 54.
Hearing following interim order3.36
Where an interim order is granted under subsection (4) of section 76 of F79the 1995 Act, the hearing under subsection (5) of that section shall take place not later than 3 working days after the granting of the interim order.
Orders3.37
(1)
After hearing parties and allowing such further procedure as he thinks fit, the sheriff shall make an order granting or refusing the application.
(2)
Where the sheriff grants an order in terms of paragraph (1), it shall be in Form 55 and shall be served forthwith by the local authority on–
(a)
the named person;
(b)
the appropriate person;
(c)
the relevant child; and
(d)
the Principal Reporter.
Certificates of delivery of documents to chief constable3.38
(1)
After the local authority have complied with section 78(4) of F80the 1995 Act, they shall forthwith lodge in process a certificate of delivery in Form 56.
(2)
After a person has complied with section 78(5) of F80the 1995 Act, he shall lodge in process a certificate of delivery in Form 56.
F81Power to make child protection order in an application for an exclusion order3.39
Where the sheriff, in terms of section 76(8) of the 1995 Act, has decided to make a child protection order under Part 5 of the 2011 Act pursuant to an application, rules 3.31 to 3.33 shall apply.
Variation or recall of an exclusion order3.40
(1)
Any application for the variation or recall of an exclusion order and any warrant, interdict, order or direction granted or made under section 77 of F82the 1995 Act shall be in Form 57.
(2)
After hearing parties and allowing such further procedure as he thinks fit, the sheriff shall make an order granting or refusing the application.
(3)
Where an order is made granting the application for variation, that order shall be in Form 58.
(4)
Intimation of the granting or refusing of an application shall be given by the applicant to such persons as the sheriff shall direct.
F83PART VIWARRANT FOR FURTHER DETENTION OF A CHILD
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
PART VIIF84PROCEDURE IN APPLICATIONS UNDER SECTION 93(2)(a) OR 94(2)(a) OF THE 2011 ACT
Interpretation3.44
In this Part, “application” means an application under F85section 93(2)(a) or 94(2)(a) of the 2011 Act.
Lodging of application, etc.3.45
F86(1)
Within a period of 7 days beginning with the date on which the Principal Reporter was directed in terms of section 93(2)(a) or 94(2)(a) of the 2011 Act to make an application to the sheriff, the Principal Reporter shall lodge an application in Form 60 with the sheriff clerk of the sheriff court district in which the child is habitually resident.
(1A)
Paragraph (1) is subject to the terms of section 102(2) of the 2011 Act.
(1B)
The sheriff may, on cause shown, remit any application to another sheriff court.
(1C)
Not later than 28 days after the day on which the application is lodged the sheriff clerk shall fix a hearing on evidence as required under section 101(2) of the 2011 Act.
(2)
Where a safeguarder has been appointed by F87... the children’s hearing, the Principal Reporter shall intimate such appointment to the sheriff clerk and shall lodge along with the application any report made by the safeguarder.
F88(3)
Paragraphs (4) to (7) apply where an application under paragraph (1) is made by virtue of section 94(2)(a) of the 2011 Act.
(4)
The sheriff may fix a procedural hearing to determine whether or not the section 67 grounds in the statement of grounds are accepted by each relevant person.
(5)
Such procedural hearing must take place before the expiry of the period of 7 days beginning with the day on which the application is lodged.
(6)
The sheriff shall appoint service and intimation of the procedural hearing as the sheriff thinks fit.
(7)
Subject to paragraph (9)(a) and (b), subsequent to the procedural hearing the sheriff may discharge the hearing on evidence and determine the application.
(8)
Where paragraph (7) applies the sheriff shall make such orders for intimation as the sheriff thinks fit.
(9)
Where—
(a)
a relevant person does not accept the section 67 grounds in the statement of grounds at the procedural hearing;
(b)
section 106(2)(a) or (b) of the 2011 Act applies; or
(c)
the sheriff has not fixed a procedural hearing;
a hearing on evidence must take place in accordance with rule 3.47.
F89Withdrawal of application3.46
(1)
At any stage of the proceedings before the application is determined the Principal Reporter may F90withdraw the application, either in whole or in part, by lodging a minute to that effect or by motion at the hearing.
(2)
The Principal Reporter shall intimate such F91withdrawal to–
(a)
the child, except where service on the child has been dispensed with in terms of rule 3.3;
(b)
any relevant person whose whereabouts are known to the Principal Reporter; and
(c)
any safeguarder F92and curator ad litem.
(3)
In the event of F91withdrawal in whole in terms of paragraph (1), the sheriff shall dismiss the application and discharge the referral.
F93Expeditious determination of application3.46A.
Prior to or at a hearing on evidence under rule 3.47 (or any adjournment or continuation thereof under rule 3.49), the sheriff may order parties to take such steps as the sheriff deems necessary to secure the expeditious determination of the application, including but not limited to—
(a)
instructing a single expert;
(b)
using affidavits;
(c)
restricting the issues for proof;
(d)
restricting witnesses;
(e)
applying for evidence to be taken by live link in accordance with rule 3.22.
F94Hearing on evidence3.47
F95A1
If, at a hearing on evidence (or any adjournment or continuation thereof under rule 3.49), the section 67 grounds (or as they may be amended) are no longer in dispute, the sheriff may determine the application without hearing evidence.
(1)
(2)
At the close of the evidence led by the Principal Reporter in a case where it is disputed that the F98ground set out in section 67(2)(j) of the 2011 Act applies, the sheriff shall consider whether sufficient evidence has been led to establish that F99ground and shall give all the parties an opportunity to be heard on the question of sufficiency of evidence.
(3)
Where the sheriff is not satisfied that sufficient evidence has been led as mentioned in paragraph (2), he shall make a F100determination to that effect.
F101(4)
Paragraph (4A) applies where—
(a)
paragraph (2) applies and the sheriff is satisfied that sufficient evidence has been led;
(b)
any other section 67 ground is in dispute.
(4A)
The child, the relevant person and any safeguarder may give evidence and may, with the approval of the sheriff, call witnesses with regard to the ground in question.
F102(5)
Where the sheriff excuses the child from attending all or part of the hearing in accordance with section 103(3) of the 2011 Act, the following persons shall be permitted to remain during the absence of the child—
(a)
any safeguarder appointed in relation to the child;
(b)
any curator ad litem appointed in relation to the child;
(c)
any relevant person;
(d)
the child’s representative.
(6)
Subject to paragraph (7), the sheriff may exclude any person, including the relevant person, while any child is giving evidence if the sheriff is satisfied that this is necessary in the interests of the child and that–
(a)
he must do so in order to obtain the evidence of the child; or
(b)
the presence of the person or persons in question is causing, or is likely to cause, significant distress to the child.
(7)
Where the relevant person is not legally represented at the hearing and has been excluded under paragraph (6), the sheriff shall inform that relevant person of the substance of any evidence given by the child and shall give that relevant person an opportunity to respond by leading evidence or otherwise.
(8)
Where evidence F103... has been heard in part and a safeguarder thereafter becomes a party to proceedings, the sheriff may order the evidence to be reheard in whole or in part.
F104Amendment of the statement of grounds3.48
The sheriff may at any time, on the application of any party or of his own motion, allow amendment of any F105statement of grounds.
Adjournment for inquiry, etc.3.49
F106... The sheriff on the motion of any party or on his own motion may continue the hearing F107fixed under F108rule 3.45(1C) in order to allow time for further inquiry into any application, in consequence of the amendment of any statement under rule 3.48, or for any other necessary cause, for such reasonable time as he may in the circumstances consider necessary.
Power of sheriff in making findings as to offences3.50
Decision of sheriff3.51
(1)
Subject to rule 3.47(3), the sheriff shall give his decision orally at the conclusion of the hearing.
(2)
The sheriff clerk shall forthwith send a copy of the interlocutor containing that decision to–
(a)
the child, except where service on the child has been dispensed with in terms of rule 3.3;
(b)
any relevant person whose whereabouts are known;
(c)
any safeguarder F111and curator ad litem;
(d)
the Principal Reporter; F112and
(e)
such other persons as the sheriff may direct.
(3)
The sheriff may, when giving his decision in terms of paragraph (1) or within 7 days thereafter, issue a note of the reasons for his decision and the sheriff clerk shall forthwith send a copy of such a note to the persons referred to in paragraph (2).
Signature of warrantsF1133.52
(1)
Subject to paragraph (3) a warrant granted under the 2011 Act may be signed by the sheriff or the sheriff clerk.
(2)
A warrant signed by the sheriff clerk shall be treated for all purposes as if it had been signed by the sheriff.
(3)
A warrant to secure attendance must be signed by the sheriff.
PART VIIIF114PROCEDURE IN APPEALS TO THE SHERIFF AGAINST DECISIONS OF CHILDREN’S HEARINGS
Form of appeal3.53
F115(1)
This Part applies to appeals to the sheriff under sections 154(1), 160(1), 161(1) and 162(3) of the 2011 Act.
(1A)
An appeal to the sheriff under the sections of the 2011 Act prescribed in paragraph (1B) must be—
(a)
made in the form prescribed in paragraph (1B);
(b)
accompanied by a copy of the decision complained of and any document relevant to it that was before the children’s hearing; and
(c)
lodged with the sheriff clerk of the sheriff court district in which the child is habitually resident or, on cause shown, such other court as the sheriff may direct.
(1B)
The prescribed sections and form of appeal are—
(a)
in the case of an appeal under section 154(1) (appeal to sheriff against decision of children’s hearing), in Form 61;
(b)
in the case of an appeal under section 160(1) (appeal to sheriff against relevant person determination), in Form 62;
(c)
in the case of an appeal under section 161(1) (appeal to sheriff against decision affecting contact or permanence order), in Form 63;
(d)
in the case of an appeal under section 162(3) (appeal to sheriff against decision to implement secure accommodation authorisation), in Form 63A.
(2)
Subject to paragraph (3), the appeal shall be signed by the appellant or his representative.
(3)
An appeal by a child may be signed on his behalf by any safeguarder F116....
F117(4)
Where leave to appeal is required by virtue of section 159(2) of the 2011 Act, such application for leave shall be—
(a)
made by letter addressed to the sheriff clerk setting out the grounds on which the application is made;
(b)
accompanied by a copy of the decision referred to in section 159(2) of the 2011 Act;
(c)
lodged with the sheriff clerk with the relevant form of appeal.
(5)
On receipt of such application the sheriff clerk shall forthwith fix a hearing and intimate the application and the date of the hearing to the other parties to the proceedings.
(6)
Where leave to appeal is granted, the appeal will proceed in accordance with rule 3.54.
Appointment and intimation of first diet3.54
(1)
On the lodging of the appeal, the sheriff clerk shall forthwith assign a date for the hearing and shall at the same time intimate to the appellant or his representative and, together with a copy of the appeal, to–
(a)
the Principal Reporter;
(b)
subject to the provisions of paragraph (4), the child (if not the appellant);
(c)
F118any relevant person (if not the appellant);
(d)
any safeguarder F119...
(e)
any other person the sheriff F120considers necessary, including those referred to in section 155(5)(c) and (e) of the 2011 Act.
F121(f)
in the case of appeals under section 162(3), the chief social work officer of the relevant local authority for the child.
(2)
The sheriff clerk shall endorse on the appeal a certificate of execution of intimation under paragraph (1).
(3)
Intimation to a child in terms of paragraph (1)(b) shall be in Form 64.
(4)
The sheriff may dispense with intimation to a child in terms of paragraph (1)(b) where he considers that such dispensation is appropriate.
(5)
The date assigned for the hearing under paragraph (1) shall be F122within the time limits prescribed in, or by virtue of, the 2011 Act and in any event, no later than 28 days after the lodging of the appeal.
Answers3.55
F123(1)
Subject to paragraph (1A), if any person on whom service of the appeal has been made wishes to lodge answers to the appeal, he or she must do so not later than 7 days before the diet fixed for the hearing of the appeal.
(1A)
Paragraph (1) does not apply to those appeals referred to in section 157(1), 160(1), 161(1) or 162(3) of the 2011 Act.
(2)
Any person who has lodged answers shall forthwith intimate a copy thereof to any other person on whom service has been made under rule 3.54(1).
Procedure at hearing of appeal3.56
(1)
Before proceeding F124... to examine the Principal Reporter and the authors or compilers of any reports or statements, the sheriff shall hear the appellant or his representative and any party to the appeal.
(2)
On receipt of F125any further report required by the sheriff under or by virtue of the 2011 Act, the sheriff shall direct the Principal Reporter to send a copy of the report to every party to the appeal.
(3)
At any appeal the sheriff may hear evidence–
(a)
where a ground of the appeal is an alleged irregularity in the conduct of a hearing, as to that irregularity;
(b)
in any other circumstances where he considers it appropriate to do so.
(4)
Where the nature of the appeal or of any evidence is such that the sheriff is satisfied that it is in the interests of the child that he should not be present at any stage of the appeal, the sheriff may exclude the child from the hearing during that stage and, in that event, any safeguarder appointed and F126any relevant person or representative of the child shall be permitted to remain during the absence of the child.
(5)
Subject to paragraph (6), the sheriff may exclude F127any relevant person, or that person and any representative of his, or any such representative from any part or parts of the hearing for so long as he considers it is necessary in the interests of any child, where he is satisfied that–
(a)
he must do so in order to obtain the views of the child in relation to the hearing; or
(b)
the presence of the person or persons in question is causing, or is likely to cause, significant distress to the child.
(6)
Where F128any relevant person has been excluded under paragraph (5) the sheriff shall, after that exclusion has ended, explain to him the substance of what has taken place in his absence and shall give him an opportunity to respond to any evidence given by the child by leading evidence or otherwise.
(7)
Where an appeal has been heard in part and a safeguarder thereafter becomes a party to the appeal, the sheriff may order the hearing of the appeal to commence of new.
F129Adjournment or continuation of appeals3.57
F130(1)
The sheriff may, on the motion of any party or on his own motion, adjourn F131or continue the hearing of the appeal for such reasonable time and for such purpose as may in the circumstances be appropriate.
F132(2)
In the event of such adjournment or continuation the sheriff may make such order as the sheriff deems necessary to secure the expeditious determination of the appeal.
Decision of sheriff in appeals3.58
(1)
The sheriff shall give his decision orally either at the conclusion of the appeal or on such day as he shall appoint F133, subject to the provisions of, or by virtue of, the 2011 Act.
(2)
The sheriff may issue a note of the reasons for his decision, and shall require to do so where he F134takes any of the steps referred to in section 156(2) or (3) of the 2011 Act.
(3)
Any note in terms of paragraph (2) shall be issued at the time the sheriff gives his decision or within 7 days thereafter.
(4)
The sheriff clerk shall forthwith send a copy of the interlocutor containing the decision of the sheriff, and where appropriate of the note referred to in paragraph (2), to the Principal Reporter, to the appellant (and to the child or F135any relevant person, if not the appellant) F136, any safeguarder and such other persons as the sheriff may direct, and shall also return to the Principal Reporter any documents lodged F137with the sheriff clerk.
F138(5)
Where section 159 of the 2011 Act applies the sheriff clerk shall send a copy of the interlocutor containing the decision of the sheriff to the Scottish Legal Aid Board.
F139PART VIIIAAPPLICATIONS FOR REVIEW BY LOCAL AUTHORITY
Review applications by local authority3.58A.
(1)
This Part of Chapter 3 applies to applications to the sheriff for a review under section 166(2) of the 2011 Act.
(2)
An application shall be made in Form 64A and must contain—
(a)
the name and address of the local authority;
(b)
the name of the child in respect of whom the duty was imposed and the child’s representative (if any);
(c)
the name and address of any relevant person in relation to the child and such person’s representative (if any);
(d)
the name and address of any safeguarder;
(e)
the name and address of any curator ad litem;
(f)
the name and address of any other party to the application;
(g)
the name and address of any other local authority with an interest;
(h)
the date and determination made and the place of the sheriff court which made the determination, or alternatively the date and decision made by the children’s hearing;
(i)
the grounds for the making of the application;
(j)
any reports, affidavits and productions upon which the applicant intends to rely.
Hearing on application3.58B.
(1)
After lodging the application in terms of rule 3.58A, the sheriff clerk shall assign a date for hearing the application and shall issue a warrant to cite in Form 64B, which shall require any party to lodge answers if so advised within such time as the sheriff shall appoint.
(2)
Subject to the provisions of rule 3.3 (power to dispense with service on child), after the issue of the warrant to cite, the applicant shall forthwith give notice of the application by serving a copy and the warrant on the persons referred to in rule 3.58A.
(3)
At the hearing the sheriff may determine the application or allow such further procedure as the sheriff thinks fit.
(4)
The provisions of rule 3.51 shall apply to any order made under this Part.
F140PART VIIIBPROCEDURE IN APPEALS TO THE SHERIFF UNDER SECTION 44A OF THE CPSA 1995
Form of appeal3.58C.
(1)
An appeal to the sheriff under section 44A of the CPSA 1995 must be—
(a)
made in Form 64C;
(b)
accompanied by a copy of the decision complained of and any document relevant to it that was taken into account by the local authority when making that decision;
(c)
lodged with the sheriff clerk of the sheriff court district in which the child is habitually resident or, on cause shown, such other court as the sheriff may direct.
(2)
The appeal must be signed by the appellant or the appellant’s representative.
Appointment and intimation of appeal hearing3.58D.
(1)
On the lodging of an appeal, the sheriff clerk must—
(a)
assign a date for the hearing;
(b)
intimate the date of the hearing to the appellant or the appellant’s representative;
(c)
intimate the date of the hearing, together with a copy of the appeal, to the persons specified in paragraph (2).
(2)
Those persons are—
(a)
the child, unless the child is the appellant;
(b)
the chief social work officer of the appropriate local authority;
(c)
any relevant person, other than a relevant person who is the appellant;
(d)
any other person that the sheriff considers necessary.
(3)
The sheriff clerk must endorse a certificate of execution on the appeal.
(4)
Where an appeal is intimated to a child, that intimation must be in Form 64D.
(5)
The sheriff may dispense with intimation to a child if the sheriff considers it appropriate to do so.
Procedure at hearing of appeal3.58E.
(1)
At any appeal the sheriff may hear evidence where he or she considers it appropriate to do so.
(2)
The sheriff must hear the appellant or the appellant’s representative and any party to the appeal before examining—
(a)
the chief social work officer;
(b)
the authors or compilers of any reports or statements;
(c)
the Principal Reporter.
(3)
Where the nature of the appeal or of any evidence is such that the sheriff is satisfied that it is in the interests of the child not to be present at any stage of the appeal, the sheriff may exclude the child from the hearing during that stage.
(4)
Where the sheriff excludes a child, any relevant person or representative of the child will be permitted to remain during the child’s absence.
(5)
Where the sheriff is satisfied that—
(a)
it is necessary in order to obtain the views of the child in relation to the hearing; or
(b)
the presence of the person or persons in question is causing, or is likely to cause, significant distress to the child,
the sheriff may exclude the persons mentioned in paragraph (6) from the hearing for so long as the sheriff considers it necessary in the interests of the child.
(6)
Those persons are—
(a)
a relevant person;
(b)
any representative of a relevant person.
(7)
After the exclusion of any person under paragraph (5), the sheriff must—
(a)
explain the substance of what has taken place in that person’s absence;
(b)
give that person an opportunity to respond to any evidence given by the child by leading evidence or otherwise.
Adjournment or continuation of appeals3.58F.
(1)
The sheriff may adjourn or continue the hearing of the appeal on the motion of any party or on the sheriff’s own motion.
(2)
Where the sheriff adjourns or continues a hearing, the sheriff may make any order that is necessary to secure the expeditious determination of the appeal.
Decision of sheriff in appeals3.58G.
(1)
The sheriff must give his or her decision orally, either at the conclusion of the appeal or on such day as the sheriff may appoint.
(2)
The sheriff may issue a note of the reasons for his or her decision.
(3)
Any note in terms of paragraph (2) must be issued at the time the sheriff’s decision is given or within 7 days after the date of the decision.
(4)
The sheriff clerk must immediately send to the persons mentioned in paragraph (5)—
(a)
a copy of the interlocutor containing the sheriff’s decision;
(b)
where a note of reasons has been issued, a copy of that note.
(5)
Those persons are—
(a)
the appellant;
(b)
the child, unless the child is the appellant;
(c)
any relevant person, other than a relevant person who is the appellant;
(d)
any other person that the sheriff may direct.
(6)
The sheriff clerk must return to the Principal Reporter any documents that the Principal Reporter may have lodged with the sheriff clerk.
PART IXF141PROCEDURE IN APPEALS BY STATED CASE UNDER PART 15 OF THE 2011 ACT
F142Appeals: applications for stated case3.59
F143A1
This Part applies to appeals by stated case under section 163(1), 164(1), 165(1) and 167(1) of the 2011 Act.
F144(1)
(2)
The appellant shall, at the same time as lodging F147the application for a stated case, intimate the lodging of an appeal from the decision of the sheriff F148to –
F149(a)
the Principal Reporter;
(b)
the child (if not the appellant), except where service on the child has been dispensed with in terms of rule 3.3;
(c)
any relevant person (if not the appellant);
(d)
any safeguarder;
(e)
any other party to proceedings.
(3)
The sheriff shall, within F15021 days of the lodging of F151the application for a stated case, issue a draft stated case–
(a)
containing findings in fact and law or, where appropriate, a narrative of the proceedings before him;
(b)
containing appropriate questions of law or setting out the F152procedural irregularity concerned; and
(c)
containing a note stating the reasons for his decisions in law,
and the sheriff clerk shall send a copy of the draft stated case to the appellant and to parties referred to in paragraph (2).
(4)
Within 7 days of the issue of the draft stated case–
(a)
the appellant or a party referred to in paragraph (2) may lodge with the sheriff clerk a note of any adjustments which he seeks to make;
(b)
the appellant or such a party may state any point of law F153or procedural irregularity which he wishes to raise in the appeal; and
(c)
the note of adjustment and, where appropriate, point of law F153or procedural irregularity shall be intimated to the appellant and the other such parties.
(5)
The sheriff may, on the motion of the appellant or a party referred to in paragraph (2) or of his own accord, and shall where he proposes to reject any proposed adjustment, allow a hearing on adjustments and may provide for such further procedure under this rule prior to the hearing of the appeal as he thinks fit.
(6)
The sheriff shall, within 14 days after–
(a)
the latest date on which a note of adjustments has been or may be lodged; or
(b)
where there has been a hearing on adjustments, that hearing,
and after considering such note and any representations made to him at the hearing, state and sign the case.
(7)
The stated case signed by the sheriff shall include–
(a)
questions of law, framed by him, arising from the points of law stated by the parties and such other questions of law as he may consider appropriate;
(b)
any adjustments, proposed under paragraph (4), which are rejected by him;
(c)
a note of the F154procedural irregularity averred by the parties and any questions of law or other issue which he considers arise therefrom,
as the case may be.
F155(8)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F156(9)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(10)
The sheriff may, on an application by any party or of his own motion, reduce any of the periods mentioned in paragraph (3), (4) or (6) to such period or periods as he considers reasonable.
(11)
Where the sheriff is temporarily absent from duty for any reason, the sheriff principal may extend any period specified in paragraph (3) or (6) for such period or periods as he considers reasonable.
F157Lodging reports and information in appeals3.60.
Where, in an appeal–
(a)
(b)
the report or F158information has been returned to the Principal Reporter,
the sheriff may require the Principal Reporter to lodge the report or F158information with the sheriff clerk.
HearingF1603.61
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Leave of the sheriff principal to appeal to the Court of SessionF1613.61A.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
PART XF162APPLICATIONS FOR REVIEW OF GROUNDS DETERMINATION
F163Application3.62
(1)
An application under section 110 of the 2011 Act for a review of a grounds determination made in terms of section 108 of the 2011 Act (determination that grounds for referral established) shall contain—
(a)
the name and address of the applicant and his or her representative (if any);
(b)
the name and address (if known) of the person who is the subject of the grounds determination (even if that person is no longer a child), if not the applicant;
(c)
the name and address of the safeguarder (if any);
(d)
the name and address of the curator ad litem (if any);
(e)
the name and address of any person who is, or was at the time the grounds determination was made, a relevant person in relation to the child, if not the applicant;
(f)
the date and grounds determination made and the place of the sheriff court which made the grounds determination;
(g)
the grounds for the making of the application;
(h)
specification of the nature of evidence in terms of section 111(3) of the 2011 Act not considered by the sheriff who made the grounds determination;
(i)
the explanation for the failure to lead such evidence on the original application; and
(j)
any reports, affidavits and productions upon which the applicant intends to rely.
(2)
Where the applicant does not wish to disclose the address or whereabouts of the child or any other person to persons receiving notice of the application, the applicant shall set out his or her reasons for this.
Hearing on application3.63
F164(1)
Where an application has been lodged in terms of rule 3.62, the sheriff clerk shall—
(a)
assign a diet for hearing the application;
(b)
issue a warrant to cite in Form 65 requiring the Principal Reporter to lodge answers if so advised within such time as the sheriff shall appoint.
(2)
Subject to the provisions of rule 3.4 (service on child), after the issue of the warrant to cite, the applicant shall forthwith give notice of the application by serving a copy and the warrant on the persons named in rule 3.62 F165and such other persons as the sheriff directs.
F166(3)
After hearing parties and having considered the terms of section 111(3) of the 2011 Act and allowing such further procedure as the sheriff thinks fit to secure the expeditious determination of the application, the sheriff shall make an order as appropriate.
(4)
The provisions of rule 3.51 shall apply to any order made under paragraph (3).
Hearing to consider the evidenceF1673.64
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F168PART XAORDERS UNDER THE CHILDREN’S HEARINGS (SCOTLAND) ACT 2011
Interim compulsory supervision order3.64A.
(1)
Where a sheriff makes an interim compulsory supervision order under section 100, 109 or 156(3)(d) of the 2011 Act, such order shall be in Form 65A and, subject to rule 3.3, shall be intimated forthwith to the child by the Principal Reporter in Form 65B.
(2)
An application for the extension or extension and variation of an interim compulsory supervision order shall be made to the sheriff in Form 65C.
(3)
An application for the further extension or further extension and variation of an interim compulsory supervision order shall be made to the sheriff in Form 65D.
(4)
Subject to rule 3.3, an application under paragraph (2) or (3) must be intimated forthwith by the applicant to the child and each relevant person and such other persons as the sheriff determines and in such manner as the sheriff determines.
(5)
Where the sheriff grants an application under paragraph (2) or (3), the interlocutor shall state the terms of such extension or extension and variation and subject to rule 3.3, shall be intimated forthwith to the child by the Principal Reporter in Form 65B.
(6)
Subject to paragraphs (1) and (5), where the sheriff—
(a)
makes an interim compulsory supervision order under paragraph (1); or
(b)
grants an application under paragraph (2) or (3),
the Principal Reporter shall intimate the order forthwith to the implementation authority and to such other persons as the sheriff determines in Form 65E.
Compulsory supervision order3.64B.
Where a sheriff varies or continues a compulsory supervision order, the interlocutor shall state the terms of such variation or continuation and shall be intimated forthwith by the sheriff clerk to the parties and the relevant implementation authority.
Medical examination order3.64C.
Where a sheriff varies or continues a medical examination order, the interlocutor shall state the terms of such variation or continuation and shall be intimated forthwith by the sheriff clerk to the parties and the relevant local authority or establishment.
F169PART XIVULNERABLE WITNESSES (SCOTLAND) ACT 2004
Interpretation3.65.
In this Part–
“the Act of 2004” means the Vulnerable Witnesses (Scotland) Act 2004;
F170...
“child witness notice” has the meaning given in section 12(2) of the Act of 2004;
“review application” means an application for review of arrangements for vulnerable witnesses pursuant to section 13 of the Act of 2004.
F171“vulnerable witness application” has the meaning given in section 12(6)(a) of the Act of 2004”.
F172Extent of application of this Part3.66.
This Part of Chapter 3 shall apply to proceedings where—
(a)
an application is made to the sheriff under section 93(2)(a), 94(2)(a) or 110 of the 2011 Act;
(b)
an appeal is made to the sheriff under Part 15 of the 2011 Act; or
(c)
an appeal is made under section 44A of the CPSA 1995.
Child Witness Notice3.67.
A child witness notice lodged in accordance with section 12(2) of the Act of 2004 shall be in Form 75.
3.68.
(1)
The party lodging a child witness notice shall intimate a copy of the child witness notice to all other parties to the proceedings and to any safeguarder F173... and complete a certificate of intimation.
(2)
A certificate of intimation referred to in this rule shall be in Form 76 and shall be lodged together with the child witness notice.
3.69.
(1)
On receipt of a child witness notice, a sheriff may–
(a)
make an order under section 12(1) of the Act of 2004 without holding a hearing;
(b)
require of any of the parties further information before making any further order;
(c)
fix a date for a hearing of the child witness notice and grant warrant to cite witnesses and havers.
(2)
The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.
(3)
An order fixing a hearing for a child witness notice shall be intimated by the sheriff clerk–
(a)
on the day the order is made; and
(b)
in such manner as may be prescribed by the sheriff,
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
F174Vulnerable Witness Application3.69A.
A vulnerable witness application made in accordance with section 12(6)(a) of the Act of 2004 shall be in Form 76A.
3.69B.
(1)
The party making a vulnerable witness application shall intimate a copy of the vulnerable witness application to all other parties to the proceedings and to any safeguarder F175... and complete a certificate of intimation.
(2)
A certificate of intimation referred to in this rule shall be in Form 76B and shall be lodged together with the vulnerable witness application.
3.69C.
(1)
On receipt of a vulnerable witness application a sheriff may–
(a)
make an order under section 12(6) of the Act of 2004 without holding a hearing;
(b)
require of any of the parties further information before making any further order; or
(c)
fix a date for a hearing of the vulnerable witness application and grant warrant to cite witnesses and havers.
(2)
The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.
(3)
An order fixing a hearing for a vulnerable witness application shall be intimated by the sheriff clerk–
(a)
on the day the order is made; and
(b)
in such manner as may be prescribed by the sheriff,
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
Review of arrangements for vulnerable witnesses3.70.
(1)
A review application shall be in Form 77.
(2)
Where the review application is made during the sheriff’s hearing of the case, the sheriff may dispense with the requirements of paragraph (1).
3.71.
(1)
Where a review application is in Form 77, the applicant shall intimate a copy of the review application to all other parties to the proceedings and to any safeguarder F176... and complete a certificate of intimation.
(2)
A certificate of intimation referred to in this rule shall be in Form 78 and shall be lodged together with the review application.
3.72.
(1)
On receipt of a review application, a sheriff may–
(a)
if he is satisfied that he may properly do so, make an order under section 13(2) of the Act of 2004 without holding a hearing or, if he is not so satisfied, make such an order after giving the parties an opportunity to be heard;
(b)
require of any of the parties further information before making any further order;
(c)
fix a date for a hearing of the review application and grant warrant to cite witnesses and havers.
(2)
The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the F177witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.
(3)
An order fixing a hearing for a review application shall be intimated by the sheriff clerk–
(a)
on the day the order is made; and
(b)
in such manner as may be prescribed by the sheriff,
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
Determination of special measures3.73.
When making an order under section 12(1) F178,12(6) or 13(2) of the Act of 2004 a sheriff may, in light thereof, make such further orders as he deems appropriate in all the circumstances.
Intimation of an order under section 12(1) or 13(2)3.74.
An order under section 12(1) F179,12(6) or 13(2) of the Act of 2004 shall be intimated by the sheriff clerk–
(a)
on the day the order is made; and
(b)
in such manner as may be prescribed by the sheriff,
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
F180Lodging audio and audio-visual recordings and documents3.75.
(1)
(2)
On F183any audio or audio-visual recording and any documents being lodged the sheriff clerk shall–
(a)
note–
(i)
the documents lodged;
(ii)
by whom they were lodged; and
(iii)
the date on which they were lodged, and
(b)
intimate what he has noted to all parties concerned.
F184Custody of audio or audio-visual recordings and documents3.76.
(1)
F185The audio or audio-visual recording and documents referred to in rule 3.75 shall, subject to paragraph (2), be kept in the custody of the sheriff clerk.
(2)
Where F186the audio or audio-visual recording of the evidence of a witness is in the custody of the sheriff clerk under this rule and where intimation has been given to that effect under rule 3.75(2), the name and address of that witness and the record of his evidence shall be treated as being in the knowledge of the parties; and no party shall be required, notwithstanding any enactment to the contrary–
(a)
to include the name of that witness in any list of witnesses; or
(b)
to include the record of his evidence in any list of productions.
F187PART XIACASES INVOLVING SEXUAL BEHAVIOUR
Interpretation and application of this Part3.76A.
(1)
This Part of Chapter 3 applies to proceedings where—
(a)
an application is made to the sheriff under section 93(2)(a), 94(2)(a) or 110 of the 2011 Act or an appeal is made under Part 15 of the 2011 Act; and
(b)
the section 67 ground involves sexual behaviour engaged in by any person.
(2)
In the case of relevant appeals the provisions of sections 173 to 175 of the 2011 Act shall be deemed to apply as they apply to applications.
(3)
The evidence referred to in section 173(2) of the 2011 Act may be in writing or take the form of an audio or audio-visual recording.
(4)
In this Part an “admission application” means an application to the sheriff for an order as to evidence pursuant to section 175(1) of the 2011 Act.
Application for admission of restricted evidence3.77.
(1)
An admission application shall be in Form 79.
(2)
Where an admission application is made during the sheriff’s hearing of the case, the sheriff may dispense with the requirements of paragraph (1).
3.78.
(1)
(2)
A certificate of intimation referred to in this rule shall be in Form 80 and shall be lodged together with the admission application.
3.79.
(1)
On receipt of an admission application, a sheriff may–
F190(a)
grant the admission application in whole or in part;
(b)
require of any of the parties further information before making any further order;
(c)
fix a date for a hearing of the admission application and grant warrant to cite witnesses and havers.
(2)
The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing to which the admission application relates and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.
(3)
An order fixing a hearing for an admission application shall be intimated by the sheriff clerk–
(a)
on the day the order is made; and
(b)
in such manner as may be prescribed by the sheriff,
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
3.80.
(1)
When making an order pursuant to rule 3.79(1)(a) a sheriff may, in light thereof, make such further orders as he deems appropriate in all the circumstances.
3.81.
(1)
An order made pursuant to rule 3.79(1)(a) shall be intimated by the sheriff clerk–
(a)
on the day the order is made; and
(b)
in such manner as may be prescribed by the sheriff,
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
F191Lodging restricted evidence3.81A.
(1)
Where the sheriff makes an order under section 175(1)(or (c) of the 2011 Act, the applicant shall lodge any relevant recording and documents with the sheriff clerk.
(2)
On the recording and documents being lodged the sheriff clerk shall—
(a)
note—
(i)
the evidence lodged;
(ii)
by whom they were lodged;
(iii)
the date on which they were lodged; and
(b)
intimate what he or she has noted to all parties concerned.
(3)
The recording and documents referred to in paragraph (1) shall, subject to paragraph (4), be kept in the custody of the sheriff clerk.
(4)
Where the recording of the evidence of a witness is in the custody of the sheriff clerk under this rule and where intimation has been given to that effect under paragraph (2), the name and address of that witness and the record of his or her evidence shall be treated as being in the knowledge of the parties; and no party shall be required, notwithstanding any enactment to the contrary—
(a)
to include the name of that witness in any list of witnesses; or
(b)
to include the record of his or her evidence in any list of productions.
CHAPTER 4REGISTRATION OF CHILD CUSTODY ORDERS
Interpretation4.1
In this Chapter, unless the context otherwise requires–
“appropriate court” means the High Court in England and Wales or the High Court in Northern Ireland or, in relation to a specified dependant territory, the corresponding court of that territory, as the case may be;
“appropriate register” means the sheriff court book in which there is registered the action in which the Part I order was made;
“proper officer” means the Secretary of the Principal Registry of the Family Division of the High Court in England and Wales or the Master (Care and Protection) of the High Court in Northern Ireland or, in relation to a specified dependent territory, the corresponding officer of the appropriate court in that territory, as the case may be; and
“specified dependent territory” means a territory specified in column 1 of Schedule 1 to the Family Law Act 1986 (Dependent Territories) Order 1991.
Applications for registration of Part I order in another court4.2
(1)
An application under section 27 of the Act (registration) to register a Part I order made by a sheriff court in an appropriate court shall be made by letter to the sheriff clerk of the court in which the order was made.
(2)
An application under paragraph (1) of this rule shall be accompanied by–
(a)
a copy of the letter of application;
(b)
an affidavit by the applicant;
(c)
a copy of that affidavit;
(d)
a certified copy of the interlocutor making the Part I order and any variation thereto which is still in force; and
(e)
any other document relevant to the application together with a copy of it.
(3)
The affidavit required under this rule shall set out–
(a)
the name and address of the applicant and his right under the Part I order;
(b)
the name and date of birth of the child in respect of whom the Part I order was made, the present whereabouts or suspected whereabouts of the child and the name of any person with whom he is alleged to be;
(c)
the name and address of any other person who has an interest in the Part I order;
(d)
the appropriate court in which it is sought to register the Part I order;
(e)
whether the Part I order is in force;
(f)
whether the Part I order is already registered and, if so, where it is registered; and
(g)
details of any order known to the applicant which affects the child and is in force in the jurisdiction in which the Part I order is to be registered.
Transmission of application for registration4.3
(1)
Unless it appears to the court that the Part I order is no longer in force, the sheriff clerk shall send the documents mentioned in section 27(3) of the Act to the proper officer of the court in which the Part I order is to be registered.
(2)
For the purposes of section 27(3) of the Act the prescribed particulars of any variation of a Part I order which is in force shall be a certified copy of the interlocutor making any such variation.
(3)
On sending an application under paragraph (1) of this rule, the sheriff clerk shall record the date and particulars of the application and the Part I order in the appropriate register.
(4)
On receiving notification from the appropriate court that the Part I order has been registered in that court under section 27(4) of the Act, the sheriff clerk shall record the date of registration in the appropriate register.
Notification of refusal of application4.4
Where the court refuses to send an application under rule 4.2 to the appropriate court on the ground that the Part I order is no longer in force, the sheriff clerk shall notify the applicant in writing of the court’s decision.
Retention of application and related documents4.5
The sheriff clerk shall retain the letter of application under rule 4.2 together with any documents which accompanied it and which are not transmitted to the appropriate court under section 27(3) of the Act.
Cancellation or variation of registered Part I order4.6
(1)
Where the court revokes, recalls or varies a Part I order which it has made and which has been registered under section 27(4) of the Act, the sheriff clerk shall–
(a)
send a certified copy of the appropriate interlocutor to the proper officer of the court in which the Part I order is registered;
(b)
record the transmission of the certified copy in the appropriate register; and
(c)
record the revocation, recall or variation in the appropriate register.
(2)
On receiving notification from the court in which the Part I order is registered that the revocation, recall or variation has been recorded, the sheriff clerk shall record that fact in the appropriate register.
CHAPTER 5MAINTENANCE ORDERS
PART IGENERAL
Interpretation5.1
In this Chapter, unless the context otherwise requires–
F192“2011 Regulations” means the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011;
F193“2012 Regulations” means the International Recovery of Maintenance (Hague Convention 2007) (Scotland) Regulations 2012;
“clerk of court” means the clerk to the magistrates' court in England or Northern Ireland and, in relation to a county court in England or Northern Ireland, means the registrar of that court;
“clerk of the magistrates' court” means the clerk to the magistrates' court in England or Northern Ireland as the case may be;
F193“Contracting State” means a State bound by the Convention other than an EU Member State;
F193“the Convention” means the Convention on the International Recovery of Child Support and other forms of Family Maintenance done at The Hague on 23rd November 2007;
F193“Convention Maintenance Decision” means a decision, or part of a decision, to which Chapter V of the Convention applies by virtue of Article 19(1) made by—
(a)
a court in a Contracting State; or
(b)
a sheriff;
“Court in a Hague Convention Country” includes any judicial or administrative authority in a Hague Convention Country;
F194...
F195...
“Hague Convention Country” F196means a country or territory specified in Schedule 1 to the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1993;
F192“Maintenance Decision” has the meaning given to “decision” by Article 2(1) of the Maintenance Regulation;
F192“Maintenance Regulation” means Council Regulation (EC) No 4/2009 of 18th December 2008 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark;
F192“Maintenance Regulation State” in the application of any provision in relation to the Maintenance Regulation, refers to any of the Member States;
“order” includes decree;
“reciprocating country” has the meaning assigned to it by section 1 of the 1972 Act; F197...
“the Registrar”, in relation to the High Court in England, means the Senior Registrar of the principal Registry of the Family Division of the High Court in England F198; and
F194...
Application5.2
(1)
Part II of this Chapter shall have effect in relation to the registration in other parts of the United Kingdom of orders granted by the sheriff to which the 1950 and 1958 Acts apply and such orders are referred to in this Chapter as “outgoing orders under the 1950 Act”.
(2)
Part III of this Chapter shall have effect in relation to the registration outwith the United Kingdom of orders to which the 1972 Act, or the 1972 Act as amended by any order in Council made under Part III of the 1972 Act, applies and such orders are referred to as “outgoing orders under the 1972 Act”.
(3)
Part IV of this Chapter shall have effect in relation to the registration in the sheriff court of orders made by courts in other parts of the United Kingdom to which the 1950 Act applies and such orders are referred to in this Chapter as “incoming orders under the 1950 Act”.
(4)
Part V of this Chapter shall have effect in relation to the registration in the sheriff court of orders made by courts outwith the United Kingdom to which the 1972 Act, or the 1972 Act as amended by any Order in Council made under Part III of the 1972 Act, applies and such orders are referred to in this Chapter as “incoming orders under the 1972 Act”.
(5)
Part VI of this Chapter shall have effect in relation to the registration in the sheriff court of orders made by courts outwith the United Kingdom to which the 1982 Act applies and such orders are referred to in this Chapter as “incoming orders under the 1982 Act”.
F199(6)
Part VII of this Chapter shall have effect in relation to a Maintenance Decision.
(7)
Part VIII of this Chapter shall have effect only in relation to—
(a)
a Maintenance Decision made by a court in Denmark; and
(b)
a Maintenance Decision to which sections 2 and 3 of Chapter IV of the Maintenance Regulation apply by virtue of Article 75(2)(a) or (b) of that Regulation.
F200(8)
Part IX of this Chapter shall have effect in relation to a Convention Maintenance Decision.
Prescribed officer5.3
(1)
The sheriff clerk shall be–
(a)
the prescribed officer for the purposes of the 1950, 1958 and 1972 Acts, the 1972 Act as amended by any Order in Council, F201the 1982 Act and the 2011 Regulations; and
(b)
the proper officer for the purposes of Schedules 6 and 7 to the 1982 Act (enforcement of U.K. judgments).
(2)
Unless otherwise provided, all communications which the prescribed officer is required to send to–
(a)
an addressee in the United Kingdom shall be sent by first class recorded delivery post; and
(b)
an addressee outwith the United Kingdom shall be sent registered letter or the nearest equivalent which the available postal service permits.
Maintenance Orders Register5.4
(1)
The sheriff clerk shall maintain a Register called “the Maintenance Orders Register” for the purpose of the 1950, 1958 and 1972 Acts, the 1972 Act as amended by any Order in Council, F202the 1982 Act F203, the Maintenance Regulation and the 2012 Regulations, Part I of which shall relate to outgoing orders and Part II to incoming orders.
(2)
The sheriff clerk shall make appropriate entries in the Maintenance Orders Register in respect of any action taken by him or notified to him in accordance with F204the relevant provisions, and shall keep in such manner as he considers appropriate any documents sent to him in connection with any such action.
(3)
Every entry registering a maintenance order shall specify F205the relevant provision including and where appropriate any Order in Council under which the maintenance order in question is registered.
(4)
When a registered maintenance order is varied, revoked or cancelled, the sheriff clerk shall make an appropriate entry against the entry for the original order.
Inspection5.5
(1)
The sheriff clerk shall, on an application by–
(a)
any person entitled to, or liable to make, payments under an order in respect of which any entry has been made in the Maintenance Orders Register; or
(b)
a solicitor acting on behalf of any such person,
permit that person or his solicitor, as the case may be, to inspect any such entry and any document in his possession relating to that entry and to take copies of any such entry or document.
(2)
On an application by or on behalf of any other person, the sheriff clerk may, on being satisfied of that person’s interest, grant that person or his solicitor permission to inspect or take copies of any such entry or document.
PART IIOUTGOING ORDERS UNDER THE 1950 ACT
Commencement of proceedings5.6
(1)
Every writ by which proceedings are begun in a sheriff court having jurisdiction under or by virtue of Part I of the 1950 Act against a person residing in another part of the United Kingdom, and all parts of process (other than productions) lodged in any proceedings taken in a sheriff court under or by virtue of the 1950 Act or the 1958 Act, shall be headed “Maintenance Orders Act 1950” or as the case may be “Maintenance Orders Act 1958”.
(2)
The warrant of citation granted upon any writ which by virtue of those Acts is to be served upon a person residing in another part of the United Kingdom shall proceed upon a period of notice of 21 days, and such warrant of citation may be signed by the sheriff clerk.
(3)
In connection with the service under section 15 of the 1950 Act (service of process) of a writ from a sheriff court the expressions “initial writ”, “writ” and “summons” in the said section and in the forms contained in the Second Schedule to that Act shall include the warrant of citation relative thereto.
Application for registration5.7
(1)
An application for registration in a magistrates' court in England or Northern Ireland of an order granted by a sheriff court to which the 1950 Act applies shall be made by lodging with the sheriff clerk–
(a)
a letter of application;
(b)
an affidavit by the applicant;
(c)
a copy of that affidavit; and
(d)
a certified copy of the order.
(2)
An affidavit under this rule shall include–
(a)
the name and address of the person liable to make payments under the order;
(b)
details of any arrears due under the order and the date to which they are calculated;
(c)
the reason for the application; and
(d)
a statement that the order is not already registered under the 1950 Act.
Transmission5.8
On the grant of an application under rule 5.7, the sheriff clerk shall send to the clerk of the magistrates' court–
(a)
the affidavit of the applicant;
(b)
the certified copy of the order; and
(c)
a letter requesting registration of the order.
Application to adduce evidence5.9
(1)
An application to a sheriff court under section 22(5) of the 1950 Act to adduce evidence in connection with an order granted by that court and registered in a court in England or Northern Ireland shall be made by initial writ.
(2)
Any evidence adduced in pursuance of such an application shall be recorded in such manner as the sheriff shall direct and the record of evidence certified by the sheriff shall be the transcript or summary of the evidence adduced, and shall be signed by the deponent, together with any documentary productions referred to therein.
(3)
Where the sheriff clerk of a court in which an order was granted receives a transcript or summary of evidence connected with that order adduced, under section 22(5) of the 1950 Act, in the court where the order was registered, he shall lodge such transcript or summary in the process containing that order.
Re-registration in the High Court5.10
(1)
When an order has been registered in the magistrates' court, an application to the sheriff court for the re-registration of that order in the High Court in England under the 1958 Act shall be made by lodging with the sheriff clerk–
(a)
a letter of application;
(b)
an affidavit by the applicant;
(c)
a certified copy of that affidavit; and
(d)
a certified copy of the order.
(2)
An affidavit under this rule shall include–
(a)
the name and address of the person liable to make payments under the order;
(b)
details of any arrears due under the order and the date to which they are calculated;
(c)
the reason for the application;
(d)
the date and place of the original registration;
(e)
where the order has been re-registered, the date and place of the last re-registration and whether or not that has been cancelled, or where any of these facts is not known a statement to that effect; and
(f)
a declaration that no process remains in force for the enforcement of the registered order.
Transmission for re-registration5.11
If an application under rule 5.10 is granted, the sheriff clerk shall send to the Registrar–
(a)
the affidavit of the applicant; and
(b)
a letter stating that the application has been granted and requesting him to take steps to have the order registered in the High Court.
Discharge and variation5.12
Where an interlocutor is pronounced in the sheriff court varying or discharging an order registered under the 1950 Act or the 1958 Act, the sheriff clerk shall send to the clerk of the magistrates' court and, as the case may be, to the Registrar–
(a)
a certified copy of the interlocutor; and
(b)
a letter requesting the clerk of the magistrates' court and, as the case may be, the Registrar to take the appropriate action under those Acts, in accordance with the interlocutor, and to notify him of the result.
Cancellation of registration5.13
(1)
(2)
Where it appears to the sheriff clerk that the applicant has ceased to reside in England or Northern Ireland, as the case may be, the sheriff clerk shall send notice to that effect to the clerk of the magistrates' court and the Registrar, as the case may be, of any court in which the order is registered.
PART IIIOUTGOING ORDERS UNDER THE 1972 ACT
Application for transmission of order for enforcement in a reciprocating country5.14
(1)
An application for the transmission of a maintenance order for enforcement in a reciprocating country shall be made by letter addressed to the sheriff clerk.
(2)
There shall be lodged with any such application–
(a)
a certified copy of the relevant order;
(b)
a statement signed by the applicant or his solicitor of any arrears outstanding in respect of the order;
(c)
a statement signed by the applicant or his solicitor giving such information as to the whereabouts of the payer as he possesses;
(d)
a statement signed by the applicant or his solicitor giving such information as the applicant possesses for facilitating the identification of the payer;
(e)
where available, a photograph of the payer.
Application for transmission of order for enforcement in the Republic of IrelandF2065.15
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Application for transmission of order to Hague Convention Country5.16
(1)
An application for the transmission of a maintenance order to a Court in a Hague Convention Country for registration and enforcement shall be made by letter addressed to the sheriff clerk.
(2)
There shall be lodged with any such application–
(a)
a certified copy of the relevant order;
(b)
a statement signed by the applicant or his solicitor of any arrears outstanding in respect of that order;
(c)
a statement signed by the applicant or his solicitor giving such information as to the whereabouts of the payer as he possesses;
(d)
a statement signed by the applicant or his solicitor giving such information as the applicant possesses for facilitating the identification of the payer;
(e)
where available, a photograph of the payer;
(f)
a statement signed by the applicant or his solicitor which establishes that notice of the order was sent to the payer;
(g)
if the payee received legal aid in the proceedings, a statement to that effect; and
(h)
if the payer did not appear in the proceedings in which the maintenance order was made, the original or a certified true copy of a document which establishes that notice of the institution of the proceedings was served on the payer.
F207Application for transmission of order for enforcement F208... in the USA5.16A.
(1)
(2)
There shall be lodged with any such application–
(a)
three certified copies of the maintenance order;
(b)
a certificate of arrears signed by the applicant or his solicitor;
(c)
a sworn statement signed by the payee–
(i)
giving the address of the payee;
(ii)
giving such information as is known as to the whereabouts of the payer; and
(iii)
giving a description, so far as is known, of the nature and location of any assets of the payer available for execution; and
(d)
a statement signed by the applicant giving such information as the applicant possesses for facilitating the identification of the payer including a photograph if available.
Service on defender in Hague Convention Country5.17
F210Service of notice of proceedings on payer residing in USA5.17A.
Where service of a document is executed in accordance with section 5(4)(a) of the 1972 Act as applied to the United States of America, the Scottish Ministers shall obtain and lodge with the sheriff clerk a certificate by a person who is conversant with the law of the United States of America and who practises or who has practised law in that country or is a duly accredited representative of the Government of the United States of America, stating that the method of service employed is in accordance with the law of the place where service was executed.
Provisional order made with a view to transmission to a reciprocating country5.18
A certificate signed by the sheriff clerk in terms of section 3(5)(c) of the 1972 Act (certificate of grounds), as read with section 4(6) thereof, shall also be signed by the sheriff.
Evidence adduced prior to confirmation of provisional order5.19
(1)
Where under section 5(9) of the 1972 Act it appears to the sheriff that a provisional order ought not to have been made, the sheriff clerk shall send by first class recorded delivery a notice on Form 66 to the person on whose application the order was made.
(2)
Where such a person wishes to make representations, he shall lodge with the sheriff clerk within 21 days of the date of posting of the notice a minute narrating the representations and the further evidence which he intends to adduce.
(3)
On the expiry of the period of 21 days, the cause shall be enrolled before the sheriff who shall appoint a diet for the hearing of further evidence or make such other order as may be appropriate.
Provisions in relation to intimation and entering appearance5.20
(1)
Where the 1972 Act provides that on intimation to a payee of the receipt by the Court of a provisional order the payee is to enter appearance within a prescribed period, intimation shall be given in Form 67 and the period shall be–
(a)
21 days from the date of posting where the payee is resident in Europe; and
(b)
42 days from the date of posting where the payee is resident outside Europe.
(2)
To enter appearance in terms of section 5(6) of the 1972 Act, the payee shall lodge an application–
(a)
stating that he opposes confirmation of the order; and
(b)
setting forth averments in answer to the case upon which the provisional order was made, supported by the appropriate pleas-in-law.
(3)
Where the payee enters appearance in terms of section 5(6) of the 1972 Act, the sheriff shall appoint a diet for the hearing of evidence or make such other order as may be appropriate to enable the court to proceed in accordance with the procedure and practice in ordinary civil proceedings in the sheriff court as if the application for the variation or revocation of the maintenance order had been made to it.
Authentication of documents5.21
Where the 1972 Act provides that a document is to be authenticated in a prescribed manner, it shall be authenticated by a certificate signed by the sheriff clerk declaring that the document is authentic.
Application under section 4 or 5 of the 1972 Act5.22
F212Representations or evidence by payer residing in the USA5.22A.
(1)
Where notices are provided in accordance with section 5(4) of the 1972 Act as applied to the United States of America, the sheriff clerk shall notify the recipients of the notices that if the payer wishes the court in Scotland to take into account any representations made by him or any evidence adduced by him or on his behalf, then such representations or evidence must be lodged with the sheriff clerk not later than 21 days before the date fixed for the hearing.
(2)
Where such representations are lodged, or such evidence is lodged, the sheriff clerk shall serve a copy of the representations or evidence–
(a)
where the payee is represented by a solicitor, on that solicitor, by–
(i)
personal delivery;
(ii)
facsimile transmission;
(iii)
first class ordinary post; or
(iv)
delivery to a document exchange; and
(b)
where the payee is not represented by a solicitor, on the payee, by any of the methods of service provided for in Chapter 5 of the Ordinary Cause Rules (citation, service and intimation).
Application by payer residing in the USA for variation or revocation of order5.22B.
(1)
Where an application is made in accordance with section 5(6) of the 1972 Act as applied to the United States of America, the sheriff clerk shall give notice of institution of the proceedings, including notice of the substance of the application, in accordance with subparagraph (2) or (3).
(2)
Where the payee is represented by a solicitor, the document referred to in subparagraph (1) shall be served on that solicitor by–
(a)
personal delivery;
(b)
facsimile transmission;
(c)
first class ordinary post; or
(d)
delivery to a document exchange.
(3)
Where the payee is not represented by a solicitor, the document referred to in subparagraph (1) shall be served on the payee by any of the methods of service provided for in Chapter 5 of the Ordinary Cause Rules (citation, service and intimation).
Evidence5.23
(1)
Where any request to take evidence is made by or on behalf of a court in terms of section 14 of the 1972 Act, or the Act as amended by any Order in Council made under Part III of that Act, or by the Secretary of State in terms of section 38 thereof, such evidence shall be taken before a sheriff of the sheriffdom in which the witness resides and shall be taken down by a shorthand writer, or where the sheriff so directs, by the sheriff, and the extended notes of evidence certified by the sheriff shall be the notes of the evidence taken.
(2)
Where a provisional order is made under section 4 or 5 of the 1972 Act and evidence has been taken by a shorthand writer, the applicant or his solicitor shall provide the sheriff clerk with a copy of the extended notes of evidence.
PART IVINCOMING ORDERS UNDER THE 1950 ACT
Registration5.24
(1)
On receiving a certified copy of a maintenance order made by a court in England or Northern Ireland, the sheriff clerk shall–
(a)
retain any certificate or affidavit sent with the certified copy of the order as to the amount of any arrears due under the order;
(b)
endorse on the certified copy order a declaration in Form 68 and retain such certified copy order and declaration; and
(c)
notify the clerk of the court which made the order that it has been registered.
(2)
The sheriff clerk may issue an extract of the order with the declaration thereon, and such extract shall have the same force and effect as, and may be enforced in all respects as if it was, an extract decree of the sheriff court in which the certified copy is registered.
Variation of rate of payment5.25
Application to adduce evidence5.26
(1)
An application to a sheriff court under section 22(5) of the 1950 Act to adduce evidence in connection with a maintenance order made by a court in England or Northern Ireland and registered in that sheriff court shall be made by initial writ.
(2)
Any evidence adduced in pursuance of such an application shall be recorded in such manner as the sheriff shall direct and the record of evidence certified by the sheriff shall be the transcript or summary of the evidence adduced.
(3)
Where the sheriff clerk of a court in which an order is registered receives a transcript or summary of evidence connected with that order adduced under section 22(5) of the 1950 Act in the court where that order was made, he shall lodge such transcript or summary in the process of any proceedings for variation of the order before the sheriff court.
Discharge and variation5.27
(1)
Where a maintenance order made by a court in England or Northern Ireland and registered under the 1950 Act in a sheriff court is varied by that sheriff court, the sheriff clerk shall give notice of the variation to the clerk of the court by which the order was made by sending him a certified copy of the interlocutor varying the order.
(2)
Where a maintenance order made by a court in England or Northern Ireland and registered in a sheriff court is discharged or varied by any court other than that sheriff court, the sheriff clerk shall on receipt of a certified copy of the order discharging or varying the registered order notify the clerk of the appropriate court that the discharge or variation has been entered in the Maintenance Orders Register.
(3)
Paragraphs (1)(a) and (b) and (2) of rule 5.24 shall apply to an order varying a registered order as they apply to the registered order.
Cancellation of registration5.28
(1)
An application under section 24(1) of the 1950 Act for the cancellation of the registration of a maintenance order made by a court in England or Northern Ireland and registered in a sheriff court shall be made by lodging with the sheriff clerk–
(a)
an application for that purpose which shall state the date of the registration of the order; and
(b)
a copy of the order the registration of which is sought to be cancelled.
(2)
Where under section 24(1) or (2) of the 1950 Act the sheriff clerk cancels the registration of a maintenance order, he shall–
(a)
notify the clerk of the court by which the order was made; and
(b)
notify the person liable to make payments under the order.
PART VINCOMING ORDERS UNDER THE 1972 ACT
Provisions in relation to intimation and entering appearance5.29
(1)
Where the 1972 Act provides that on intimation to a payer of the receipt by the court of a provisional order the payer is to enter appearance within a prescribed period, intimation shall be given in Form 67 and the period shall be–
(a)
21 days from the date of posting where the payer is resident in Europe; and
(b)
42 days from the date of posting where the payer is resident outside Europe.
(2)
To enter appearance in terms of section 7(4) or 9(7) of the 1972 Act, the payer shall lodge an application–
(a)
stating that he opposes confirmation of the order; and
(b)
setting forth averments in answer to the case upon which the provisional order was made, supported by appropriate pleas-in-law.
(3)
Where the payer enters appearance in terms of section 7(4) of the 1972 Act, the sheriff shall appoint a diet for the hearing of evidence or make such other order as may be appropriate to enable the court to proceed in accordance with the procedure and practice in ordinary civil proceedings in the sheriff court as if an application for a maintenance order against the payer had been made to it.
(4)
Where the payer enters appearance in terms of section 9(7) of the 1972 Act, the sheriff shall appoint a diet for the hearing of evidence or make such other order as may be appropriate to enable the court to proceed in accordance with the procedure and practice in ordinary civil proceedings in the sheriff court as if an application for the variation of the maintenance order had been made to it.
Authentication of documents5.30
Where the 1972 Act provides that a document is to be authenticated in a prescribed manner, it shall be authenticated by a certificate signed by the sheriff clerk declaring that the document is authentic.
Application under sections 9 and 20 of the 1972 Act5.31
(1)
(2)
An application under section 20 of the 1972 Act (restriction on enforcement of arrears) for leave to enforce the payment of any arrears due under a maintenance order registered in Scotland shall be made by lodging a minute in the process.
Information to be provided where payer has ceased to reside in Scotland5.32
(1)
(2)
Where the sheriff clerk is required in terms of section 32(1) of the 1972 Act (transfer of orders) to send to the Secretary of State the related documents specified in section 32(8) of that Act, the payee or his solicitor shall provide the sheriff clerk so far as possible with information to enable the sheriff clerk to prepare the certificate and statement to be included among those documents.
Evidence5.33
Where a provisional order is made under section 9 of the 1972 Act and evidence has been taken by a shorthand writer, the applicant or his solicitor shall provide the sheriff clerk with a copy of the extended notes of evidence.
Intimation of registration of, or of decision not to register, an order made in the Republic of IrelandF2135.34
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Application to set aside registration of, or to set aside decision not to register, an order made in the Republic of IrelandF2145.35
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Intimation of registration of, or refusal to register, an order made in a Hague Convention Country5.36
(1)
Intimation of the registration of a maintenance order in terms of section 6 of the 1972 Act as applied to an order made in a Hague Convention Country shall be given by the sheriff clerk–
(a)
to the payer, by sending an intimation in Form 72; and
(b)
to the payee, by sending a notice in Form 70.
(2)
Notice of a refusal to register a maintenance order on any of the grounds set out in section 6(5), (6) or (7) of the 1972 Act as applied to an order made in a Hague Convention Country shall be given by the sheriff clerk to the payee, by sending a notice in Form 71.
Application to set aside registration of, or to set aside decision not to register, an order made in a Hague Convention Country5.37
PART VIINCOMING ORDERS UNDER THE 1982 ACT
F215Applications under section 5A of the 1982 Act5.38
(1)
F216Applications under F217section 5A of the 1982 Act shall be in writing addressed to F218the Scottish Ministers, signed by the applicant, or a solicitor or professional person qualified to act in such matters in the Contracting State of origin on his behalf, and shall specify–
(a)
an address within Scotland for service on the applicant;
(b)
the usual and last known address of the person against whom judgement was granted;
(c)
the place where the applicant seeks to enforce the judgement;
(d)
whether at the date of the application the judgement has been satisfied in whole or in part;
(e)
whether interest is recoverable under the judgement in accordance with the law of the country in which it was granted and, if so, the rate of interest and the date from which interest became due; and
(f)
whether the time for bringing an appeal against the judgement has expired without an appeal having been brought or whether an appeal has been brought against the judgement and is pending or has been finally disposed of.
(2)
An application under paragraph (1) shall be accompanied by–
(a)
a copy of the judgement authenticated by the court which made the order;
(b)
documents which establish that, according to the law of the country in which the judgement has been given, the judgement is enforceable and has been served;
(c)
in the case of a judgement given in default, documents which establish that the party in default was served with the documents instituting the proceedings;
(d)
where appropriate, a document showing that the applicant is in receipt of legal aid in the country in which the judgement was given; and
(e)
where the judgement or any of the documents specified in sub-paragraphs (b) to (d) are in a language other than English, a translation into English certified by a person qualified to do so in one of the Contracting States.
(3)
Where the applicant does not produce a document required under paragraph (2)(c) or (d), the sheriff clerk may–
(a)
fix a time within which the document is to be produced;
(b)
accept an equivalent document; or
(c)
dispense with production of the document.
Address of applicant’s solicitor for service5.39
Where the sheriff clerk is informed by a solicitor practising in Scotland that he is acting on behalf of the applicant, the business address of the solicitor shall thereafter be treated as the address for service on the applicant.
Notice of determination of application5.40
Immediately after determination of an application for the recognition or enforcement of an order, the sheriff clerk shall serve, in accordance with the Ordinary Cause Rules so far as not inconsistent with the terms of this Chapter, a notice in Form 73 on the applicant and on the person against whom enforcement is sought.
Appeal by party against whom enforcement is authorised5.41
(1)
Where enforcement of a maintenance order is authorised to any extent, the party against whom enforcement is authorised may appeal by way of summary application to the sheriff against the decision of the sheriff clerk–
(a)
within one month from the date of service of the notice under rule 5.40; or
(b)
if the person against whom enforcement is sought is domiciled in a Contracting State other than the United Kingdom, within two months from the date of service of such notice.
(2)
The determination of the sheriff of such a summary application shall be subject to a final appeal on a point of law to the Inner House of the Court of Session in accordance with the Ordinary Cause Rules.
Appeal by applicant5.42
(1)
Where the application for enforcement of a maintenance order is refused, the applicant may appeal by way of summary application to the sheriff within one month from the date of service of the notice under rule 5.40.
(2)
The determination of the sheriff of such a summary application shall be subject to a final appeal on a point of law to the Inner House of the Court of Session in accordance with the Ordinary Cause Rules.
Enforcement of registered order5.43
F221PART VIIMAINTENANCE DECISIONS UNDER THE MAINTENANCE REGULATION
Application for transmission of a Maintenance Decision to another Maintenance Regulation State5.44.
(1)
This rule applies to applications under Article 40 of the Maintenance Regulation to enforce a Maintenance Decision of a sheriff in another Maintenance Regulation State.
(2)
On receipt of an application in the form of a letter, the sheriff clerk will provide the applicant with a certified copy of the Maintenance Decision and a completed extract from the decision in the form of Annex I or II to the Maintenance Regulation as the case may be.
(3)
The letter must be addressed to the sheriff clerk and must include—
(a)
the name and National Insurance number (if known) of the parties to the proceedings;
(b)
the date, or approximate date, of the proceedings in which the Maintenance Decision was made and the nature of those proceedings;
(c)
the Maintenance Regulation State in which the application for recognition or enforcement has been made or is to be made; and
(d)
the postal address of the applicant.
Enforcement of a Maintenance Decision made by a court in a Maintenance Regulation State other than Denmark5.45.
The “enforcing court” under paragraph 4(2) of Schedule 1 to the 2011 Regulations, means the sheriff court having jurisdiction in the matter in accordance with Schedule 8 to the 1982 Act.
PART VIIIRECOGNITION AND ENFORCEMENT OF MAINTENANCE DECISIONS MADE BY COURTS IN DENMARK ETC.
Recognition and enforcement of a Maintenance Decision made in Denmark etc.5.46.
The “registering court” under paragraph 6(2) of Schedule 1 to the 2011 Regulations, means the sheriff court having jurisdiction in the matter in accordance with Schedule 8 to the 1982 Act.
Intimation of registration of, or refusal to register, a Maintenance Decision made in Denmark etc.5.47.
(1)
Intimation of the registration of a Maintenance Decision in accordance with Article 31 of the Maintenance Regulation shall be given by the sheriff clerk—
(a)
to the payer, by sending an intimation in Form 73A; and
(b)
to the payee, by sending a notice in Form 73B.
(2)
Notice of a refusal to register a Maintenance Decision shall be given by the sheriff clerk to the payee, by sending a notice in Form 73C.
Application to set aside registration of, or to set aside decision not to register, a Maintenance Decision made in Denmark etc.5.48.
An application under Article 32 of the Maintenance Regulation shall be by summary application setting out the grounds of the application.
Sist of proceedings5.49.
An application under Article 35 of the Maintenance Regulation shall be made by motion.
F222PART IXRECOGNITION AND ENFORCEMENT OF CONVENTION MAINTENANCE DECISIONS
Application for transmission of Convention Maintenance Decision to a Contracting State5.50.
(1)
This rule applies to an application under Article 10(1) of the Convention to enforce a Convention Maintenance Decision of a sheriff in another Contracting State.
(2)
On receipt of an application in the form of a letter, the sheriff clerk must provide the applicant with a certified copy of the Convention Maintenance Decision.
(3)
The letter must be addressed to the sheriff clerk and must include—
(a)
the name and National Insurance number (if known) of the parties to the proceedings;
(b)
the date, or approximate date, of the proceedings in which the Convention Maintenance Decision was made and the nature of those proceedings;
(c)
the Contracting State in which the application for recognition or enforcement has been made or is to be made; and
(d)
the postal address of the applicant.
Intimation of registration of, or refusal to register, a Convention Maintenance Decision5.51.
(1)
Intimation of the registration of a Convention Maintenance Decision in accordance with Article 23 of the Convention shall be given by the sheriff clerk—
(a)
to the payer, by sending an intimation in Form 73D; and
(b)
to the payee, by sending a notice in Form 73E.
(2)
Notice of a refusal to register a Convention Maintenance Decision shall be given by the sheriff clerk to the payee, by sending a notice in Form 73F.
CHAPTER 6APPLICATIONS UNDER THE SOCIAL SECURITY ADMINISTRATION ACT 1992
Interpretation6.1
Applications under section 106 of the Act6.2
(1)
An application to the sheriff under section 106(1) of the Act (recovery of expenditure on benefit from person liable for maintenance) shall be by summary application.
(2)
Where, in such an application, a sum is craved which represents or includes a personal allowance element, that element shall be identified in the application.
Transfer of rights under section 107 of the Act6.3
(1)
The sheriff clerk, on receiving notice from the Secretary of State of a transfer of rights to an order by virtue of section 107(3) or (8) of the Act, shall endorse on the interlocutor sheet a certificate in Form 74.
(2)
Where, following a transfer by virtue of section 107(3) or (8) of the Act, the dependent parent or the Secretary of State requests an extract of the order originally granted, the sheriff clerk shall issue an extract with a certified copy of the latest certificate referred to in paragraph (1) endorsed on it.
Notice to Secretary of State under section 108(5) of the Act6.4
(a)
be in writing;
(b)
specify any date assigned for the hearing of the application;
(c)
be accompanied by a copy of the application; and
(d)
be sent by recorded delivery post.
Notice to Secretary of State of making of maintenance order6.5
Where an order granted by the sheriff in favour of the Secretary of State under section 106(2) of the Act has been transferred to the dependent parent in accordance with section 107(3) of that Act and a maintenance order is subsequently granted by the sheriff in favour of the dependent relative, the sheriff clerk shall forthwith notify the Secretary of State in writing and by recorded delivery post of the granting of the maintenance order.
Edinburgh
SCHEDULE 1
F255. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F277. . . . . . . . . . . . . . . . . . . . . . . . .
F420 . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 2REVOCATIONS
(1) | (2) | (3) |
|---|---|---|
Act of Sederunt revoked | Reference | Extension of revocation |
Act of Sederunt (Social Work) (Sheriff Court Procedure Rules) 1971 | The whole Act of Sederunt | |
Act of Sederunt (Social Work) (Sheriff Court Procedure Rules Amendment) 1972 | The whole Act of Sederunt | |
Act of Sederunt (Maintenance Orders (Reciprocal Enforcement) Act 1972 Rules) 1974 | In rule 1(2) the words “ “Sheriff Clerk” includes Sheriff Clerk depute”; in rule 2 the words from “and the provisions” to the end; in rule 3(1) the words “and the Sheriff Clerk shall be the “prescribed officer” for the Sheriff Court”, rule 3(1A) and Part III | |
Act of Sederunt (Maintenance Orders (Reciprocal Enforcement) Act 1972 Amendment Rules) 1975 | The whole Act of Sederunt | |
Act of Sederunt (Reciprocal Enforcement of Maintenance Orders (Republic of Ireland) Order 1974 Rules) 1975 | In rule 1(2) the words “ “Sheriff Clerk” includes Sheriff Clerk Depute”; in rule 2 the words “and the provisions of Part III of this Act of Sederunt shall apply for the purposes of the Act to orders may be or registered in the Sher iff Court”; in rule 3(1) the words “and the Sheriff Clerk shall be the “prescribed officer” for the Sheriff Court”; and Part III | |
Act of Sederunt (Reciprocal Enforcement of Maintenance Orders) in (Hague Convention Countries) 1980 | In rule 2(1) the words “ “Sheriff Clerk” includes the Sheriff Clerk Depute”; rule 3(2); rule 4(1)(b); rule 4(2) the words “and the Sheriff Clerk”; and Part III | |
Act of Sederunt (Reciprocal Maintenance Orders (America)) Rules 1980 | The whole Act of Sederunt | |
Act of Sederunt (Social Work) (Sheriff Court Procedure Rules Amendment) 1980 | The whole Act of Sederunt | |
Act of Sederunt (Maintenance Orders Acts, Rules) 1980 | The whole Act of Sederunt | |
Act of Sederunt (Adoption of Children) 1984 | The whole Act of Sederunt | |
Act of Sederunt (Social Work (Scotland) Act 1968) (Safeguarders) 1985 | The whole Act of Sederunt | |
Act of Sederunt (Social Work) (Sheriff Court Procedure Rules 1971) (Amendment) 1985 | The whole Act of Sederunt | |
Act of Sederunt (Social Work) (Sheriff Court Procedure Rules 1971) (Amendment No.2) 1985 | The whole Act of Sederunt | |
Act of Sederunt (Enforcement of Judgments under the Civil Jurisdiction and Judgments Act 1982) 1986 | Paragraph 6 and Form 6 | |
Act of Sederunt (Rules for the Registration of Custody Orders of the Sheriff Court) 1988 | The whole Act of Sederunt | |
Act of Sederunt (Applications under the Social Security Act 1986) 1990 | The whole Act of Sederunt | |
Act of Sederunt (Rules for the Registration of Custody Orders of the Sheriff Court) (Amendment) 1991 | The whole Act of Sederunt | |
Act of Sederunt (Adoption of Children) (Amendment) 1992 | The whole Act of Sederunt | |
Act of Sederunt (Sheriff Court Parental Orders (Human Fertilisation and Embryology) Rules) 1994 | The whole Act of Sederunt |
SCHEDULE 3EXCLUSION OF ENACTMENTS
Column (1) | Column (2) | Column (3) |
|---|---|---|
Enactment excluded | Reference | Extent of exclusion |
The Citation Act 1592 | The whole Act | |
The Citation Act 1686 | The whole Act | |
The Debtors (Scotland) Act 1838, section 32 (as applied by the Citation (Scotland) Act 184654) | The words “and more than one witness shall not be required for service or execution thereof” | |
The Citation Amendment (Scotland) Act 1882 | The whole Act | |
The Sheriff Courts (Scotland) Act 1907, section 39 and the First Schedule | The whole section; the whole Schedule except rule 29.10 (failure of witness to attend) F475and Chapter 45 (Vulnerable Witnesses (Scotland) Act 2004)F476and Chapter 50 (lodging recordings of children) |
This Act of Sederunt consolidates with minor and drafting amendments rules of the sheriff court relating to proceedings under the Adoption (Scotland) Act 1978, the Family Law Act 1986, the Maintenance Orders Acts 1950 and 1958, the Maintenance Orders (Reciprocal Enforcement) Act 1972 (“the 1972 Act”), the 1972 Act as applied by the Reciprocal Enforcement of Maintenance Orders (Republic of Ireland) Order 1993 and by the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1993, section 5 of the Civil Jurisdiction and Judgments Act 1982 and sections 106 to 108 of the Social Security Administration Act 1992. It also provides rules for proceedings in the sheriff court under the Children (Scotland) Act 1995.
The consolidated rules revoke the Acts of Sederunt formerly applicable to these proceedings. The consolidated rules are arranged as follows:–
Chapter 1: Preliminary;
Chapter 2: Adoption of Children. This Chapter replaces the Act of Sederunt (Adoption of Children) 1984;
Chapter 3: Children (Scotland) Act 1995. This Chapter provides new rules for proceedings under this Act;
Chapter 4: Registration of Child Custody Orders. This Chapter replaces the Act of Sederunt (Rules for the Registration of Custody Orders of the Sheriff Court) 1988;
Chapter 5: Maintenance Orders. This Chapter replaces the Act of Sederunt (Maintenance Orders (Reciprocal Enforcement) Act 1972 Rules) 1974, the Act of Sederunt (Reciprocal Enforcement of Maintenance Orders (Republic of Ireland) Order 1974 Rules) 1975, the Act of Sederunt (Reciprocal Enforcement of Maintenance Orders) (Hague Convention Countries) 1980, and the Act of Sederunt (Enforcement of Judgments under the Civil Jurisdiction and Judgments Act 1982) 1986;
Chapter 6: Applications under the Social Security Administration Act 1992. This Chapter replaces the Act of Sederunt (Applications under the Social Security Act 1986) 1990.