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

Type Statutory-Instrument

Publication 1994-05-31

Last updated 2021-03-01

State In force

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(b) the date on which and place where the By Order hearing will be held;

(d) the fact that, unless the person wishes, or the court requires, the person need not attend the hearing.

(4) A notice of intimation under paragraph(1)(c)(ii) must include the matters mentioned in paragraphs(3)(a) and (b).

Extract of order

67.31

(1) At the By Order hearing appointed under rule67.30 the court must—

(a) if no party indicates his intention to oppose the petition, dispose of the cause or make such other order as it considers appropriate; or

(b) in any other case—

(i) ascertain from the parties the anticipated length of any proof that may be required;

(ii) fix a diet of proof not less than 12 and not more than 16weeks after the date of the hearing on the By Order Roll unless, on cause shown, a longer period is appropriate;

(iii) give such directions as to the preparation for the proof as it considers appropriate;

(iv) order answers and any other documents to be lodged within 21days of the date of the hearing on the By Order Roll or such other period as it considers appropriate.

(2) Paragraph(1)(b)(ii) shall not require a proof to be held when the court is in vacation unless the court otherwise directs.

(3) At the By Order hearing the court may—

(a) if it is not satisfied that the facts stated in the petition are supported by the documents lodged with it or by the reports of the curator ad litem and reporting officer, order the production of further documents; and

(b) where it considers it appropriate to do so, fix a pre-proof hearing not less than 2 and not more than 6weeks before the diet of proof;

Procedure after intimation to Registrar General or issue of extract

67.32

(1) If the court appoints a pre-proof hearing under rule 67.31, the parties must provide the court with sufficient information to enable it to conduct the hearing as provided for in this rule.

(2) At the pre-proof hearing the court must ascertain, so far as is reasonably practicable, whether the cause is likely to proceed to proof on the date fixed for that purpose and, in particular, the court must consider—

(a) the state of preparation of the parties;

(b) the extent to which the parties have complied with any orders made by the court under rule67.31.

(3) At the pre-proof hearing the court may—

(a) discharge the proof and fix a new date for such proof;

(b) adjourn the pre-proof hearing;

(c) order the lodging of joint minutes of agreement, affidavits and expert reports within such period as it considers appropriate;

(d) make such other order as it considers appropriate to secure the expeditious progress of the cause.

Interpretation of this Part

67.33

(1) Where a permanence order has been granted, the Deputy Principal Clerk must—

(a) after the expiry of 14 days from the date of, or date of confirmation of, the order without an appeal having been taken, issue an extract of the order to the petitioner;

(b) where the court has also made an order under section 89(2) (revocation of supervision requirement) of the 2007 Act, intimate the making of that order to the Principal Reporter.

(2) Where the permanence order includes provision granting authority for the child to be adopted, the Deputy Principal Clerk must, after complying with paragraph (1), seal the process in an envelope marked “Confidential”.

(3) The envelope referred to in paragraph (2) must not be unsealed by the clerk of court or any other person having control of the records of that or any court, and the process shall not be made accessible to any person for one hundred years after the date of the granting of the order except—

(a) to the person to whom the permanence order relates once he has attained the age of 16 years;

(b) to the Deputy Principal Clerk, on an application made to him by an adoption agency, with the consent of the person to whom the process relates, for the purpose only of ascertaining the name of the agency, if any, responsible for the placement of that person and informing the applicant of that name;

(c) to a person, on an application made by him to the court setting forth the reasons for which access to the process is required;

(d) to a court, public authority or administrative board (whether in the United Kingdom or not) having power to authorise an adoption, on petition by it to the court which granted the original order requesting that information be made available from the process for the purpose of discharging its duties in considering an application for adoption and specifying the precise reasons for which access to the process is required; or

(e) to a person who is authorised by the Scottish Ministers to obtain information from the process for the purpose of such research as is intended to improve the working of adoption law and practice.

Application of Part III to this Part

67.34

(1) An application under section92(2) of the 2007 Act (application for variation of ancillary provisions) is to be made by note.

(2) A note under paragraph (1) must contain—

(a) the name and address of the applicant;

(b) the applicant’s relationship to and interest in the child;

(d) details of the original application;

(e) details of any other person affected by the order;

(f) the grounds on which variation is sought;

(g) details of whether the child is subject to a supervision requirement under section 70 of the 1995 Act;

(h) details of the order sought by the applicant.

(3) On presentation of a note under paragraph (1) the court must—

(a) order the applicant to intimate the note to—

(i) the petitioner in the original application, where it is not the applicant;

(ii) any other person affected by the order; and

(iii) such other persons as the court considers appropriate; and

(b) appoint a curator ad litem.

(4) Any person to whom intimation is given under paragraph(2) may, within 14days after the date on which intimation is made, lodge answers to the note.

(5) Where answers have been lodged under paragraph(4) the court must order a hearing to be fixed.

(6) Where no answers have been lodged under paragraph(4) the court may order a hearing to be fixed.

(7) Where the court orders a hearing to be fixed under paragraph (5) or (6) it may also order a pre-proof hearing to be fixed not less than 2 and not more than 6 weeks before the hearing.

(8) Rule67.32 is to apply, with any necessary modifications, to any pre-proof hearing fixed under paragraph (7).

(9) The court shall order the applicant to intimate any hearing fixed under paragraph(5), (6) or (7) to the petitioner in the original application, where it is not the applicant, to any other person affected by the order and to such other persons as the court considers appropriate.

Applications for Convention adoption orders

67.35

(1) An application under section93(2) (amendment of order to include provision granting authority for child to be adopted) of the 2007 Act is to be made by note.

(2) A note under paragraph(1) must contain—

(a) the name and address of the applicant;

(b) details of the original application;

(i) whether the child has been, or is likely to be, placed for adoption;

(ii) whether each parent or guardian of the child understands what the effect of making an adoption order would be and consents to the making of such an order in relation to the child, or the grounds on which such consent should be dispensed with;

(iii) the child’s religious persuasion, racial origin and cultural and linguistic background;

(iv) whether the child is subject to a supervision requirement under section 70 of the 1995 Act;

(v) the likely effect on the child of the making of the order.

(3) On the lodging of a note under paragraph(1)—

(a) the Deputy Principal Clerk must cause the note to be put on the By Order Roll before the Lord Ordinary not less than 6 and not more than 8weeks after the date of lodging the application;

(b) the applicant must intimate a copy of the note along with a notice of intimation in Form67.35-A to every person who can be found and whose consent to the making of the order is required to be given or dispensed with under the 2007 Act;

(c) the applicant must intimate a copy of the note along with a notice of intimation in Form67.35-B to the father of the child if he does not have, and never has had, parental responsibilities in relation to the child;

(d) the court may order the applicant to intimate the note to such other persons as it considers appropriate;

(e) the court must appoint a curator ad litem and reporting officer and the same person may be appointed as curator ad litem and reporting officer if the court considers that doing so is appropriate in the circumstances.

(4) A notice of intimation under paragraph(3)(b) must state the following matters:–

(a) that an application has been made;

(b) the date on which, and place where, the By Order hearing will be heard;

(d) the fact that, unless the person wishes, or the court requires, the person need not attend the hearing.

(5) A notice of intimation under paragraph(3)(c) must state the matters mentioned in paragraph(4)(a) and (b).

(6) Rules67.31 to 67.33 are to apply, with any necessary modifications, to an application under this rule and they apply to an application under rule 67.28

Investigations by curator ad litem

67.36

(1) An application under section98(1) (revocation of a permanence order) of the 2007 Act shall be made by note.

(2) A note under paragraph (1) must contain—

(a) the name and address of the applicant;

(b) the applicant’s relationship to and interest in the child;

(d) details of the original application;

(e) details of any other person affected by the order;

(f) the grounds on which revocation is sought;

(g) details of whether the child is subject to a supervision requirement under section 70 of the 1995 Act;

(h) details of the order sought by the applicant;

(i) detailed proposals for the future welfare of the child.

(3) On the lodging of a note under paragraph(1), the court must—

(a) order the applicant to intimate the note to—

(i) the petitioner in the original application, where it is not the applicant;

(ii) any other person affected by the order; and

(iii) such other persons as he considers appropriate; and

(b) appoint a curator ad litem.

(4) Any person to whom intimation has been given under paragraph(3) may, within 14days after the date on which intimation is made, lodge answers to the note.

(5) Where answers have been lodged under paragraph(4), the court must order a hearing to be fixed.

(6) Where no answers have been lodged under paragraph (4) the court may—

(a) order the relevant local authority to submit a report to him;

(b) order a hearing to be fixed;

(7) Where the court orders a hearing to be fixed under paragraph (5) or (6) it may also order a pre-proof hearing to be fixed not less than 2 and not more than 6 weeks before the hearing.

(8) Rule67.32 is to apply, with any necessary modifications, to any pre-proof hearing fixed under paragraph (7).

(9) The court shall order the applicant to intimate any hearing fixed under paragraph(5), (6) or (7) to the petitioner in the original application, where it is not the applicant, to any other person affected by the order and to such other persons as the court considers appropriate.

(10) An order made in respect of an application under paragraph(1) may specify the person—

(a) on whom parental responsibilities are imposed in consequence of the making of the order; and

(b) to whom parental rights are given in consequence of the making of the order.

Evidence of nationality

67.37

(1) Where an applicant under this Part wishes to prevent the address of the child being disclosed to any person whose consent to the making of an order is required, the applicant may apply to the Deputy Principal Clerk for a serial number to be assigned for that purpose.

(2) On receipt of an application under paragraph (1) the Deputy Principal Clerk must—

(a) assign a serial number in respect of the child’s address; and

(b) enter a note of the number opposite the child’s address in a register of serial numbers.

(3) The contents of the register of serial numbers and the addresses of the children to whom each number relates shall be treated as confidential by the sheriff clerk and are not to be disclosed to any person other then the sheriff.

(4) Where a serial number has been assigned under paragraph (2), any form of consent to a permanence order—

(a) must refer to the child’s address by means of the serial number assigned to it; and

(b) must specify the year in which and the court by which the serial number was assigned.

Petition in respect of a non-U.K. child

67.38

(1) The other duties of a reporting officer appointed under this Part, other than under rule 67.29(3), which are prescribed for the purposes of section 108(1)(b) of the 2007 Act are—

(a) to ascertain the whereabouts of all persons whose consent to the making of an adoption 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;

(i) to ascertain whether that person understands what the effect of making an adoption order would be;

(ii) to ascertain whether alternatives to adoption have been discussed with that person;

(iii) to confirm that that person understands that he may withdraw his consent at any time before an order is made;

(d) to confirm that each parent or guardian of the child who can be found is aware that he may apply to the court for—

(i) variation of the ancillary provisions in the permanence order under section92 of the 2007 Act; and

(ii) revocation of a permanence order under section98 of the 2007 Act,

and of the appropriate procedure for these applications.

(e) to report in writing on the matters mentioned in subparagraphs(a) to (d) to the court within 4weeks from date of interlocutor appointing the reporting officer, or within such other period as the court may allow.

(2) References in paragraph (1) to “consent” are to consent within the meaning of section 83(1)(c), 84(1) or 93(3) of the 2007 Act as the case may be.

(3) A curator ad litem appointed under this Part must—

(a) have regard to safeguarding the interests of the child as his paramount duty;

(b) inquire, so far as he considers necessary into the facts and circumstances stated in the petition or minute, as the case may be, and in any report lodged under rule 31(2)(b);

(d) where appropriate, establish whether the order is likely to safeguard and promote the welfare of the child throughout childhood;

(e) ascertain whether the child is subject to a supervision requirement under section70 of the 1995 Act;

(f) ascertain from the child whether he wishes to express a view and, where the child indicates his wish to express a view, ascertain that view;

(g) ascertain the likely effect on the child of the making of the order;

(h) where appropriate, ascertain whether it would be better for the child that the order be made than that it should not be made;

(i) where appropriate, ascertain whether it would be better for the child if the court were to grant authority for the child to be adopted than if it were not to grant such authority;

(j) where appropriate, ascertain whether the child has been, or is likely to be, placed for adoption.

(4) Subject to paragraph(5) the curator ad litem must report in writing on the matters mentioned in paragraph (3) to the court within 4weeks from the date of the interlocutor appointing the curator, or within such other period as the court may allow.

(5) Subject to any order made by the court under rule 67.40 the views of the child ascertained in terms of paragraph (3)(f) may, if the curator ad litemconsiders appropriate, be conveyed to the court orally.

Additional notice to Registrar General

67.39

(1) The consent of a parent or guardian required by section83(1)(c) or 93(3) of the 2007 Act is to be in Form67.39-A.

(2) The consent of the child required under section84(1) of the 2007 Act is to be in Form67.39-B.

(3) A form of consent mentioned in paragraph (1) or (2) must be witnessed—

(a) where it is executed in Scotland, by the reporting officer appointed under this Part;

(b) where it is executed outwith Scotland but within the United Kingdom, by a justice of the peace or commissioner for oaths; or

(i) if the person who executes the form 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 consent is executed.

Interim orders

67.40

(1) Where a child has indicated his wish to express his views the court, without prejudice to rule67.38(3)(f)—

(a) may order such procedural steps to be taken as it 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 rule67.38(2)(f), have been recorded in writing, the court may direct that such a written record is to—

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

(b) be available to the court only;

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

Revocation or annulment of regulated adoptions

67.41

(1) Where leave of the court is required under section94(4) or 98(2)(b) of the 2007 Act before an application for variation or revocation of a permanence order may be made, the applicant must lodge along with the note a motion stating the grounds upon which leave is sought.

(2) A motion under paragraph (1) shall not be served or intimated unless the court otherwise directs.

(3) The court may hear the applicant on the motion and may grant or refuse it or make such other order in relation to it as it considers appropriate prior to determination.

(4) Where such motion is granted, a copy of the interlocutor shall be intimated along with the note of application.

CHAPTER 68 — APPLICATIONS UNDER THE SOLICITORS (SCOTLAND) ACT 1980

Application and interpretation of this Chapter

68.1

(1) This Chapter applies to an application or appeal under the Solicitors (Scotland) Act 1980[^f00216].

(2) In this Chapter–

“the Act of 1980” means the Solicitors (Scotland) Act 1980;

“the Council” means the Council of the Law Society of Scotland;

“the Discipline Tribunal” means the tribunal constituted under section 50 of the Act of 1980.

Applications and appeals under the Act of 1980

68.2

(1) Except in the case of an application under paragraph 20 of Schedule 4 to the Act of 1980 (which shall be made by letter to the Deputy Principal Clerk), an application or appeal under the Act of 1980 shall be made by petition.

(2) An appeal under any of the following provisions of the Act of 1980 shall specify the date on which the decision appealed against was intimated to the petitioner:–

(a) section 16(2) (appeal in respect of issue of practising certificate);

(b) section 39A(8)[^f00217] (appeal against withdrawal of practising certificate);

(c) section 40(3)[^f00218] (appeal against decision to withdraw practising certificate or to refuse to terminate suspension);

(d) section 54(1)[^f00219] (appeal against decision of tribunal relating to discipline); and

(e) paragraph 3 of Schedule 2 (appeal in respect of restoration to roll of solicitors).

(3) An application under paragraph 5(4) of Schedule 3 to the Act of 1980 (application for order for return of documents) shall specify the date on which the notice was served on the petitioner.

(4) An application under section 54(2) of the Act of 1980 (application to vary or quash direction of the tribunal) shall specify the date on which the decision containing the direction or order was intimated to the petitioner.

Applications for admission as notary public

68.3

(1) An application under section 57(2) of the Act of 1980[^f00220] (application for admission as notary public) shall be made by either the Council on behalf of named persons seeking appointment as notaries public or the person seeking appointment as a notary public.

(2) The Council shall–

(a) nominate authorised representatives to administer the oath of the office of notary public;

(b) issue all commissions as notary public;

(d) on request by a notary public, and on payment of such reasonable fee as the Council may impose, supply him with a duly certified and docquetted protocol book of ninety one folios.

Intimation and service in causes under this Chapter

68.4

(1) A petition to which this Chapter applies shall be brought before a Division of the Inner House in chambers, and the Division may, without hearing parties and subject to the following paragraphs, make such order for intimation and service as it thinks fit.

(2) In a cause under any of the following provisions of the Act of 1980, the court shall order service of the petition on the Council:–

(a) section 16(1)[^f00221] (application following refusal of practising certificate to body corporate);

(b) section 19(8) (appeal in respect of decision of Council in relation to suspension);

(d) section 40(3) (appeal against decision to withdraw practising certificate or to refuse to terminate suspension); and

(e) paragraph 5(4) of Schedule 3 (application for order for return of documents).

(3) In an appeal under section 54(1) (appeal against decision of tribunal relating to discipline), or in an application under section 54(2)[^f00222] (application to vary or quash direction of the tribunal), of the Act of 1980, the court shall–

(a) order service on the Discipline Tribunal and the Law Society of Scotland; and

(b) ordain the Discipline Tribunal to lodge in process within the period for lodging answers–

(i) the decision of the Discipline Tribunal in respect of which the appeal or application is made; and

(ii) if available, the notes of evidence adduced before the Discipline Tribunal.

(4) In an application under any of the following provisions of the Act of 1980, the court shall order service of the petition on the respondent:–

(a) section 41[^f00223] (application for appointment of judicial factor);

(b) paragraph 5(1) of Schedule 3 (application for order to produce documents); and

(5) In an application under section 55(3) of the Act of 1980 (application for restoration to roll of solicitors), the court shall order service on the Discipline Tribunal and the Council.

Procedure after order for intimation and service

68.5

The court shall, after an order for intimation and service under rule 68.4, proceed on the petition summarily in such manner as it thinks fit.

Appeals under section 54(1) of the Act of 1980

68.6

In an appeal under section 54(1) of the Act of 1980 (appeal against decision of tribunal relating to discipline)–

(a) the court may substitute any other punishment for that imposed by the decision appealed against, or make any order in relation to it which it thinks fit;

(b) where the petitioner is a person or one of the persons who complained of the alleged professional misconduct of the solicitor, the court may order that person to give security for expenses (including the cost of extending the notes of evidence adduced before the Discipline Tribunal) as a condition of proceeding with the petition.

Remits for further inquiry

68.7

(1) In an application or appeal under the Act of 1980, the court may remit to any person to make further inquiry into the facts, or to take further evidence and to report to the Court.

(2) On completion of a report made under paragraph (1), the person to whom the remit was made shall send his report and three copies of it, and a copy of it for each party, to the Deputy Principal Clerk.

(3) On receipt of such a report, the Deputy Principal Clerk shall–

(a) cause the report to be lodged in process; and

(b) give written intimation to each party that this has been done and that he may uplift a copy of the report from process.

(4) After the lodging of such a report, any party may apply by motion for an order in respect of the report or for further procedure.

CHAPTER 69 — ELECTION PETITIONS

Interpretation of this Chapter

69.1

In this Chapter–

“the Act of 1983” means the Representation of the People Act 1983[^f00224];

“the 2004 Regulations” means the European Parliamentary Elections Regulations 2004

“election court” has the meaning assigned in section 123 of the Act of 1983;

“election petition” means a petition presented under—section 121 of the Act of 1983 (whether or not the petition also includes any application under section 167 of the Act of 1983);section 121 of the Act of 1983 as applied and modified by article 82 of and Schedule 6 to the Scottish Parliament (Elections etc.) Order 2015 (whether or not the petition also includes any application under section 167 of the Act of 1983, as so applied and modified); orregulation 89 of the European Parliamentary Elections Regulations 2004 (whether or not the petition also includes any application under regulation 108 of those Regulations).

“region” means a region for the purposes of the Scotland Act 1998; and any reference in this Chapter to a constituency shall be construed as a reference to a constituency for the purposes of the said Act of 1998 where it is used in relation to a Scottish parliamentary election;

“Scottish parliamentary election” means an election for membership of the Scottish Parliament.

Form of election petitions

69.2

(1) An election petition shall be in Form 69.2.

(2) Such a petition shall–

(a) specify the name, designation and address of–

(i) each petitioner, and

(ii) each person referred to as, or deemed to be, the respondent by virtue of section 121(2) of the Act of 1983 or regulation 89(2) of the 2004 Regulations, as the case may be; and

(b) set out in numbered paragraphs–

(i) the title of the petitioner under section 121(1) of the Act of 1983 or regulation 89(1) of the 2004 Regulations to present the petition;

(ii) the proceedings at, and the result of, the election; and

(iii) the facts relied on in support of the prayer of the petition.

Presentation of petition

69.3

The election petition shall be lodged in the Petition Department with–

(a) a process;

(b) six copies of the petition; and

(i) giving the name and address of a solicitor whom he authorises to act on his behalf or stating that he acts for himself, as the case may be; and

(ii) specifying an address within Scotland at which notices addressed to him may be delivered.

Security for expenses

69.4

(1) On presentation of an election petition, the petitioner shall apply by motion for–

(a) an order for intimation and service of the petition within such period as the court thinks fit after the giving of security,

(b) for an order for the respondent to lodge any objections in writing under section 136(4) of the Act of 1983[^f00225] or regulation 94(4) of the 2004 Regulations (objections to form of security) within such period as the court thinks fit, and

and the petition shall be placed forthwith before the Lord Ordinary or the vacation judge, in court or in chambers, who shall fix the security to be given.

(2) A motion under paragraph (1) shall not be intimated to any person.

(3) Where the security to be given by the petitioner under section 136 of the Act of 1983 or regulation 94 of the 2004 Regulations is given in whole or in part by bond of caution, the bond shall be in Form 69.4.

Service and intimation of election petition

69.5

(1) On serving the election petition on the respondent under subsection (3) of section 136 of the Act of 1983 or regulation 94(3) of the 2004 Regulations, the petitioner shall intimate a copy of each of the documents mentioned in that subsection to —

(a) the Lord Advocate ; and

(b) the Advocate General for Scotland

(2) The notice of presentation of the petition mentioned in section 136(3) of the Act of 1983[^f00226] or regulation 94(3) of the 2004 Regulations shall be in Form 69.5.

(3) Within 5 days after serving the petition under section 136 of the Act of 1983 or regulation 94 of the 2004 Regulations, the petitioner shall lodge in process an execution copy of the election petition containing the certificate of service and a copy of the notice mentioned in that subsection which was served on the respondent.

(4) Where the court makes an order for intimation and service of an election petition, the Deputy Principal Clerk shall send a copy of the petition to the Electoral Commission.

Objections to form of security

69.6

(1) Where the respondent makes an objection under section 136(4) of the Act of 1983 or regulation 94(4) of the 2004 Regulations (objection to form of security), he shall–

(a) set out in writing the grounds of the objection;

(b) lodge the objection in process; and

(2) As soon as possible after the lodging of an objection under paragraph (1), the Keeper of the Rolls shall–

(a) fix a diet for a hearing on the objections before one of the judges on the rota for the trial of election petitions or the vacation judge; and

(b) give written intimation of the time and place of the diet to the parties.

(3) The period within which the petitioner may, under section 136(7) of the Act of 1983[^f00227] or regulation 94(6) of the 2004 Regulations, remove the objection shall be such period from the date of the decision on the objection as the court thinks fit.

Consequences of failure to give security etc.

69.7

If no security is given, or an objection to a security is allowed and not removed, the respondent may apply by motion to have the prayer of the petition refused.

List of election petitions

69.8

(1) In preparing the list of election petitions in terms of section 138(1) of the Act of 1983, the Deputy Principal Clerk shall insert the names of the solicitors, if any, acting for the petitioner and respondent, and the addresses, if any, to which any notices may be sent.

(2) The list of election petitions may be inspected in the Petition Department at any time during its normal office hours.

Time and place of trial

69.9

(1) The time and place of the trial of an election petition shall be fixed by the Keeper of the Rolls, who shall give written intimation of the date of the trial by post to–

(a) the parties;

(b) the Lord Advocate;

(ba) the Advocate General for Scotland;

(d) the House of Commons shorthand writer.

(2) On receipt of intimation given under paragraph (1), the returning officer shall forthwith publish the date of the diet of trial in the constituency or as the case may be, region to which it relates.

Postponement of trial

69.10

(1) The election court or any of the judges on the rota for the trial of election petitions, may, at its or his own instance or on the motion of a party, postpone the trial of a petition to such day as may be specified.

(2) Written intimation of such postponement shall be given by the Keeper of the Rolls to the returning officer who shall forthwith publish the postponement and its new date in the constituency or as the case may be, region.

Procedure where seat claimed

69.11

(1) Where a petitioner claims the seat for an unsuccessful candidate, alleging that he had a majority of lawful votes, the party complaining of, and the party defending, the return, not less than 6 days before the date of the trial, shall each–

(a) lodge in process a list of the voters intended to be objected to, and of the objections to each voter; and

(b) intimate a copy of that list to–

(i) every other party; and

(ii) the Lord Advocate; and

(iii) the Advocate General for Scotland.

(2) No evidence shall be allowed to be given against any vote or in support of any objection which is not specified in the list, except by leave of the election court or, on a motion heard before the date of the trial, of any of the judges on the rota for the trial of election petitions, on such terms as to amendment of the list, postponement of the trial and payment of expenses as may be ordered.

Evidence under section 139(5) of the Act of 1983

69.12

(1) Where the respondent intends to give evidence permitted under section 139(5) of the Act of 1983 or regulation 96(4) of the 2004 Regulations (evidence to prove person not duly elected), he shall, not less than 6 days before the date of the trial–

(a) lodge in process a list of the objections to the election on which he intends to rely; and

(b) intimate a copy of that list to–

(i) every other party; and

(ii) the Lord Advocate;and

(iii) the Advocate General for Scotland.

(2) No evidence shall be allowed to be given on behalf of the respondent in support of any objection to the return not specified in the list, except with leave of the election court or, on a motion heard before the date of the trial, of any of the judges on the rota for the trial of election petitions, on such terms as to amendment of the list, postponement of the trial and payment of expenses as may be ordered.

Lodging of statement of evidence to be led

69.13

(1) Subject to paragraph (2), any party shall, not less than 6 days before the date of the trial, lodge in process a statement of the matters on which he intends to lead evidence.

(2) Before lodging such a statement in process, the party proposing to lodge it shall intimate a copy of the statement to—

(a) every other party; and

(b) the Lord Advocate; and

Evidence at trial

69.14

(1) No evidence shall be led at the trial of an election petition other than matters contained in—

(a) the list lodged under rule 69.11 (procedure where seat claimed) or 69.12 (evidence under section 139(5) of the Act of 1983),

(b) the statement lodged under rule 69.13 (statement of evidence to be led), or

except with the leave of the election court or one of the judges on the rota for the trial of election petitions, on such conditions as to postponement of the trial, payment of expenses or otherwise, as may be ordered.

(2) The admissibility of any evidence sought to be led on the matters referred to in paragraph (1) shall be within the discretion of the election court.

Warrant to cite witnesses

69.15

The warrant for the citation of a witness to the trial of an election petition shall be granted on the motion of any party and shall be in Form 69.15.

Clerk of court at trial

69.16

At an election court held for the trial of an election petition, a clerk of session nominated by the Principal Clerk and appointed by the court shall discharge the duties of clerk of court of the election court.

Expenses of witnesses

69.17

(1) The prescribed officer for the purposes of section 143(1) of the Act of 1983 or regulation 99(1) of the 2004 Regulations shall be the clerk of session appointed to act as clerk of court under rule 69.16.

(2) The expenses of a witness permitted under section 143(1) of the Act of 1983 or regulation 99(1) of the 2004 Regulations shall be ascertained by the clerk of court.

(3) The expenses allowed under section 143(1) of the Act of 1983 or regulation 99(1) of the 2004 Regulations shall, in the first instance, be paid by the party adducing that witness.

Applications for special case

69.18

An application under section 146(1) of the Act of 1983 or regulation 101(1) of the 2004 Regulations for a special case, shall be made by motion to the Inner House or the vacation judge.

Applications for leave to withdraw election petitions

69.19

(1) A notice of intention to withdraw an election petition under section 147(2) of the Act of 1983 or regulation 102(2) of the 2004 Regulations shall be in Form 69.19–A.

(2) A copy of such notice shall be intimated by the petitioners to–

(a) the respondent;

(b) the Lord Advocate;

(ba) the Advocate General for Scotland;

(d) the Deputy Principal Clerk.

(3) On receipt of a notice under paragraph (2), the returning officer shall publish it in the constituency or as the case may be, region to which it relates.

(4) An application for leave to withdraw an election petition shall–

(a) be in Form 69.19–B;

(b) state the ground on which the application to withdraw is made;

(d) be lodged in the process of the election petition.

Applications to be substituted as petitioner on withdrawal

69.20

(1) A person who seeks to apply under section 150(1) of the Act of 1983 to be substituted as a petitioner, shall, within 5 days after the date on which the notice of intention to withdraw has been given under section 147(2) of the Act of 1983 and rule 69.19 (applications for leave to withdraw election petitions), give notice in writing signed by him or on his behalf to the Deputy Principal Clerk of his intention to apply, at the hearing of the application for leave to withdraw, to be substituted as the petitioner.

(2) A copy of the notice given under paragraph (1) shall be intimated by the applicant to–

(a) the respondent;

(b) the Lord Advocate; and

(ba) the Advocate General for Scotland;

(3) Any informality in such a notice shall not defeat an application to be substituted as the petitioner if it is made at the hearing of the application to withdraw, subject to such order as to postponement of that hearing and expenses as the election court thinks fit.

Hearing of applications for leave to withdraw

69.21

(1) Subject to paragraph (2), the time and place for hearing an application for leave to withdraw an election petition shall be fixed by one of the judges on the rota for the trial of election petitions or by the vacation judge, who shall hear and determine the application unless he considers that the application should be determined by the Inner House.

(2) The time fixed under paragraph (1) shall not be earlier than 7 days after the expiry of the period specified in rule 69.20.

(3) The Keeper of the Rolls shall give written intimation of the diet fixed under paragraph (1) to–

(a) the petitioner;

(b) the respondent;

(ca) the Advocate General for Scotland;

(d) the returning officer for the relevant constituency; and

(e) to any person who has given notice under rule 69.20 of his intention to apply to be substituted as the petitioner.

Security of substituted petitioner

69.22

(1) The period within which security shall be given on behalf of a substituted petitioner before he proceeds with the petition shall be 5 days after the order of substitution.

(2) The substituted petitioner shall lodge the letter referred to in rule 69.3(c) (name and address of solicitor etc.) within 5 days after the order of substitution.

Death of petitioner

69.23

(1) In the event of the death of the petitioner or the surviving petitioner, the notice for the purpose of section 152(3) of the Act of 1983 (notice of abatement of petition by death) shall be intimated in Form 69.23 by the solicitor acting for the petitioner, the respondent, the returning officer or any other person interested to whose knowledge the death of the petitioner shall come, to, as the case may be–

(a) the respondent;

(b) the Lord Advocate;

(ba) the Advocate General for Scotland;

(d) the Deputy Principal Clerk.

(2) The returning officer shall, on receipt of such a notice, or, where he is giving notice under paragraph (1), on intimating such notice to those persons mentioned in that paragraph, publish the notice in the constituency or as the case may be, region to which it relates.

Applications to be substituted on death of petitioner

69.24

(1) An application to be substituted as a petitioner on the death of the petitioner or surviving petitioner shall be made by motion within 5 days after the publication of the notice.

(2) A motion under paragraph (1) shall be intimated to–

(a) the respondent;

(b) the Lord Advocate; and

(ba) the Advocate General for Scotland;

Notice that respondent does not oppose

69.25

(1) A notice, for the purposes of section 153(1) of the Act of 1983, by a respondent other than a returning officer, that he does not intend to oppose an election petition shall be–

(a) signed by him; and

(b) lodged in process not less than 6 days before the date of the trial.

(2) Where a respondent lodges a notice under paragraph (1), he shall forthwith intimate a copy of it to–

(a) the petitioner;

(b) any other respondent;

(ca) the Advocate General for Scotland;

(d) the returning officer for the relevant constituency.

(3) On receipt of a notice under paragraph (1), the returning officer shall publish it in the constituency to which it relates.

Death or peerage of respondent

69.26

(1) Where, for the purposes of section 153(1) of the Act of 1983–

(a) a respondent other than a returning officer dies,

(b) in the case of a parliamentary election, a respondent other than a returning officer is summoned to Parliament as a Peer of Great Britain, ...

(d) a respondent resigns or otherwise ceases to be a member of the Scottish Parliament,

the agent for the respondent shall give notice of that fact in the constituency to which the election petition relates.

(2) Such a notice shall be published in at least one newspaper circulating in the constituency, and by intimating a copy of the notice, signed by him to–

(a) the petitioner;

(b) any other respondent;

(ca) the Advocate General for Scotland;

(d) the returning officer for the relevant constituency; and

(e) the Deputy Principal Clerk.

Applications to be admitted as respondent

69.27

The period of time within which a person may apply to be admitted as a respondent under section 153 of the Act of 1983 shall be–

(a) 5 days after the notice is intimated under rule 69.25 (notice that respondent does not oppose);

(b) 10 days after the notice is intimated under rule 69.26 (death, peerage or resignation of respondent); or

Expenses in election petitions

69.28

Where any expenses are awarded by the election court in the course of proceedings under the Act of 1983 or the 2004 Regulations, such an award shall be deemed equivalent to a finding of expenses in the Court of Session.

Motions in election petitions

69.29

(1) Subject to any other provision in this Chapter or the Act of 1983, all applications shall be dealt with by motion.

(2) Subject to the provisions of this Chapter, Chapter 23 (motions) shall apply to a motion in an election petition.

(3) A motion in an election petition shall be intimated to–

(a) the Lord Advocate; and

(aa) the Advocate General for Scotland;

(b) the returning officer for the relevant constituency or as the case may be, region.

Intimation to Lord Advocate

69.30

All applications to the court in an election petition other than a motion under rule 69.4(1) (security for expenses) shall be intimated to —

(a) the Lord Advocate; and

(b) the Advocate General for Scotland;

and the Lord Advocate and the Advocate General for Scotland shall be entitled to appear or be represented at the hearing of that application.

Evidence of publication by returning officer

69.31

(1) Where a returning officer publishes a notice in accordance with a provision in this Chapter or an order of the election court, he shall forthwith send to the Deputy Principal Clerk a letter–

(a) certifying that the appropriate notice has been published; and

(b) detailing the manner in which the publication has been made.

(2) Where publication has been made by inserting a notice in a newspaper or other publication, the letter under paragraph (1) shall be accompanied by–

(a) a copy of the newspaper or other publication containing the notice; or

(b) a certificate of publication by the publisher stating the date of publication and the text of the notice.

CHAPTER 70 — APPLICATIONS UNDER THE CHILD ABDUCTION AND CUSTODY ACT 1985

Interpretation of this Chapter

70.1

In this Chapter–

“the Act of 1985” means the Child Abduction and Custody Act 1985[^f00228];

“the European Convention” means the convention defined in section 12(1) of the Act of 1985 and as set out in Schedule 2 to the Act of 1985;

“the Hague Convention” means the convention defined in section 1(1) of the Act of 1985 and as set out in Schedule 1 to the Act of 1985;

“relevant authority” means–in the United Kingdom, a sheriff court, the Sheriff Appeal Court, a children’s hearing within the meaning of the Children’s Hearings (Scotland) Act 2011, the High Court, a county court or magistrates' court in England and Wales, the High Court, a county court or magistrates' court in Northern Ireland, or the Secretary of State, as the case may be; or in a relevant territory, the appropriate authority or court within that territory;

“relevant territory” means a territory outside the United Kingdom to which the Act of 1985 extends by virtue of an Order in Council made under section 28(1) of that Act or in relation to which provision is made by an Order in Council under section 28(2) of that Act.

Translations of documents

70.2

Where any document lodged in process in a cause to which this Chapter applies is in a language other than English, there shall be lodged with that document a translation into English certified as correct by the translator; and the certificate shall include his full name, address and qualifications.

Applications for certified copy or extract

70.3

(1) An application for a certified copy or extract of a decree or any other interlocutor relating to a child, in respect of whom the applicant wishes to apply under the Hague Convention or the European Convention in another Contracting State, shall be made by letter to the Deputy Principal Clerk.

(2) A certified copy or extract issued on an application under paragraph (1) shall be supplied free of charge.

Disclosure of information

70.4

Where the court pronounces an interlocutor under section 24A of the Act of 1985[^f00230] (order to a person to disclose information to the court as to a child’s whereabouts), it may order that person to apear before it or to lodge an affidavit.

Form of applications under this Part

70.5

(1) Subject to rule 70.16 (warrant for intimation on a child), an application for the return of a child under the Hague Convention shall be made by petition and–

(a) shall include averments in relation to–

(i) the identity of the petitioner and the person alleged to have removed or retained the child;

(ii) the identity of the child and his date of birth;

(iii) the whereabouts or suspected whereabouts of the child;

(iv) the date on which the child is alleged to have been wrongfully removed or retained;

(v) the grounds on which the petition is based; and

(vi) any civil cause in dependence before any other court or authority in respect of the child, or any proceedings mentioned in section 9 of the Act of 1985[^f00231] relating to the merits of the rights of custody of the child in or before a relevant authority; ...

(b) there shall be produced with the petition and lodged as a production a certified or authorised copy of any relevant decision or agreement; and

(c) there shall be lodged with the petition the evidence by affidavits of any witnesses and any documentary evidence, whether originals or copies initially, in support of the petition.

(2) An application for organising or protecting rights of access granted by any court of a contracting party to the Hague Convention, or for securing respect for the conditions to which the exercise of such rights of access is subject shall be made by petition and–

(a) shall include averments in relation to–

(i) the identity of the petitioner;

(ii) the identity of the child and his date of birth;

(iii) the parents or guardians of the child;

(iv) the whereabouts of the child;

(v) the factual and legal grounds on which access is sought; and

(vi) any civil cause in dependence before any other court or authority in respect of the child, or any proceedings mentioned in section 9 of the Act of 1985 relating to the merits of the rights of custody of the child in or before a relevant authority; ...

(b) there shall be produced with the petition and lodged as a production a certified copy of any relevant decision or agreement; and

(c) there shall be lodged with the petition the evidence by affidavits of any witnesses and any documentary evidence, whether originals or copies initially, in support of the petition.

(3) An application under section 8 of the Act of 1985 (application for declarator that removal or retention of child was wrongful) shall be made by petition and–

(a) shall include averments in relation to–

(i) the identity of the petitioner and of the person who is alleged to have removed or retained the child;

(ii) the identity of the child and his date of birth;

(iii) the whereabouts or suspected whereabouts of the child;

(iv) the date on which the child is alleged to have been wrongfully removed or retained;

(v) the proceedings which gave custody to the petitioner; and

(vi) the proceedings under the Hague Convention in relation to which the petition is necessary; ...

(b) there shall be produced with the petition any relevant document; and

(c) there shall be lodged with the petition the evidence by affidavits of any witnesses and any documentary evidence, whether originals or copies initially, in support of the petition.

Period of notice, service of causes and first hearing under this Part

70.6

(1) Subject to rule 14.6(2), the period of notice for lodging answers to a petition to which rule 70.5 applies shall be 4 days.

(2) Subject to rule 70.16 (intimation of notice on child), such a petition , and a copy of any affidavit and documentary evidence lodged with it, shall be served on–

(a) the person alleged to have brought the child into the United Kingdom;

(b) the person with whom the child is presumed to be;

(c) any parent or guardian of the child if he or she is within the United Kingdom, or a relevant territory and not otherwise a party;

(d) the chief executive of the local authority, and for the area in which the child resides and the Principal Reporter; and

(e) any other person who may have an interest in the child.

(3) The first order under rule 14.5 (first order in petitions) in a petition to which rule 70.5 applies shall specify a date within 7 days after the expiry of the period of notice for a first hearing to determine the further progress of the petition.

(4) A respondent shall lodge in process, and send a copy to the petitioner of, the evidence by affidavits of any witnesses and any documentary evidence, whether originals or copies initially, in support of his answers to the petition at least 3 days before the first hearing fixed under paragraph (3).

(5) Subject to rule 70.17 (views of the child), at the first hearing fixed under paragraph (3), the court—

(a) shall determine to what extent, if any, further evidence by affidavit is required, by whom and in regard to what matters, and by what date any such affidavit should be lodged;

(b) may, on special cause shown, direct that a particular matter should be the subject of oral evidence in lieu of further, or in addition to, affidavit evidence and by what means such evidence shall be taken; and

(c) may, if no further evidence is required, determine the petition at the first hearing or, if further evidence is required, shall give directions as to the period within which a second hearing shall be held to determine the petition.

Notice of other proceedings

70.7

(1) Where a petition is presented under paragraph (1) of rule 70.5 and there are proceedings mentioned in section 9 of the Act of 1985 relating to the merits of the rights of custody of the child depending in or before a relevant authority, the court shall give written intimation of the petition and, in due course of the outcome of the petition, to that relevant authority.

(2) Where the court receives a notice equivalent to that under paragraph (1) from a relevant authority, all proceedings in any cause mentioned in section 9 of the Act of 1985 relating to the merits of the rights of custody of the child shall be sisted by the court until the dismissal of the proceedings in that other court under the Hague Convention; and the Deputy Principal Clerk shall give written intimation to each party of the sist and of any such dismissal.

Transfer of causes

70.8

(1) At any stage of a cause mentioned in paragraph (1) of rule 70.5, the court may, at its own instance or on the motion of any party, pronounce an interlocutor transmitting the cause to the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory, as the case may be.

(2) Where a cause is transferred under paragraph (1), the Deputy Principal Clerk shall–

(a) transmit the process to the appropriate officer of the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory, as the case may be;

(b) give written intimation of such transfer to each party; and

(3) Where a cause is transferred under paragraph (1), the question of expenses shall not be determined by the court, but shall be at the discretion of the court to which the cause is transferred.

(4) Where such a cause is transferred to the court from the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory–

(a) the Deputy Principal Clerk shall, on receipt of the order transferring the cause and any documents in the cause, give written intimation to each party of the transfer;

(b) the cause shall be deemed to have been commenced by petition; and

(c) the Deputy Principal Clerk shall, within two sitting days of the receipt of it, cause it to be put out on the By Order Roll before the Lord Ordinary.

Form of applications under this Part

70.9

(1) An application under any of the following provisions shall be made by petition:–

(a) section 15 of the Act of 1985 (application to declare a decree for custody not to be recognised);

(b) section 16 of the Act of 1985 (application for registration of custody decision); and

(2) An application under section 17(4) of the Act of 1985 (application for variation or revocation of registered decision), shall be made by note in the process of the petition for registration.

(3) An application under section 23(2) of the Act of 1985 (application in custody proceedings for declarator that removal of a child was unlawful), shall be made–

(a) by minute in the process of a cause depending before the court commenced by summons; or

(b) by note in the process of a cause depending before the court commenced by petition.

(4) In an application mentioned in this rule–

(a) the petition, minute or note, as the case may be, shall include averments in relation to–

(i) the identity of the petitioner, minuter or noter, as the case may be, and his interest in the cause;

(ii) the identity of the child and his date of birth;

(iii) the parents or guardians of the child;

(iv) the order which is required to be registered, enforced, declared unlawful, declared not recognised, varied or revoked, as the case may be;

(v) the whereabouts or suspected whereabouts of the child; and

(vi) any civil cause in dependence before any other court or authority in respect of the child, or any proceedings specified in section 20(2) of the Act of 1985[^f00232] in dependence in or before a relevant authority;...

(b) there shall be produced with the petition, minute or note, as the case may be–

(i) a certified or authorised copy of any decision to be registered or enforced;

(ii) where a decision to be registered was given in the absence of the person against whom the decision was made or in the absence of his legal representative, a document which establishes (subject to Article 9(1)(a) of the European Convention) that that person was duly served with the document which instituted the original proceedings;

(iii) a certificate or affidavit to the effect that any decision to be registered is enforceable in accordance with the law of the State in which the decision was made; and

(iv) any other relevant document; and

(c) there shall be lodged with the petition, minute or note, as the case may be, the evidence by affidavits of any witnesses and any documentary evidence, whether originals or copies initially, in support of the petition, minute or note.

Period of notice, service of causes and first hearing under this Part

70.10

(1) Subject to rule 14.6(2), the period of notice for lodging answers in a petition to which rule 70.9 applies shall be 4 days.

(2) Such a petition , and a copy of any affidavit and documentary evidence lodged with it, shall be served on–

(a) the person alleged to have brought the child into, or removed the child from, the United Kingdom, or a relevant territory, as the case may be;

(b) the person with whom the child is presumed to be in the United Kingdom or a relevant territory;

(c) the mother and father of the child if he or she is within the United Kingdom, or a relevant territory, and not otherwise a party;

(d) the chief executive of the local authority, and for the area in which the child resides and the Principal Reporter; and

(e) any other person who may have an interest in the child.

(3) The first order under rule 14.5 (first order in petitions) in a petition to which rule 70.9 applies shall specify a date within 7 days after the expiry of the period of notice for a first hearing to determine the further progress of the petition.

(4) A respondent shall lodge in process, and send a copy to the petitioner of, the evidence by affidavits of any witnesses and any documentary evidence, whether originals or copies initially, in support of his answers to the petition to which rule 70.9 applies at least 3 days before the first hearing fixed under paragraph (3).

(5) At the first hearing fixed under paragraph (3), the court—

(a) shall determine to what extent, if any, further evidence by affidavit is required, by whom and in regard to what matters, and by what date any such affidavit should be lodged;

(b) may, on special cause shown, direct that a particular matter should be the subject of oral evidence in lieu of further, or in addition to, affidavit evidence and by what means such evidence shall be taken; and

(c) may, if no further evidence is required, determine the petition at the first hearing or, if further evidence is required, shall give directions as to the period within which a second hearing shall be held to determine the petition.

Registration

70.11

Where the court pronounces an interlocutor ordering registration under section 16 of the Act of 1985, the Deputy Principal Clerk shall record that interlocutor in a register of decisions pronounced under that Act.

Other proceedings

70.12

(1) Where a petition is presented under section 16 (application for registration and enforcement of custody decision), or section 18 (application for enforcement of a custody decision), of the Act of 1985 and there are proceedings⅔ mentioned in section 20(2) of that Act depending or such proceedings are commenced after the petition has been presented–

(a) the petitioner shall inform the court by including averments or lodging an affidavit, as the case may be, to that effect containing a concise statement of the nature of those proceedings; and

(b) the court shall give written intimation of the petition and, in due course of the outcome of the petition, to the relevant authority.

(2) Where the court receives a notice equivalent to that under paragraph (1)(b) from the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory, the Deputy Principal Clerk shall give written intimation to each party to any cause which is one mentioned in section 20(2) of the Act of 1985.

Transfers

70.13

(1) At any stage of a cause mentioned in rule 70.9, the court may, at its own instance or on the motion of any party, pronounce an interlocutor transferring the cause to the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory, as the case may be.

(2) Where a cause is transferred under paragraph (1), the Deputy Principal Clerk shall forthwith–

(a) transmit the process to the appropriate officer of the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory, as the case may be;

(b) give written intimation of such transfer to each party; and

(3) Where a cause is transferred under paragraph (1), the question of expenses shall not be determined by the court, but shall be at the discretion of the court to which the case is transferred.

(4) Where such a cause is transferred to the court from the High Court in England and Wales or Northern Ireland, or the appropriate court of a relevant territory–

(a) the Deputy Principal Clerk shall, on receipt of the order transferring the cause and any papers in the cause, give written intimation to the parties of the transfer;

(b) the cause shall be deemed to have been commenced by petition; and

(c) the Deputy Principal Clerk shall, within two days of the receipt of it, cause it to be put out on the By Order Roll before the Lord Ordinary.

Variation and revocation of registered decision

70.14

(1) Where a decision registered under section 16 of the Act of 1985 is varied or revoked by an authority in the Contracting State in which the decision was made, the court shall–

(a) on cancelling the registration of a decision which it has been notified has been revoked, give written intimation of that cancellation to–

(i) the person appearing to the court to have actual custody of the child;

(ii) the petitioner in the petition for registration; and

(iii) any other party to that petition; and

(b) on being notified of the variation of a decision, give written intimation to–

(i) the person having custody in fact of the child; and

(ii) any party to the petition for registration of the decision, of the variation.

(2) Any person to whom intimation of a variation has been given under paragraph (1)(b) may apply by note for the purpose of making representations before the registration is varied.

(3) An application under section 17(4) of the Act of 1985 (application to cancel or vary registration) shall be made by note.

CHAPTER 71 — REGISTRATION AND ENFORCEMENT OF PART I ORDERS UNDER THE FAMILY LAW ACT 1986

Interpretation of this Chapter

71.1

In this Chapter–

“the Act of 1986” means the Family Law Act 1986[^f00233];

“appropriate court” means the High Court in England and Wales or the High Court in Northern Ireland or, in relation to a specified dependent territory, the corresponding court in that territory, as the case may be;

“Part I order” has the meaning assigned in section 32 of the Act of 1986;

“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;

“register” means the Part I orders register kept under rule 71.2;

“specified dependent territory” means a dependent territory specified in an Order in Council made under section 43 of the Act of 1986.

Custody orders register

71.2

(1) The Deputy Principal Clerk shall maintain a register to be called the Part I orders register for the purposes of Chapter V of Part I of the Act of 1986[^f00234].

(2) In Part I of the register there shall be recorded applications for registration of a Part I order in another part of the United Kingdom; and in Part II of the register there shall be recorded Part I orders registered for enforcement in Scotland.

(3) The register may be inspected by–

(a) the person who applied for registration; and

(b) any other person who satisfies the Deputy Principal Clerk that he has an interest to do so.

Applications for registration of custody orders in another court

71.3

(1) An application under section 27 of the Act of 1986 to register a Part I order made by the Court of Session in an appropriate court shall be made by letter to the Deputy Principal Clerk.

(2) An application under paragraph (1) shall be accompanied by–

(a) a copy of the letter of application;

(b) an affidavit by the applicant;

(d) a certified copy of the interlocutor of the Part I order;

(e) a certified copy of the interlocutor of any variation which is in force in respect of the Part I order; and

(f) any other document relevant to the application and a copy of it.

(3) An 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;

(d) whether the Part I order is to be registered in England and Wales, Northern Ireland or a specified dependent territory, and the court in which it is to be registered;

(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.

(4) Where the Deputy Principal Clerk refuses to send an application under this rule to the appropriate court on the ground that the Part I order is no longer in force, he shall give written intimation to the applicant; and the applicant shall have the right to have the application brought before the Lord Ordinary for determination.

(5) The Deputy Principal Clerk shall retain the letter of application under this rule and any documents which accompany it and which are not transmitted to the appropriate court under section 27(3) of the Act of 1986.

Transmission of applications for registration

71.4

(1) Where the Deputy Principal Clerk is satisfied that the Part I order is in force, he shall send the documents mentioned in section 27(3) of the Act of 1986 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)(b) of the Act of 1986, the prescribed particulars of any variation which is in force in respect of a Part I order shall be a certified copy of the interlocutor of any such variation.

(3) On sending an application under paragraph (1), the Deputy Principal Clerk shall make an entry in Part I of the register recording the date and particulars of the application and the Part I order.

(4) On receiving notification from a proper officer of an appropriate court that the Part I order has been registered in that court under section 27(4) of the Act of 1986, the Deputy Principal Clerk shall record the date of registration in Part I of the register.

Registration of custody orders from another court

71.5

(1) The prescribed officer under section 27(4) of the Act of 1986 shall be the Deputy Principal Clerk.

(2) Where the Deputy Principal Clerk receives a certified copy of a Part I order from a court for registration under section 27(4) of the Act of 1986, he shall enter the following particulars in Part II of the register:–

(a) the name and address of the applicant and his interest under the Part I order;

(b) a brief description of the nature of the Part I order, its date and the court which made it; and

(c) the name and whereabouts or suspected whereabouts of the child who is the subject of the Part I order, his date of birth and the date on which he will attain the age of 16 years.

(3) On registering the Part I order, the Deputy Principal Clerk shall–

(a) retain the application and the documents which accompanied it; and

(b) give written intimation to–

(i) the court from which he received the application, and

(ii) the applicant who applied for registration,

that the Part I order has been registered.

(4) Where the Deputy Principal Clerk gives written intimation to an applicant under paragraph (3), he shall state the date when the registration of the Part I order will automatically cease to have effect on the child attaining the age of 16 years.

Cancellation or variation of registered Part I orders

71.6

(1) Where the Court of Session revokes, recalls or varies a Part I order which it has made, the Deputy Principal Clerk, on being informed by the party who applied for the revocation, recall or variation that the Part I order has been registered in an appropriate court, shall–

(a) send a certified copy of the interlocutor of the revocation, recall or variation, as the case may be, to the proper officer of the court in which the Part I order is registered;

(b) record the transmission of the certified copy of that interlocutor in Part I of the register; and

(2) On receiving notification from the proper officer of the court in which the Part I order is registered that he has amended his record, the Deputy Principal Clerk shall record the fact that the amendment has been made in Part II of the register.

(3) Where the Deputy Principal Clerk receives a certified copy of an order which revokes, recalls or varies a Part I order registered in the Court of Session from an appropriate court, he shall–

(a) note the change and its date in Part II of the register; and

(b) give written intimation to–

(i) the court from which he received the certified copy of the order which revokes, recalls or varies, as the case may be, the Part I order,

(ii) the person who applied for registration of the Part I order, and

(iii) the person, if different, who applied for the revocation, recall or variation, as the case may be, of the Part I order,

that he has amended the register.

(4) An application to the Court of Session under section 28(2) of the Act of 1986 to cancel all or a part of the registration of a Part I order which it has registered shall be made by petition and shall be served on–

(a) the person who applied for registration, if he is not the petitioner; and

(b) any other interested person.

(5) Where, under section 28(2) of the Act of 1986, the court cancels all or a part of the registration of a Part I order which it has registered, the Deputy Principal Clerk shall–

(a) note the cancellation and its date in Part II of the register; and

(b) give written intimation to–

(i) the court which made the Part I order;

(ii) the person who applied for registration; and

(iii) the person, if different, who applied for cancellation of the Part I order.

Enforcement of registered custody orders in Scotland

71.7

(1) An application under section 29(1) of the Act of 1986 to enforce a Part I order registered in the Court of Session shall be made by petition.

(2) Where the petitioner in an application under paragraph (1) is not the person who applied for registration of the Part I order, the petition shall be served on that person.

Applications to sist or refuse enforcement proceedings

71.8

(1) An application under section 30(1) of the Act of 1986 to sist enforcement proceedings, or under section 31(1) or (2) of the Act of 1986 to dismiss a petition for enforcement of a Part I order, shall be made by lodging answers at any time in the process of the petition for enforcement; and the answers shall be served on every other party and, if he is not a party, the applicant for registration of the Part I order.

(2) An application under section 30(3) of the Act of 1986 (recall of sist of enforcement proceedings) shall be made by motion.

(3) Where the court pronounces an interlocutor under section 30(2) or (3) or section 31(3) of the Act of 1986, the Deputy Principal Clerk shall–

(a) make an entry in Part II of the register noting the terms of the interlocutor and the date; and

(b) give written intimation to–

(i) the person who applied for registration where he was not a party to the application under section 30(1) or section 31(1) or (2) of the Act of 1986; and

(ii) the court from which the application for registration was received,

of the terms of the interlocutor.

Orders for disclosure of information

71.9

Where the court makes an order under section 33(1) of the Act of 1986 (order on person to disclose information as to child’s whereabouts), it may ordain the person against whom the order was made to appear before it or to lodge an affidavit.

Applications for interdict under section 35(3) of the Act of 1986

71.10

An application by a person mentioned in section 35(4)(b) or (c) of the Act of 1986[^f00235] for interdict or interim interdict under section 35(3) of the Act of 1986 (prohibition of removal of child from United Kingdom) shall be made–

(a) by note in the process of a petition depending before the court to which this Chapter applies; or

(b) where there is no such depending process, by petition.

CHAPTER 72 — Bankruptcy (Scotland) Act 2016

Interpretation of this Chapter

72.1

(1) In this Chapter, references to a section are to sections of the Bankruptcy (Scotland) Act 2016.

(2) Unless the context otherwise requires, words and expressions used in this Chapter which are also used in the Bankruptcy (Scotland) Act 2016 have the same meaning as in that Act.

First order in petitions for sequestration

72.2

(1) This rule applies to a petition containing—

(a) an appeal under section 68(4) (as read with section 68(6)(a)); or

(b) a referral for a direction under section 68(5) (as read with section 68(6)(a)).

(2) The petition must include a list of the sequestrations to which the petition relates.

(3) Where the court allows an appeal under section 68(4)—

(a) the Accountant in Bankruptcy must intimate a certified copy of the interlocutor of the court to the persons specified in section 67(2); and

(b) the court may make such orders as it thinks fit for the intimation and advertisement of its decision.

Notice of concurrent proceedings

72.3

(1) An application under section 211(5)(b) (application for a direction to remit an application under section 211(1)) is to be made by petition.

(2) A copy of the application under section 211(1) (application to sheriff to cure defects in procedure) certified by the sheriff clerk must be lodged with any application under section 211(5)(b).

(3) Where the court has determined an application under section 211(5)(b), the applicant must intimate a certified copy of the interlocutor of the court forthwith to—

(a) the sheriff clerk; and

(b) the Accountant in Bankruptcy.

(4) Where the court grants an application under section 211(5)(b), the sheriff clerk must, on receipt of the certified copy of the interlocutor of the court, transmit the application under section 211(1) and those parts of the sequestration process in the custody of the sheriff clerk, to the Deputy Principal Clerk.

(5) Where the court has determined the matters raised by the application under section211(1)—

(a) the applicant under section 211(5)(b) must intimate a certified copy of the interlocutor of the court forthwith to—

(i) the sheriff clerk; and

(ii) the Accountant in Bankruptcy; and

(b) the Deputy Principal Clerk must transmit the parts of process transmitted under paragraph (4) to the sheriff clerk.

Applications for transfer or remit of sequestration

72.4

The register of insolvencies maintained by the Accountant in Bankruptcy under section 1A(1)(b) of the Act of 1985 shall contain the information set out in Form 72.4.

Holding of sederunt book by Accountant in Bankruptcy

72.5

The Accountant in Bankruptcy shall hold the sederunt book for a period of at least 6 months from the date he receives it from the permanent trustee by virtue of section 57(1) of the Act of 1985 and–

(a) shall make it available for public inspection during office hours; and

(b) may allow such extracts to be made of entries in the Sederunt Book by such persons as he thinks fit.

Prescribed forms

72.6

(1) The register of insolvencies kept by the Accountant in Bankruptcy under section 1A(1)(b) of the Act of 1985[^f00238] shall contain the information required in Form 72.6–A.

(2) An undertaking by the interim trustee under section 2(3)(c) of the Act of 1985[^f00239] shall be in Form 72.6–B.

(3) The memorandum to be sent by a permanent trustee to the Keeper of the Register of Inhibitions and Adjudications under section 14(4) of the Act of 1985[^f00240] shall be in Form 72.6–C.

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