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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

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62.47

In this Part–

“the Act of 1989” means the Prevention of Terrorism (Temporary Provisions) Act 1989[^f00180];

“the Act of 1995” means the Proceeds of Crime (Scotland) Act 1995;

“the Act of 2000” means the Terrorism Act 2000;

“money order” means an order for the payment of money;

“non-money order” means an order which is not a money order;

“the Order of 1995” means the Prevention of Terrorism (Temporary Provisions) Act 1989 (Enforcement of External Orders) Order 1995;

“the Order of 1999” means the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Order 1999;

“the Overseas Forfeiture Order of 2005” means the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Order 2005;

“the POCA Order of 2005” means the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005;

“relevant enactment” means ... the Act of 1989, the Act of 1995 , the Act of 2000 the Order of 1995 , the Order of 1999, the Overseas Forfeiture Order of 2005 or the POCA Order of 2005, as the case may be.

Applications for registration under the relevant enactment

62.48

(1) An application to which this rule applies shall be made by petition.

(2) This rule applies to an application under any of the following provisions:–

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(a) paragraph 19(2) of Schedule 4 to the Act of 1989 (application for registration of an England and Wales order, Northern Ireland order or Islands order);

(b) section 36(1) of the Act of 1995 (application for registration of an order to which section 35 of the Act of 1995 applies);

(d) article 15(1) of the Order of 1995 (application for registration of external forfeiture order in relation to terrorism);

(e) article 16(1) of the Order of 1995 (application for registration of external restraint order).

(f) article 5(1) of the Order of 1999 (application for registration of external forfeiture order other than in relation to terrorism).

(g) paragraph 27(3) of Schedule 4 to the Act of 2000 (application for registration of an England and Wales order, Northern Ireland order or Islands order

(h) article 13(1) of the Overseas Forfeiture Order of 2005 (applications to give effect to external forfeiture orders);

(i) article 66(1) of the POCA Order of 2005 (applications to give effect to external orders).

(3) There shall be produced with a petition under paragraph (1) a certified copy of the order which is sought to be registered.

Warrant for registration under the Act of 1987, 1988 or 1989

62.49

The court shall, on being satisfied that the application complies with the requirements of the relevant enactment, as the case may be–

(a) pronounce an interlocutor granting warrant for execution of a non-money order; or

(b) pronounce an interlocutor granting warrant for the registration of a money order.

Registration under the Act of 1987, 1988 or 1989

62.50

(1) Where the court pronounces an interlocutor under rule 62.49, the Deputy Principal Clerk shall enter the order in the register for the registration of orders under the relevant enactment.

(2) On presentation by the petitioner to the Keeper of the Registers of–

(a) a certified copy of the interlocutor pronounced under rule 62.49(b), and

(b) a certified copy of the order to be registered,

they shall be registered in the register of judgments of the Books of Council and Session.

(3) On registration under paragraph (2), the Keeper of the Registers shall issue an extract of the registered order with a warrant for execution.

Service of warrant for registration under the relevant enactment

62.51

The petitioner shall serve a copy of the interlocutor, pronounced under rule 62.49 granting warrant for registration, and a notice in Form 62.51 on the person against whom the order may be enforced.

Suspension of enforcement under the Act of ... 1995

62.52

(1) Where an order under ...section 36(1) of the Act of 1995 has been registered under rule 62.50, the court may, on the application of the person against whom the order may be enforced, if satisfied that an application has been made to the court which made the order to have it set aside or quashed–

(a) suspend enforcement of the order; and

(b) sist any proceedings for enforcement of the order.

(2) Notwithstanding rule 60.2 (form of applications for suspension), an application under paragraph (1) shall be made by note in the process in the petition under rule 62.48(1).

Modification and cancellation of registration under the Act of ... 1989 or 1995

62.53

(1) An application to modify or cancel the registration of an order under the Act of ... 1989 or 1995 or 2000 registered under rule 62.50 shall be made–

(a) by the petitioner, by motion; or

(b) by any other interested party, by note.

(2) There shall be produced with the application under paragraph (1) a certified copy of any order which modifies or revokes the registered order or which causes the order to cease to have effect.

(3) The court shall, on being satisfied–

(a) that the registered order has been modified, revoked or has ceased to have effect, or

(b) that the registration of an external confiscation order should be cancelled in terms of section 41(3) of the Act of 1995,

pronounce an interlocutor so modifying or cancelling the registration, as the case may be, and grant warrant for the registration of a certified copy of the interlocutor in the register of judgments of the Books of Council and Session.

(4) Where the court pronounces an interlocutor under paragraph (3), the Deputy Principal Clerk shall modify or cancel the registration in the register kept under rule 62.50(1) in accordance with that interlocutor.

Applications for inhibition or arrestment

62.54

(1) Any of the following applications shall be made in the prayer of the petition under rule 62.48(1) to which it relates or, if the prayer of that petition has been granted, by motion in the process of that petition:—

(a) an application under section 32(1) of the Act of 1995 for a warrant for inhibition;

(b) an application under section 33(1) of the Act of 1995 (warrant for arrestment);

(c) an application under paragraph 16(1) (warrant for inhibition), or paragraph 16A(1) (warrant for arrestment), of Schedule 4 to the Act of 1989 as applied by paragraph 19(5) of that Schedule or by article 18 of the Order of 1995, as the case may be.

(2) Either of the following applications shall be made in the prayer of the petition under rule 62.48(1) to which it relates or, if the prayer of the petition has been granted, by note in the process of that petition:—

(a) an application under sub-paragraph (4) of paragraph 19 of Schedule 4 to the Act of 1989 for an order in implementation of an England and Wales, Northern Ireland or Islands forfeiture order registered in the Court of Session under that paragraph;

(b) an application under article 17 of the Order of 1995 for an order in implementation of an external forfeiture order registered in the Court of Session under article 15(1) of that Order.

(3) Where the court makes an order by virtue of paragraph 19(4) of Schedule 4 to the Act of 1989 or article 17 of the Order of 1995 appointing an administrator, rules 76.24 to 76.26 (which relate to the duties of an administrator) shall apply to an administrator appointed by virtue of that paragraph or article as they apply to an order in implementation of a forfeiture order.

Registration of awards under the Multilateral Investment Guarantee Agency Act 1988

62.55

Part III shall, with the necessary modifications, apply to an award under Article 4 of Annex II to the convention referred to in section 1(1) of the Multilateral Investment Guarantee Agency Act 1988[^f00182] as it applies to an award under the convention mentioned in section 1(1) of the Arbitration (International Investment Disputes) Act 1966[^f00183].

Application and interpretation of this Part

62.56

(1) In this Part—

“the 2010 Act” means the Arbitration (Scotland) Act 2010;

“the Convention” means the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards;

“Convention award” means an award made in pursuance of a written arbitration agreement in a territory of a state (other than the United Kingdom) which is a party to the Convention.

(2) This Part applies to an application under section 19 of the 2010 Act (recognition and enforcement of New York Convention awards).

Applications for registration under the Act of 1990

62.57

(1) An application for enforcement of a Convention award under section 19(2) of the 2010 Act shall be made by petition or, where there are proceedings depending before the court under the 2010 Act in relation to the same arbitration process, by note in the process of the petition.

(2) There shall be produced with such a petition or note—

(a) the duly authenticated original award or a certified copy of it;

(b) the original agreement referred to in article II of the Convention or a certified copy of it;

(c) a translation of any award or agreement which is in a language other than English, certified by an official or sworn translator or by a diplomatic or consular agent;

(d) an affidavit stating—

(i) the full name, title, trade or business and the usual or last known place of residence or, where appropriate, of the business of the petitioner or noter and the party against whom the Convention award was made;

(ii) the amount of the Convention award which is unsatisfied; and

(iii) that the Convention award has become binding on the parties and has not been set aside or suspended by a court of the country which, or under the law of which, the award was made.

Registration under the Act of 1990

62.58

(1) The court, on being satisfied that the Convention award may be registered, shall grant warrant for registration.

(2) Where the court pronounces an interlocutor under paragraph (1), the Deputy Principal Clerk shall enter the Convention award in a register of Convention awards.

(3) Where the Keeper of the Registers receives from the petitioner or noter the documents referred to in paragraph (4), he or she shall register them in the register of judgments of the Books of Council and Session.

(4) The documents are—

(a) a certified copy of the interlocutor of the warrant of registration,

(b) a certified copy of the Convention award to be registered, and any translation of it, and

(5) An extract of a registered Convention award with warrant for execution shall not be issued by the Keeper of the Registers until a certificate of service under rule 62.59 (service on party against whom Convention award made) is produced to him or her.

Service on party against whom arbitral award made

62.59

On registration under rule 62.58, the petitioner or noter shall forthwith serve a notice of registration on the party against whom the Convention award was made in Form 62.59.

Application for refusal of recognition or enforcement of a Convention award

62.60

(1) An application under article V of the Convention (request by party against whom Convention award made for refusal of recognition or enforcement) shall be made by note.

(2) A note referred to in paragraph (1) may crave—

(a) suspension or interdict of any past or future steps in the execution of the Convention award, including registration or enforcement of the award; and

(b) recall of the interlocutor pronounced under rule 62.58(1) (registration under the Convention).

(3) The note shall be supported by affidavit and any relevant documentary evidence.

(4) Where any interlocutor pronounced under rule 62.58(1) is recalled, a certificate to that effect issued by the Deputy Principal Clerk shall be sufficient warrant to the Keeper of the Registers to cancel the registration and return the documents registered to the petitioner or noter on whose application the interlocutor under that rule was pronounced.

CHAPTER 63 — APPLICATIONS RELATING TO TRUSTS

Interpretation of this Part

63.1

In this Part, “the Act of 1961” means the Trusts (Scotland) Act 1961[^f00185].

Form of petitions under section 1(4) of the Act of 1961

63.2

In a petition under section 1(4) of the Act of 1961 (petition to vary or revoke purposes of an alimentary trust), it shall not be necessary to aver the amount or details of the income of an alimentary beneficiary from all sources.

Service on certain persons

63.3

In a petition under section 1 of the Act of 1961[^f00186] (petition for variation or revocation of trust purposes or extension of trustees' powers), the order under rule 14.5 (first order in petitions)–

(a) shall include a requirement for the petition to be served–

(i) where the trust deed is registered in a register kept by the Keeper of the Registers or the Keeper of the Records, on the relevant Keeper; or

(ii) where the trust deed is registered in a sheriff court book, on the sheriff clerk who keeps the relevant sheriff court book; and

(b) may include a requirement for the petition to be served on a truster or settlor or any other person who has contributed or is liable to contribute to the trust estate which may be affected by the petition.

Application of this Part

63.4

This Part applies to an application for which provision is to be made by virtue of section 6(vi) of the Act of 1988[^f00187] (provision to enable trustees under any trust deed to obtain direction of the court).

Form and service of application

63.5

(1) An application to which rule 63.4 applies shall be made by petition.

(2) Subject to rule 63.6A (executors of underwriting members of Lloyd’s of London), the petition shall set out the question on which the direction of the court is sought and may include, in an appendix, any relevant documents.

(3) The court may, in any order made under rule 14.5 (first order in petitions) or in any subsequent order, include a requirement to serve the petition on creditors, beneficiaries or other persons interested in the subject-matter of the petition.

Determination of petition

63.6

(1) Subject to rule 63.6A (executors of underwriting members of Lloyd’s of London), the petition shall be disposed of at a hearing on the Summar Roll.

(2) At the hearing on the Summar Roll, the court may order inquiry by–

(a) proof,

(b) remit to a reporter, or

as it thinks fit.

Application and interpretation of this Part

63.7

(1) This Part applies to–

(a) an application to the nobile officium of the court for approval of a cy près scheme in relation to a public trust; or

(b) an application to the court under–

(i) Part VI of the Education (Scotland) Act 1980[^f00188] (reorganisation of endowments); or

(ii) Part I of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990[^f00189] (charities and reorganisation of public trusts).

(2) In this Part, “the Act of 1990” means the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

Proceedings before nominated judge

63.8

Subject to rule 63.9 (referral to Inner House), all proceedings in an application to which this Part applies shall be brought before a judge of the court nominated for that purpose by the Lord President or, where the nominated judge is not available, any other judge of the court (including the vacation judge); and, in this Part, “Lord Ordinary” shall be construed accordingly.

Remit to Inner House

63.9

The Lord Ordinary, if he thinks fit, may at any time remit a petition to which this Part applies to the Inner house to be determined by a Division of the Inner House.

Form of applications

63.10

(1) Subject to the following paragraphs of this rule, an application to which this Part applies shall be made by petition.

(2) An application for an order in a petition to which this Part applies which is in dependence shall be made by motion.

(3) At the hearing of a motion under paragraph (2), the court may order that the application be made by note; and, in such a case, shall make an order for the lodging of answers to the note in process within such period as the court thinks fit.

(4) Intimation to the court by the Scottish Ministers under section 1(6) or 5(13) of the Act of 1990 (interdict until intimation to court) shall be made by motion for recall of the interlocutor.

Service on interested persons

63.11

A petition to which this Part applies shall be served on all persons who may have an interest in the subject-matter of the petition.

Procedure where no answers lodged

63.12

(1) if, on the expiry of the period of notice, no answers have been lodged, the petitioner may apply by motion for an order granting the prayer of the petition.

(2) On a motion under paragraph (1), the Lord Ordinary may, before determining that motion–

(a) remit to a reporter to inquire into, and report on, the petition and any scheme appended to it;

(b) order the petitioner to lodge evidence by affidavit or documentary evidence;

(d) make such other order as he thinks fit.

Procedure where answers lodged

63.13

(1) Where answers are lodged in a petition, the parties may adjust the petition and answers during the period of 28 days from the date on which answers are lodged or from the expiry of the period of notice, whichever is the later.

(2) Within 14 days after the expiry of the period allowed for adjustment under paragraph (1), the petitioner shall enrol a motion for an order for such further procedure as he shall specify.

(3) On a motion under paragraph (2), the Lord Ordinary shall make such order as he thinks fit for the further procedure of the petition; and, in particular–

(a) may–

(i) remit to a reporter to inquire into, and report on, the petition and any scheme appended to it;

(ii) order a party to lodge evidence by affidavit or documentary evidence; and

(b) then, or thereafter, shall appoint the cause to a hearing.

(4) At a hearing appointed under paragraph (3)(b), the Lord Ordinary shall–

(a) determine the petition; or

(b) make such order for further procedure as he thinks fit.

(5) If at any stage answers are withdrawn, the petition shall proceed as if answers had not been lodged.

Warrants for registration

63.14

An interlocutor approving a cy près scheme or a scheme for the variation or reorganisation of a public trust shall contain a warrant for the registration of an official certified copy of the interlocutor, and a copy of the scheme certified by the agent to the petitioner, in the Books of Council and Session or the books of a specified sheriff court.

Advertisement of court orders

63.15

An order made under paragraph (a) or (g) of section 7(4) of the Act of 1990 (interim interdict or interdict of body holding itself out as a charity etc.) shall, unless the court otherwise directs, be advertised forthwith in one or more newspapers as the court shall direct for ensuring that it comes to the notice of persons dealing with a non-recognised body within the meaning of section 2(2) of that Act.

CHAPTER 64 — APPLICATIONS UNDER SECTION 1 OF THE ADMINISTRATION OF JUSTICE (SCOTLAND) ACT 1972

Application of this Chapter

64.1

This Chapter applies to an application for an order under section 1 of the Administration of Justice (Scotland) Act 1972[^f00190] made where a cause is not depending before the court in which the application may be made.

Form of applications under the Act of 1972

64.2

An application to which this Chapter applies shall be made by petition.

Intimation and service

64.3

(1) Before granting the application, the court may order such intimation and service of the petition to be given or executed, as the case may be, as it thinks fit.

(2) Any person receiving intimation or service of the petition by virtue of an order under paragraph (1) may appear and oppose the application.

Orders for caution or other security

64.4

On granting, in whole or in part, the application, the court may order the petitioner to find such caution or other security as it thinks fit.

CHAPTER 65 — REFERENCES TO THE EUROPEAN COURT OF JUSTICE

Interpretation of this Chapter

65.1

(1) In this Chapter–

“appeal” includes an application for leave to appeal;

“the European Court” means the Court of Justice of the European Union;

“reference” means a reference to the European Court for–a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union, Article 150 of the Euratom Treaty, or Article 41 of the E.C.S.C. Treaty;a preliminary ruling on the interpretation of the Conventions, mentioned in Article 1 of Schedule 2 to the Civil Jurisdiction and Judgments Act 1982[^f00191], under Article 3 of that Schedule; ora preliminary ruling on the interpretation of the instruments, mentioned in Article 1 of Schedule 3 to the Contracts (Applicable Law) Act 1990[^f00192], under Article 2 of that Schedule.

(2) The expressions ... “Euratom Treaty” and “E.C.S.C. Treaty” have the meanings assigned respectively in Schedule 1 to the European Communities Act 1972[^f00193].

(3) In paragraph (1), “the Treaty on the Functioning of the European Union” means the treaty referred to in section 1(2)(s) of the European Communities Act 1972.

Applications for reference

65.2

A reference may be made by the court at its own instance or on the motion of a party in Form 65.2.

Preparation of case for reference

65.3

(1) Where the court decides that a reference shall be made, it shall pronounce an interlocutor giving directions to the parties about the manner and time in which the reference is to be drafted and adjusted.

(1A) Except in so far as the court may otherwise direct, a reference shall be prepared in accordance with Form 65.3.

(1B) In preparing a reference, the parties shall have regard to guidance issued by the European Court of Justice.

(2) When the reference has been drafted and any adjustments required by the court have been made, the court shall make and sign the reference.

(3) A certified copy of the interlocutor making the reference shall be annexed to the reference.

Sist of cause

65.4

(1) Subject to paragraph (2), on a reference being made, the cause shall, unless the court when making such a reference otherwise orders, be sisted until the European Court has given a preliminary ruling on the question referred to it.

(2) The court may recall a sist made under paragraph (1) for the purpose of making an interim order which a due regard to the interests of the parties may require.

Transmission of reference

65.5

(1) Subject to paragraph (2), a copy of the reference, certified by the Deputy Principal Clerk, shall be transmitted by him to the Registrar of the European Court.

(2) Unless the court otherwise directs, a copy of the reference shall not be sent to the Registrar of the European Court where a reclaiming motion or appeal against the making of the reference is pending.

(3) For the purpose of paragraph (2), a reclaiming motion or an appeal shall be treated as pending–

(a) until the expiry of the time for marking that reclaiming motion or appeal; or

(b) where a reclaiming motion or an appeal has been made, until it has been determined.

CHAPTER 66 — APPLICATIONS UNDER THE EVIDENCE (PROCEEDINGS IN OTHER JURISDICTIONS) ACT 1975

Interpretation of this Chapter

66.1

In this Chapter–

“the Act of 1975” means the Evidence (Proceedings in Other Jurisdictions) Act 1975[^f00194];

“civil proceedings” has the meaning assigned in section 9(1) of the Act of 1975;

“requesting court” has the meaning assigned in section 9(1) of the Act of 1975.

Disapplication of certain rules to this Chapter

66.2

The following rules shall not apply to an application to which this Chapter applies:–

rule 14.5 (first order in petitions),

rule 14.6 (period of notice for lodging answers),

rule 14.7 (intimation and service of petitions),

rule 14.9 (unopposed petitions).

Form of applications under the Act of 1975

66.3

(1) An application under section 1 of the Act of 1975 (application for assistance in obtaining evidence for foreign civil proceedings) shall be made by petition.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where the letter of request is in a language other than English, there shall be produced with the petition a translation into English certified as correct by the translator; and the certificate shall include his full name, address and qualifications.

Intimation of order and citation

66.4

(1) Where the court pronounces an interlocutor making an order under section 2(1) of the Act of 1975, the petitioner shall–

(a) intimate a certified copy of that interlocutor to any witness or haver named in the interlocutor; and

(b) cite such witness or haver to give evidence.

(2) Rule 35.4(3) and (4) (citation of haver to commission) and rule 35.11(5) and (6) (citation of witness to commission) shall, with the necessary modifications, apply to the citation of a haver or witness, as the case may be, under this rule.

Variation or recall of orders

66.5

A witness or haver who has received intimation and citation under rule 66.4 may apply to the court by motion to have the order under section 2(1) of the Act of 1975 varied or recalled.

Procedure where witness claims he is not compellable

66.6

(1) Where a witness or haver who has received intimation and citation under rule 66.4–

(a) claims that he is not a compellable witness or haver by virtue of section 3(1)(b) of the Act of 1975, and

(b) is required to give evidence,

the court or any commissioner appointed by the court shall take the evidence and record it in a document separate from the record of any other evidence; and that document shall be kept by the Deputy Principal Clerk.

(2) Where evidence is taken under paragraph (1) of this rule, the court or the commissioner, as the case may be, shall certify the grounds of the claim made under section 3(1)(b) of the Act of 1975.

(3) On certification under paragraph (2), the deputy Principal Clerk shall send the certificate to the requesting court with a request to it to determine the claim.

(4) On receipt of the determination from the requesting court, the Deputy Principal Clerk shall–

(a) give written intimation of the determination to the witness or haver who made the claim; and

(b) in accordance with the determination, send the document in which the evidence is recorded to, as the case may be–

(i) the requesting court, or

(ii) where the claim is upheld, the witness or haver.

Applications for evidence for proceedings under the European Patent Convention

66.7

Where the court makes an order under section 1 of the Act of 1975 as applied by section 92(1) of the Patents Act 1977[^f00195], an officer of the European Patent Office may apply by motion–

(a) to examine any witness; or

(b) to request the court or commissioner, as the case may be, to put specified questions to any witness.

CHAPTER 67 — APPLICATIONS UNDER THE ADOPTION (SCOTLAND) ACT 1978

Application and interpretation of this Chapter

67.1

(1) In this Chapter –

“the 1995 Act” means the Children (Scotland) Act 1995;

“the 2002 Act” means the Adoption and Children Act 2002;

“the 2007 Act” means the Adoption and Children (Scotland) Act 2007;

“the 2009 Regulations” means the Adoptions with a Foreign Element (Scotland) Regulations 2009;

“adoption agency” means—a local authority;a registered adoption service within the meaning of section2(3) of the 2007 Act;an adoption agency within the meaning of section 2(1) of the 2002 Act (adoption agencies in England and Wales); oran adoption agency within the meaning of article3 of the Adoption (Northern Ireland) Order 1987;

“Her Majesty’s Forces’ means the regular forces as defined in section 374 of the Armed Forces Act 2006;

“Principal Reporter” has the same meaning as in section93(1) of the 1995 Act;

“Registrar General” means the Registrar General of Births, Deaths and Marriages for Scotland.

Disapplication of certain rules to this Chapter

67.2

Unless otherwise provided in this Chapter, the following rules shall not apply to a petition or note to which this Chapter applies:—

rule14.5 (first order in petitions);

rule14.6 (period of notice for lodging answers);

rule14.7 (intimation and service of petitions);

rule14.8 (procedure where answers lodged);

rule14.9 (unopposed petitions).

Confidentiality of documents in process

67.3

(1) Unless the court otherwise directs, in any cause to which this Chapter applies all documents lodged in process, including the reports by the curator ad litem and reporting officer—

(a) are to be available only to the court, the curator ad litem, the reporting officer and the parties; and

(b) shall be treated as confidential by any persons involved in, or a party to, the proceedings and by the clerk of court.

(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.

Selection of reporting officer or curator ad litem

67.4

Where the court appoints a reporting officer or a curator ad litemunder this Chapter and there is an established panel of persons from whom the appointment may be made, the reporting officer or curator ad litem shall be selected from that panel unless the court considers that it would be appropriate to appoint a person who is not on the panel.

Form of agreements and consents

67.5

(1) In a cause to which this Chapter applies, the court may, before determining the cause, order—

(a) production of further documents (including affidavits);

(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 court may make such order as it thinks fit.

Orders for evidence

67.6

Where, under section54(1) of the 1995 Act (question arising as to whether compulsory measures of supervision are necessary) a matter is referred to the Principal Reporter—

(a) the interlocutor making the reference shall specify which of the conditions referred to in that subsection it appears to the court has been satisfied; and

(b) the clerk of court shall give written intimation of that interlocutor forthwith to the Principal Reporter.

Expenses

67.7

In a cause to which this Chapter applies, the court may make such order as to expenses, including the expenses of a reporting officer, a curator ad litem, or any other person who attended a hearing, as it thinks fit.

Interpretation of this Part

67.8

(1) An application for an adoption order under section29 (adoption by certain couples) or 30 (adoption by one person) of the 2007 Act is to be made by petition in Form67.8-A.

(2) An application for an order vesting parental responsibilities and parental rights relating to a child under section59(1) of the 2007 Act (preliminary order where child to be adopted abroad) is to be made by petition in Form67.8-B.

(3) The following documents must be lodged in process along with a petition under paragraph(1) or (2):—

(a) an extract of the entry in the Register of Births relating to the child who is the subject of the application;

(b) in the case of an application under section 29 of the 2007 Act by a relevant couple who are married to each other, an extract or a certified copy of the entry in the Register of Marriages relating to their marriage;

(c) in the case of an application under section 29 of the 2007 Act by a relevant couple who are civil partners of each other, an extract or a certified copy of the entry in the Register of Civil Partners relating to their civil partnership;

(d) any report by the local authority required by section19(2) (investigation by local authority on receipt of notice of intention to apply for adoption order) of the 2007 Act, if available;

(e) any report by an adoption agency required by section17 (report on the suitability of the applicants and other matters) of the 2007 Act, if available;

(f) where appropriate, an extract of the order freeing the child for adoption;

(g) where appropriate, an extract of the permanence order made in respect of the child under section80 of the 2007 Act;

(h) where appropriate, the consent under section19(1) (placing children with parental consent: England and Wales) of the 2002 Act of each parent or guardian to the child being placed for adoption, in the form prescribed under section52(7) of that Act, if available;

(i) where appropriate, the consent under section20(1) (advance consent to adoption: England and Wales) of the 2002 Act of each parent or guardian to the making of a future adoption order, in the form prescribed under section52(7) of that Act, if available;

(j) any notice given under section20(4) (notice that information about application for adoption order not required: England and Wales) of the 2002 Act by a parent or guardian of the child to an adoption agency, if available;

(k) a certified copy of any placement order made under section21(1) (placement orders: England and Wales) of the 2002 Act, if available; and

(l) any other document founded upon by the petitioner in support of the terms of the petition.

(4) A report by a local authority under section19(2) or an adoption agency under section17 of the 2007 Act must be in numbered paragraphs and include the following matters:—

(a) information about how the needs of the child came to the notice of the authority or agency;

(b) the family circumstances of the child;

(c) where the child was placed for adoption by an adoption agency, a description of the physical and mental health of the child, (including any special needs) and his emotional, behavioural and educational development;

(d) an account of the discussion with the parents or guardians of the child and, if appropriate, with the child about their wishes and the alternatives to adoption;

(e) the position of other relatives or persons likely to be involved;

(f) an account of any search for a parent or guardian who cannot be found;

(g) information about the mutual suitability of the petitioner and the child for the relationship created by adoption and the ability of the petitioner to bring up the child including an assessment of the personality of the petitioner and, where appropriate, that of the child;

(h) particulars of all members of the household of the petitioner and their relationship to the petitioner;

(i) a description of the accommodation in the home of the petitioner;

(j) in a petition by one only one member of a relevant couple within the meaning of section 29(3) of the 2007 Act, why the other member of that couple has not joined in the application;

(k) whether the petitioner understands the nature and effect of an adoption order and in particular that the order, if made, will make the petitioner responsible for the mainte283ce and upbringing of the child;

(l) whether the means and standing of the petitioner are such as to enable him to maintain and bring up the child suitably;

(m) whether the child has any right or interest in property and, if so, what right or interest;

(n) whether any payment or other reward in consideration of the adoption, other than an approved adoption allowance, has been received or agreed upon;

(o) what insurance has been offered on the life of the child;

(p) the religious persuasion, racial origin and cultural and linguistic background of the child and of the petitioner;

(q) considerations arising from the difference in age between the petitioner and the child if this is more or less than the normal difference in age between parents and children;

(r) whether adoption is likely to safeguard and promote the welfare of the child throughout his life;

(s) whether the child is subject to a supervision requirement and, if so, what steps have been taken to comply with section73(4)(c), (5) and (13) (duration and review of supervision requirement) of the 1995 Act;

(t) where paragraph(5) applies, the information mentioned in paragraph(6);

(u) whether there has been a contravention of section75 of the 2007 Act in relation to the child;

(v) whether there has been a failure to comply with section76(2) of the 2007 Act in relation to the child;

(w) any other matters relevant to the operation of section 14 of the 2007 Act in relation to the application;

(x) where appropriate, information about whether—

(i) in an application under section 29(1) of the 2007 Act, the petitioners are a relevant couple within the meaning of section 29(3)(c) or (d) of the 2007 Act;

(ii) in an application under section 30(1) of the 2007 Act, the petitioner is a member of a relevant couple within the meaning of section 29(3)(c) or (d) of the 2007 Act;

(y) in the case of a petition under paragraph (2) to which regulation 50 of the 2009 Regulations applies, the details referred to in paragraph (7); and

(z) any other information which may be of assistance to the court.

(5) This paragraph applies where—

(a) the child was placed for adoption under section19(1) (placement with parental consent: England and Wales) of the 2002 Act;

(b) the child was placed for adoption under a placement order made under section21(1) (placement orders: England and Wales) of the 2002 Act; or

(c) each parent or guardian has consented under section20(1) (advance consent to adoption: England and Wales) of the 2002 Act to the making of a future adoption order.

(6) The information referred to in paragraph(4)(t) is any available information about whether—

(a) any placement order has been revoked;

(b) any of the consents referred to in section31(8) or (9) of the 2007 Act have at any time been withdrawn;

(d) there has been any change of circumstances since the consent of the parent or guardian was given or, as the case may be, the order under section21(1) (placement orders: England and Wales) of the 2002 Act was made.

(7) The details mentioned in paragraph (4)(y) are—

(a) details of any reviews carried out under regulation 10 of the Adoption Agencies (Scotland) Regulations 2009; and

(b) details of any visits carried out under regulation 25(1)(a) of those Regulations.

(8) If a report mentioned in paragraph(3)(d) or (e) is unavailable to be lodged along with the petition, the court shall pronounce an interlocutor requiring the adoption agency or local authority concerned to prepare and lodge such a report in court within 2weeks from the date of the interlocutor, or within such other period as the court in its discretion may allow.

(9) If any of the documents required to be lodged in process under paragraph(3)(f), (g), (h), (i), (j) or (k) is unavailable to be lodged by reason of its being in the possession of an adoption agency, the court shall pronounce an interlocutor requiring the agency to lodge the document within 4weeks from the date of the interlocutor, or within such other period as the court in its discretion may allow.

Applications for freeing for adoption order

67.9

(1) The additional requirements in this Rule apply to a petitioner in an application for an order under section 59 of the 2007 Act.

(2) In the case of an application to which regulation 7 of the 2009 Regulations applies, the petitioner must lodge along with the petition—

(a) the confirmation required under regulation 7(3)(a)(i) of the 2009 Regulations;

(b) copies of the confirmations to the adoption agency referred to in regulations 7(3)(b)(i), (iii) and (iv) of the 2009 Regulations;

(d) a copy of the confirmation to the adoption agency referred to in regulation 7(3)(c) or (d), as the case may be, of the 2009 Regulations; and

(e) the documents mentioned in regulation 8 of those Regulations.

(3) In the case of an application to which regulation 50 of the 2009 Regulations applies, the petitioner must lodge along with the petition the reports, confirmations and other documents or, where appropriate, copies thereof, referred to in regulation 50(3)(a) to (d), (f) and (g) of those Regulations.

(4) Where appropriate the petitioner must also lodge in process a translation into English of any document referred to in paragraph (2) or (3) together with the certificate referred to in paragraph (5).

(5) The certificate mentioned in paragraph (4) is a certificate by the translator—

(a) certifying that the translation is in conformity with the original document; and

(b) giving the full name, address, and qualifications of the translator.

(6) The petitioner must adduce evidence of the law of adoption in the country or territory in which it is intended to adopt the child.

(7) The evidence of the law of adoption required under paragraph(6) may be in the form of an affidavit by a person who is conversant with that law and who—

(a) practices or has practised law in that country or territory; or

(b) is a duly accredited representative of the government of that country or territory in the United Kingdom.

Appointment of reporting officer and curator ad litem

67.10

(1) When any person who proposes to apply under rule67.8 wishes to prevent his identity being disclosed to any person whose consent to the order is required, he may, before presenting the petition, apply by letter to the Deputy Principal Clerk for a serial number to be assigned to him for all purposes connected with the petition.

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

(a) assign a serial number to the applicant; and

(b) enter a note of the number opposite the name of the applicant in a register of serial numbers.

(3) The contents of the register of serial numbers and the names of the persons to whom each number relates shall be treated as confidential by the Deputy Principal Clerk and disclosed only to the court.

(4) Where a serial number has been assigned to an applicant under paragraph(2) any form of consent to an adoption order or order under section 59 of the 2007 Act—

(a) must refer to the applicant by means of the serial number assigned to him;

(b) must not contain the name and designation of the applicant; and

Duties of reporting officer and curator ad litem

67.11

(1) The court shall, on the presentation of a petition under rule67.8 appoint a curator ad litem and reporting officer.

(2) But, subject to paragraph (3), the court shall not appoint a reporting officer where one or more of the following applies—

(a) an order freeing the child for adoption has been made;

(b) a permanence order with provision granting authority for the child to be adopted has been granted under section80 of the 2007 Act;

(c) the petition is founded on one or other or both of section31(8) (advance consent to adopt) or (9) (placement of child: England and Wales) of the 2007 Act.

(3) Notwithstanding paragraph (2), a reporting officer shall be appointed—

(a) in any case in which the petition is founded on the condition in section31(2) of the 2007 Act, whether or not it is also founded on section31(8) or (9) of that Act; or

(b) where the child who is the subject of the application is aged 12 or over, for the purpose of witnessing that child’s consent, where that consent is to be executed in Scotland.

(4) The same person may be appointed as curator ad litem and reporting officer in the same petition, if the court considers that doing so is appropriate in the circumstances.

(5) A person may, before presenting the petition, apply by letter to the Deputy Principal Clerk for the appointment of a reporting officer.

(6) An application under paragraph (5) shall—

(a) set out the reasons for which the appointment is sought;

(b) not require to be intimated to any person;

(d) be placed by the Deputy Principal Clerk before the Lord Ordinary for his decision.

(6) The Deputy Principal Clerk shall give written intimation of the appointment of a curator ad litemand reporting officer under paragraph (1) or (5) to the petitioner and to the person or persons appointed.

(7) The decision of the Lord Ordinary on an application under paragraph (5) shall be final and not subject to review.

(8) The letter and the interlocutor sheet in an application under paragraph (5) shall be kept in the Petition Department and subsequently placed in the process of the petition.

Declaration of preference not to be involved

67.12

(1) The other duties of a reporting officer appointed under this Part, other than under rule 67.11(3)(b), 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 or order under section 59 of the 2007 Act 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 consent to the making of an adoption order or order under section 59 of the 2007 Act is required or may be dispensed with—

(i) to ascertain whether that person understands the effect of the adoption order or order under section59 of the 2007 Act;

(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;

(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;

(d) to report in writing on the matters mentioned in subparagraphs(a) to (c) to the court within 4 weeks from the date of the 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 31(2)(a) or 32(1) 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 averred in the petition and in the report mentioned in rule 67.8(4);

(d) obtain particulars of all members of the household of the petitioner and their relationship to the petitioner;

(e) in the case of a petition by only one member of a relevant couple within the meaning of section 29(3) of the 2007 Act, ascertain the reason of the other member of the couple for not joining the application;

(f) ascertain whether the means and status of the petitioner are sufficient to enable him to maintain and bring up the child suitably;

(g) ascertain what rights or interests in property the child has;

(h) establish that the petitioner understands the nature and effect of an adoption order and in particular that the making of the order will render him responsible for the mainte283ce and upbringing of the child;

(i) where appropriate, ascertain when the mother of the child ceased to have the care and possession of the child and to whom care and possession was then transferred;

(j) ascertain whether any payment or other reward in consideration of the adoption has been given or agreed upon;

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

(l) ascertain whether the life of the child has been insured and if so for what sum;

(m) ascertain whether it may be in the interests of the welfare of the child that the court should make the adoption order or order under section 59 of the 2007 Act subject to particular terms and conditions or require the petitioner to make special provision for the child and, if so, what provision;

(n) where the petitioner is not ordinarily resident in the United Kingdom, establish whether a report has been obtained on the home and living conditions of the petitioner from a suitable agency in the country in which he is ordinarily resident;

(o) establish the reasons of the petitioner for wishing to adopt the child;

(p) establish the religious persuasion, racial origin and cultural and linguistic background of the child and of the petitioner;

(q) assess the considerations which might arise where the difference in age as between the petitioner and the child is greater or less than the normal difference in age between parents and their children;

(r) consider such other matters, including the personality of the petitioner and, where appropriate, that of the child, which might affect the suitability of the petitioner and the child for the relationship created by adoption and affect the ability of the petitioner to bring up the child;

(s) ascertain whether it would be better for the child that the court should make the order than it should not make the order;

(t) ascertain whether the adoption is likely to safeguard and promote the welfare of the child throughout his life; and

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

(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 in its discretion may allow.

(5) Subject to any order made by the court under rule67.16(1)(a), the views of the child ascertained in terms of paragraph(3)(u) may, if the curator ad litem considers appropriate, be conveyed to the court orally.

Hearing of freeing for adoption petition

67.13

(1) The consent of a parent or guardian to an order required by section31(2)(a) of the 2007 Act is to be in Form67.13-A.

(2) The consent of the child required by section32(1) of the 2007 Act is to be in Form67.13-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 rule 67.11;

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

Applications for revocation of freeing for adoption order

67.14

(1) On the lodging of a petition under rule67.8—

(a) the Deputy Principal Clerk shall cause the petition to be put on the By Order Roll before the Lord Ordinary not less than 6 and not more than 8weeks thereafter;

(b) in the case of a petition under rule 67.8(1), the petitioner or, where a serial number has been assigned under rule 67.10, the Deputy Principal Clerk shall intimate a copy of the petition along with a notice of intimation in Form 67.14-A to—

(i) 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;

(ii) if no such person can be found, a relative of the child within the meaning of section 119(1) of the 2007 Act, unless the address of such a relative is not known to the petitioner and cannot reasonably be ascertained;

(iii) every person who has consented to the making of the order under section 20 of the 2002 Act (and has not withdrawn the consent) unless the person has given a notice under subsection (4)(a) of that section which has effect; and

(iv) every person who, if leave were given under section 31(12) of the 2007 Act, would be entitled to oppose the making of the order;

(c) in the case of a petition under rule 67.8(2), the petitioner or, where a serial number has been assigned under rule 67.10, the Deputy Principal Clerk shall intimate a copy of the petition along with a notice of intimation in Form 67.14-A to every person who can be found and whose consent to the making of the order would be required if the application were for an adoption order (other than a Convention adoption order);

(d) in the case of a petition under rule 67.8(1) the petitioner or, where a serial number has been assigned under rule 67.10, the Deputy Principal Clerk shall intimate a copy of the petition along with a notice of intimation in Form 67.14-B to the father of the child if he does not have, and has never had, parental responsibilities or parental rights in relation to the child and if he can be found;

(e) the Deputy Principal Clerk shall give written intimation of the date of the hearing on the By Order Roll to the curator ad litem and to any reporting officer appointed by the court under rule 67.11.

(2) A notice of intimation under paragraph (1)(b) or (c) must state—

(a) that an application for adoption has been made;

(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.

(3) A notice of intimation under paragraph (1)(d) must state the matters mentioned in paragraph (2)(a) and (b).

Hearing of application for revocation of freeing for adoption order

67.15

In any petition for an adoption order or order under section 59 of the 2007 Act, the court may at any time order intimation to be made in such terms as it considers appropriate on any person who in its opinion ought to be given notice of the application.

Applications to place child for adoption

67.16

(1) Where a child has indicated his wish to express his views the court, without prejudice to rule 67.12(3)(u)—

(a) may order such procedural steps to be taken as he 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 the child, whether under this rule or under rule 67.12, have been recorded in writing, the court 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 the court only;

(d) not form a borrowable part of process.

Applications for transfer of parental rights and duties between adoption agencies

67.17

(1) At the hearing on the By Order Roll appointed under rule 67.14 the court shall—

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

(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 16 weeks 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 he considers appropriate;

(iv) order answers and any other documents to be lodged within 21 days 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 hearing on the By Order Roll 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;

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

Applications relating to return, removal or prohibition of removal of child

67.18

(1) If the court appoints a pre-proof hearing under rule 67.17(3), 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.

(3) For the purposes of paragraph (2), 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 rule 67.17.

(4) 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, expert reports and any other documents within such period as it considers appropriate;

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

Interpretation of this Part

67.19

The communication to the Registrar General of an adoption order required to be made by the clerk of court under paragraph4(1) of Schedule1 to the 2007 Act is to be made by sending a certified copy of the order to the Registrar General in a sealed envelope marked “Confidential”.

Protection of identity of petitioner

67.20

(1) An adoption order granted by the court must specify the name and address of the adoption agency, if any, which has taken part in the arrangements for placing the child in the care of the petitioner.

(2) No extract of an adoption order is to be issued except by order of the court on an application to it—

(a) where there is a petition for the adoption order or order under section 59 of the 2007 Act, as the case may be, depending before the court, by motion; or

(b) where there is no such petition depending before the court, by petition.

Reports by local authority or adoption agency

67.21

(1) Immediately after the communication is made under rule 67.19 or immediately upon a extract of the order being issued under rule 67.20 the clerk of court or the Extractor, as the case may be, shall—

(a) place the whole process in an envelope bearing only—

(i) the name of the petitioner;

(ii) the full name of the child to whom the process relates; and

(iii) the date of the order; and

(b) seal the envelope and mark it “confidential”.

(2) The envelope referred to in paragraph (1) is not to be unsealed by the clerk of court or any other person having control of the records of the 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 an adopted child who has attained the age of 16 and to whose adoption the process refers;

(b) to the Deputy Principal Clerk, on an application being made to him by an adoption agency, and with the consent of the adopted person 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 petition presented by him to the court setting forth the reason 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 to it by the court 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 reason for which access to the process is required;

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

(3) The clerk of court must—

(a) where the court also makes an order under section36(2) (revocation of supervision requirement) of the 2007 Act, intimate that order to the Principal Reporter; and

(b) where appropriate, intimate the making of an adoption order or order under section 59 of the 2007 Act to the court by which—

(i) an order freeing the child for adoption was made; or

(ii) a permanence order with provision granting authority for the child to be adopted was made.

Applications for adoption order

67.22

(1) An application under paragraph7 of Schedule1 to the 2007 Act (amendment of orders and rectification of registers) shall be made by petition.

(2) The court may order the petitioner to intimate the petition to such persons as it considers appropriate.

(3) Subject to paragraph (4), rule 67.2 (disapplication of certain rules to this Chapter) shall not apply to an application mentioned in paragraph (1).

(4) An application mentioned in paragraph (1) shall not be intimated on the walls of court or advertised.

Notice of petition and appointment of reporting officer and curator ad litem

67.23

(1) An application under section20(2) (leave to remove child placed for adoption with consent), 21(3) (leave to remove child where notice of intention to adopt given), 22(3) (leave to remove child where application for adoption order pending), 23(3) (leave to remove child looked after by local authority), 24(1) (return of child removed in breach of certain conditions) or 24(2) (order directing person not to remove child) of the 2007 Act shall be made—

(a) if there is pending in respect of the child an application for an adoption order, by note in the process of that application; or

(b) in any other case, by petition.

(2) Subject to paragraph(3), rule67.2 (disapplication of certain rules to this Chapter) shall not apply to a petition under paragraph (1)(b).

(3) A petition under paragraph(1)(b) shall not be intimated on the walls of court or advertised.

Duties of reporting officer and curator ad litem

67.24

In this Part, unless the context otherwise requires—

“Central Authority” means the Scottish Executive;

“the Convention” means the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29th May 1993;

“Convention adoption order” means an adoption which, by virtue of regulation 53(2) of the 2009 Regulations, is made as a Convention adoption order;

“Convention country” means any country or territory in which the Convention is in force.

Hearing of adoption petition

67.25

(1) An application for a Convention adoption order is to be made by petition in Form 67.25.

(2) The following documents must be lodged in process along with a petition under paragraph(1):—

(a) a certificate, register extract, or other proof of date of birth relating to the child who is the subject of the application, issued or authenticated by the applicable Convention country authority;

(b) in the case of a joint petition by a married couple, a certificate, register extract or other proof of their marriage, issued or authenticated by the applicable Convention country authority;

(c) in the case of a joint petition by a couple who are civil partners of each other, a certificate, register extract or other proof of their civil partnership, issued or authenticated by the applicable Convention country authority;

(d) any report by the local authority required by section19(2) (investigation by local authority on receipt of notice of intention to apply for adoption order) of the 2007 Act, if available;

(e) any report by an adoption agency, being a Scottish accredited body, required by section17 (report on the suitability of the applicants and other matters) of the 2007 Act, if available;

(f) where appropriate, an extract of the order freeing the child for adoption;

(g) where appropriate, an extract of the permanence order made in respect of the child under section80 of the 2007 Act;

(h) in the case of a petition to which the provisions of Chapter 1 of Part 3 of the 2009 Regulations apply—

(i) copies of the Article 16 Information and the Agreement under Article 17(c) of the Convention referred to in regulation 34(c) of those Regulations; and

(ii) the confirmation referred to in regulation 34(d) of those Regulations;

(i) in the case of a petition to which the provisions of Chapter 2 of Part 3 of the 2009 Regulations apply—

(i) copies of the Article 16 Report and the Agreement under Article 17(c) of the Convention referred to in regulation 51(c) of those Regulations; and

(ii) the confirmation referred to in regulation 51(d) of those Regulations;

(j) any other document founded on by the petitioner in support of the petition;

(k) where appropriate, a translation into English of any document referred to in subparagraphs (a) to (j), together with the certificate referred to in paragraph(3).

(3) The certificate mentioned in paragraph (2)(k) is a certificate by the translator—

(a) certifying that the translation is in conformity with the original document; and

(b) giving the full name, address and qualifications of the translator.

(4) A report by a local authority under section19(2), or an adoption agency under section17 of the 2007 Act must be in numbered paragraphs and include the following matters:—

(a) a description of the petitioner’s background, including his family history, medical history, his social environment, his reasons for wishing to adopt, his eligibility and suitability to adopt, and in particular his suitability for a Convention adoption order;

(b) a description of the child’s background, including his family history, his medical history and that of his family, his social environment, his physical and mental health (including any special needs), and his emotional, behavioural and educational development;

(c) information about the mutual suitability of the petitioner and the child for the relationship created by adoption, and the ability of the petitioner to bring up the child, including an assessment of the personalities of the petitioner and of the child;

(d) particulars of all the members of the household of the petitioner, and their relationship to the petitioner;

(e) a description of the accommodation in the home of the petitioner;

(f) in a petition by only one member of a relevant couple within the meaning of section 29(3) of the 2007 Act, why the other member of that couple has not joined in the application;

(g) whether the petitioner understands the nature and effect of an adoption order and in particular that the order, if made, will make the petitioner responsible for the mainte283ce and upbringing of the child;

(h) whether the means and standing of the petitioner are such as to enable him to maintain and bring up the child suitably;

(i) whether the child has any right or interest in property and, if so, what right or interest;

(j) whether any payment or other reward in consideration of the proposed adoption, other than an approved adoption allowance has been received or agreed;

(k) what insurance has been offered on the life of the child;

(l) the religious persuasion, racial origin, and cultural and linguistic background of the child and of the petitioner;

(m) considerations arising from the difference in age between the petitioner and the child if this is more or less than the normal difference between parents and children;

(n) whether adoption is likely to safeguard and promote the welfare of the child throughout his life;

(o) whether the child is subject to a supervision requirement under section 70 of the 1995 Act and, if so, what steps have been taken to comply with section 73(4)(c), (5) and (13) (duration and review of supervision requirement) of that Act;

(p) whether there has been a contravention of section 75 of the 2007 Act in relation to the child;

(q) whether there has been a failure to comply with section 76(2) of the 2007 Act in relation to the child;

(r) any other matters relevant to the operation of section 14 of the 2007 Act in relation to the application;

(s) where appropriate, information about whether—

(i) in an application under section 29(1) of the 2007 Act, the petitioners are a relevant couple within the meaning of section 29(3)(c) or (d) of the 2007 Act

(ii) in an application under section 30(1) of the 2007 Act, the petitioner is a member of a relevant couple within the meaning of section 29(3)(c) or (d) of the 2007 Act;

(t) in the case of a petition to which the provisions of Chapter 1 of Part 3 of the 2009 Regulations apply, the confirmation, the date and the details referred to respectively in regulation 33(a), (b) and (c) of those Regulations;

(u) any other information which may be of assistance to the court.

(5) If no report mentioned in paragraph(2)(d) or (e) is available to be lodged with the petition, the court shall pronounce an interlocutor requiring the local authority or adoption agency to prepare and lodge such a report in court within 2weeks from the date of the interlocutor, or within such other period as the court in its discretion may allow.

Supervision by or committal to care of local authority

67.26

Rules 67.11 to 67.23 (other than paragraph (3)(n) of rule 67.12) of Part 2 are to apply to an application under this Part, so far as they are not inconsistent with this Part, except that—

(a) rule 67.11 (appointment of curator ad litem) and reporting officer) is to be read as if—

(i) in paragraph (1), for “rule 67.8” there were substituted “rule 67.25”;

(ii) in paragraph (1) “and reporting officer” were omitted; and

(iii) for paragraphs (2) and (3) there were substituted—

(2) Subject to paragraph (3), the court must not appoint a reporting officer. (3) A reporting officer must be appointed where the child who is the subject of the application is aged 12 or over, for the purposing of witnessing that child’s consent where that consent is executed in Scotland.

(b) rule 67.14 (intimation and hearing of adoption petition) is to be read as if—

(i) in paragraph (1), for “rule 67.8” there were substituted “rule 67.25”;

(ii) for paragraph (1)(b) there were substituted—

(b) the petitioner must intimate a copy of the petition along with a notice of intimation in Form 67.14-A to— (i) the curator ad litem and reporting officer; (ii) any person or body who has care or possession of the child; and (iii) any local authority or adoption agency that has prepared a report under section 17 or 19(2) of the 2007 Act.

(iii) paragraph 1(c) and (d) were omitted.

(67.19) (1) The making of a Convention adoption order is to be intimated in accordance with this rule to the Registrar General and the Central Authority by the clerk of court. (2) A certified copy of the order making a Convention adoption order must be sent to the Registrar General and the Central Authority in a sealed envelope marked “Confidential”.

Applications under section 49(1) of the Act of 1978

67.27

(1) This rule applies to an application for—

(a) an order under section 68 (annulment and recognition) of the 2007 Act; and

(b) a decision under section 68(2)(b) of the 2007 Act.

(2) Where the adopted person is under the age of 18 years on the date of the making of an application to which this rule applies, the court shall appoint a curator ad litem with the duties mentioned in rule 67.12(3).

(3) On the court granting an application to which this rule applies, the Deputy Principal Clerk shall send a notice of the order to the Registrar General specifying—

(a) the date of the adoption;

(b) the name and address of the authority which granted the adoption;

(d) the country in which the petition was granted;

(e) the country of which the adopted person is a national; and

(f) the country in which the adopted person was born.

Applications for return, removal or prohibition of removal of child

67.28

(1) An application for a permanence order under section80 of the 2007 Act is to be made by petition in Form67.28.

(2) The following documents must be lodged in process along with a petition under paragraph (1):—

(a) an extract of the entry in the Register of Births relating to the child who is the subject of the application;

(b) a report by the petitioner in numbered paragraphs which deals with the following matters:—

(i) how the needs of the child came to the notice of the petitioner;

(ii) any relevant family circumstances of the child;

(iii) a description of the physical and mental health of the child (including any special needs) and his emotional, behavioural and educational development;

(iv) an account of the discussion by the petitioner with the parents or guardians of the child and, if appropriate, with the child about their wishes and the alternatives to a permanence order;

(v) where appropriate, whether the father of the child has been given notice and provided with the prescribed information under section 105(2) of the 2007 Act;

(vi) the knowledge of the petitioner of the position of other relatives or persons likely to be involved;

(vii) an account of the search by the petitioner for any parent or guardian who cannot be found;

(viii) the arrangements of the petitioner to care for the child after the making of a permanence order (including the arrangements for contact between the child and any other person);

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

(x) the likely effect on the child of the making of a permanence order;

(xi) whether there is a person who has the right mentioned in section2(1)(a) of the 1995 Act to have the child living with the person or otherwise to regulate the child’s residence and, where there is such a person, evidence that the child’s residence with the person is or is likely to be seriously detrimental to the welfare of the child;

(xii) whether the child is or has been married or a civil partner;

(xiii) in the case of a petition containing a request that the order include provision granting authority for the child to be adopted, the matters mentioned in paragraph (3);

(xiv) in the case of a petition in respect of a child who is aged 12 or over, whether the child consents to the making of the order or is incapable of doing so;

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

(xvi) any other information which may be of assistance to the court having regard, in particular, to sections 83 (if appropriate) and 84 of the 2007 Act;

(3) The matters referred to in paragraph(2)(xiii) are—

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

(b) 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.

(4) If the report mentioned in paragraph (2)(b) is unavailable to be lodged with the petition, the court shall pronounce an interlocutor requiring the petitioner to prepare and lodge such a report within 2 weeks of the date of the interlocutor, or within such other period as the court in its discretion may allow.

Applications to amend or revoke a direction in, or revoke, an adoption order

67.29

(1) The court must, on the lodging of a petition under rule67.28 appoint a curator ad litem and reporting officer.

(2) Subject to paragraph (3), the court must not appoint a reporting officer where the petition does not request that the order include provision granting authority for the child to be adopted.

(3) Notwithstanding paragraph (2), a reporting officer must be appointed where the child who is the subject of the application is aged 12 or over for the purpose of witnessing that child’s consent where that consent is to be executed in Scotland.

(4) The same person may be appointed as curator ad litem and reporting officer in the same petition if the court considers that doing so is appropriate in the circumstances

(5) A person may, before presenting the petition, apply by letter to the Deputy Principal Clerk for the appointment of a reporting officer.

(6) An application under paragraph(4) shall—

(a) set out the reasons for which the appointment is sought;

(b) not require to be intimated to any person;

(d) be placed by the Deputy Principal Clerk before the Lord Ordinary for his decision.

(7) The Deputy Principal Clerk shall intimate the appointment of a curator ad litem and reporting officer under paragraph(1) or (5) to the petitioner and to the person or persons appointed.

(8) The decision of the Lord Ordinary on an application under paragraph(5) shall be final and not subject to review.

(9) The letter and the interlocutor sheet in an application under paragraph(5) shall be kept in the Petition Department and subsequently placed in the process of the petition.

Registration of certified copy interlocutor

67.30

(1) On the lodging of a petition under rule67.28—

(a) the Deputy Principal Clerk must cause the petition to be put on the By Order Roll before the Lord Ordinary not less than 6 and not more than 8 weeks thereafter;

(b) where the petition does not contain a request that the order include provision granting authority for the child to be adopted, the petitioner must intimate a copy of the petition along with a notice of intimation in Form67.30-A to—

(i) any person who has parental responsibilities or parental rights in relation to the child; and

(ii) any person who claims to have an interest;

(i) the petitioner must intimate a copy of the petition along with a notice of intimation in Form67.30-A to the persons mentioned in paragraph(2); and

(ii) the petitioner must intimate a copy of the petition along with a notice of intimation in Form 67.30-B to the father of the child if he does not have, and never has had, parental responsibilities and parental rights in relation to the child;

(d) the Deputy Principal Clerk must intimate the date of the hearing on the By Order Roll to the curator ad litem and to any reporting officer appointed under rule67.29;

(e) the court may order the petitioner to intimate the application to such other person as it considers appropriate.

(2) The persons referred to in paragraph (1)(c)(i) are—

(a) 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;

(b) if no such person can be found, a relative of the child within the meaning of section119(1) of the 2007 Act unless the address of such a relative is not known to the petitioner and cannot reasonably be ascertained.

(3) A notice of intimation under paragraph(1)(c)(i) must include the following matters:–

(a) that an application for a permanence order containing a request that the order include provision granting authority for the child to be adopted has been made;

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