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Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996

Type Statutory-Instrument
Publication 1996-10-09
State In force
Department Queen's Printer of Acts of Parliament
Source legislation.gov.uk
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Made: 9th October 1996

Coming into force: 1st November 1996

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 5 of the Court of Session Act 1988[^f00001] and of all other powers enabling them in that behalf, do hereby enact and declare:

Citation and commencement

1

Amendment of the Rules of the Court of Session

2

(40.20) In an appeal from the sheriff court in which an order in relation to parental responsibilities or parental rights under section 11 of the Children (Scotland) Act 1995[^f00006] is in issue, the court may, where it considers it appropriate to do so, refer that issue to a mediator accredited to a specified family mediation organisation.

(j) an action or application for, or in respect of, an order under section 11 of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.) except a petition for the appointment of a judicial factor;

  • “the Act of 1995” means the Children (Scotland) Act 1995;
  • “contact order” has the meaning assigned in section 11(2)(d) of the Act of 1995;
  • “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994[^f00007];

; and

  • “parental responsibilities” has the meaning assigned in section 1(3) of the Act of 1995;
  • “parental rights” has the meaning assigned in section 2(4) of the Act of 1995;
  • “residence order” has the meaning assigned in section 11(2)(c) of the Act of 1995;
  • “section 11 order” means an order under section 11 of the Act of 1995.

; and

(iii) in relation to whom a third party in fact exercises care or control, to that third party in the following terms:– “Warrant to intimate to (name and address) as a person who in fact exercises care or control of (name and address of child).”

(h) in an action which includes a conclusion for a section 11 order, to the child to whom the section 11 order would relate, if not a party to the action, in the following terms:–“Warrant to intimate to (name and address) as a child who may be affected by the action.”;

(e) under paragraph (1)(e)(i) or (ii) (where section 11 order may be made in respect of a child in care of local authority or accepted as a child of the marriage), in Form 49.8-E; (f) under paragraph (1)(e)(iii) (where section 11 order may be made in respect of a child in relation to whom a third party in fact exercises care or control), in Form 49.8-F; (g) under paragraph (1)(f) (section 11 order sought by guardian), in Form 49.8-G; (h) under paragraph (1)(g) (residence order sought by non-parent resident in Scotland), in Form 49.8-H;

(a) concludes for a residence order in respect of a child;

; and

(7) In relation to paragraph (1)(h) (action which affects a child), a copy of the summons shall not be intimated to the child but a notice of intimation shall be intimated to him in Form 49.8-N. (8) Where a pursuer considers that a warrant for intimation to a child under paragraph (1)(h) is inappropriate, he shall– (a) apply by motion to dispense with intimation to that child; and (b) include in the condescendence of the summons averments setting out the reasons why such intimation is inappropriate, and the court may dispense with such intimation or make such other order as it thinks fit.

(3) In any family action, the court may, if it thinks fit, order intimation to a local authority, and such intimation shall be in Form 49.8-H.

; and

(49.15) (1) In any family action, the court may, at any time– (a) subject to paragraph (2), order intimation to be made to such person as it thinks fit; (b) postpone intimation, where it considers that such postponement is appropriate and in that case, the court shall make such order in respect of postponement of intimation as it thinks fit; or (c) dispense with intimation, where it considers that such dispensation is appropriate. (2) Where the court is considering whether to make a section 11 order by virtue of section 12 of the Act of 1995 (restrictions on decrees for divorce, separation or annulment affecting children), it shall, subject to paragraph (1)(c) and without prejudice to paragraph (1)(b) of this rule, order intimation to the child to whom the section 11 order would relate unless– (a) intimation has been given to the child under rule 49.8(7); or (b) the court considers that the child is not of sufficient age or maturity to express his views. (3) Where a party makes an application or averment in a family action which, had it been made in a summons when presented for signeting, would have required a warrant for intimation under rule 49.8, that party shall apply by motion for a warrant for intimation or to dispense with such intimation; and rule 49.8 shall, with the necessary modifications, apply to a warrant under this paragraph as it applies to a warrant under that rule.

(49.20) (1) In a family action, in relation to any matter affecting a child, where that child has– (a) returned Form 49.8-N, or (b) otherwise indicated to the court a wish to express views on a matter affecting him, the court shall not grant any order unless an opportunity has been given for the views of that child to be obtained or heard. (2) Where a child has indicated his wish to express his views, the court shall order such steps to be taken as it considers appropriate to ascertain the views of that child. (3) The court shall not grant an order in a family action, in relation to any matter affecting a child who has indicated his wish to express his views, unless due weight has been given by the court to the views expressed by that child, having regard to his age and maturity.

(a) a local authority, whether under section 11(1) of the Matrimonial Proceedings (Children) Act 1958[^f00009] (reports as to arrangements for future care and upbringing of children) or otherwise, or

; and

(49.40) An application by a party in an action depending before the court to which this Part applies for, or for variation of, an order for– (a) interim aliment for a child under the age of 18, or (b) an interim residence order or an interim contact order, shall be made by motion.

(1) An application after final decree for, or for the variation or recall of, a section 11 order other than a contact order shall be made by minute in the process of the action to which the application relates.

; and

(1) An application after final decree for, or for the variation or recall of, a contact order shall be made by motion in the process of the action to which the application relates.

(49.58) This Part applies to an application for a section 11 order in a family action other than in an action of divorce, separation or declarator of nullity of marriage.

(49.60) In an action for a section 11 order, the pursuer shall call as a defender– (a) the parents or other parent of the child in respect of whom the order is sought; (b) any guardian of the child; (c) any person who has treated the child as a child of his family; (d) any person who in fact exercises care or control in respect of the child; and (e) in any case where there is no person falling within paragraphs (a) to (d), the Lord Advocate.

(1) An application after final decree for the variation or recall of a section 11 order other than a contact order shall be made by minute in the process of the action to which it relates.

; and

(3) An application after final decree for, or for the variation or recall of, a contact order shall be made by motion; and rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this paragraph as it applies to a motion under that rule.

(49.85) (1) This Part applies where the court, in a family action, refers a matter to the Principal Reporter under section 54 of the Act of 1995 (reference to the Principal Reporter by court). (2) In this Part, “Principal Reporter” has the meaning assigned in section 93(1) of the Act of 1995. (49.86) Where a matter is referred by the court to the Principal Reporter under section 54 of the Act of 1995, the clerk of court shall give written intimation of the interlocutor making the reference to the Principal Reporter; and that intimation shall specify which of the conditions in section 52(2)(a) to (h), (j), (k) or (l)[^f00011] of that Act it appears to the court have been satisfied. (49.87) (1) Where a matter has been referred by the court to the Principal Reporter under section 54 of the Act of 1995 and the Principal Reporter, having made such investigation as he thinks appropriate and having reached the view that compulsory measures of supervision are necessary, arranges a children’s hearing under section 69 of that Act (continuation or disposal of referral by children’s hearing), the Principal Reporter shall give written intimation to the court which referred the matter to him of– (a) the decision to arrange such children’s hearing; (b) where there is no appeal made against the decision of that children’s hearing once the period for appeal has expired, the outcome of the children’s hearing; and (c) where such an appeal has been made, that an appeal has been made and, once determined, the outcome of that appeal. (2) Where a matter has been referred by the court to the Principal Reporter under section 54 of the Act of 1995 and the Principal Reporter, having made such investigation as he thinks appropriate and having considered whether compulsory measures of supervision are necessary, decides not to arrange a children’s hearing under section 69 of that Act, the Principal Reporter shall give written intimation of that decision to the court which referred the matter to him. (49.88) Where the court has made an order under section 13 of the Act of 1995 (awards of damages to children), an application by a person for an order by virtue of section 11(1)(d) of that Act (administration of child’s property) may be made by minute in the process of the cause in which the order under section 13 of that Act was made.

  • (Pursuer’s name and address), pursuer, has brought an action against (defender’s name and address), defender, in the Court of Session, Edinburgh. The pursuer seeks an order under section 11 of the Children (Scotland) Act 1995 in respect of (child’s name and address), a child at present in your care or control. A copy of the summons in the action is attached.

(b) to make an order under section 11 of the Children (Scotland) Act 1995 or for maintenance in respect of any child of the marriage, or any child accepted as such, who is under 16 years of age.

(a) for an order under section 11 of the Children (Scotland) Act 1995 or for maintenance in respect of any child of the marriage, or any child accepted as such, who is under 16 years of age;

(b) to make an order under section 11 of the Children (Scotland) Act 1995 for maintenance in respect of any child of the marriage, or any child accepted as such, who is under 16 years of age.

(a) for an order under section 11 of the Children (Scotland) Act 1995 or for maintenance in respect of any child of the marriage, or any child accepted as such, who is under 16 years of age;

SCHEDULE

FORM 49.8-G — Form of notice of intimation to parent or guardian in family action for a section 11 order

Date: (date of posting or other method of intimation)

To: (name and address as in warrant for intimation)

TAKE NOTICE

(Pursuer’s name and address), pursuer, has brought an action against (defender’s name and address), defender, in the Court of Session, Edinburgh. The pursuer is seeking a section 11 order in respect of the child (child’s name and address). A copy of the summons in the action is attached.

If you wish to oppose this action, and oppose the granting to the pursuer of a section 11 order in respect of the child, you may apply to the court by minute to become a party to the action. You must do so at the Office of Court, Court of Session, 2 Parliament Square, Edinburgh EH1 1RQ within [21] days after the date of intimation to you of the summons [or if the warrant for intimation is executed before calling of the summons, within 7 days after the summons calls in court. The summons will not call in court earlier than [21] days after the date of intimation to you of the summons]. The date of intimation is the date stated at the top of this notice unless intimation has been made by post in which case the date of intimation is the day after that date.

IF YOU ARE UNCERTAIN ABOUT THE EFFECT OF THIS NOTICE, you should consult a solicitor, Citizens Advice Bureau or other local advice agency or adviser immediately.

(Signed)

Messenger-at-Arms

[or Solicitor [or Agent] for pursuer]

(Address)

FORM 49.8-H — Form of notice of intimation to local authority in family action by non-parent for a residence order in respect of a child

Date: (date of posting or other method of intimation)

To: (name and address as in warrant for intimation)

TAKE NOTICE

(Pursuer’s name and address), pursuer, has brought an action against (defender’s name and address), defender, in the Court of Session, Edinburgh.

The pursuer is seeking a residence order in respect of the child (name and address of child). A copy of the summons in the action is attached.

You are requested to submit to the court a report on all the circumstances of the child and on the proposed arrangements for the care and upbringing of the child without delay. On completion of the report please send it, with a copy for each party, to the Deputy Principal Clerk of Session, Court of Session, 2 Parliament Square, Edinburgh EH1 1RQ.

(Signed)

Messenger-at-Arms

[or Solicitor [or Agent] for pursuer]

(Address)

FORM 49.8-N — Form of notice of intimation to a child of a family action in which an order under section 11 of the Children (Scotland) Act 1995 is sought

Court Ref. No.

PART 1

THIS PART MUST BE COMPLETED BY THE PURSUER'S SOLICITOR IN LANGUAGE A CHILD IS CAPABLE OF UNDERSTANDING

To: (name and address of child)

The court has been asked by your father [or mother, or other relative or person as the case may be] to decide (insert appropriate wording to explain section 11 order[s] sought).

If you want to tell the court your views, you should complete Part 2 of this form and return it to the court in the envelope provided by (insert date). This envelope does not need a stamp.

If you return the form, it will be given to the court. The judge may wish to speak to you, and may ask you to come and see him or her.

IF YOU DO NOT UNDERSTAND THIS FORM OR IF YOU WANT HELP TO COMPLETE IT you may get help from a SOLICITOR or you may contact the SCOTTISH CHILD LAW CENTRE ON the FREE ADVICE TELEPHONE LINE ON 0800 317 500

PART 2

IF YOU WISH THE COURT TO KNOW YOUR VIEWS ABOUT YOUR FUTURE YOU SHOULD COMPLETE THIS PART OF THE FORM

1

Do you want the court to know what your views are about your future?

YES NO
Please tick ▭ ▭

2

Would you like someone else to tell the court what your views are about your future?

YES NO
Please tick ▭ ▭

3

Would you like to write to the court to give your views about your future?

YES NO
Please tick ? ?

Signed

Rodger of Earlsferry — Lord President, I.P.D. — 9th October 1996

Explanatory note

(This note is not part of the Act of Sederunt)

This Act of Sederunt amends the Rules of the Court of Session 1994 in relation to, and makes provision for, proceedings under Part I of the Children (Scotland) Act 1995 (c. 36). Part I of the Act makes new provision for parental responsibilities and parental rights, guardianship, the administration of a child’s property and court orders with respect to these matters.

Footnotes

[^f00001]: 1988 c. 36; section 5 was amended by the Civil Evidence (Scotland) Act 1988 (c. 32), section 2(3) and by the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 45.

[^f00002]: S.I. 1994/1443.

[^f00003]: Rule 40.1 was amended by S.I. 1996/1756.

[^f00004]: 1907 c. 51.

[^f00005]: 1971 c. 58; section 38 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), section 18(4).

[^f00006]: 1995 c. 36.

[^f00007]: 1994 c. 39; section 2(2) was amended by the Environment Act 1995 (c. 25), Schedule 22, paragraph 232(1).

[^f00008]: Rule 49.8 was amended by S.I. 1996/1756.

[^f00009]: 1958 c. 40; section 11(1) was amended by the Social Work (Scotland) Act 1968 (c. 49), Schedule 8, paragraph 43, the Law Reform (Parent and Child)(Scotland) Act 1986 (c. 9), Schedule 2, the Family Law Act 1986 (c. 55), Schedule 1, paragraph 7 and by the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 9.

[^f00010]: Rule 49.23 was amended by S.I. 1996/1756.

[^f00011]: 1995 c. 36; section 52(2) was amended by the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c. 40), Schedule 4, paragraph 97(4).

[^f00012]: Forms 49.8-E, 49.8-F, 49.8-G, 49.8-I and 49.14-A were amended by S.I. 1994/2901.

[^f00013]: Form 49.8-M was inserted by S.I. 1996/1756.

[^f00014]: Forms 49.14-C, 49.14-E and 49.14-F were amended by S.I. 1994/2901.

[^f00015]: Forms 49.37 and 49.62-A were amended by S.I. 1994/2901.

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