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Act of Sederunt (Child Care and Maintenance Rules) 1997

Type Statutory-Instrument

Publication 1997-02-06

Last updated 2021-09-30

State In force

Department King's Printer of Acts of Parliament

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Made: 6th February 1997

Coming into force: 1st April 1997

The Lords of Council and Session, under and by virtue of the powers conferred on them by sections 17, 20, 22, 23, 24 and 28(1) of the Maintenance Orders Act 1950[^f00001], sections 2(4)(c), 2A(1) and 21(1) of the Maintenance Orders Act 1958[^f00002], section 32 of the Sheriff Courts (Scotland) Act 1971[^f00003], section 59 of the Adoption (Scotland) Act 1978[^f00004] (as modified and applied in relation to parental orders under section 30 of the Human Fertilisation and Embryology Act 1990[^f00005] and applications for such orders by paragraph 15 of Schedule 1 to the Parental Orders (Human Fertilisation and Embryology) (Scotland) Regulations 1994[^f00006]), section 48 of the Civil Jurisdiction and Judgments Act 1982[^f00007], sections 27(2), 28(1) and 42(1) of the Family Law Act 1986[^f00008] and section 91 of the Children (Scotland) Act 1995[^f00009] and of all other powers enabling them in that behalf, having approved, with modifications, draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the Sheriff Courts (Scotland) Act 1971, do hereby enact and declare:

CHAPTER 1 — PRELIMINARY

Citation and commencement

1.1

(1) This Act of Sederunt may be cited as the Act of Sederunt (Child Care and Maintenance Rules) 1997 and shall come into force on 1st April 1997.

(2) This Act of Sederunt shall be inserted in the Books of Sederunt.

Interpretation

1.2

(1) In this Act of Sederunt, unless the context otherwise requires–

“Ordinary Cause Rules” means the First Schedule to the Sheriff Courts (Scotland) Act 1907[^f00010];

“Principal Reporter” is the person referred to in section 14 of the Children’s Hearings (Scotland) Act 2011 or any person carrying out the functions of the Principal Reporter by virtue of paragraph 10(1) of schedule 3 to that Act;

“sheriff clerk” includes sheriff clerk depute.

(2) Unless the context otherwise requires, any reference in this Act of Sederunt to a specified Chapter, Part or rule shall be construed as a reference to the Chapter, Part or rule bearing that number in this Act of Sederunt, and a reference to a specified paragraph, sub-paragraph or head shall be construed as a reference to the paragraph, sub-paragraph or head so numbered or lettered in the provision in which that reference occurs.

(3) Any reference in this Act of Sederunt to a numbered Form shall be construed as a reference to the Form so numbered in Schedule 1 to this Act of Sederunt and includes a form substantially to the same effect with such variation as circumstances may require.

Affidavits

1.3

An affidavit required in terms of any provision of this Act of Sederunt may be emitted–

(a) in the United Kingdom, before a notary public or any other competent authority;

(b) outwith the United Kingdom, before a British diplomatic or consular officer, or any person authorised to administer an oath or affirmation under the law of the place where the oath or affirmation is made.

Revocations and transitional provisions

1.4

(1) Subject to paragraphs (2) and (3), the Acts of Sederunt mentioned in column (1) of Schedule 2 to this Act of Sederunt are revoked to the extent specified in column (3) of that Schedule.

(2) Nothing in paragraph (1) or in Chapter 2 shall affect any cause which has been commenced before 1st April 1997 and to which that Chapter would otherwise apply, and such a cause shall proceed according to the law and practice in force immediately before that date.

(3) Nothing in paragraph (1) shall affect any cause to which paragraph 8(1) of Schedule 3 to the Children (Scotland) Act 1995 applies, and such a cause shall proceed according to the law and practice in force immediately before 1st April 1997.

CHAPTER 2 — ADOPTION OF CHILDREN

PART I — GENERAL

Interpretation

2.1

In this Chapter, unless the context otherwise requires–

“the Act” means the Adoption (Scotland) Act 1978[^f00011];

“the 1995 Act” means the Children (Scotland) Act 1995[^f00012];

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

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

Expenses

2.2

The sheriff may make such an order with regard to the expenses, including the expenses of a reporting officer and a curator ad litem or any other person who attended a hearing, of an application under this Chapter as he thinks fit and may modify such expenses or direct them to be taxed on such scale as he may determine.

Intimation to Principal Reporter

2.3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Timetables under section 25A of the Act

2.4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART II — APPLICATION FOR AN ORDER DECLARING A CHILD FREE FOR ADOPTION

Petition

2.5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Agreement and consents to order freeing child for adoption

2.6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appointment of curator ad litem and reporting officer

2.7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duties of reporting officer and curator ad litem

2.8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure where child wishes to express a view

2.9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Declaration made under section 18(6) of the Act

2.10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Hearing

2.11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Confidentiality

2.12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Adoption Register

2.13

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Final procedure

2.14

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART III — REVOCATION ORDERS, ETC.

Application for revocation

2.15

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appointment of curator ad litem

2.16

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure where child wishes to express a view

2.17

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Hearing

2.18

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application to place a child

2.19

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Further application with leave of the court

2.20

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART IV — ADOPTION ORDERS

Application for adoption order

2.21

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Additional requirements where child to be adopted abroad

2.22

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consents and agreements to adoption orders

2.23

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Protection of identity of petitioner

2.24

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appointment of curator ad litem and reporting officer

2.25

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duties of reporting office and curator ad litem

2.26

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure where child wishes to express a view

2.27

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Hearing

2.28

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Insufficient evidence

2.29

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Confidentiality

2.30

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Communications to the Registrar General

2.31

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Adoption orders

2.32

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Final procedure

2.33

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of adoption order

2.34

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Revocation of adoption order

2.35

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application for removal of child pending adoption

2.36

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART V — PARENTAL RESPONSIBILITIES ORDERS

Interpretation

2.37

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Form of application and agreement

2.38

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appointment of curator ad litem and reporting officer

2.39

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duties of reporting officer and curator ad litem

2.40

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure where child wishes to express a view

2.41

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Hearing

2.42

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Orders

2.43

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Variation and discharge of order

2.44

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART VI — HUMAN FERTILISATION AND EMBRYOLOGY

Interpretation

2.45

In this Part—

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

“2008 Act” means the Human Fertilisation and Embryology Act 2008;

“parental order” means an order under section 54 or 54A(5) of the 2008 Act; and

“the Regulations” means the Human Fertilisation and Embryology (Parental Orders) Regulations 2010.

Form of application and productions

2.46

(1) An application for a parental order is to be made by petition in Form 22.

(2) The following documents must be lodged in process along with the petition—

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

(b) extracts or certified copies of any entries in the Register of Births relating to the birth of each of the petitioners;

(c) in the case of an application under section 54(2)(a) of the 2008 Act, an extract or a certified copy of the entry in the Register of Marriages relating to the marriage of the petitioners;

(d) in the case of an application under section 54(2)(b) of the 2008 Act, an extract or a certified copy of the entry in the Register of Civil Partnerships relating to the civil partnership of the petitioners; and

(e) any other document founded on by the petitioners in support of the terms of the petition.

Confidentiality

2.47

(1) Unless the sheriff otherwise directs, all documents lodged in process (including the reports by the curator ad litem and reporting officer) are to be available only to the sheriff, the curator ad litem, the reporting officer and the parties; and such documents must be treated as confidential by all persons involved in, or party to, the proceedings and by the sheriff clerk.

(2) The reporting officer and the curator ad litem—

(a) must treat all information obtained in the exercise of their duties as confidential; and

(b) must not disclose any such information to any person unless disclosure of such information is necessary for the purpose of their duties.

(3) This rule is subject to rule 2.53.

Agreements to parental order

2.48

(1) The sheriff may, before determining the cause, order—

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

(b) parole evidence.

(2) A party may apply by motion for the evidence of a person to be received in evidence by affidavit; and the sheriff may make such order as the sheriff thinks fit.

Orders for evidence

2.49

(1) Where persons who propose to apply for a parental order wish to prevent their identities being disclosed to any person whose agreement to the parental order is required, they may, before presenting the petition, apply by letter to the sheriff clerk for a serial number to be assigned to them for all purposes connected with the petition.

(2) On receipt of an application under paragraph (1), the sheriff clerk must—

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

(b) enter a note of the number opposite the name of the applicants in a register of serial numbers kept by the sheriff clerk.

(3) The contents of the register of serial numbers and the names of the persons to whom each number relates must be treated as confidential by the sheriff clerk and must not be disclosed to any person other than the sheriff.

(4) Where a serial number has been assigned under paragraph (2)(a), any form of agreement to a parental order under section 54(6) or 54A(5) of the 2008 Act—

(a) must refer to the petitioners by means of the serial number assigned to them;

(b) must not contain the names and designation of the petitioners; and

Protection of identity of petitioners

2.50

(1) The sheriff must on the lodging of a petition under rule 2.46, appoint a curator ad litem and reporting officer.

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

(3) The sheriff may appoint a person who is not a member of a panel established under regulations made by virtue of section 101(1) of the 1995 Act to be curator ad litem or a reporting officer.

(4) The sheriff may, on cause shown, appoint a reporting officer prior to the lodging of such a petition.

(5) An application for an appointment under paragraph (4) is to be made by letter addressed to the sheriff clerk specifying the reasons for the appointment, and shall not require to be intimated to any other person.

(6) The sheriff clerk must intimate the appointment of a curator ad litem and reporting officer under paragraph (1) or (4) to the petitioner and to the person or persons appointed.

(7) Where the curator ad litemis not also the reporting officer, the sheriff may order the reporting officer to make available to the curator ad litem any report or information in relation to the child.

Appointment of reporting officer and curator ad litem

2.51

(1) The other duties of a reporting officer appointed under rule rule 2.50 prescribed for the purposes of section 108(1)(b) of the 2007 Act as modified and applied in relation to applications for parental orders by regulation 4 of, and Schedule 3, to the Regulations (rules: appointment of curators ad litem and reporting officers) are—

(a) to ascertain the whereabouts of all persons whose agreement to the making of a parental order in respect of the child is required;

(b) to ascertain whether there is any person other than those mentioned in the petition upon whom notice of the petition should be served;

(c) in the case of each person who is not a petitioner and whose agreement to the making of a parental order is required under section 54(6) or 54A(5) of the 2008 Act—

(i) to ascertain whether that person understands the effect of the parental order;

(ii) to ascertain whether alternatives to a parental order have been discussed with that person;

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

(iv) to ascertain whether that person suffers or appears to suffer from a mental disorder within the meaning of section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003; and

(d) to ascertain whether the conditions in subsections (2) to (8A) of section 54 or subsections (2) to (8) of section 54A of the 2008 Act have been satisfied;

(e) to draw to the attention of the court any matter which may be of assistance; and

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

(2) A curator ad litem appointed under rule 2.50(1) must—

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

(b) enquire, so far as he or she considers necessary, into the facts and circumstances stated in the petition;

(c) establish that the petitioners understand the nature and effect of a parental order and in particular that the making of the order will render them responsible for the maintenance and upbringing of the child;

(d) ascertain whether any money or other benefit which is prohibited by section 54(8) or 54A(7) of the 2008 Act (prohibition on gift or receipt of money or other benefit) has been received or agreed upon;

(e) ascertain whether it may be in the interests of the welfare of the child that the sheriff should make the parental order subject to particular terms and conditions or require the petitioners to make special provision for the child and, if so, what provision;

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

(g) establish whether the proposed parental order is likely to safeguard and promote the welfare of the child throughout the child’s life; and

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

(3) Subject to paragraph (4), the curator ad litem must report in writing on the matters mentioned in paragraph (2) to the sheriff within 4 weeks from the date of the interlocutor appointing the curator, or within such other period as the sheriff in his or her discretion may allow.

(4) Subject to any order made by the sheriff under rule 2.53(1), the views of the child ascertained in terms of paragraph (2)(h) may, if the curator ad litem considers appropriate, be conveyed to the sheriff orally.

(5) The reporting officer must, on completion of his or her report in terms of paragraph (1), in addition send to the sheriff clerk—

(a) a copy of his or her report for each party; and

(b) any agreement for the purposes of section 54(6) or 54A(5) of the 2008 Act.

(6) The curator ad litem must, on completion of his or her report in terms of paragraph (3), in addition send a copy of it for each party to the sheriff clerk.

Selection of reporting officer and curator ad litem

2.52

(1) The agreement of a person required by section 54(6) or 54A(5) of the 2008 Act is to be in Form 23.

(2) The form of agreement mentioned in paragraph (1) must be witnessed—

(a) where it is executed in Scotland, by the reporting officer appointed under rule 2.50;

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

(i) if the person who executes the agreement is serving in Her Majesty’s Forces, by an officer holding a commission in any of those forces; or

(ii) in any other case, by a British diplomatic or consular official or any person authorised to administer an oath or affirmation under the law of the place where the agreement is executed.

Duties of reporting officer and curator ad litem

2.53

(1) Where a child to whom section 54(11) or 54A(11) of the 2008 Act applies indicates his or her wish to express a view, the sheriff, without prejudice to rule 2.51(2)(h)—

(a) may order such procedural steps to be taken as the sheriff considers appropriate to ascertain the views of that child; and

(b) must not make an order under this Part unless an opportunity has been given for the views of that child to be obtained or heard.

(2) Where the views of a child, whether obtained under this rule or under rule 2.51(2)(h) have been recorded in writing, the sheriff may direct that such a written record is to—

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

(b) be available to a sheriff only;

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

Hearing

2.54

(1) On receipt of the reports referred to in rule 2.51, the sheriff must fix a hearing.

(2) The sheriff may—

(a) order any person whose agreement is required to attend the hearing;

(b) order intimation of the date of the hearing to any person not mentioned in paragraph (3)(a), (b) or (c); and

(c) order the reporting officer or curator ad litem to perform additional duties to assist him or her in determining the petition.

(3) The petitioners or, where a serial number has been assigned under rule 2.49, the sheriff clerk, must intimate the date of the hearing in Form 24 by registered post or recorded delivery letter to—

(a) every person whose whereabouts are known to them and whose agreement is required;

(b) the reporting officer appointed under rule 2.50;

(d) any person on whom intimation has been ordered under paragraph (2)(b).

(4) At the hearing—

(a) the petitioners, the reporting officer and the curator ad litem must, if required by the sheriff, appear and may be represented;

(b) any other person required by the sheriff to attend the hearing must appear and may be represented; and

Applications for return, removal or prohibition of removal of child

2.55

(1) An application under section 22(3) (restrictions on removal: application for parental order pending), section 24(1) (return of child removed in breach of certain provisions) or section 24(2) (order directing person not to remove child) of the 2007 Act all as modified and applied in relation to applications for parental orders by regulation 4 of, and Schedule 3 to, the Regulations, is to be made by minute in the process of the petition for a parental order to which it relates.

(2) A minute under paragraph (1) must include an appropriate crave and statement of facts.

(3) On receipt of a minute under paragraph (1), the sheriff must—

(a) order a diet of hearing to be fixed; and

(b) ordain the minuter, or where a serial number has been assigned under rule 2.49, the sheriff clerk, to send a notice of such hearing in Form 25 together with a copy of the minute, by recorded delivery letter to the curator ad litem in the original petition, to any person who may have care and possession of the child and to such other persons as the sheriff considers appropriate.

Applications to amend, or revoke a direction in, a parental order

2.56

(1) An application under paragraph 7 of Schedule 1 to the 2007 Act, as modified and applied in relation to parental orders by regulation 4 of, and Schedule 3 to, the Regulations (amendment of orders and rectification of registers) is to be made by petition to the court which made the parental order.

(2) The sheriff may order the petitioners to intimate the petition to such persons as the sheriff considers appropriate.

Registration of certified copy interlocutor

2.57

The communication to the Registrar General of a parental order required to be made by the sheriff clerk under paragraph 4(1) of Schedule 1 to the 2007 Act, as modified and applied in relation to parental orders by regulation 4 of, and Schedule 3 to, the Regulations (registration of parental orders), is to be made by sending a certified copy of the order to the Registrar General either by recorded delivery post in an envelope marked “Confidential”, or by personal delivery by the sheriff clerk in a sealed enveloped marked “Confidential”.

Extract of order

2.58

An extract of a parental order must not be issued except by order of the court on an application to it—

(a) where there is a petition for the parental order depending before the court, by motion in that process; or

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

Final procedure

2.59

(1) After the granting of a parental order the court process must, immediately upon the communication under rule 2.57 being made or, in the event of an extract of the order being issued under rule 2.58, immediately upon such issue, be sealed by the sheriff clerk in an envelope marked “Confidential”.

(2) The envelope referred to in paragraph (1) is not to be unsealed by the sheriff clerk or by any other person having control of the records of that or any court, and the process is not to be made accessible to any person for one hundred years after the date of the granting of the order except—

(a) to the person who is the subject of the parental order after he or she has reached the age of 16 years; and

(b) to a person on the granting of an application made by him or her to the sheriff setting forth the reason for which access to the process is required.

CHAPTER 3 — Children’s hearings, secure accommodation, etc.: application to the sheriff

PART I — INTERPRETATION

Interpretation

3.1

(1) In this Chapter, unless the context otherwise requires–

“1995 Act” means the Children (Scotland) Act 1995 and (except where the context otherwise requires) references to terms defined in that Act have the same meaning here as given there;

“2011 Act” means the Children’s Hearings (Scotland) Act 2011 and (except where the context otherwise requires) references to terms defined in that Act have the same meaning here as given there;

“CPSA 1995” means the Criminal Procedure (Scotland) Act 1995 and (except where the context otherwise requires) references to terms defined in that Act have the same meaning here as given there;

“relevant person” means—a person referred to in section 200(1) of the 2011 Act or a person deemed a relevant person by virtue of section 81(3), 160(4)(b) or 164(6) of the 2011 Act;

“service” includes citation, intimation or the giving of notice as required in terms of this Chapter.

(2) In this Chapter any reference, however expressed, to disputed grounds shall be construed as a reference to a statement of grounds which forms the subject of an application under section 93(2)(a) or 94(2)(a) of the 2011 Act.

(3) Except as otherwise provided, this Chapter applies to applications to the sheriff (including reviews and appeals) under the 1995 Act, the 2011 Act or section 44A of the CPSA 1995.

(4) All hearings in respect of applications to the sheriff must be held in private.

PART II — GENERAL RULES

PROCEDURE IN RESPECT OF CHILDREN

Application

3.2

(1) Rules 3.3 to 3.5 apply where a sheriff is coming to a decision about a matter relating to a child within the meaning of section 27 of the 2011 Act.

(2) Rule 3.5A applies in the circumstances referred to in paragraph(1) and in respect of applications under Part V of this Chapter.

(3) Rules 3.3, 3.3A, 3.5 and 3.5A apply in respect of appeals to the sheriff under section 44A of the CPSA 1995.

Power to dispense with service on child

3.3

Where the sheriff is satisfied, so far as practicable and taking account of the age and maturity of the child, that it would be inappropriate to order service on the child, the sheriff may dispense with service on the child.

Service on child

3.4

(1) Subject to rule 3.3 and to paragraph (2), after the issue of the first order or warrant to cite, as the case may be, the applicant shall forthwith serve a copy of the application and first order or warrant to cite on the child, together with a notice or citation in–

(a) Form 26 in respect of an application for a child assessment order under Part III of this Chapter;

(b) Form 27 in respect of an application to vary or terminate a child protection order in terms of rule 3.33;

(d) Form 29 in respect of an application to vary or recall an exclusion order in terms of rule 3.40;

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) subject to subparagraph(g), in Form 31 in respect of an application under section93(2)(a) or 94(2)(a) of the 2011 Act;

(g) Form 31A in respect of an application under section 94(2)(a) of the 2011 Act where a procedural hearing has been fixed; and

(h) Form 31B in respect of an application under section 110(2) of the 2011 Act.

(2) The sheriff may, on application by the applicant or of his own motion, order that a specified part of the application is not served on the child.

Procedure where child wishes to express a view

3.5

(1) Subject to section 27(3) of the 2011 Act and regulation 11A(5) and (6) of the Secure Accommodation (Scotland) Regulations 2013, the sheriff—

(a) may order such steps to be taken as he considers appropriate to ascertain the views of that child; and

(b) shall not come to a decision about a matter relating to a child within the meaning of section 27 of the 2011 Act or in respect of an appeal under section 44A of the CPSA 1995 unless an opportunity has been given for the views of that child to be obtained or heard.

(2) Subject to any order made by the sheriff under paragraph (1)(a) and to any other method as the sheriff in his discretion may permit, the views of the child may be conveyed–

(a) by the child orally or in writing;

(b) by an advocate or solicitor acting on behalf of the child;

(ca) by any curator ad litem;

(d) by any other person (either orally or in writing), provided that the sheriff is satisfied that that person is a suitable representative and is duly authorised to represent the child.

(3) Where the views of the child are conveyed orally to the sheriff, the sheriff shall record those views in writing.

(4) The sheriff may direct that any written views given by a child, or any written record of those views, shall–

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

(b) be kept in the court process without being recorded in the inventory of process;

(d) not be opened by any person other than a sheriff, and

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

SAFEGUARDERS

Application

3.6

Rules 3.7 to 3.9 apply, as regards a safeguarder, to all applications and proceedings to which this Chapter applies except for an application under section 37 of the 2011 Act for a child protection order.

Appointment of safeguarder

3.7

(1) Where a safeguarder has not been appointed for the child, the sheriff—

(a) shall, as soon as reasonably practicable after the lodging of an application or the commencing of any proceedings, consider whether it is necessary to appoint a safeguarder in the application or proceedings; and

(b) may at that stage, or at any later stage of the application or proceedings, appoint a safeguarder.

(2) Where a sheriff appoints a safeguarder, the appointment and the reasons for it must be recorded in an interlocutor.

Rights, powers and duties of safeguarder on appointment

3.8

A safeguarder appointed in an application shall–

(a) have the powers and duties at common law of a curator ad litem in respect of the child;

(b) be entitled to receive from the Principal Reporter copies of the application, all of the productions in the proceedings and any papers which were before the children’s hearing;

(c) subject to rule 3.5(1)(a), determine whether the child wishes to express his views in relation to the application and, if so, where the child so wishes transmit his views to the sheriff;

(d) make such enquiries so far as relevant to the application as he considers appropriate; and

(e) without delay, and in any event before the hearing on the application, intimate in writing to the sheriff clerk whether or not he intends to become a party to the proceedings.

(f) whether or not a party, be entitled to receive from the sheriff clerk all interlocutors subsequent to his or her appointment.

Provision where safeguarder intimates his intention to become a party to the proceedings

3.9

(1) A safeguarder may appear personally in the proceedings or instruct an advocate or solicitor to appear on his behalf.

(2) Where an advocate or a solicitor is appointed to act as a safeguarder, he shall not act also as advocate or solicitor for the child in the proceedings.

Provision where safeguarder intimates his intention not to become a party to the proceedings

3.10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

FIXING OF FIRST HEARING

Assigning of diet for hearing

3.11

Except where otherwise provided in these Rules, after the lodging of any application the sheriff clerk shall forthwith assign a diet for the hearing of the application and shall issue a first order or a warrant to cite in Form 32 , Form 32A or Form 33, as the case may be.

SERVICE, CITATION AND NOTICE

Service and notice to persons named in application

3.12

(1) Subject to the provisions of rule 3.4 (service on child), after the issue of the first order or warrant to cite, as the case may be, the applicant shall forthwith give notice of the application by serving a copy of the application and the first order or warrant to cite together with a notice or citation, as the case may be, on the persons named in the application or, as the case may be, a person who should receive notice of the application (subject to paragraph (2)) in–

(a) Form 34 in respect of an application for a child assessment order under Part III of this Chapter;

(b) Form 35 in respect of an application to vary or terminate a child protection order in terms of rule 3.33;

(d) Form 37 in respect of an application to vary or recall an exclusion order in terms of rule 3.40;

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) subject to subparagraph(g), in Form 39 in respect of an application under section 93(2)(a) or 94(2)(a) of the 2011 Act made under Part VII of this Chapter; or

(g) in Form 39A where a procedural hearing has been fixed in respect of an application under section 94(2)(a) of the 2011 Act made under Part VII of this Chapter.

(2) Notice of the application shall be given in the case of a safeguarder or curator ad litem by serving a copy of the application and the first order or warrant to cite together with notice in Form 40.

Period of notice

3.13

(1) Subject to paragraph (2), citation or notice authorised or required by this Chapter shall be made not later than forty-eight hours, or in the case of postal citation seventy-two hours, before the date of the diet to which the citation or notice relates.

(2) Paragraph (1) shall not apply in relation to citation or notice of the following applications or proceedings–

(a) an appeal referred to in section 157(1), 160(1), 161(1) or 162(3) of the 2011 Act;

(aa) an appeal under section 44A of the CPSA 1995;

(b) a hearing in respect of an exclusion order where an interim order has been granted in terms of rule 3.36;

(d) an application for a child assessment order,

in which cases the period of notice and the method of giving notice shall be as directed by the sheriff.

Citation of witnesses, parties and persons having an interest

3.14

(1) The following shall be warrants for citation of witnesses, parties and havers:–

(a) the warrant for the hearing on evidence in an application;

(b) an interlocutor fixing a diet for the continued hearing of an application; and

(2) In an application or an appeal, witnesses or havers may be cited in Form 41.

(3) The certificate of execution of citation of witnesses and havers shall be in Form 42.

Modes of service

3.15

(1) Service authorised or required by this Chapter shall be made by any mode specified in paragraphs (2) and (3).

(2) It shall be deemed legal service to or on any person if such service is–

(a) delivered to him personally;

(b) left for him at his dwelling-house or place of business with some person resident or employed therein;

(c) where it cannot be delivered to him personally and he has no known dwelling-house or place of business, left for him at any other place at which he may at the time be resident;

(d) where he is the master of, or a seaman or other person employed in, a vessel, left with a person on board or connected with the vessel;

(e) sent by first class recorded delivery post, or the nearest equivalent which the available postal service permits, to his dwelling-house or place of business, or if he has no known dwelling-house or place of business to any other place in which he may at the time be resident;

(f) where the person has the facility to receive facsimile or other electronic transmission, by such facsimile or other electronic transmission; or

(g) where the person has a numbered box at a document exchange, given by leaving at the document exchange.

(3) Where service requires to be made and there is not sufficient time to employ any of the methods specified in paragraph (2), service shall be effected orally or in such other manner as the sheriff directs.

Persons who may effect service

3.16

(1) Subject to paragraphs (2) and (3), service shall be effected–

(a) in the case of any of the modes specified in rule 3.15(2), by a sheriff officer;

(b) in the case of any of the modes specified in rule 3.15(2)(e) to (g), by a solicitor, the sheriff clerk, the Principal Reporter or an officer of the local authority; or

(2) In relation to the citation of witnesses, parties and havers in terms of rule 3.14 or service of any application, “officer of the local authority” in paragraph (1)(b) includes any officer of a local authority authorised to conduct proceedings under these Rules in terms of rule 3.21 (representation).

(3) Where required by the sheriff, the sheriff clerk shall cite the Principal Reporter, the authors or compilers of any reports or statements and any other person whom the sheriff may wish to examine under section 155(5) of the 2011 Act (procedure in appeal to sheriff against decision of children’s hearing).

Production of certificates of execution of service

3.17

(1) The production before the sheriff of–

(a) a certificate of execution of service in Form 43; and

(b) additionally in the case of postal service, a receipt of the registered or recorded delivery letter,

shall be sufficient evidence that service was duly made.

(2) It shall be sufficient to lodge the execution of service at the hearing, unless the sheriff otherwise directs or on cause shown.

Power to dispense with service

3.18

Subject to rule 3.3, the sheriff may, on cause shown, dispense with service on any person named.

MISCELLANEOUS

Expenses

3.19

No expenses shall be awarded in any proceedings to which this Chapter applies.

Record of proceedings

3.20

Proceedings under this Chapter shall be conducted summarily.

Representation

3.21

(1) In any proceedings any party may be represented by an advocate or a solicitor or, subject to paragraphs (2) and (3), other representative authorised by the party.

(2) Such other representative must throughout the proceedings satisfy the sheriff that he is a suitable person to represent the party and that he is authorised to do so.

(3) Such other representative may in representing a party do all such things for the preparation and conduct of the proceedings as may be done by an individual on his own behalf.

Applications for evidence of children by television link

3.22

(1) On cause shown, a party may apply in the form prescribed in paragraph(3) for authority for the whole or part of—

(a) the evidence of a witness or party; or

(b) a submission,

to be made through a live link.

(2) In paragraph(1)—

“witness” means a person who has been or may be cited to appear before the sheriff as a witness (including a witness who is outwith Scotland), except in circumstances where such witness is a vulnerable witness within the meaning of section 11(1) of the Vulnerable Witnesses (Scotland) Act 2004;

“submission” means any oral submission which would otherwise be made to the court by the party or such party’s representative in person including an oral submission in support of an application;

“live link” means a live television link or such other arrangement as may be specified in the application by which the witness, party or representative, as the case may be, is able to be seen and heard in the proceedings or heard in the proceedings and is able to see and hear or hear the proceedings while at a place which is outside the courtroom.

(3) An application under paragraph(1) shall be made—

(a) in Form 44A in the case of a witness or party;

(b) in Form 44B in the case of a submission.

(4) The application shall be lodged with the sheriff clerk prior to the hearing at which the witness is to give evidence or the submission is to be made (except on special cause shown).

(5) The sheriff shall—

(a) order intimation of the application to be made to the other party or parties to the proceedings in such form as he or she prescribes; and

(b) hear the application as soon as reasonably practicable.

Orders and transfer of cases

3.23

(1) The sheriff who hears an application under rule 3.22 shall, after hearing the parties and allowing such further procedure as the sheriff thinks fit, make an order granting or refusing the application.

(2) Where the sheriff grants the application, he may–

(a) transfer the case to be heard in whole; or

(b) hear the case himself or such part of it as he shall determine,

in another sheriff court in the same sheriffdom.

Exclusion of certain enactments

3.24

The enactments specified in column (1) of Schedule 3 to this Act of Sederunt (being enactments relating to matters with respect to which this Chapter is made) shall not, to the extent specified in column (3) of that Schedule, apply to an application or appeal.

PART III — CHILD ASSESSMENT ORDERS

Interpretation

3.25

In this Part, “application” means an application for a child assessment order in terms of section 35(1) of the 2011 Act.

Form of application

3.26

An application shall be made in Form 45.

Orders

3.27

(1) After hearing parties and allowing such further procedure as he thinks fit, the sheriff shall make an order granting or refusing the application.

(2) Where an order is made granting the application, that order shall be made in Form 46 and shall contain the information specified therein.

(3) Where the sheriff, in terms of section 36(3) of the 2011 Act, has decided to make a child protection order pursuant to an application, rules 3.31 to 3.33 shall apply.

Intimation

3.28

The local authority shall intimate the grant or refusal of an application to such persons, if any, as the sheriff directs.

PART IV — CHILD PROTECTION ORDERS

Interpretation

3.29

In this Part, “application” means, except in rule 3.33, an application for a child protection order in terms of section 37 of the 2011 Act.

Form of application

3.30

An application made by a local authority shall be in Form 47 and an application made by any other person shall be in Form 48.

Determination of application

3.31

(1) On receipt of an application, the sheriff, having considered the grounds of the application and the supporting evidence, shall forthwith grant or refuse it.

(2) Where an order is granted, it shall be in Form 49 and it shall contain any directions made under section 40, 41 or 42 of the 2011 Act.

Intimation of making of order

3.32

Where an order is granted, the applicant shall forthwith serve a copy of the order on–

(a) the child, along with a notice in Form 50;

(b) the persons referred to in section 43(1)(a), (c), (d) and (e) of the 2011 Act, along with a notice in Form 51; and

Application to vary or set aside a child protection order

3.33

(1) An application under section 48 of the 2011 Act for the variation or termination of a child protection order ... shall be made in Form 52.

(2) A person applying under section 48 of the 2011 Act for the variation or termination of a child protection order shall require to lodge with his application a copy of that order.

(3) Without prejudice to rule 3.5, any person on whom service is made under section49 of the 2011 Act may appear or be represented at the hearing of the application.

(4) ... The sheriff, after hearing parties and allowing such further procedure as he thinks fit, shall grant or refuse the application.

(5) Where an order is made granting the application for variation, that order shall be in Form 53.

(6) Where the sheriff so directs, intimation of the granting or refusing of an application shall be given by the applicant to such person as the sheriff shall direct.

PART V — EXCLUSION ORDERS

Interpretation

3.34

In this Part, “application” means, except in rule 3.40, an application by a local authority for an exclusion order in terms of sections 76 to 80 of the 1995 Act; and “ancillary order” and “interim order” shall be construed accordingly.

Form of application

3.35

An application shall be made in Form 54.

Hearing following interim order

3.36

Where an interim order is granted under subsection (4) of section 76 of the 1995 Act, the hearing under subsection (5) of that section shall take place not later than 3 working days after the granting of the interim order.

Orders

3.37

(1) After hearing parties and allowing such further procedure as he thinks fit, the sheriff shall make an order granting or refusing the application.

(2) Where the sheriff grants an order in terms of paragraph (1), it shall be in Form 55 and shall be served forthwith by the local authority on–

(a) the named person;

(b) the appropriate person;

(d) the Principal Reporter.

Certificates of delivery of documents to chief constable

3.38

(1) After the local authority have complied with section 78(4) of the 1995 Act, they shall forthwith lodge in process a certificate of delivery in Form 56.

(2) After a person has complied with section 78(5) of the 1995 Act, he shall lodge in process a certificate of delivery in Form 56.

Power to make child protection order in an application for an exclusion order

3.39

Where the sheriff, in terms of section76(8) of the 1995 Act, has decided to make a child protection order under Part5 of the 2011 Act pursuant to an application, rules3.31 to 3.33 shall apply.

Variation or recall of an exclusion order

3.40

(1) Any application for the variation or recall of an exclusion order and any warrant, interdict, order or direction granted or made under section 77 of the 1995 Act shall be in Form 57.

(2) After hearing parties and allowing such further procedure as he thinks fit, the sheriff shall make an order granting or refusing the application.

(3) Where an order is made granting the application for variation, that order shall be in Form 58.

(4) Intimation of the granting or refusing of an application shall be given by the applicant to such persons as the sheriff shall direct.

PART VI — WARRANT FOR FURTHER DETENTION OF A CHILD

Interpretation

3.41

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Form of application

3.42

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Orders

3.43

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART VII — PROCEDURE IN APPLICATIONS UNDER SECTION 93(2)(a) OR 94(2)(a) OF THE 2011 ACT

Interpretation

3.44

In this Part, “application” means an application under section 93(2)(a) or 94(2)(a) of the 2011 Act.

Lodging of application, etc.

3.45

(1) Within a period of 7 days beginning with the date on which the Principal Reporter was directed in terms of section 93(2)(a) or 94(2)(a) of the 2011 Act to make an application to the sheriff, the Principal Reporter shall lodge an application in Form 60 with the sheriff clerk of the sheriff court district in which the child is habitually resident.

(1A) Paragraph (1) is subject to the terms of section 102(2) of the 2011 Act.

(1B) The sheriff may, on cause shown, remit any application to another sheriff court.

(1C) Not later than 28 days after the day on which the application is lodged the sheriff clerk shall fix a hearing on evidence as required under section 101(2) of the 2011 Act.

(2) Where a safeguarder has been appointed by ... the children’s hearing, the Principal Reporter shall intimate such appointment to the sheriff clerk and shall lodge along with the application any report made by the safeguarder.

(3) Paragraphs (4) to (7) apply where an application under paragraph(1) is made by virtue of section 94(2)(a) of the 2011 Act.

(4) The sheriff may fix a procedural hearing to determine whether or not the section 67 grounds in the statement of grounds are accepted by each relevant person.

(5) Such procedural hearing must take place before the expiry of the period of 7 days beginning with the day on which the application is lodged.

(6) The sheriff shall appoint service and intimation of the procedural hearing as the sheriff thinks fit.

(7) Subject to paragraph(9)(a) and (b), subsequent to the procedural hearing the sheriff may discharge the hearing on evidence and determine the application.

(8) Where paragraph(7) applies the sheriff shall make such orders for intimation as the sheriff thinks fit.

(9) Where—

(a) a relevant person does not accept the section 67 grounds in the statement of grounds at the procedural hearing;

(b) section 106(2)(a) or (b) of the 2011 Act applies; or

a hearing on evidence must take place in accordance with rule3.47.

Abandonment of application

3.46

(1) At any stage of the proceedings before the application is determined the Principal Reporter may withdraw the application, either in whole or in part, by lodging a minute to that effect or by motion at the hearing.

(2) The Principal Reporter shall intimate such withdrawal to–

(a) the child, except where service on the child has been dispensed with in terms of rule 3.3;

(b) any relevant person whose whereabouts are known to the Principal Reporter; and

(3) In the event of withdrawal in whole in terms of paragraph (1), the sheriff shall dismiss the application and discharge the referral.

Hearing of evidence

3.47

(A1) If, at a hearing on evidence (or any adjournment or continuation thereof under rule3.49), the section 67 grounds (or as they may be amended) are no longer in dispute, the sheriff may determine the application without hearing evidence.

(1) In the case of every section 67 ground, the sheriff shall, in relation to any ground ... which is in dispute, hear evidence tendered by or on behalf of the Principal Reporter, including evidence given pursuant to an application granted under rule 3.23.

(2) At the close of the evidence led by the Principal Reporter in a case where it is disputed that the ground set out in section 67(2)(j) of the 2011 Act applies, the sheriff shall consider whether sufficient evidence has been led to establish that ground and shall give all the parties an opportunity to be heard on the question of sufficiency of evidence.

(3) Where the sheriff is not satisfied that sufficient evidence has been led as mentioned in paragraph (2), he shall make a determination to that effect.

(4) Paragraph (4A) applies where—

(a) paragraph (2) applies and the sheriff is satisfied that sufficient evidence has been led;

(b) any other section 67 ground is in dispute.

(4A) The child, the relevant person and any safeguarder may give evidence and may, with the approval of the sheriff, call witnesses with regard to the ground in question.

(5) Where the sheriff excuses the child from attending all or part of the hearing in accordance with section 103(3) of the 2011 Act, the following persons shall be permitted to remain during the absence of the child—

(a) any safeguarder appointed in relation to the child;

(b) any curator ad litemappointed in relation to the child;

(d) the child’s representative.

(6) Subject to paragraph (7), the sheriff may exclude any person, including the relevant person, while any child is giving evidence if the sheriff is satisfied that this is necessary in the interests of the child and that–

(a) he must do so in order to obtain the evidence of the child; or

(b) the presence of the person or persons in question is causing, or is likely to cause, significant distress to the child.

(7) Where the relevant person is not legally represented at the hearing and has been excluded under paragraph (6), the sheriff shall inform that relevant person of the substance of any evidence given by the child and shall give that relevant person an opportunity to respond by leading evidence or otherwise.

(8) Where evidence ... has been heard in part and a safeguarder thereafter becomes a party to proceedings, the sheriff may order the evidence to be reheard in whole or in part.

Amendment of grounds for referral

3.48

The sheriff may at any time, on the application of any party or of his own motion, allow amendment of any statement of grounds.

Adjournment for inquiry, etc.

3.49

... The sheriff on the motion of any party or on his own motion may continue the hearing fixed under rule 3.45(1C) in order to allow time for further inquiry into any application, in consequence of the amendment of any statement under rule 3.48, or for any other necessary cause, for such reasonable time as he may in the circumstances consider necessary.

Power of sheriff in making findings as to offences

3.50

Where in a statement of grounds it is alleged that an offence has been committed by or against any child, the sheriff may determine that any other offence established by the facts has been committed.

Decision of sheriff

3.51

(1) Subject to rule 3.47(3), the sheriff shall give his decision orally at the conclusion of the hearing.

(2) The sheriff clerk shall forthwith send a copy of the interlocutor containing that decision to–

(a) the child, except where service on the child has been dispensed with in terms of rule 3.3;

(b) any relevant person whose whereabouts are known;

(d) the Principal Reporter; and

(e) such other persons as the sheriff may direct.

(3) The sheriff may, when giving his decision in terms of paragraph (1) or within 7 days thereafter, issue a note of the reasons for his decision and the sheriff clerk shall forthwith send a copy of such a note to the persons referred to in paragraph (2).

Signature of warrants

3.52

(1) Subject to paragraph(3) a warrant granted under the 2011 Act may be signed by the sheriff or the sheriff clerk.

(2) A warrant signed by the sheriff clerk shall be treated for all purposes as if it had been signed by the sheriff.

(3) A warrant to secure attendance must be signed by the sheriff.

PART VIII — PROCEDURE IN APPEALS TO THE SHERIFF AGAINST DECISIONS OF CHILDREN’S HEARINGS

Form of appeal

3.53

(1) This Part applies to appeals to the sheriff under sections 154(1), 160(1), 161(1) and 162(3) of the 2011 Act.

(1A) An appeal to the sheriff under the sections of the 2011 Act prescribed in paragraph(1B) must be—

(a) made in the form prescribed in paragraph(1B);

(b) accompanied by a copy of the decision complained of and any document relevant to it that was before the children’s hearing; and

(c) lodged with the sheriff clerk of the sheriff court district in which the child is habitually resident or, on cause shown, such other court as the sheriff may direct.

(1B) The prescribed sections and form of appeal are—

(a) in the case of an appeal under section 154(1) (appeal to sheriff against decision of children’s hearing), in Form 61;

(b) in the case of an appeal under section 160(1) (appeal to sheriff against relevant person determination), in Form 62;

(c) in the case of an appeal under section161(1) (appeal to sheriff against decision affecting contact or permanence order), in Form 63;

(d) in the case of an appeal under section162(3) (appeal to sheriff against decision to implement secure accommodation authorisation), in Form 63A.

(2) Subject to paragraph (3), the appeal shall be signed by the appellant or his representative.

(3) An appeal by a child may be signed on his behalf by any safeguarder ....

(4) Where leave to appeal is required by virtue of section 159(2) of the 2011 Act, such application for leave shall be—

(a) made by letter addressed to the sheriff clerk setting out the grounds on which the application is made;

(b) accompanied by a copy of the decision referred to in section 159(2) of the 2011 Act;

(5) On receipt of such application the sheriff clerk shall forthwith fix a hearing and intimate the application and the date of the hearing to the other parties to the proceedings.

(6) Where leave to appeal is granted, the appeal will proceed in accordance with rule3.54.

Appointment and intimation of first diet

3.54

(1) On the lodging of the appeal, the sheriff clerk shall forthwith assign a date for the hearing and shall at the same time intimate to the appellant or his representative and, together with a copy of the appeal, to–

(a) the Principal Reporter;

(b) subject to the provisions of paragraph (4), the child (if not the appellant);

(d) any safeguarder ...

(e) any other person the sheriff considers necessary, including those referred to in section 155(5)(c) and (e) of the 2011 Act.

(f) in the case of appeals under section 162(3), the chief social work officer of the relevant local authority for the child.

(2) The sheriff clerk shall endorse on the appeal a certificate of execution of intimation under paragraph (1).

(3) Intimation to a child in terms of paragraph (1)(b) shall be in Form 64.

(4) The sheriff may dispense with intimation to a child in terms of paragraph (1)(b) where he considers that such dispensation is appropriate.

(5) The date assigned for the hearing under paragraph (1) shall be within the time limits prescribed in, or by virtue of, the 2011 Act and in any event, no later than 28 days after the lodging of the appeal.

Answers

3.55

(1) Subject to paragraph (1A), if any person on whom service of the appeal has been made wishes to lodge answers to the appeal, he or she must do so not later than 7 days before the diet fixed for the hearing of the appeal.

(1A) Paragraph (1) does not apply to those appeals referred to in section 157(1), 160(1), 161(1) or 162(3) of the 2011 Act.

(2) Any person who has lodged answers shall forthwith intimate a copy thereof to any other person on whom service has been made under rule 3.54(1).

Procedure at hearing of appeal

3.56

(1) Before proceeding ... to examine the Principal Reporter and the authors or compilers of any reports or statements, the sheriff shall hear the appellant or his representative and any party to the appeal.

(2) On receipt of any further report required by the sheriff under or by virtue of the 2011 Act, the sheriff shall direct the Principal Reporter to send a copy of the report to every party to the appeal.

(3) At any appeal the sheriff may hear evidence–

(a) where a ground of the appeal is an alleged irregularity in the conduct of a hearing, as to that irregularity;

(b) in any other circumstances where he considers it appropriate to do so.

(4) Where the nature of the appeal or of any evidence is such that the sheriff is satisfied that it is in the interests of the child that he should not be present at any stage of the appeal, the sheriff may exclude the child from the hearing during that stage and, in that event, any safeguarder appointed and any relevant person or representative of the child shall be permitted to remain during the absence of the child.

(5) Subject to paragraph (6), the sheriff may exclude any relevant person, or that person and any representative of his, or any such representative from any part or parts of the hearing for so long as he considers it is necessary in the interests of any child, where he is satisfied that–

(a) he must do so in order to obtain the views of the child in relation to the hearing; or

(b) the presence of the person or persons in question is causing, or is likely to cause, significant distress to the child.

(6) Where any relevant person has been excluded under paragraph (5) the sheriff shall, after that exclusion has ended, explain to him the substance of what has taken place in his absence and shall give him an opportunity to respond to any evidence given by the child by leading evidence or otherwise.

(7) Where an appeal has been heard in part and a safeguarder thereafter becomes a party to the appeal, the sheriff may order the hearing of the appeal to commence of new.

Adjournment of appeals

3.57

(1) The sheriff may, on the motion of any party or on his own motion, adjourn or continue the hearing of the appeal for such reasonable time and for such purpose as may in the circumstances be appropriate.

(2) In the event of such adjournment or continuation the sheriff may make such order as the sheriff deems necessary to secure the expeditious determination of the appeal.

Decision of sheriff in appeals

3.58

(1) The sheriff shall give his decision orally either at the conclusion of the appeal or on such day as he shall appoint , subject to the provisions of, or by virtue of, the 2011 Act.

(2) The sheriff may issue a note of the reasons for his decision, and shall require to do so where he takes any of the steps referred to in section 156(2) or (3) of the 2011 Act.

(3) Any note in terms of paragraph (2) shall be issued at the time the sheriff gives his decision or within 7 days thereafter.

(4) The sheriff clerk shall forthwith send a copy of the interlocutor containing the decision of the sheriff, and where appropriate of the note referred to in paragraph (2), to the Principal Reporter, to the appellant (and to the child or any relevant person, if not the appellant) , any safeguarder and such other persons as the sheriff may direct, and shall also return to the Principal Reporter any documents lodged with the sheriff clerk.

(5) Where section 159 of the 2011 Act applies the sheriff clerk shall send a copy of the interlocutor containing the decision of the sheriff to the Scottish Legal Aid Board.

PART IX — PROCEDURE IN APPEALS BY STATED CASE UNDER PART 15 OF THE 2011 ACT

Appeals

3.59

(A1) This Part applies to appeals by stated case under section 163(1), 164(1), 165(1) and 167(1) of the 2011 Act.

(1) An application to the sheriff to state a case for the purposes of an appeal ... shall specify the point of law upon which the appeal is to proceed or the procedural irregularity, as the case may be.

(2) The appellant shall, at the same time as lodging the application for a stated case, intimate the lodging of an appeal from the decision of the sheriff to –

(a) the Principal Reporter;

(b) the child (if not the appellant), except where service on the child has been dispensed with in terms of rule 3.3;

(d) any safeguarder;

(e) any other party to proceedings.

(3) The sheriff shall, within 21 days of the lodging of the application for a stated case, issue a draft stated case–

(a) containing findings in fact and law or, where appropriate, a narrative of the proceedings before him;

(b) containing appropriate questions of law or setting out the procedural irregularity concerned; and

and the sheriff clerk shall send a copy of the draft stated case to the appellant and to parties referred to in paragraph (2).

(4) Within 7 days of the issue of the draft stated case–

(a) the appellant or a party referred to in paragraph (2) may lodge with the sheriff clerk a note of any adjustments which he seeks to make;

(b) the appellant or such a party may state any point of law or procedural irregularity which he wishes to raise in the appeal; and

(c) the note of adjustment and, where appropriate, point of law or procedural irregularity shall be intimated to the appellant and the other such parties.

(5) The sheriff may, on the motion of the appellant or a party referred to in paragraph (2) or of his own accord, and shall where he proposes to reject any proposed adjustment, allow a hearing on adjustments and may provide for such further procedure under this rule prior to the hearing of the appeal as he thinks fit.

(6) The sheriff shall, within 14 days after–

(a) the latest date on which a note of adjustments has been or may be lodged; or

(b) where there has been a hearing on adjustments, that hearing,

and after considering such note and any representations made to him at the hearing, state and sign the case.

(7) The stated case signed by the sheriff shall include–

(a) questions of law, framed by him, arising from the points of law stated by the parties and such other questions of law as he may consider appropriate;

(b) any adjustments, proposed under paragraph (4), which are rejected by him;

(c) a note of the procedural irregularity averred by the parties and any questions of law or other issue which he considers arise therefrom,

as the case may be.

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) The sheriff may, on an application by any party or of his own motion, reduce any of the periods mentioned in paragraph (3), (4) or (6) to such period or periods as he considers reasonable.

(11) Where the sheriff is temporarily absent from duty for any reason, the sheriff principal may extend any period specified in paragraph (3) or (6) for such period or periods as he considers reasonable.

Lodging of reports and statements with sheriff

3.60

Where, in an appeal–

(a) it appears to the sheriff that any report or information lodged under section 155(2) of the 2011 Act is relevant to any issue which is likely to arise in the stated case; and

(b) the report or information has been returned to the Principal Reporter,

the sheriff may require the Principal Reporter to lodge the report or information with the sheriff clerk.

Hearing

3.61

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART X — APPLICATIONS FOR REVIEW OF GROUNDS DETERMINATION

Application

3.62

(1) An application under section 110 of the 2011 Act for a review of a grounds determination made in terms of section 108 of the 2011 Act (determination that grounds for referral established) shall contain—

(a) the name and address of the applicant and his or her representative (if any);

(b) the name and address (if known) of the person who is the subject of the grounds determination (even if that person is no longer a child), if not the applicant;

(d) the name and address of the curator ad litem(if any);

(e) the name and address of any person who is, or was at the time the grounds determination was made, a relevant person in relation to the child, if not the applicant;

(f) the date and grounds determination made and the place of the sheriff court which made the grounds determination;

(g) the grounds for the making of the application;

(h) specification of the nature of evidence in terms of section 111(3) of the 2011 Act not considered by the sheriff who made the grounds determination;

(i) the explanation for the failure to lead such evidence on the original application; and

(j) any reports, affidavits and productions upon which the applicant intends to rely.

(2) Where the applicant does not wish to disclose the address or whereabouts of the child or any other person to persons receiving notice of the application, the applicant shall set out his or her reasons for this.

Hearing on application

3.63

(1) Where an application has been lodged in terms of rule3.62, the sheriff clerk shall—

(a) assign a diet for hearing the application;

(b) issue a warrant to cite in Form 65 requiring the Principal Reporter to lodge answers if so advised within such time as the sheriff shall appoint.

(2) Subject to the provisions of rule 3.4 (service on child), after the issue of the warrant to cite, the applicant shall forthwith give notice of the application by serving a copy and the warrant on the persons named in rule 3.62 and such other persons as the sheriff directs.

(3) After hearing parties and having considered the terms of section 111(3) of the 2011 Act and allowing such further procedure as the sheriff thinks fit to secure the expeditious determination of the application, the sheriff shall make an order as appropriate.

(4) The provisions of rule3.51 shall apply to any order made under paragraph(3).

Hearing to consider the evidence

3.64

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 4 — REGISTRATION OF CHILD CUSTODY ORDERS

Interpretation

4.1

In this Chapter, unless the context otherwise requires–

“the Act” means the Family Law Act 1986[^f00034];

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

“appropriate register” means the sheriff court book in which there is registered the action in which the Part I order was made;

“corresponding court”, in relation to a specified dependent territory, means the corresponding court specified in relation to that territory in Schedule 3 to the Family Law Act 1986 (Dependent Territories) Order 1991[^f00035];

“Part I order” has the meaning assigned to it by sections 1, 32, 42(5) and 42(6) of the Act[^f00036];

“proper officer” means the Secretary of the Principal Registry of the Family Division of the High Court in England and Wales or the Master (Care and Protection) of the High Court in Northern Ireland or, in relation to a specified dependent territory, the corresponding officer of the appropriate court in that territory, as the case may be; and

“specified dependent territory” means a territory specified in column 1 of Schedule 1 to the Family Law Act 1986 (Dependent Territories) Order 1991.

Applications for registration of Part I order in another court

4.2

(1) An application under section 27 of the Act (registration) to register a Part I order made by a sheriff court in an appropriate court shall be made by letter to the sheriff clerk of the court in which the order was made.

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

(a) a copy of the letter of application;

(b) an affidavit by the applicant;

(d) a certified copy of the interlocutor making the Part I order and any variation thereto which is still in force; and

(e) any other document relevant to the application together with a copy of it.

(3) The affidavit required under this rule shall set out–

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

(b) the name and date of birth of the child in respect of whom the Part I order was made, the present whereabouts or suspected whereabouts of the child and the name of any person with whom he is alleged to be;

(d) the appropriate court in which it is sought to register the Part I order;

(e) whether the Part I order is in force;

(f) whether the Part I order is already registered and, if so, where it is registered; and

(g) details of any order known to the applicant which affects the child and is in force in the jurisdiction in which the Part I order is to be registered.

Transmission of application for registration

4.3

(1) Unless it appears to the court that the Part I order is no longer in force, the sheriff clerk shall send the documents mentioned in section 27(3) of the Act to the proper officer of the court in which the Part I order is to be registered.

(2) For the purposes of section 27(3) of the Act the prescribed particulars of any variation of a Part I order which is in force shall be a certified copy of the interlocutor making any such variation.

(3) On sending an application under paragraph (1) of this rule, the sheriff clerk shall record the date and particulars of the application and the Part I order in the appropriate register.

(4) On receiving notification from the appropriate court that the Part I order has been registered in that court under section 27(4) of the Act, the sheriff clerk shall record the date of registration in the appropriate register.

Notification of refusal of application

4.4

Where the court refuses to send an application under rule 4.2 to the appropriate court on the ground that the Part I order is no longer in force, the sheriff clerk shall notify the applicant in writing of the court’s decision.

4.5

The sheriff clerk shall retain the letter of application under rule 4.2 together with any documents which accompanied it and which are not transmitted to the appropriate court under section 27(3) of the Act.

Cancellation or variation of registered Part I order

4.6

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