Sheriff Courts (Scotland) Act 1907

[F1 PART IX S APPLICATIONS FOR ORDERS UNDER SECTION 11 OF THE CHILDREN (SCOTLAND) ACT 1995.]

Textual Amendments

F1 Sch. 1 Ch. 33 Pt. 9 heading substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 26

Application of this Part S

F2 [33.60. This Part applies to an application for a section 11 order in a family action other than in an action of divorce [F3 , separation or declarator of nullity of marriage].]

Textual Amendments

F2 Sch. 1 rule 33.60 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 27

F3 Words in Sch. 1 rule 33.60 substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(30)}

Form of applications S

33.61. Subject to any other provision in this Chapter, an application for [F4 a section 11 order] shall be made—

(a) by an action for [F5 a section 11 order];

(b) by a crave in the initial writ or defences, as the case may be, in any other family action to which this Part applies; or

(c) where the application is made by a person other than a party to an action mentioned in paragraph (a) or (b), by minute in that action.

Textual Amendments

F4 Words in Sch. 1 rule 33.61 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 28(a)

F5 Words in Sch. 1 rule 33.61(a) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 28(b)

Defences in action for a section 11 order S

F6 [F6 33.62. 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

F7 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F6 Sch. 1 rule 33.62 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 29

F7 Sch. 1 rule 33.62(e) omitted (2.10.2000) by virtue of S.S.I. 2000/239, para. 3(16)

Applications relating to interim orders in depending actions S

33.63. An application, in an action depending before the sheriff to which this Part applies, for, or for the variation or recall of, F8 . . . [F9 an interim residence order or an interim contact order] shall be made—

(a) by a party to the action, by motion; or

(b) by a person who is not a party to the action, by minute.

Textual Amendments

F8 Words in Sch. 1 rule 33.63 omitted (4.5.2006) by virtue of Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(31)}

F9 Sch. 1 rule 33.63: the words “an interim residence order or an interim contact order” substituted for the words “interim custody or interim access” (1.11.1996) by virtue of S.I. 1996/2167, para. 2, Sch. para. 30

F10 33.64. S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F10 Sch. 1 rule 33.64 omitted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 31

Applications after decree S

33.65. [F11 (1) An application after final decree for variation or recall of a section 11 order shall be made by minute in the process of the action to which the application relates.]

(2) Where a minute has been lodged under paragraph (1), any party may apply by motion for an interim order pending the determination of the application.

Textual Amendments

F11 Sch. 1 rule 33.65(1) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 32

Application for leave S

[F12 33.65A. (1) Where leave of the court is required under section 11(3)(aa) of the Act of 1995 for the making of an application for a contact order under that section, the applicant must lodge along with the initial writ a written application in the form of a letter addressed to the sheriff clerk stating—

(a) the grounds on which leave is sought;

(b) whether or not the applicant has applied for legal aid.

(2) Where the applicant has applied for legal aid he must also lodge along with the initial writ written confirmation from the Scottish Legal Aid Board that it has determined, under regulation 7(2)(b) of the Civil Legal Aid (Scotland) Regulations 2002 M1 , that notification of the application should be dispensed with or postponed pending the making by the sheriff of an order for intimation under paragraph (4)(b).

(3) Subject to paragraph (4)(b), an application under paragraph (1) shall not be served or intimated to any party.

(4) The sheriff shall consider an application under paragraph (1) without hearing the applicant and may—

(a) refuse the application and pronounce an interlocutor accordingly; or

(b) if he is minded to grant the application order the applicant—

(i) to intimate the application to such persons as the sheriff considers appropriate; and

(ii) to lodge a certificate of intimation in, as near as may be, Form G8.

(5) If any person who receives intimation of an application under paragraph (4)(b) wishes to be heard he shall notify the sheriff clerk in writing within 14 days of receipt of intimation of the application.

(6) On receipt of any notification under paragraph (5) the sheriff clerk shall fix a hearing and intimate the date of the hearing to the parties.

(7) Where an application under paragraph (1) is granted, a copy of the sheriff's interlocutor must be served on the defender along with the warrant of citation.]

Textual Amendments

F12 Sch. 1 rule 33.65A inserted (28.9.2009) by Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 (S.S.I. 2009/284), {para. 3(4)}

Marginal Citations

M1 S.S.I. 2002/494.