First Schedule ORDINARY CAUSE RULES 1993
Special provisions in relation to particular causes
CHAPTER 33 FAMILY ACTIONS
F1PART IX APPLICATIONS FOR ORDERS UNDER SECTION 11 OF THE CHILDREN (SCOTLAND) ACT 1995.
Application of this Part
F233.60.
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.
Form of applications
33.61.
Subject to any other provision in this Chapter, an application for F4a section 11 order shall be made—
(a)
by an action for F5a 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.
F6Defences in action for a section 11 order
F633.62.
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)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Applications relating to interim orders in depending actions
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. . . F9an 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.
F1033.64.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Applications after decree
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.
F12Application for leave
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.