Sheriff Courts (Scotland) Act 1907

PART I S GENERAL PROVISIONS

Interpretation of this Chapter S

33A.1. (1) In this Chapter, “civil partnership action” means–

(a) an action of dissolution of civil partnership;

(b) an action of separation of civil partners;

(c) an action or application for an order under Chapter 3 or Chapter 4 of Part 3 of the Act of 2004;

(d) an application for a declarator or other order under section 127 of the Act of 2004;

(e) an action or application for financial provision after overseas proceedings as provided for in Schedule 11 to the Act of 2004;

[F1 (f) an action for declarator of nullity of civil partnership.]

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

• “the Act of 1985” means the Family Law (Scotland) Act 1985 M1 ;

• “the Act of 1995” means the Children (Scotland) Act 1995 M2 ;

• “the Act of 2004” means the Civil Partnership Act 2004 M3 ;

• “civil partnership” has the meaning assigned in section 1(1) of the Act of 2004;

• “contact order” has the meaning assigned in section 11(2)(d) of the Act of 1995;

• “Gender Recognition Panel” is to be construed in accordance with Schedule 1 to the Gender Recognition Act 2004 M4 ;

• “interim gender recognition certificate” means the certificate issued under section 4 of the Gender Recognition Act 2004;

• “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 M5 ;

• “mental disorder” has the meaning assigned in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 M6 ;

• “order for financial provision” means, except in Part VII of this Chapter (financial provision after overseas proceedings as provided for in Schedule 11 to the Act of 2004), an order mentioned in section 8(1) of the Act of 1985;

• “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;

• “relevant interdict” has the meaning assigned in section 113(2) of the Act of 2004;

• “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 M7 .

(3) For the purposes of rules 33A.2 (averments in actions of dissolution of civil partnership or separation of civil partners about other proceedings) and 33A.3 (averments where section 11 order sought) and, in relation to proceedings in another jurisdiction, Part XIII of this Chapter (sisting of civil partnership actions in Scotland), proceedings are continuing at any time after they have commenced and before they are finally disposed of.

Textual Amendments

F1 Sch. 1 rule 33A.1(1)(f) inserted (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(41)}

Marginal Citations

M1 1985 c. 37.

M2 1995 c. 36.

M3 2004 c. 33.

M4 2004 c. 7.

M5 1994 c. 39; section 2(2) was amended by the Environment Act 1995 (c. 25), Schedule 22, paragraph 232(1).

M6 2003 asp 13.

M7 Section 11 was amended by S.S.I. 2005/42.

[F2 Averments in certain civil partnership actions about other proceedings] S

33A.2. (1) This rule applies to an action of dissolution [F3 or declarator of nullity] of civil partnership or separation of civil partners.

(2) In an action to which this rule applies, the pursuer shall state in the condescendence of the initial writ–

(a) whether to his knowledge any proceedings are continuing in Scotland or in any other country in respect of the civil partnership to which the initial writ relates or are capable of affecting its validity or subsistence; and

(b) where such proceedings are continuing–

(i) the court, tribunal or authority before which the proceedings have been commenced;

(ii) the date of commencement;

(iii) the names of the parties;

(iv) the date, or expected date of any proof (or its equivalent) in the proceedings; and

(v) such other facts as may be relevant to the question of whether or not the action before the sheriff should be sisted under Part XIII of this Chapter.

(3) Where–

(a) such proceedings are continuing;

(b) the action before the sheriff is defended; and

(c) either–

(i) the initial writ does not contain the statement referred to in paragraph (2)(a); or

(ii) the particulars mentioned in paragraph (2)(b) as set out in the initial writ are incomplete or incorrect,

any defences or minute, as the case may be, lodged by any person to the action shall include that statement and, where appropriate, the further or correct particulars mentioned in paragraph (2)(b).

Textual Amendments

F2 Sch. 1 rule 33A.2 heading 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(42)(a)}

F3 Words in Sch. 1 rule 33A.2(1) inserted (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(42)(b)}

Averments where section 11 order sought S

33A.3. (1) A party to a civil partnership action who makes an application in that action for a section 11 order in respect of a child shall include in his pleadings–

(a) where that action is an action of dissolution [F4 or declarator of nullity] of civil partnership or separation of civil partners, averments giving particulars of any other proceedings known to him, whether in Scotland or elsewhere and whether concluded or not, which relate to the child in respect of whom the section 11 order is sought;

(b) in any other civil partnership action–

(i) the averments mentioned in paragraph (a); and

(ii) averments giving particulars of any proceedings known to him which are continuing, whether in Scotland or elsewhere, and which relate to the civil partnership of either of the parents of that child.

(2) Where such other proceedings are continuing or have taken place and the averments of the applicant for such a section 11 order–

(a) do not contain particulars of the other proceedings, or

(b) contain particulars which are incomplete or incorrect,

any defences or minute, as the case may be, lodged by any party to the civil partnership action shall include such particulars or such further or correct particulars as are known to him.

(3) In paragraph 1(b)(ii), “child” includes a child of the family within the meaning assigned in section 101(7) of the Act of 2004.

Textual Amendments

F4 Words in Sch. 1 rule 33A.3(1)(a) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), para. 2(43)

Averments where identity or address of person not known S

33A.4. In a civil partnership action, where the identity or address of any person referred to in rule 33A.7 as a person in respect of whom a warrant for intimation requires to be applied for is not known and cannot reasonably be ascertained, the party required to apply for the warrant shall include in his pleadings an averment of that fact and averments setting out what steps have been taken to ascertain the identity or address, as the case may be, of that person.

Averments about maintenance orders S

33A.5. In a civil partnership action in which an order for aliment or periodical allowance is sought, or is sought to be varied or recalled, by any party, the pleadings of that party shall contain an averment stating whether and, if so, when and by whom, a maintenance order (within the meaning of section 106 of the Debtors (Scotland) Act 1987 F5 ) has been granted in favour of or against that party or of any other person in respect of whom the order is sought.

Textual Amendments

F5 1987 c. 18; section 106 wad amended by the Child Support, Pensions and Social Security Act 2000 (c. 19), Schedule 3, paragraph 7(3).

Averments where aliment or financial provision sought S

33A.6. (1) In this rule–

• “the Act of 1991” means the Child Support Act 1991 F6 ;

• “child” has the meaning assigned in section 55 of the Act of 1991;

• “crave relating to aliment” means–

  (a)

  for the purposes of paragraph (2), a crave for decree of aliment in relation to a child or for recall or variation of such a decree; and

  (b)

  for the purposes of paragraph (3), a crave for decree of aliment in relation to a child or for recall or variation of such a decree or for the variation or termination of an agreement on aliment in relation to a child;

• “maintenance calculation” has the meaning assigned in section 54 of the Act of 1991.

(2) A civil partnership action containing a crave relating to aliment and to which section 8(6), (7), (8), or (10) of the Act of 1991 F7 (top up maintenance orders) applies shall–

(a) include averments stating, where appropriate–

(i) that a maintenance calculation under section 11 of that Act (maintenance calculations) is in force;

(ii) the date of the maintenance calculation;

(iii) the amount and frequency of periodical payments of child support maintenance fixed by the maintenance calculation; and

(iv) the grounds on which the sheriff retains jurisdiction under section 8(6), (7), (8) or (10) of that Act; and

(b) unless the sheriff on cause shown otherwise directs, be accompanied by any document issued by the Secretary of State to the party intimating the making of the maintenance calculation referred to in sub paragraph (a).

(3) A civil partnership action containing a crave relating to aliment, and to which section 8(6), (7), (8) or (10) of the Act of 1991 does not apply, shall include averments stating—

(a) that the habitual residence of the absent parent, person with care or qualifying child, within the meaning of section 3 of that Act, is furth of the United Kingdom; or

(b) that the child is not a child within the meaning of section 55 of that Act.

(4) A civil partnership action involving parties in respect of whom a decision has been made in any application, review or appeal under the Act of 1991 relating to any child of those parties, shall–

(a) include averments stating that such a decision has been made and giving details of that decision; and

(b) unless the sheriff on cause shown otherwise directs, be accompanied by any document issued by the Secretary of State to the parties intimating that decision.

Textual Amendments

F6 1991 c. 48.

F7 Section 8 was amended by S.I. 2003/192.

Warrants and forms for intimation S

33A.7. (1) Subject to paragraphs (5) and (7), in the initial writ in a civil partnership action, the pursuer shall include a crave for a warrant for intimation–

(a) in an action where the address of the defender is not known to the pursuer and cannot reasonably be ascertained, to–

(i) every person who was a child of the family (within the meaning of section 101(7) of the Act of 2004) and who has reached the age of 16 years, and

(ii) one of the next of kin of the defender who has reached that age,

unless the address of such a person is not known to the pursuer and cannot reasonably be ascertained, and a notice of intimation in Form CP1 shall be attached to the copy of the initial writ intimated to any such person;

(b) in an action where the defender is a person who is suffering from a mental disorder, to–

(i) those persons mentioned in sub paragraph (a)(i) and (ii), unless the address of such person is not known to the pursuer and cannot reasonably be ascertained; and

(ii) any person who holds the office of guardian, or continuing or welfare attorney to the defender under or by virtue of the Adults with Incapacity (Scotland) Act 2000 M8 ,

and a notice of intimation in Form CP2 shall be attached to the copy of the initial writ intimated to any such person;

(c) in an action of dissolution [F8 or declarator of nullity] of civil partnership or separation of civil partners where the sheriff may make a section 11 order in respect of a child–

(i) who is in the care of a local authority, to that authority and a notice of intimation in Form CP3 shall be attached to the initial writ intimated to that authority;

(ii) who, being a child of one party to the civil partnership, has been accepted as a child of the family by the other party to the civil partnership and who is liable to be maintained by a third party, to that third party, and a notice of intimation in Form CP3 shall be attached to the initial writ intimated to that third party; or

(iii) in respect of whom a third party in fact exercises care or control, to that third party, and a notice of intimation in Form CP4 shall be attached to the initial writ intimated to that third party;

(d) in an action where the pursuer craves a section 11 order, to any parent or guardian of the child who is not a party to the action, and a notice of intimation in Form CP5 shall be attached to the initial writ intimated to any such parent or guardian;

(e) in an action where the pursuer craves a residence order in respect of a child and he is–

(i) not a parent of that child; and

(ii) resident in Scotland when the initial writ is lodged,

to the local authority within which area the pursuer resides, and a notice of intimation in Form CP6 shall be attached to the initial writ intimated to that authority;

(f) in an action which includes a crave for a section 11 order, to the child to whom such an order would relate if not a party to the action, and a notice of intimation in Form CP7 shall be intimated to that child;

(g) in an action where the pursuer makes an application for an order under section 8(1)(aa) of the Act of 1985 M9 (transfer of property) and–

(i) the consent of a third party to such a transfer is necessary by virtue of an obligation, enactment or rule of law, or

(ii) the property is subject to a security,

to the third party or creditor, as the case may be, and a notice of intimation in Form CP8 shall be attached to the initial writ intimated to any such person;

(h) in an action where the pursuer makes an application for an order under section 18 of the Act of 1985 (which relates to avoidance transactions), to–

(i) any third party in whose favour the transfer of, or transaction involving, the property is to be or was made, and

(ii) any other person having an interest in the transfer of, or transaction involving, the property,

and a notice of intimation in Form CP9 shall be attached to the initial writ intimated to any such person;

(i) in an action where the pursuer makes an application for an order under Chapter 3 of Part 3 of the Act of 2004, where the application is under section 102(1)(e), 102(4)(a), 103(1), 103(2), 104, 107 or 112 of that Act, and the entitled civil partner is a tenant or occupies the family home by permission of a third party, to the landlord or the third party, as the case may be and a notice of intimation in Form CP10 shall be attached to the initial writ intimated to any such person;

(j) in an action where the pursuer makes an application for an order under section 8(1)(ba) of the Act of 1985 M10 (orders under section 12A of the Act of 1985 for pension lump sum), to the person responsible for the pension arrangement, and a notice of intimation in Form CP11 shall be attached to the initial writ intimated to any such person; and

(k) in an action where a pursuer makes an application for an order under section 8(1)(baa) of the Act of 1985 M11 (pension sharing orders), to the person responsible for the pension arrangement and a notice of intimation in Form CP12 shall be attached to the initial writ intimated to any such person.

(2) Expressions used in paragraph (1)(i) which are also used in Chapter 3 of Part 3 of the Act of 2004 have the same meaning as in that Chapter.

(3) A notice of intimation under paragraph (1) shall be on a period of notice of 21 days unless the sheriff otherwise orders; but the sheriff shall not order a period of notice of less than 2 days.

(4) In a civil partnership action, where the pursuer–

(a) craves a residence order in respect of a child;

(b) is not a parent of the child, and

(c) is not resident in Scotland when the initial writ is lodged for warranting,

he shall include a crave for an order for intimation in Form CP6 to such local authority as the sheriff thinks fit.

(5) Where the address of a person mentioned in paragraph (1)(c), (d), (f), (g), (h), (i), (j) or (k) is not known and cannot reasonably be ascertained, the pursuer shall include a crave in the initial writ to dispense with intimation; and the sheriff may grant that crave or make such other order as he thinks fit.

(6) Where the identity or address of a person to whom intimation of a civil partnership action is required becomes known during the course of the action, the party who would have been required to insert a warrant for intimation to that person shall lodge a motion for a warrant for intimation to that person or to dispense with such intimation.

(7) Where a pursuer considers that to order intimation to a child under paragraph (1)(f) is inappropriate, he shall–

(a) include a crave in the initial writ to dispense with intimation to that child; and

(b) include in the initial writ averments setting out the reasons why such intimation is inappropriate;

and the sheriff may dispense with such intimation or make such other order as he thinks fit.

Textual Amendments

F8 Words in Sch. 1 rule 33A.7(1)(c) inserted (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(44)}

Marginal Citations

M8 2000 asp 4.

M9 Section 8(1)(aa) was inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), section 74 and Schedule 8, paragraph 34(b).

M10 Section 8(1)(ba) was inserted by the Pensions Act 1995 (c. 26), section 167(1).

M11 Section 8(1)(baa) was inserted by the Welfare Reform and Pensions Act 1999 (c. 30), section 20(1).

Intimation where alleged association S

33A.8. (1) In a civil partnership action where the pursuer founds upon an alleged association between the defender and another named person, the pursuer shall, immediately after the expiry of the period of notice, lodge a motion for an order for intimation to that person or to dispense with such intimation.

(2) In determining a motion under paragraph (1), the sheriff may–

(a) make such order for intimation as he thinks fit; or

(b) dispense with intimation; and

(c) where he dispenses with intimation, order that the name of that person be deleted from the condescendence of the initial writ.

(3) Where intimation is ordered under paragraph (2), a copy of the initial writ and an intimation in Form CP13 shall be intimated to the named person.

(4) In paragraph (1), “association” means sodomy, incest, or any homosexual or heterosexual relationship.

Productions in action of dissolution of civil partnership or where section 11 order may be made S

33A.9. (1) This rule applies unless the sheriff directs otherwise.

(2) In an action of dissolution [F9 or declarator of nullity] of civil partnership, a warrant for citation shall not be granted without there being produced with the initial writ–

(a) an extract of the relevant entry in the civil partnership register or an equivalent document; and

(b) where the ground of action is that an interim gender recognition certificate has, after the date of registration of the civil partnership, been issued to either of the civil partners–

(i) where the pursuer is the subject of the interim gender recognition certificate, the interim gender recognition certificate or, failing that, a certified copy of the interim gender recognition certificate; or

(ii) where the defender is the subject of the interim gender recognition certificate, a certified copy of the interim gender recognition certificate.

(3) In a civil partnership action which includes a crave for a section 11 order, a warrant for citation shall not be granted without there being produced with the initial writ an extract of the relevant entry in the register of births or an equivalent document.

(4) For the purposes of this rule, a certified copy of an interim gender recognition certificate shall be a copy of that certificate sealed with the seal of the Gender Recognition Panels and certified to be a true copy by an officer authorised by the President of Gender Recognition Panels.

Textual Amendments

F9 Words in Sch. 1 rule 33A.9(2) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), para. 2(45)

Warrant of citation S

33A.10. The warrant of citation in a civil partnership action shall be in Form CP14.

Form of citation and certificate S

33A.11. (1) Subject to rule 5.6 (service where address of person is not known), citation of a defender shall be in Form CP15, which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form CP16.

(2) The certificate of citation shall be in Form CP17 which shall be attached to the initial writ.

Execution of service on, or intimation to, local authority S

33A.12. (1) Where a local authority referred to in rule 33A.7(1)(e)(residence order sought by non parent resident in Scotland) or rule 33A.7(4) (residence order sought by pursuer not resident in Scotland) is named as a defender in an initial writ at the time it is lodged, service of the initial writ on that local authority shall be executed within 7 days after the date of granting of the warrant of citation.

(2) Where in a civil partnership action–

(a) to which rule 33A.7(1)(e) applies, or

(b) in which a crave under rule 33A.7(4) is required,

the local authority referred to in that provision is named as a defender in the initial writ at the time it is lodged, a notice in Form CP6 shall be attached to the copy of the initial writ served on that local authority.

(3) In any civil partnership action, the sheriff may, if he thinks fit, order intimation to a local authority; and such intimation shall be in Form CP6; and

(4) Where, by virtue of paragraph (3) of this rule, or rule 33A.7(1)(e), or rule 33A.7(4), intimation of an application for a residence order is to be made to a local authority, intimation to that local authority shall be given within 7 days after the date on which a warrant of citation, or an order for intimation, as the case may be, has been granted.

Service in cases of mental disorder of defender S

33A.13. (1) In a civil partnership action where the defender suffers or appears to suffer from mental disorder and is resident in a hospital or other similar institution, citation shall be executed by registered post or the first class recorded delivery service addressed to the medical officer in charge of that hospital or institution; and there shall be included with the copy of the initial writ–

(a) a citation in Form CP15;

(b) any notice required by rule 33A.14(1);

(c) a request in Form CP18;

(d) a form of certificate in Form CP19 requesting the medical officer to–

(i) deliver and explain the initial writ, citation and any notice or form of notice of consent required under rule 33A.14(1) personally to the defender; or

(ii) certify that such delivery or explanation would be dangerous to the health or mental condition of the defender; and

(e) a stamped envelope addressed for return of that certificate to the pursuer or his solicitor, if he has one.

(2) The medical officer referred to in paragraph (1) shall send the certificate in Form CP19 duly completed to the pursuer or his solicitor, as the case may be.

(3) The certificate mentioned in paragraph (2) shall be attached to the certificate of citation.

(4) Where such a certificate bears that the initial writ has not been delivered to the defender, the sheriff may, at any time before decree–

(a) order such further medical inquiry, and

(b) make such order for further service or intimation,

as he thinks fit.

Notices in certain actions of dissolution of civil partnership or separation of civil partners S

33A.14. (1) In the following actions of dissolution of civil partnership or separation of civil partners there shall be attached to the copy of the initial writ served on the defender–

(a) in an action relying on section 117(3)(c) of the Act of 2004 (no cohabitation for [F10 one year] with consent of defender to decree)–

(i) which is an action of dissolution of civil partnership, a notice in Form CP20 and a notice of consent in Form CP21;

(ii) which is an action of separation of civil partners, a notice in Form CP22 and a form of notice of consent in Form CP23;

(b) in an action relying on section 117(3)(d) of the Act of 2004 (no cohabitation for [F11 two] years)–

(i) which is an action of dissolution of civil partnership, a notice in Form CP24;

(ii) which is an action of separation of civil partners, a notice in Form CP25.

[F12 (c) in an action relying on section 117(2)(b) of the Act of 2004 (grounds of dissolution: interim gender recognition certificate), a notice in Form CP25A.]

(2) The certificate of citation of an initial writ in an action mentioned in paragraph (1) shall state which notice or form mentioned in paragraph (1) has been attached to the initial writ.

Textual Amendments

F10 Words in Sch. 1 rule 33A.14(1)(a) 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(46)(a)}

F11 Word in Sch. 1 rule 33A.14(1)(b) 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(46)(b)}

F12 Sch. 1 rule 33A.14(1)(c) inserted (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(46)(c)}

Orders for intimation S

33A.15. (1) In any civil partnership action, the sheriff may, at any time–

(a) subject to paragraph (2), order intimation to be made on such person as he thinks fit;

(b) postpone intimation, where he considers that such postponement is appropriate and, in that case, the sheriff shall make such order in respect of postponement of intimation as he thinks fit; or

(c) dispense with intimation, where he considers that such dispensation is appropriate.

(2) Where the sheriff is considering whether to make a section 11 order by virtue of section 12 of the Act of 1995 (restrictions on decrees for dissolution of civil partnership, separation or annulment affecting children), he shall, subject to paragraph (1)(c) and without prejudice to paragraph (1)(b) of this rule, order intimation in Form CP7 to the child to whom the section 11 order would relate unless–

(a) intimation has been given to the child under rule 33A.7(1)(f); or

(b) the sheriff considers that the child is not of sufficient age or maturity to express his views.

(3) Where a party makes a crave or averment in a civil partnership action which, had it been made in an initial writ, would have required a warrant for intimation under rule 33.7, that party shall include a crave in his writ for a warrant for intimation or to dispense with such intimation; and rule 33A.7 shall, with the necessary modifications, apply to a crave for a warrant under this paragraph as it applies to a crave for a warrant under that rule.

Appointment of curators ad litem to defenders S

33A.16. (1) This rule applies to an action of dissolution [F13 or declarator of nullity] of civil partnership or separation of civil partners where it appears to the court that the defender is suffering from a mental disorder.

(2) In an action to which this rule applies, the sheriff shall–

(a) appoint a curator ad litem to the defender;

(b) where the facts set out in section 117(3)(c) of the Act of 2004 (no cohabitation for [F14 one year] with consent of defender to decree) are relied on–

(i) make an order for intimation of the ground of the action to the Mental Welfare Commission for Scotland; and

(ii) include in such an order a requirement that the Commission sends to the sheriff clerk a report indicating whether in its opinion the defender is capable of deciding whether or not to give consent to the granting of decree.

(3) Within 7 days after the appointment of a curator ad litem under paragraph (2)(a), the pursuer shall send to him—

(a) a copy of the initial writ and any defences (including any adjustments and amendments) lodged; and

(b) a copy of any notice in Form G5 sent to him by the sheriff clerk.

(4) On receipt of a report required under paragraph (2)(b)(ii), the sheriff clerk shall–

(a) lodge the report in process; and

(b) intimate that this has been done to–

(i) the pursuer;

(ii) the solicitor for the defender, if known; and

(iii) the curator ad litem.

(5) The curator ad litem shall lodge in process one of the writs mentioned in paragraph (6)–

(a) within 14 days after the report required under paragraph (2)(b)(ii) has been lodged in process; or

(b) where no such report is required, within 21 days after the date of his appointment under paragraph (2)(a).

(6) The writs referred to in paragraph (5) are–

(a) a notice of intention to defend;

(b) defences to the action;

(c) a minute adopting defences already lodged; and

(d) a minute stating that the curator ad litem does not intend to lodge defences.

(7) Notwithstanding that he has lodged a minute stating that he does not intend to lodge defences, a curator ad litem may appear at any stage of the action to protect the interests of the defender.

(8) If, at any time, it appears to the curator ad litem that the defender is not suffering from mental disorder, he may report that fact to the court and seek his own discharge.

(9) The pursuer shall be responsible, in the first instance, for payment of the fees and outlays of the curator ad litem incurred during the period from his appointment until–

(a) he lodges a minute stating that he does not intend to lodge defences;

(b) he decides to instruct the lodging of defences or a minute adopting defences already lodged; or

(c) being satisfied after investigation that the defender is not suffering from mental disorder, he is discharged.

Textual Amendments

F13 Words in Sch. 1 rule 33A.16(1) inserted (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(47)(a)}

F14 Words in Sch. 1 rule 33A.16(2)(b) substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), para. 2(47)(b)

Applications for sist S

33A.17. An application for a sist, or the recall of a sist, under Part XIII of this Chapter shall be made by written motion.

Notices of consent to dissolution of civil partnership or separation of civil partners S

33A.18. (1) Where, in an action of dissolution of civil partnership or separation of civil partners in which the facts in section 117(3)(c) of the Act of 2004 (no cohabitation for [F15 one year] with consent of defender to decree) are relied on, the defender wishes to consent to the grant of decree of dissolution of civil partnership or separation of civil partners he shall do so by giving notice in writing in Form CP21 (dissolution) or Form CP23 (separation), as the case may be, to the sheriff clerk.

(2) The evidence of one witness shall be sufficient for the purpose of establishing that the signature on a notice of consent under paragraph (1) is that of the defender.

(3) In an action of dissolution of civil partnership or separation of civil partners where the initial writ includes, for the purposes of section 117(3)(c) of the Act of 2004, an averment that the defender consents to the grant of decree, the defender may give notice by letter sent to the sheriff clerk stating that he has not so consented or that he withdraws any consent which he has already given.

(4) On receipt of a letter under paragraph (3), the sheriff clerk shall intimate the terms of the letter to the pursuer.

(5) On receipt of any intimation under paragraph (4), the pursuer may, within 14 days after the date of the intimation, if none of the other facts mentioned in section 117(3) of the Act of 2004 is averred in the initial writ, lodge a motion for the action to be sisted.

(6) If no such motion is lodged, the pursuer shall be deemed to have abandoned the action and the action shall be dismissed.

(7) If a motion under paragraph (5) is granted and the sist is not recalled or renewed within a period of 6 months from the date of the interlocutor granting the sist, the pursuer shall be deemed to have abandoned the action and the action shall be dismissed.

Textual Amendments

F15 Words in Sch. 1 rule 33A.18(1) 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(48)}

Procedure in respect of children S

33A.19. (1) In a civil partnership action, in relation to any matter affecting a child, where that child has–

(a) returned to the sheriff clerk Form CP7, or

(b) otherwise indicated to the court a wish to express views on a matter affecting him, the sheriff 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 sheriff shall order such steps to be taken as he considers appropriate to ascertain the views of that child.

(3) The sheriff shall not grant an order in a civil partnership 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 sheriff to the views expressed by that child, having due regard to his age and maturity.

Recording of views of the child S

33A.20. (1) This rule applies where a child expresses a view on a matter affecting him whether expressed personally to the sheriff or to a person appointed by the sheriff for that purpose or provided by the child in writing.

(2) The sheriff, or the person appointed by the sheriff, shall record the views of the child in writing; and the sheriff may direct that such views, and any written views, given by a child 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;

(c) be available to a sheriff only;

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

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

Appointment of local authority or reporter to report on a child S

33A.21. (1) This rule applies where, at any stage of a civil partnership action, the sheriff appoints–

(a) a local authority, whether under section 11(1) of the Matrimonial Proceedings (Children) Act 1958 F16 (reports as to arrangements for future care and upbringing of children) or otherwise, or

(b) another person (referred to in this rule as a “reporter”), whether under a provision mentioned in sub paragraph (a) or otherwise,

to investigate and report to the court on the circumstances of a child and on proposed arrangements for the care and upbringing of the child.

(2) On making an appointment referred to in paragraph (1), the sheriff shall direct that the party who sought the appointment or, where the court makes the appointment of its own motion, the pursuer or minuter, as the case may be, shall–

(a) instruct the local authority or reporter; and

(b) be responsible, in the first instance, for the fees and outlays of the local authority or reporter appointed.

(3) Where a local authority or reporter is appointed–

(a) the party who sought the appointment, or

(b) where the sheriff makes the appointment of his own motion, the pursuer or minuter, as the case may be,

shall, within 7 days after the date of the appointment, intimate the name and address of the local authority or reporter to any local authority to which intimation of the family action has been made.

(4) On completion of a report referred to in paragraph (1), the local authority or reporter, as the case may be, shall send the report, with a copy of it for each party, to the sheriff clerk.

(5) On receipt of such a report, the sheriff clerk shall send a copy of the report to each party.

(6) Where a local authority or reporter has been appointed to investigate and report in respect of a child, an application for a section 11 order in respect of that child shall not be determined until the report of the local authority or reporter, as the case may be, has been lodged.

Textual Amendments

F16 1958 c. 40; section 11(1) was amended by the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 9.

Referral to family mediation S

33A.22. In any civil partnership action in which an order in relation to parental responsibilities or parental rights is in issue, the sheriff may, at any stage of the action, where he considers it appropriate to do so, refer that issue to a mediator accredited to a specified family mediation organisation.

Child Welfare Hearing S

33A.23. (1) Where–

(a) on the lodging of a notice of intention to defend in a civil partnership action in which the initial writ seeks or includes a crave for a section 11 order, a defender wishes to oppose any such crave or order, or seeks the same order as that craved by the pursuer,

(b) on the lodging of a notice of intention to defend in a civil partnership action, the defender seeks a section 11 order which is not craved by the pursuer, or

(c) in any other circumstances in a civil partnership action, the sheriff considers that a Child Welfare Hearing should be fixed and makes an order (whether at his own instance or on the motion of a party) that such a hearing shall be fixed,

the sheriff clerk shall fix a date and time for a Child Welfare Hearing on the first suitable court date occurring not sooner than 21 days after the lodging of such notice of intention to defend, unless the sheriff directs the hearing to be held on an earlier date.

(2) On fixing the date for the Child Welfare Hearing, the sheriff clerk shall intimate the date of the Child Welfare Hearing to the parties in Form CP26.

(3) The fixing of the date of the Child Welfare Hearing shall not affect the right of a party to make any other application to the court whether by motion or otherwise.

[F17 (4) At the Child Welfare Hearing (which may be held in private), the sheriff shall seek to secure the expeditious resolution of disputes in relation to the child by ascertaining from the parties the matters in dispute and any information relevant to that dispute, and may–

(a) order such steps to be taken, make such order, if any, or order further procedure, as he thinks fit, and

(b) ascertain whether there is or is likely to be a vulnerable witness within the meaning of section 11(1) of the Act of 2004 who is to give evidence at any proof or hearing and whether any order under section 12(1) of the Act of 2004 requires to be made.]

(5) All parties (including a child who has indicated his wish to attend) shall, except on cause shown, attend the Child Welfare Hearing personally.

(6) It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the Child Welfare Hearing.

Textual Amendments

F17 Sch. 1 rule 33A.23(4) substituted (1.11.2007) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2007 (S.S.I. 2007/463), art. 2(10)

Applications for orders to disclose whereabouts of children S

33A.24. (1) An application in a civil partnership action for an order under section 33(1) of the Family Law Act 1986 F18 (which relates to the disclosure of the whereabouts of a child) shall be made by motion.

(2) Where the sheriff makes an order under section 33(1) of the Family Law Act 1986, he may ordain the person against whom the order has been made to appear before him or to lodge an affidavit.

Textual Amendments

F18 1986 c. 55.

Applications in relation to removal of children S

33A.25. (1) An application in a civil partnership action for leave under section 51(1) of the Children Act 1975 F19 (authority to remove a child from the care and possession of the applicant for a residence order) or for an order under section 35(3) of the Family Law Act 1986 (application for interdict or interim interdict prohibiting removal of child from jurisdiction) 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.

(2) An application under section 35(3) of the Family Law Act 1986 need not be served or intimated.

(3) An application in a civil partnership action under section 23(2) of the Child Abduction and Custody Act 1985 F20 (declarator that removal of child from United Kingdom was unlawful) shall be made–

(a) in an action depending before the sheriff–

(i) by a party, in the initial writ, defences or minute, as the case may be, or by motion; or

(ii) by any other person, by minute; or

(b) after final decree, by minute in the process of the action to which the application relates.

Textual Amendments

F19 1975 c. 72.

F20 1985 c. 60.

Intimation to local authority before supervised contact order S

33A.26. Where in a civil partnership action the sheriff, at his own instance or on the motion of a party, is considering making a contact order or an interim contact order subject to supervision by the social work department of a local authority, he shall ordain the party moving for such an order to intimate to the chief executive of that local authority (where not already a party to the action and represented at the hearing at which the issue arises)–

(a) the terms of any relevant motion;

(b) the intention of the sheriff to order that the contact order be supervised by the social work department of that local authority; and

(c) that the local authority shall, within such period as the sheriff has determined–

(i) notify the sheriff clerk whether it intends to make representations to the sheriff; and

(ii) where it intends to make representations in writing, do so within that period.

Joint minutes S

33A.27. Where any parties in a civil partnership action have reached agreement in relation to—

(a) a section 11 order;

(b) aliment for a child; or

(c) an order for financial provision,

a joint minute may be entered into expressing that agreement; and, subject to rule 33A.19(3) (no order before views of child expressed), the sheriff may grant decree in respect of those parts of the joint minute in relation to which he could otherwise make an order, whether or not such a decree would include a matter for which there was no crave.

Affidavits S

33A.28. The sheriff in a civil partnership action may accept evidence by affidavit at any hearing for an order or interim order.