SCHEDULE
Paragraph 2
AMENDMENT TO ORDINARY CAUSE RULES 1993
1. In rule 7.2 (minute for granting of decree without attendance), in paragraph (2)(b)(iii), for the words “parental rights”, substitute the words “a section 11 order”.
2. In rule 9.1 (notice of intention to defend), in paragraph (1), after the words “Form O7”, insert the words “and, at the same time, send a copy to the pursuer”.
3. In rule 9.6 (defences)–
(a) in paragraph (1), after the word “shall”, insert the words “(subject to paragraph (3))”; and
(b) after paragraph (2), insert the following paragraph:–
“3 In a family action (within the meaning of rule 33.1(1)), neither a crave nor averments need be made in the defences which relate to any order under section 11 of the Children (Scotland) Act 1995.”.
4. In rule 33.1 (interpretation of Chapter 33)–
(a) for paragraph (1)(h), substitute the following paragraph:–
“(h)
“(h) an action or application for, or in respect of, an order under section 11 of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.), except–
(i) an application for the appointment of a judicial factor mentioned in section 11(2)(g) of the Act of 1995 to which Part I of the Act of Sederunt (Judicial Factors Rules) 1992 applies; and
(ii) an application for the appointment or removal of a person as a guardian mentioned in section 11(2)(h) of the Act of 1995 to which paragraph 4 of the Act of Sederunt (Family Proceedings in the Sheriff Court) 1996 applies;”;
(b) in paragraph (2)–
(i) after the definition of “the Act of 1985”, insert the following definitions:–
““the Act of 1995” means the Children (Scotland) Act 1995;
“contact order” has the meaning assigned in section 11(2)(d) of the Act of 1995;”;
(ii) omit the definition of “child”;
(iii) for the definition of “local authority”, substitute the following definition–
““local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 19946;”; and
(iv) for the definition of “parental rights”, substitute the following definitions–
““parental responsibilities” has the meaning assigned in section 1(3) of the Act of 1995;
“parental rights” has the meaning assigned in section 2(4) of the Act of 1995;
“residence order” has the meaning assigned in section 11(2)(c) of the Act of 1995;
“section 11 order” means an order under section 11 of the Act of 1995.”;
(c) in paragraph (3), for the word “custody”, substitute the words “section 11 order”.
5. In rule 33.3 (averments where custody sought)–
(a) for the heading to the rule, substitute the following heading:–
“Averments where section 11 order sought”;
(b) in paragraph (1), for the words from “action for a custody order” to “Family Law Act 1986”, substitute the words “action for a section 11 order”;
(c) in paragraph (1)(a) and paragraph (2), for the words “custody order” wherever they occur, substitute the words “section 11 order”.
6. In rule 33.7 (warrants and forms for intimation)–
(a) in paragraph (1)–
(i) at the beginning of the paragraph, for the words “In the initial writ”, substitute the words “Subject to paragraphs (5) and (7), in the initial writ”;
(ii) in sub-paragraph (e), for the words “an order for any parental rights”, substitute the words “a section 11 order”;
(iii) in head (iii) of sub-paragraph (e), for the words “exercises such rightsde facto”, substitute the words “in fact exercises care or control”;
(iv) in sub-paragraph (f), for the words “the custody of a child”, substitute the words “a section 11 order”;
(v) in sub-paragraph (g), for the words “the custody”, substitute the words “a residence order in respect”; and
(vi) for sub-paragraph (h), substitute the following sub-paragraph–
“(h)
“(h) 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 F9 shall be intimated to that child;”;
(b) in paragraph (4), for sub-paragraphs (a) and (b), substitute the following sub-paragraphs:–
“(a)
“(a) craves a residence order in respect of a child,
(b)
(b) is not a parent of the child, and
(c)
(c) is not resident in Scotland when the initial writ is lodged for warranting,”; and
(c) after paragraph (6), insert the following paragraph:–
“7 Where a pursuer considers that to order intimation to a child under paragraph (1)(h) 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.”.
7. In rule 33.9 (productions in action of divorce or where order for custody may be made)–
(a) in the heading to the rule, for the words “order for custody”, substitute the words “section 11 order”; and
(b) in paragraph (b), for the words “in an action where the sheriff may make an order in respect of the custody of a child”, substitute the words “in a family action which includes a crave for a section 11 order”.
8. In rule 33.12 (execution of service on, or intimation to, local authority)–
(a) in paragraph (1), for the word “custody” wherever it occurs, substitute the words “residence order”;
(b) paragraph (3) shall become paragraph (4);
(c) after paragraph (2), insert the following paragraph–
“3 In any family action, the sheriff may, if he thinks fit, order intimation to a local authority; and such intimation shall be in Form F8.”; and
(d) in new paragraph (4), for the words “rule 33.7(1)(g), 33.7(4) or 33.15(2), intimation of an application for custody”, substitute the words “paragraph (3) of this rule or rule 33.7(1)(g) or 33.7(4), intimation of an application for a residence order”.
9. For rule 33.15 (orders for intimation by sheriff), substitute the following rule:–
“Orders for intimation
33.15.—(1) In any family action, the sheriff may, at any time–
(a)
(a) subject to paragraph (2), order intimation to be made on such person as he thinks fit;
(b)
(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)
(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 divorce, 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 F9 to the child to whom the section 11 order would relate unless–
(a)
(a) intimation has been given to the child under rule 33.7(1)(h); or
(b)
(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 family 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 33.7 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.”.
10. For rules 33.19 and 33.20, substitute the following rules:–
“Procedure in respect of children
33.19.—(1) In a family action, in relation to any matter affecting a child, where that child has–
(a)
(a)...
