Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019

JurisdictionScotland
CitationSSI 2019/123
Year2019

2019 No. 123

Court Of Session

Sheriff Court

Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019

Made 28th March 2019

Laid before the Scottish Parliament 29th March 2019

Coming into force 24th June 2019

In accordance with section 4 of the Scottish Civil Justice Council and Criminal Legal Assistance Act 20131, the Court of Session has approved draft rules submitted to it by the Scottish Civil Justice Council with such modifications as it thinks appropriate.

The Court of Session therefore makes this Act of Sederunt under the powers conferred by sections 103(1) and 104(1) of the Courts Reform (Scotland) Act 20142and all other powers enabling it to do so.

S-1 Citation and commencement, etc.

Citation and commencement, etc.

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019.

(2) It comes into force on 24th June 2019.

(3) A certified copy is to be inserted in the Books of Sederunt.

S-2 Amendment of the Rules of the Court of Session 1994

Amendment of the Rules of the Court of Session 1994

2.—(1) The Rules of the Court of Session 19943are amended in accordance with this paragraph.

(2) In rule 49.8 (warrants for intimation in family actions)4

(a)

(a) in paragraph (1)—

(i) for “paragraphs (5) and (8)”, substitute “paragraph (5) and rule 49.8A (warrants and forms for intimation to a child and for seeking a child’s views)”;

(ii) omit sub-paragraph (h);

(b)

(b) omit paragraphs (7) and (8).

(3) After rule 49.8, insert—

S-49.8A

Warrants and forms for intimation to a child and for seeking a child’s views

49.8A.—(1) Subject to paragraph (2), in an action which includes a conclusion for a section 11 order in respect of a child who is not a party to the action, the pursuer must—

(a)

(a) include in the condescendence of the summons averments setting out the reasons why it is appropriate to send Form 49.8A to the child;

(b)

(b) when the summons is presented for signeting—

(i) apply by motion for a warrant for intimation and the seeking of the child’s views in Form 49.8A, specifying the articles of condescendence in the summons which contain the reasons for the request;

(ii) submit a draft Form 49.8A, showing the details that the pursuer proposes to include when the form is sent to the child.

(2) Where the pursuer considers that it would be inappropriate to send Form 49.8A to the child (for example, where the child is under 5 years of age), the pursuer must—

(a)

(a) when the summons is presented for signeting, apply by motion for the court to dispense with intimation and the seeking of the child’s views in Form 49.8A, specifying the articles of condescendence in the summons which contain the reasons for the request;

(b)

(b) include in the condescendence of the summons averments setting out the reasons why it is inappropriate to send Form 49.8A to the child.

(3) The court must be satisfied that the draft Form 49.8A submitted under paragraph (1)(b) has been drafted appropriately5.

(4) The court may dispense with intimation and the seeking of views in Form 49.8A or make any other order it considers appropriate.

(5) An order granting warrant for intimation and the seeking of the child’s views in Form 49.8A under this rule must—

(a)

(a) state that the Form 49.8A must be sent in accordance with rule 49.8A(6);

(b)

(b) be signed by the Lord Ordinary.

(6) The Form 49.8A must be sent in accordance with—

(a)

(a) rule 49.20 (views of the child – undefended actions), where the action is undefended;

(b)

(b) rule 49.20A (views of the child – section 11 order sought by pursuer only), where the action is defended and a section 11 order is sought by the pursuer only;

(c)

(c) rule 49.20B (views of the child – section 11 order sought by defender only), where a section 11 order is sought by the defender only; or

(d)

(d) rule 49.20C (views of the child – section 11 orders sought by both pursuer and defender), where a section 11 order is sought by both parties.”.

(4) In rule 49.15 (orders for intimation by the court)6

(a)

(a) in paragraph (1)—

(i) for “In any”, substitute “Except in relation to intimation to a child in Form 49.8A, in any”;

(ii) in sub-paragraph (a), omit “subject to paragraph (2),”;

(b)

(b) omit paragraph (2).

(5) For rule 49.20 (procedure in respect of children)7, substitute—

S-49.20

Views of the child – undefended actions

49.20.—(1) This rule applies to undefended actions in which a section 11 order is sought and warrant has been granted for intimation and the seeking of the child’s views in Form 49.8A.

(2) The pursuer must—

(a)

(a) following the expiry of the period for lodging defences, send the child the Form 49.8A that was submitted and approved under rule 49.8A (warrants and forms for intimation to a child and for seeking a child’s views);

(b)

(b) lodge with the minute for decree a certificate of intimation in Form 49.8B;

(c)

(c) not send the child a copy of the summons.

(3) Except on cause shown, the court must not grant decree in the period of 28 days following the date on which the Form 49.8A was sent to the child.

S-49.20A

Views of the child – section 11 order sought by pursuer only

49.20A.—(1) This rule applies to defended actions in which only the pursuer seeks a section 11 order and warrant has been granted for intimation and the seeking of the child’s views in Form 49.8A.

(2) The pursuer must—

(a)

(a) no later than 14 days after defences are lodged, send the child the Form 49.8A that was submitted and approved under rule 49.8A (warrants and forms for intimation to a child and for seeking a child’s views);

(b)

(b) on the same day, lodge a certificate of intimation in Form 49.8B;

(c)

(c) not send the child a copy of the summons or the defences.

S-49.20B

Views of the child – section 11 order sought by defender only

49.20B.—(1) This rule applies to defended actions in which only the defender seeks a section 11 order and warrant has been granted for intimation and the seeking of the child’s views in Form 49.8A.

(2) The defender must—

(a)

(a) no later than 14 days after warrant to intimate to the child is granted under rule 49.31(7) (defences in family actions), send the child the Form 49.8A that was submitted and approved under rule 49.31;

(b)

(b) on the same day, lodge a certificate of intimation in Form 49.8B;

(c)

(c) not send the child a copy of the summons or the defences.

S-49.20C

Views of the child – section 11 orders sought by both pursuer and defender

49.20C.—(1) This rule applies to defended actions in which section 11 orders are sought by both the pursuer and the defender and warrant has been granted for intimation and the seeking of the child’s views in Form 49.8A.

(2) The pursuer must—

(a)

(a) no later than 14 days after defences are lodged, send the child the Form 49.8A that was submitted and approved under rule 49.8A (warrants and forms for intimation to a child and for seeking a child’s views), amended so as also to narrate the section 11 order sought by the defender;

(b)

(b) on the same day—

(i) lodge a certificate of intimation in Form 49.8B;

(ii) send the defender a copy of the Form 49.8A that was sent to the child;

(c)

(c) not send the child a copy of the summons or the defences.

S-49.20D

Views of the child – the court’s role

49.20D.—(1) In a family action, in relation to any matter affecting a child, where that child has—

(a)

(a) returned a Form 49.8A to the court; or

(b)

(b) otherwise indicated to the court a wish to express views,

the court must not grant any order unless an opportunity has been given for the views of that child to be obtained or heard.

(2) Where the court is considering making an interim section 11 order before the views of the child have been obtained or heard, the court must consider whether, and if so how, to seek the child’s views in advance of making the order.

(3) Where a child has indicated a wish to express views, the court must order any steps to be taken that it considers appropriate to obtain or hear the views of that child.

(4) The court must not grant an order in a family action, in relation to any matter affecting a child who has expressed views, unless the court has given due weight to the views expressed by that child, having regard to the child’s age and maturity.

(5) In any action in which a section 11 order is sought, where Form 49.8A has not been sent to the child concerned or where it has been sent but the court considers that the passage of time requires it to be sent again, the court may at any time order any party to—

(a)

(a) send the Form 49.8A to that child within a specified timescale;

(b)

(b) on the same day, lodge—

(i) a copy of the Form 49.8A that was sent to the child;

(ii) a certificate of intimation in Form 49.8C.”.

(6) In rule 49.22(3) (interlocutor appointing a child welfare reporter)8

(a)

(a) in sub-paragraph (c), after “sought”, insert “and include a direction as to whether a copy of the report is to be provided to the parties under paragraph (9)(d)”;

(b)

(b) following sub-paragraph (c), omit “and”;

(c)

(c) after sub-paragraph (d), insert—

“; and

(e)

(e) where the appointment is under paragraph (1)(b) and seeking the views of the child forms part of the enquiries to be undertaken, include a direction as to whether the views of the child should be recorded in a separate report and, if so, whether a copy of that report is to be provided to the parties under paragraph (9)(d).”.

(7) In rule 49.28(1) (evidence in certain undefended family actions)9, omit sub-paragraph (a)(i).

(8) After rule 49.31(2) (defences in family actions), insert—

S-3

“3 Subject to paragraph (4), where the defences include a conclusion for a section 11 order in respect of a child who is not a party to the action and where the summons does not include a conclusion for a section 11 order, the defender must, when the defences are lodged—

(a) apply by motion for a warrant for intimation and the...

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