Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 3) (Miscellaneous) 2016

Sep 06, 2016

The Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 3) (Miscellaneous) 2016 makes changes to the Ordinary Cause Rules making it clear that, when a family or civil partnership action is intimated to a child who is not a party to the proceedings, a copy of the initial writ must not be sent to the child. It also amends other rules of court in relation to the form of charge for payment, applications for liability orders and recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.

Currently, the Ordinary Cause Rules simply specify the form of intimation that must be sent to a child affected by a family action (Form F9) or civil partnership action (Form CP7). The rules are silent on whether a copy of the initial writ should be attached to the form. This is quite different from how the rules deal with other classes of persons who receive intimation of family actions in certain circumstances – in those cases, the rules expressly state that a copy of the initial writ must be attached to the form of intimation.

Feedback from an informal consultation carried out by the Council’s Family Law Committee suggested that there were widespread differences in approach among the legal profession, with many considering that the initial writ does have to be sent to a child. The Family Law Committee decided that the rules should be clarified.

The new rules therefore make it clear that when a family or civil partnership action is intimated to a child, he or she must not be given a copy of the initial writ. Not only will this spare children the upset of seeing all that is said in the initial writ, it will reduce the number of occasions where intimation is dispensed with on the basis that the child should not see the pleadings. It is hoped that the rule change will lead to a greater number of children receiving intimation of family and civil partnership actions, and possibly also increase the number of children who can potentially give their views. The new rules will come into force on 3 October 2016.

The new rules bring the Ordinary Cause Rules into line with the Rules of the Court of Session, which already expressly prohibit a copy of the summons being sent to the child.

The Act of Sederunt also:

  • Amends the The Act of Sederunt (Form of charge for payment) 1988, to  make it clear to a debtor that they will only be liable to sequestration if their debts are £3,000 or more; a similar amendment is made in the Appendix of the Rules of the Court of Session 1994 to Form 16.15-G (Form of charge for payment of money).
  • Amends Form 2-A contained in The Act of Sederunt (Child Support Rules) 1993 to make it competent for authorised officials in the Department for Work and Pensions to sign summary applications for liability orders on behalf of the Secretary of State.
  • Rule 10 of the Act of Sederunt (Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility Rules) 2006 and Rule 62.78 of the Rules of the Court of Session 1994, are both clarified to ensure that, when a person wishes to have a judgment that was issued in Scotland recognised or enforced in another EU Member State, the requirement to produce an execution of service of the judgment only applies where the applicant is seeking enforcement of a judgment on parental responsibility.

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