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Statutory Instruments of the Scottish Parliament


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SCOTTISH STATUTORY INSTRUMENTS


2006 No. 397

SHERIFF COURT

Act of Sederunt (Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility Rules) 2006

  Made 7th July 2006 
  Coming into force 1st August 2006 

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971[1], and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of that Act, do hereby enact and declare:

Citation and commencement
     1. This Act of Sederunt may be cited as the Act of Sederunt (Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility Rules) 2006 and shall come into force on 1st August 2006.

Interpretation
    
2. —(1) In this Act of Sederunt–

    (2) A form referred to in these Rules by number means the form so numbered in the Schedule to this Act of Sederunt or a form substantially to the same effect, with such variation as circumstances may require.

    (3) A reference in these Rules to a numbered Article is a reference to the Article of the Council Regulation so numbered.

    (4) Except as provided for in these Rules or any order made by a sheriff hereunder, any action to which these Rules apply shall proceed as an ordinary cause under the First Schedule to the Sheriff Courts (Scotland) Act 1907[3].

Transfer of case involving matters of parental responsibility to sheriff court
     3. —(1) A request to a sheriff court under Article 15(1)(a) (request by parties to transfer case involving parental responsibilities) shall be made by initial writ under these Rules.

    (2) Where a sheriff court receives a request from a foreign court under Article 15(1)(b) (request by court to assume jurisdiction)–

    (3) Where no initial writ has been lodged within the time limit set by the foreign court under Article 15(4), the sheriff clerk shall advise the foreign court that the sheriff court has not been seised under Article 16 (seising of a court).

General provisions for transfer to sheriff court
    
4. —(1) An initial writ under these Rules shall–

    (2) There shall be lodged with an initial writ under these Rules any document considered by the pursuer to be relevant to the action involving parental responsibilities including any papers forming part of the process of the case in the foreign court.

    (3) A warrant for citation in respect of an initial writ under these Rules shall be signed by the sheriff.

    (4) The sheriff may make such order as to intimation or service, fixing a hearing to determine jurisdiction or otherwise as he thinks fit.

    (5) On the fixing of a date for a hearing to determine jurisdiction the pursuer shall–

within any time limit specified by the sheriff.

Acceptance of jurisdiction by sheriff court in matters of parental responsibility
    
5. —(1) An interlocutor accepting or refusing to accept jurisdiction to hear an action commenced by initial writ under these Rules shall be signed by the sheriff.

    (2) After the expiry of the time limit for any appeal the sheriff clerk shall intimate the decision of the sheriff court to the foreign court by sending to the foreign court–

Application by sheriff court to foreign court for transfer of case involving matters of parental responsibility
    
6. —(1) Where in any action a sheriff decides to make an application to a foreign court under Article 15(2)(c) (application for transfer of case involving parental responsibilities to sheriff court) he shall append to the interlocutor a note containing–

    (2) The sheriff clerk shall forthwith send to the foreign court–

Application by foreign court to sheriff court for transfer of case involving matters of parental responsibility
    
7. On receipt of an application by a foreign court under Article 15(2)(c) (application for transfer of case involving parental responsibilities to foreign court) the sheriff clerk shall–

Transfer by sheriff court of case involving matters of parental responsibility
    
8. —(1) An interlocutor pronounced by a sheriff sisting a case and inviting parties to make a request to a foreign court under Article 15(1)(a) or requesting a foreign court to assume jurisdiction under Article 15(1)(b) shall–

    (2) The sheriff shall append to the interlocutor a note stating–

    (3) Where an interlocutor under Article 15(1)(b) has been pronounced on the sheriff's own motion or on an application from the foreign court, the sheriff clerk shall send a certified copy of the interlocutor and note to each of the parties.

    (4) Within seven days of any interlocutor pronounced under Article 15(1)(b) (request by court to assume jurisdiction), the sheriff clerk shall send to the foreign court–

    (5) The party who effects seisure of the foreign court shall no later than seven days after the expiry of the time limit specified by the sheriff under paragraph (1)(b) lodge in process a certificate stating the date on which the seisure was effected.

    (6) Within 14 days of the date of the decision of the foreign court whether or not to accept jurisdiction in accordance with Article 15(5), the party who effected seisure of that court shall lodge in process a certified copy of the order of the foreign court or other document confirming its decision.

Translation of documents
    
9. Where any document received from a foreign court or otherwise under these Rules is in a language other than English, the sheriff may order that there shall be lodged with that document a translation into English certified as correct by the translator; and the certificate shall include his full name, address and qualifications.

Enforcement in another Member State of sheriff court judgments etc.
    
10. —(1) Where a person seeks to apply under the Council Regulation for recognition or enforcement in another Member State of a judgment given by a sheriff court, he shall apply by letter to the sheriff clerk of that court for–

    (2) The sheriff clerk shall not issue a certificate under paragraph (1)(a) unless there is produced to him an execution of service of the judgment on the person against whom it is sought to be enforced.

    (3) Where a judgment granting rights of access delivered by the sheriff court acquires a cross-border character after the judgment has been delivered and a party seeks to enforce the judgment in another Member State, he shall apply by letter to the sheriff clerk for–

Placement of child in another Member State
    
11. Where the sheriff requires under Article 56 of the Council Regulation to obtain the consent of a competent authority in another Member State to the placement of a child he shall send a request in Form 3 and any other documents he considers to be relevant to the Scottish central authority for transmission to the central authority in the other Member State.


A C HAMILTON
Lord President I.P.D

Edinburgh,
7th July 2006



SCHEDULE


Click here to view Form 1


Click here to view Form 2


Click here to view Form 3


EXPLANATORY NOTE

(This note is not part of the Act of Sederunt)


This Act of Sederunt makes rules in respect of civil cases involving matrimonial matters and matters of parental responsibility to which Council Regulation (E.C.) No. 2201/2203 applies. Rules 2 to 9 provide for the procedure for transfer between the sheriff court and courts in other Member States under Article 15 of the Council Regulation. Rule 10 provides for applications for certificates under Articles 39 and 41 of the Council Regulation. Rule 11 makes provision for requests for the consent of a competent authority to the placement of a child in another Member States under Article 56 of the Council Regulation.


Notes:

[1] 1971 c.58. Section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), Schedule 2, paragraph 12, the Civil Evidence (Scotland) Act 1988 (c.32), section 2(4), the Children (Scotland) Act 1995 (c.36), Schedule 4, paragraph 18(2), the Adults with Incapacity (Scotland) Act 2000 (asp 4), schedule 5, paragraph 13 and the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), section 43 and was extended by the Child Support Act 1991 (c.48), sections 39(2) and 49 and the Vulnerable Witnesses (Scotland) Act 2004 (asp 3), section 14(2).back

[2] O.J. No. L 338, 23.12.2003, p.1.back

[3] 1907 c.51, last amended by S.S.I. 2006/293.back



ISBN 0 11 070872 5


 © Crown copyright 2006

Prepared 18 July 2006


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URL: http://www.bailii.org/scot/legis/num_reg/2006/20060397.html