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Adoption: better choices for our children

Published: 29 Jun 2005
Part of:
Children and families, Communities and third sector
ISBN:
0 7559 4486 0

The report of the Adoption Policy Review Group makes 107 recommendations to improve the legal framework for adoption and permanence.

225 page PDF

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225 page PDF

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Contents
Adoption: better choices for our children
Page 16

225 page PDF

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Annex D: Proposed changes to the Sheriff Court Rules

Chapter 2 of the Act of Sederunt (Child Care and Maintenance Rules) 1997

Abbreviations used

  • Adoption (Scotland) Act 1978 1978 Act
  • Human Fertilisation and Embryology Act 1990 1990 Act
  • Children (Scotland) Act 1995 1995 Act
  • Ordinary Cause Rules 1993 OCR 1993
  • (This is the name commonly given to the sheriff court rules for Ordinary Causes, contained in Schedule 1 of the Sheriff Courts (Scotland) Act 1907, the current version being substituted by S.I. 1993/1956.)
  • Rules of the Court of Session 1994 RCS 1994
  • Act of Sederunt (Child Care and Maintenance Rules) 1997 AS 1997
  • Parental responsibilities order under s.86 of the 1995 Act PRO

INTRODUCTION

1. These are detailed proposals for changes to the rules in Chapter 2 of the AS 1997, "Adoption of Children". They expand the comments and recommendations in Chapters 7 and 8 of the main Report, and suggest specific drafting additions and amendments to the rules. In suggesting changes and new rules, it has been easier to prepare new draft rules with notes attached, rather than just describe possible changes.

2. Chapter 2 of the AS 1997 has seven Parts and deals with seven types of cases:

Part I. General;

Part II. Freeing applications;

Part III. Revocation of freeing applications;

Part IV. Adoption applications;

Part IVA. Convention Adoption applications (inserted by S.S.I. 2003/44);

Part V. PRO applications and Variation or Discharge of PROs; and

Part VI. Applications under the 1990 Act.

3. This Annex is in eight sections, based on the recommendations for changes to the court rules in Chapter 7 and about curators, reporting officers and safeguarders in Chapter 8:

1. General rule to allow relief from failure to comply with rules.

2. Proposals for applications to contain reasons.

3. Rules providing for earlier formal intimation of applications.

4. Rules providing for Notices of Intention to Defend, Statements of Disputed Issues and Written Answers.

5. Rule allowing a general power of intimation of freeing hearing.

6. Rules to ensure that proof hearings are heard on consecutive working days.

7. Rule allowing extempore judgements.

8. Rules for Reporting Officers and Curators.

4. Some of the proposed rules are general ones for inclusion in Part I, while others are spread throughout the rest of the Chapter. There are new general rules for Citation; Service where an address is unknown; Duties of reporting officers; Duties of curators; Agreements and consents; Proofs to be taken continuously; and Decision of sheriff after hearing evidence. Rules for intimation of application, notices of intention to defend, statements of disputed issues and written answers are proposed for the different Parts of Chapter 2.

5. Some of the proposals for new rules mean that existing ones should be repealed. These rules are: 2.6, 2.8, 2.23, 2.26, 2.38(2), 2.40, 2.48 and 2.53, which relate to executions of agreements etc and to duties of reporting officers and curators. They are replaced by general rules about these matters in Part I of Chapter 2. In addition, some of the proposals will require either changes to existing Forms or the preparation of new ones, for matters such as intimation of applications and Notices of Intention to Defend.

1. GENERAL RULE TO ALLOW RELIEF FROM FAILURE TO COMPLY WITH RULES AND CHANGE TO INTERPRETATION RULE

6. This is not a specific recommendation of the Group but its introduction into the AS 1997 is needed along with the proposals for earlier notifications, notices of intention to defend, statements of disputed issues and written answers, to allow for mistakes. At present, there is no rule in Chapter 2 of the AS 1997 allowing relief to parties to proceedings when there has been a failure to comply with any of the rules, including timescales. If changes are to be made to the AS 1997 as suggested, there is a need for such a general provision. There are equivalent general provisions in the RCS 1984, r.2.1, which covers adoption proceedings in the Court of Session under Chapter 67; and in the OCR 1993, r.2.1, which covers family actions in the sheriff court.

Proposal for a rule about relief from failure: Insert a new rule 2.1A

Relief from failure to comply with rules

2.1A. (1) The sheriff may relieve a party from the consequences of failure to comply with a provision in the rules in this Chapter which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit.

(2) Where the sheriff relieves a party from the consequences of a failure to comply with a provision in the rules in this Chapter under paragraph (1), he may make such order as he thinks fit to enable the cause to proceed as if the failure to comply with the provision had not occurred.

7. It would also be helpful to have another general amendment to Chapter 2 in the Interpretation rule, r.2.1.

Proposal for amendment to r.2.1

After ""the Act" means the Adoption (Scotland) Act 1978;" insert a new line:

""the 1990 Act" means the Human Fertilisation and Embryology Act 1990;".

2. PROPOSALS FOR APPLICATIONS TO CONTAIN REASONS

8. An application should contain a short note of the reasons why the order sought is in the best interests of the child.

9. At present, applications under Chapter 2 do not require to give reasons as to why the orders sought are in the children's best interests, with the exception of those for PROs, where the Form 16 provides a section for Grounds for the application. Form 16, in its section 2, says:

"The Applicant asks the Court to make a Parental Responsibilities Order for the following reasons:- [applicant to provide details of grounds for making the application]"

The Group considers that it would be helpful if all the applications listed included short reasons why the order is in the best interests of the child. We propose that the rules about applications and the relevant Forms are amended to include this.

Proposals for amendment of rules and Forms

I. Amendments to rules about applications

(a) In rule 2.5(1) (freeing), rule 2.15(1) (revocation of freeing), rule 2.21(1) (adoption), rule 2.38(1) ( PRO) and r.2.46(1) (application under the 1990 Act), at the end of each paragraph, insert the words:

"and shall include a note of reasons why the order sought is in the best interests of the child."

(b) In rule 2.44(2) (variation and discharge of PRO) at the end of sub-paragraph (d) delete the word "and", and after sub-paragraph (e) delete "." and insert:

"; and

(f) a note of reasons why the order sought is in the best interests of the child."

II. Amendments to Forms 1, 8, 10, 11, 12, and 16

Insert the following section in all the Forms:

Reasons for the Petition/Application

The Petitioner/Applicant asks the Court to make [insert the type of order sought] on the basis that it is in the best interests of the child throughout his life/childhood because [petitioner/applicant to insert brief reasons why the order is in the child's best interests].

3. EARLIER FORMAL INTIMATION OF APPLICATIONS

11. Formal intimation of applications to birth families should be made as soon as applications are lodged in court.

12. As explained in Chapter 7, formal notice to birth parents in permanence cases is currently not given until after reports from the reporting officer and curator have been lodged in court. This means that birth parents, while they should know about plans for their children, do not know when court proceedings will be starting and which court will deal with them. This leads to delays in taking legal advice, applying for legal aid and other aspects of cases.

13. The proposed intimations would help families receive prompt notification, and allow earlier indication of which cases are being disputed. Such earlier notifications would help to encourage birth parents to consult solicitors more promptly.

14. To introduce earlier notifications, Chapter 2 needs to be amended to ensure that all petitions, minutes and applications trigger orders for intimation to those with an interest. At present, the first thing the court does under the rules is to appoint a reporting officer and curator, or a curator only, or to consider appointing a curator, depending on the type of case. The rules about these appointments could be amended to add in to a duty and a power to order intimation at the same time.

15. The proposals contain duties to order intimation to those who must have it; and powers to intimate to other people who might have an interest. The list of those to whom intimation may be made is based on the one in r.2.28(4) of the AS 1997, which allows sheriffs to intimate adoption hearings to others as they see fit. The proposals also correct the existing statutory references in r.2.28(4)(a) as the current ones are not accurate; and amends r.2.25(2), to remove the words "save for the purpose specified in rule 2.26(1)(a)" which are otiose.

16. The proposals for notification of applications when they are lodged include a general rule for periods of citation, r.2.4A, to cover all applications in Chapter 2. A further new rule, r.2.4B, is also suggested, to allow for service where the address of someone who should be notified is not known. There is no existing rule about this in Chapter 2 or in the RCS, although there is such a rule in the OCR. The current rules about intimation of hearings all refer to giving notice to persons "who can be found" or "whose whereabouts are known". As the suggested new rules are about notification at the start of an application, it seems fairer to allow for some form of service where an address is not known, rather than restrict intimation to people whose addresses are known.

Proposals for new rules and amendments about earlier notification

I. General provisions for periods of citation:-insert new rules 2.4A and 2.4B. These are based on similar provisions in the OCR 1993.

Period of notice after citation

2.4A. (1) Subject to rule 2.4B (service where address of person is not known) and to paragraph (2) of this rule, a petition, minute or application under this Chapter shall proceed after one of the following periods of notice has been given to the respondent:

(a) where the respondent is resident or has a place of business within Europe, 21 days after the date of execution of service; or

(b) where the respondent is resident or has a place of business outside Europe, 42 days after the date of execution of service.

(2) Subject to paragraph (3), the sheriff may, on cause shown, shorten or extend the period of notice on such conditions as to the method or manner of service as he thinks fit.

(3) A period of notice may not be reduced to a period of less than 2 days.

(4) Where a period of notice expires on a Saturday, Sunday, or public or court holiday, the period of notice shall be deemed to expire on the next day on which the sheriff clerk's office is open for civil court business.

Service where address of person is not known

2.4B. (1) Where the address of a person to be cited or served with a petition, minute or application under this Chapter is not known and cannot reasonably be ascertained, the sheriff shall direct the petitioner, minuter or applicant to intimate to that person by:

(a) the publication of an advertisement in Form 7C in a specified newspaper circulating in the area of the last known address of that person; or

(b) by displaying on the walls of court a copy of the petition, minute or application and a notice in Form 7D;

and the period of notice fixed by the sheriff shall run from the date of publication of the advertisement or display on the walls of court, as the case may be.

(2) Where service requires to be executed under paragraph (1), the petitioner, minuter or applicant shall lodge a service copy of the petition, minute or application and a copy of any intimation with the sheriff clerk from whom they may be uplifted by the person for whom they are intended.

(3) Where advertisement in a newspaper is required for the purpose of citation or service under this rule, a copy of the newspaper containing the advertisement shall be lodged with the sheriff clerk by the petitioner, minuter or applicant.

(4) Where display on the walls of court is required under paragraph (1)(b), the petitioner, minuter or applicant shall supply to the sheriff clerk for that purpose a certified copy of the petition, minute or application and any intimation.

II. Amendments to allow intimation of petitions, minutes and applications at the time of lodging.

These are needed in Part II, Freeing; Part IV, Adoption; Part V, PROs; and Part VI, Applications under the 1990 Act. No amendment is needed in Part III, Revocation, because r.2.15(2) already provides for a minute for revocation to be intimated on lodging. Amendment is not needed in Part IVA, Convention Adoption Orders, as the provisions for appointment of curators etc for these cases are the same as those for adoption in Part IV, with minor substitutions - see r.2.36E.

The proposed rules contain the words " (whose whereabouts are known to the petitioner/applicant/petitioners and)" in brackets and in italics if it is decided to use the wording in the rules about notifications of hearings. However, if the new rule 2.4B proposed above is inserted into Chapter 2, these words can be omitted.

(a) Freeing insert new rule 2.6.

Intimation of application

2.6 (1) The sheriff shall, at the same time as he makes the appointments referred to in rule 2.7(1), direct the petitioner to intimate the petition and the appointments using Form 7A to:

(a) every person (whose whereabouts are known to the petitioner and) whose agreement or consent in terms of section 18 of the Act is required or must be dispensed with; and

(b) in the case of a child whose father is not married to the mother, any person whose whereabouts are known to the petitioner and who claims to be the father of the child but who is not his guardian and in respect of whom no order relating to parental responsibilities or rights has been made.

(2) The sheriff may, if he considers it appropriate, ordain the petitioner to intimate the petition and the appointments using Form 7A to:

(a) any person or body having the parental responsibilities and rights of a parent of the child or having the custody or care of the child or a local authority looking after the child in terms of section 17(6) of the 1995 Act, section 22(1) of the Children Act 1989 or section 18(3) of the Adoption and Children Act 2002;

(b) any person liable by virtue of any order or agreement to contribute to the maintenance of the child;

(c) any other person or body who in the opinion of the sheriff ought to be served with notice of the petition.

(b) Adoption insert new rule 2.24A.

Intimation of application

2.24A (1) The sheriff shall, at the same time as he makes the appointments referred to in rule 2.25(1), direct the petitioner to intimate the petition and the appointments using Form 7A to:

(a) in a petition for an adoption order, every person (whose whereabouts are known to the petitioner and) whose agreement or consent to the making of such an order is required to be given or dispensed with; or

(b) in a petition for an order under section 49(1) of the Act, every person (whose whereabouts are known to the petitioner and) whose agreement to the making of such an order would be required if the application were for an adoption order.

(2) The sheriff may, if he considers it appropriate, ordain the petitioner to intimate in Form 7A the petition and the appointments to:

(a) any person or body having the parental responsibilities and rights of a parent of the child or having the custody or care of the child or a local authority looking after the child in terms of section 17(6) of the 1995 Act, section 22(1) of the Children Act 1989 or section 18(3) of the Adoption and Children Act 2002;

(b) any person liable by virtue of any order or agreement to contribute to the maintenance of the child;

(c) the local authority to whom the petitioner has given notice of his intention to apply for an adoption order;

(d) any other person or body who in the opinion of the sheriff ought to be served with notice of the petition.

(c) PROs insert new rule 2.38A.

Intimation of application

2.38A (1) The sheriff shall, at the same time as he makes the appointments referred to in rule 2.39(1), direct the applicant to intimate the application and the appointments using Form 18A to:

(a) any relevant person (whose whereabouts are known to the applicant and) whose agreement in terms of section 86(2) of the 1995 Act is required or may be dispensed with; and

(b) in the case of a child whose father is not married to the mother, to any person whose whereabouts are known to the applicant and who claims to be the father of the child but who is not his guardian and in respect of whom no order relating to parental responsibilities or rights has been made.

(2) The sheriff may, if he considers it appropriate, ordain the applicant to intimate the application and the appointments using Form 18A to:

(a) any person or body having the parental responsibilities and rights of a parent of the child or having the custody or care of the child or a local authority looking after the child in terms of section 17(6) of the 1995 Act, section 22(1) of the Children Act 1989 or section 18(3) of the Adoption and Children Act 2002;

(b) any person liable by virtue of any order or agreement to contribute to the maintenance of the child;

(c) any other person or body who in the opinion of the sheriff ought to be served with notice of the application.

(d) Minutes for variation or discharge of PROs amendment to r.2.44: insert new paragraph (2A)

Variation and discharge of order

2.44 (1) and (2)...Existing paragraphs.

(2A) The sheriff shall, on the lodging of a minute under paragraph (1), direct the applicant to intimate the application using Form 18A to:

(a) the child who is the subject of the minute unless he is the applicant or the sheriff considers that it is not in his best interests to receive such intimation;

(b) any relevant person who is not the applicant, (whose whereabouts are known to the applicant and) whose agreement in terms of section 86(2) of the 1995 Act was required in the original application;

(c) the local authority which made the original application;

(d) any other person who was a party to the original application; and

(e) any other person or body who in the opinion of the sheriff ought to be served with notice of the application.

(e) Applications under the 1990 Act insert new rule 2.50A

2.50A (1) The sheriff shall, at the same time as he makes the appointments referred to in rule 2.51(1), direct the petitioners to intimate the petition and the appointments using Form 24A to:

(a) every person (whose whereabouts are known to the petitioners and) whose agreement to the petition is required to be given; and

(b) any other person or body who in the opinion of the sheriff ought to be served with notice of the petition.

4. NOTICES OF INTENTION TO DEFEND, STATEMENTS OF DISPUTED

ISSUES AND WRITTEN ANSWERS

17. Where birth families want to oppose applications, they should be required to respond giving notice of their intention to defend if that is their wish. In addition, they and/or their solicitors should be required to state which of the facts are disputed and which are agreed. These statements should not be restrictive and sheriffs should be able to admit a line of evidence of which notice has not been given. Further, sheriffs should have discretion to order written answers as well as statements when they think these will be beneficial.

18. In the current court rules for permanence cases, there is no requirement on respondents to give any early indication to applicants whether they are going to oppose cases or not. Further, there are no rules obliging birth families to outline the basis on which applications are disputed, except in the provisions for revocation of freeing, where answers may be lodged, r.2.15(3). These recommendations seek to address these matters by proposing that respondents, if they wish to oppose applications, must:

  • give written notice of an intention to defend; and
  • produce written notes of the issues in the application which are disputed.

19. After intimation, birth parents would have a period to lodge a notice of intention to defend. Failure to do so at this stage cannot and would not prejudice birth parents' rights to enter the process later on, but these notices would be akin to Notices of Intention to Defend ( NID) which operate in Ordinary Causes under the OCR 1993.

20. In addition to rules about statements of disputed issues, courts would benefit from the power to order written answers where sheriffs feel these will help the progress of cases. They would be fuller than Statements of Disputed Issues and be similar to the written defences required under the OCR. Rules for these are also included.

21. These are needed in: Part II, Freeing; Part III, Revocation of freeing; Part IV, Adoption; Part IVA, Convention Adoption - minor amendment only; Part V, PROs; and Part VI Applications under the 1990 Act.

22. The proposed amendment of r.2.15 in Part III, Revocation of freeing, will have the effect of extending the time allowed to respondents, when taken along with the proposed rules for notices of intention to defend. The reason being this is the only Part of Chapter 2 where the rules already order intimation at the start of the process and allow for answers to be lodged. However, it seems preferable to have similar rules for all the processes in Chapter 2, even if the time for lodging notices and statements would be longer in revocation applications.

23. Taken as a whole, these rules should not mean that a respondent cannot raise other issues later in the process. The proceedings in Chapter 2 involve important issues of children's status and parental responsibilities and rights and it is important that parties are not prevented from putting forward appropriate arguments. However, by obliging respondents to state the basis of disputes, it is hoped that cases can go ahead with fewer delays than sometimes occur. And the general rule proposed in section 1 of this Paper allows sheriffs some discretion to accept Statements of Disputed Issues or Written Answers late.

24. The proposals suggest new rules to incorporate mandatory Notices of Intention to Defend and Statements of Disputed Issues; and discretionary Answers. Rules are needed in Part II, Freeing; Part III, Revocation; Part IV, Adoption; Part IVA, Convention adoption; and Part V, PROs; and Part VI, Applications under the 1990 Act.

Proposals for new rules

(a) Freeing insert new rule 2.8

Notice of intention to defend and statements of disputed issues

2.8 (1) This rule applies where a respondent seeks to oppose a petition for an order declaring a child free for adoption.

(2) In a petition to which this rule applies, a respondent who seeks to oppose the petition shall lodge a notice of intention to defend in Form 7B before the expiry of the period of notice.

(3) When a respondent has lodged a notice of intention to defend in terms of paragraph (2), he shall within one month of the date of said notice prepare and lodge a statement of disputed issues.

(4) For the purposes of paragraph (3) a statement of disputed issues is a written statement in numbered paragraphs setting out in general terms the grounds of the respondent's opposition to the petition and is without prejudice to the right of the respondent to state further or different grounds later.

(5) In addition to a statement of disputed issues, the sheriff may require the respondent to lodge written answers to the petition within such period of time as he thinks fit.

(6) The written answers referred to in paragraph (5) shall be written detailed averments set out in numbered paragraphs and shall include detailed averments answering the reasons given for the petition and explaining the basis on which the respondent considers that the order sought is not in the best interests of the child throughout his or her life.

(b) Revocation of Freeing amendment to r.2.15: omit existing paragraph (3) and substitute new paragraphs (3) - (7).

2.15 (1) and (2)...Existing paragraphs.

(3) Any person to whom intimation has been made under paragraph (2) and who seeks to oppose the minute shall lodge a notice of intention to defend before the expiry of the period of notice.

(4) When a respondent has lodged a notice of intention to defend in terms of paragraph (3), he shall within one month of the date of said notice prepare and lodge a statement of disputed issues.

(5) For the purposes of paragraph (4) a statement of disputed issues is a written statement in numbered paragraphs setting out in general terms the grounds of the respondent's opposition to the petition and is without prejudice to the right of the respondent to state further or different grounds later.

(6) In addition to a statement of disputed issues, the sheriff may require the respondent to lodge written answers to the application within such period of time as he thinks fit.

(7) The written answers referred to in paragraph (6) shall be written detailed averments set out in numbered paragraphs and shall include detailed averments answering the reasons given for the application and explaining the basis on which the respondent considers that the order sought is not in the best interests of the child throughout his childhood.

(c) Adoption insert new rule 2.26

Notice of intention to defend and statements of disputed issues

2.26 (1) This rule applies where a respondent seeks to oppose a petition for an adoption order or an order under section 49(1) of the Act.

(2) In a petition to which this rule applies, a respondent who seeks to oppose the petition shall lodge a notice of intention to defend in Form 7B before the expiry of the period of notice.

(3) When a respondent has lodged a notice of intention to defend in terms of paragraph (2), he shall within one month of the date of said notice prepare and lodge a statement of disputed issues.

(4) For the purposes of paragraph (3) a statement of disputed issues is a written statement in numbered paragraphs setting out in general terms the grounds of the respondent's opposition to the petition and is without prejudice to the right of the respondent to state further or different grounds later.

(5) In addition to a statement of disputed issues, the sheriff may require the respondent to lodge written answers to the petition within such period of time as he thinks fit.

(6) The written answers referred to in paragraph (5) shall be written detailed averments set out in numbered paragraphs and shall include detailed averments answering the reasons given for the petition and explaining the basis on which the respondent considers that the order sought is not in the best interests of the child throughout his life.

(d) Convention Adoption Orders amendment to r.2.36D

2.36D Rule 2.4D of Part I of Chapter 2 and rules 2.25, 2.26, 2.27, 2.28, 2.29, 2.30, 2.31, 2.32, 2.33, 2.34 and 2.36 of Part IV of Chapter 2 shall apply to an application under this Part, so far as they are not inconsistent with this Part, and subject to the modifications in rules 2.36E to 2.36G.

(e) PROs insert new rule 2.40

Notice of intention to defend and statement of disputed issues

2.40 (1) This rule applies where a respondent seeks to oppose an application under this Part.

(2) In an application to which this rule applies, a respondent who seeks to oppose the application shall lodge a notice of intention to defend in Form 18B before the expiry of the period of notice.

(3) When a respondent has lodged a notice of intention to defend in terms of paragraph (2), he shall within one month of the date of said notice prepare and lodge a statement of disputed issues.

(4) For the purposes of paragraph (3) a statement of disputed issues is a written statement in numbered paragraphs setting out in general terms the grounds of the respondent's opposition to the petition and is without prejudice to the right of the respondent to state further or different grounds later.

(5) In addition to a statement of disputed issues, the sheriff may require the respondent to lodge written answers to the application within such period of time as he thinks fit.

(6) The written answers referred to in paragraph (5) shall be written detailed averments set out in numbered paragraphs and shall include detailed averments answering the reasons given for the application and explaining the basis on which the respondent considers that the order sought is not in the best interests of the child throughout his childhood.

(f) Variation or discharge of PRO amendment to r.2.44: insert new paragraphs 2.44(2B) - (2F)

2.44 (2B) In an application to which this rule applies and in which a respondent seeks to oppose the application for variation or discharge of the order, such a respondent shall lodge a notice of intention to defend in Form 18C before the expiry of the period of notice.

(2C) When a respondent has lodged a notice of intention to defend in terms of paragraph (2B), he shall within one month of the date of said notice prepare and lodge a statement of disputed issues.

(2D) For the purposes of paragraph (2C) a statement of disputed issues is a written statement in numbered paragraphs setting out in general terms the grounds of the respondent's opposition to the petition and is without prejudice to the right of the respondent to state further or different grounds later.

(2E) In addition to a statement of disputed issues, the sheriff may require the respondent to lodge written answers to the application within such period of time as he thinks fit.

(2F) The written answers referred to in paragraph (2E) shall be written detailed averments set out in numbered paragraphs and shall include detailed averments answering the reasons given for the application and explaining the basis on which the respondent considers that the order sought is not in the best interests of the child throughout his childhood.

(g) Applications under the 1990 Act insert new rule 2.53

Notice of intention to defend and statement of disputed issues

2.53 (1) This rule applies where a respondent seeks to oppose an application for a parental order under section 30 of the 1990 Act.

(2) In an application to which this rule applies, a respondent who seeks to oppose the application shall lodge a notice of intention to defend in Form 24B before the expiry of the period of notice.

(3) When a respondent has lodged a notice of intention to defend in terms of paragraph (2), he shall within one month of the date of said notice prepare and lodge a statement of disputed issues.

(4) For the purposes of paragraph (3) a statement of disputed issues is a written statement in numbered paragraphs setting out in general terms the grounds of the respondent's opposition to the petition and is without prejudice to the right of the respondent to state further or different grounds later.

(5) In addition to a statement of disputed issues, the sheriff may require the respondent to lodge written answers to the application within such period of time as he thinks fit.

(6) The written answers referred to in paragraph (5) shall be written detailed averments set out in numbered paragraphs and shall include detailed averments answering the reasons given for the application and explaining the basis on which the respondent considers that the order sought is not in the best interests of the child throughout his childhood.

5. INTIMATION OF FREEING PROCEEDINGS

25. Sheriffs should have discretion to intimate freeing proceedings to any person, similar to the discretion currently allowed in adoption applications, in r.2.28(4).

26. In the AS 1997, a sheriff can order intimation of the date of an adoption hearing to people other than the parties, at his/her discretion. There is no equivalent provision in the rule about freeing hearings, r.2.11, so the sheriff has no discretion to allow intimation to other interested persons. This proposal allows discretion to the sheriff. The proposal above under Section 2, to insert a duty to intimate the petition in a freeing, amended r.2.7(1B), gives the sheriff discretion to intimate the petition to the same list of people.

Amendment to r.2.11 insert a new paragraph, r.2.11(2A)

(2A) The sheriff may, if he considers it appropriate, ordain the petitioner to serve notice of the date of the hearing intimate in Form 7 to:

(a) any person or body having the parental responsibilities and rights of a parent of the child or having the custody or care of the child or a local authority looking after the child in terms of section 17(6) of the 1995 Act, section 22(1) of the Children Act 1989 or section 18(3) of the Adoption and Children Act 2002;

(b) any person liable by virtue of any order or agreement to contribute to the maintenance of the child;

(c) the local authority to whom the petitioner has given notice of his intention to apply for an adoption order;

(d) any other person or body who in the opinion of the sheriff ought to be served with notice of the petition.

6. PROOF HEARINGS ON CONSECUTIVE WORKING DAYS

27. When evidential proofs have started, they should continue from day to day and not be postponed unnecessarily save in exceptional circumstances.

28. This recommendation is designed to insert a rule in Chapter 2 to provide for continuous proof hearings if at all possible. One of the factors which causes delay is the postponement of hearings for weeks or months and such a rule would make it clear that this should be avoided. There is an equivalent rule in the OCR 1993, r.29.17. The rule would not be necessary and should not apply when a case is undisputed and no evidence led.

29. It is proposed that there is one general rule for all proceedings covered by Chapter 2.

Proposal for new rule insert rule 2.4F

Proof to be taken continuously

2.4F When a hearing has been fixed under rule 2.11(1) (freeing), rule 2.18(1) (revocation of freeing), rule 2.28(1) (adoption), rule 2.42(1) (application for an order under section 86 of the 1995 Act or variation or discharge) or rule 2.54(1) (application under section 30 of the 1990 Act) and it is necessary for the sheriff to hear evidence, the proof shall be taken continuously as far as possible, but the sheriff may adjourn the diet from time to time.

7. EXTEMPORE JUDGEMENTS

30. Sheriffs in all the types of permanence cases should be able to give extempore judgements at the conclusion of the hearing on evidence, to be followed by a written judgement within a set timescale.

31. In proceedings under Chapter 2, the sheriff having heard evidence but not immediately able to issue an interlocutor making or refusing an order, makes Avizandum. This allows time for considering the decision and writing a detailed judgement. However, there are cases when a sheriff feels able to make a decision about the order at the end of the full hearing of evidence, but needs time properly to write this up.

32. This proposal would give the sheriff a discretion to give an extempore oral judgement, and issue the written judgement later. This is akin to a practice that is used on occasions in the Court of Session.

Proposal for new rule insert rule 2.4G

Decision of sheriff after hearing evidence

2.4G (1) At the conclusion of any hearing fixed under rule 2.11(1) (freeing), rule 2.18(1) (revocation of freeing), rule 2.28(1) (adoption), rule 2.42(1) (application for an order under section 86 of the 1995 Act or variation or discharge) or rule 2.54(1) (application under section 30 of the 1990 Act) the sheriff may give his decision orally.

(2) The sheriff shall, whether or not he has given his decision in terms of paragraph (1), thereafter issue his judgement in writing and the sheriff clerk shall send a copy thereof to the parties or their agents.

8. PROPOSALS REGARDING THE RULES FOR REPORTING OFFICERS AND CURATORS.

33. If duties of curators and reporting officers are amended in line with the Group's detailed proposals (see Chapter 8 of the report), the court rules relating to their appointment and duties should be amended to provide uniformity of wording, where appropriate, and better clarity.

34. These proposals are concerned with all the proceedings covered by Chapter 2, with a view to as much harmonisation as possible of the rules about reporting officers and curators in all types of applications. The suggested rules cover:

I. Duties of reporting officers;

II. Duties of curators ad litem

III. Provisions for appointment of more than one reporting officer; and

IV. Provisions for execution of documents in other parts of the U.K.

35. The rules in Chapter 2 of the AS 1997 cover appointments and duties of reporting officers and curators in all the proceedings in the Chapter: freeing; revocation of freeing; adoption; Convention adoption; PRO applications; applications for variation and discharge of PROs; and applications under the 1990 Act. Generally speaking, the rules would benefit from:

  • re-wording and re-ordering of duties, including moving some from the curator's lists to the reporting officer's lists and vice versa;
  • uniformity of wording for duties as between the various applications, where possible;
  • some harmonisation with the RCS, including the addition of other duties from them;
  • rules clearly allowing more than one reporting officer to be appointed; and
  • the addition of rules for Parts II-V about execution etc when those whose consent is sought do not live in Scotland, but are not outwith the U.K.

36. The rules about the duties of reporting officers and curators are scattered throughout Chapter 2 in Parts II - VI. The duties imposed are inconsistent, even allowing for necessary differences in the various proceedings. Even when the same duties are imposed in different proceedings, the wording is not always consistent. In particular, the Group felt that the rules about reporting officers' duties could be listed more logically, taking appointees through the tasks more coherently.

37. The proposals attempt to streamline these duties, with one set of rules for reporting officers and one set for curators for all proceedings in Chapter 2, including provisions for variations arising from the different types of cases. It is hoped that the tasks will be more clearly set out by listing the general duties for both appointments, and then the specific duties for each type of case, all in Part I of the AS 1997: see proposed new rules below, rr.2.4C and 2.4D.

38. In re-ordering the duties, it seems appropriate to give reporting officers the procedural tasks involved in the consent or non-consent of birth parents etc, and to give curators the welfare based ones, including ascertaining the facts of the petition or application, or as some of the rules say "investigate the facts". This reflects the position that curators will meet children and petitioners/minuters/applicants, whereas reporting officers who are not also curators need not do so. The current rules already require curators to "ascertain" or "investigate" or "enquire" into some or all of the facts, although the wording is inconsistent between the different Parts.

39. Reference is made to the RCS 1994, Chapter 67 for freeing and adoption and, for comparison purposes and with a view to some harmonisation where this seems helpful. PRO applications can only be made in the sheriff court, and are not therefore referred to in the RCS 1994. The rules in Chapter 2 Part VI for applications under the 1990 Act are already very similar to those in Chapter 81 of the RCS 1994 though they are somewhat different from the rest of the provisions in Chapter 2. However, these proposals do not attempt a complete harmonisation of the AS 1997 with the RCS 1994. In particular, the duty in the AS 1997 to ask a young person of 12 or over whether he or she consents to freeing and/or adoption should remain on the curator and not be given to the reporting officer as it is in the RCS 1994.

40. There are anecdotal accounts of problems about whom to appoint as reporting officers in cases where the parties whose consents are being sought live in different parts of Scotland, often away from the area where the petitioners live, and sometimes outwith Scotland but not outwith the U.K. The proposals therefore include clear provision for the appointment of more than one reporting officer where necessary because of the geography dispersal of the various parties.

41. There are also proposals for rules about execution of documents outside Scotland, but still within the U.K. There is already provision for this in Part VI of the Chapter, and in the RCS 1994, but not in the rest of Chapter 2.

I. Duties of reporting officers

42. Reporting officers are appointed by courts in permanence cases for specific purposes, usually consents to proceedings. Reporting officers are currently concerned with confirming facts in applications, finding out if birth parents consent or not, and witnessing any agreements. Their tasks are generally more procedural than those of curators, and not focused on children. Where consent is sought from children of 12 or over, this is done by curators in the sheriff court, unlike in the RCS 1994, where it is the task of reporting officers.

43. Courts must appoint reporting officers in the following types of cases in Chapter 2:

  • freeing applications;
  • adoption applications;
  • PRO applications; and
  • applications under the 1990 Act.

44. Reporting officers are not mentioned in the rules relating to applications for:

  • revocation of freeing;
  • Convention adoptions; or
  • variation or discharge of PROs.

They are not necessary in these cases because they do not require the consent of birth parents.

45. They are also not actually necessary in post-freeing adoptions, and it would be helpful if this was stated clearly in Chapter 2.

An amendment to r.2.25(2) is proposed:

2.25 (2) Where an order freeing the child for adoption has been made, the sheriff shall not appoint a reporting officer. (Delete the words "save for the purpose specified in rule 2.26(1)(a)".)

As indicated above, one set of rules is proposed for all reporting officers in Chapter 2, with variations as needed for the different types of cases.

Proposals for new rule Insert new rule 2.4C

Duties of reporting officer

2.4C (1) A reporting officer appointed under rule 2.7(1) (freeing), rule 2.25(1) (adoption), rule 2.39(1) (application for parental responsibilities order) or rule 2.51(1) (application under the 1990 Act) shall:

(a) ascertain the whereabouts of all persons (instead of "parents and guardians and any other person") whose agreement to the petition or application is required and who can be found;

(b) consider whether the petitioner or applicant has made every reasonable effort to find the whereabouts of every person (instead of "parent and guardian and any other person") whose agreement to the petition or application is required; (compare RCS 67.11(1)(h));

(c) investigate whether there are any other persons with a relevant interest and whether the petition or application should be intimated to them; (compare RCS 67.11(1)(i))

(d) where a person whose agreement to the petition or application is required resides in Scotland, meet with him, if practicable, and discuss and explain the following matters:

(i) the effect of a freeing order followed by an adoption order; or of an adoption order; or of a parental responsibilities order under section 86 of the 1995 Act; or of an order under section 30 of the 1990 Act, whichever is appropriate to the petition or application, including particularly the effect that such an order would have on his parental responsibilities and rights in relation to the child;

(ii) alternatives to adoption or to a parental responsibilities order under section 86 of the 1995 Act or to an order under section 30 of the 1990 Act, whichever is appropriate to the petition or application;

(iii) whether or not he is willing to agree to the petition or application;

(iv) that he may renounce his agreement at any time prior to the granting of the relevant order;

(v) in a freeing petition, that he may make a declaration under section 18(6) of the Act, that he prefers not to be involved in future questions regarding the adoption of the child after the freeing order is granted;

(vi) in a freeing petition, that he may withdraw any declaration made under section 18(6) of the Act at any time prior to the granting of the order;

(vii) in a freeing petition, that, if the order is granted, he may thereafter be able to apply under section 20 of the Act for revocation of the order, and explain the law and procedure to him; and

(viii) in an application for a parental responsibilities order under section 86 of the 1995 Act, that, if the order is granted, he may apply to the sheriff for variation or discharge of the order under section 86(5) of the 1995 Act, and explain the law and procedure to him; and

(e) where satisfied that a person whose agreement to the order is required is able and prepared fully and unconditionally to agree to the petition or application, arrange to have such agreement executed in terms of rule 2.4E(1);

and, subject to paragraph (2), shall report in writing on these matters and any other information which may be of assistance to the court within 4 weeks from the date of the interlocutor appointing him, or within such other period as the sheriff in his discretion may allow.

(2) A reporting officer appointed under rule 2.7(1) (freeing petition), in addition to the duties laid out in paragraph (1), shall:

(a) inquire whether there is anyone claiming to be the father of the child and who has not been and is not married to the mother and does not have parental responsibilities and rights;

(b) where there is such a person as is mentioned in paragraph (a), ascertain:

(i) the likelihood of him applying for an order relating to the child under section 11 of the 1995 Act;

(ii) factors which might lead to such an order being granted or refused; and

(iii) the likelihood of him entering into an agreement with the mother under section 4(1) of the 1995 Act;

and shall include these matters in the report referred to in paragraph (1).

II. Duties of curators ad litem

46. Curators ad litem may be appointed in all proceedings under Chapter 2, but are not mandatory in every case. They investigate cases and report to courts with children's welfare as their paramount concern. If children's formal agreement to adoption or freeing is sought, it is the curator who discusses this with children, and witnesses any consent, not reporting officers. Curators are also expected to give the court the views of children if they have been able to ascertain them, although they are not the only medium for obtaining these. Views are distinguished from the overall duty to put forward children's best interests. Views of children and their welfare do not always coincide.

47. Curators must be appointed in:

  • freeing applications;
  • adoption applications;
  • Convention adoptions;
  • PRO applications; and
  • applications under the 1990 Act.

48. In addition, they may be appointed in:

  • revocations of freeing;
  • variation or discharge of PROs.

49. As with reporting officers, the proposal is to have one set of rules for all curators, with variations as needed for the different types of cases.

Proposal for new rule insert rule 2.4D

Duties of curator

2.4D (1) A curator ad litem appointed under rule 2.7(1) (freeing), rule 2.16(1) (revocation of freeing), rule 2.25(1) (adoption) or rule 2.51(1) (application under s.30 of the 1990 Act) shall have regard to the welfare of the child who is the subject of the petition, minute or application as his paramount duty, and ensure that proper consideration has been given to the interests of the child throughout his life and shall generally safeguard the interests of the child.

(2) A curator ad litem appointed under rule 2.39(1) (application for parental responsibilities order) or rule 2.44(3) (variation or discharge of parental responsibilities order) shall have as his paramount duty regard to the welfare of the child who is the subject of the application or minute, and shall generally ensure that proper consideration has been given to safeguarding the interests of the child throughout his childhood.

(3) A curator ad litem appointed in any proceedings under this Chapter (not really necessary to list all the rules here) shall:

(a) inquire into the facts and circumstances averred in the petition, minute or application, ascertain whether they are correct and if they are not establish the true facts and circumstances;

(b) ascertain whether the child who is the subject of the petition, minute or application is subject to a supervision requirement under section 70 of the 1995 Act;

(c) ascertain from the child, whether he is over the age of 12 or not, whether he has a view on the petition, minute or application and, if so, whether he wishes to express it;

(d) where the child has indicated that he wishes to express a view, ascertain it or otherwise assist the child to put his views before the sheriff;

(f) ascertain whether it would be better for the child that the court should make the order sought than it should not make the order; and

(g) ascertain the current circumstances and care of the child;

and, subject to paragraphs (4) to (9) of this rule, shall prepare a report in writing on these matters and any other information which may be of assistance to the court within 4 weeks from the date of the interlocutor appointing him, or within such other period as the sheriff in his discretion may allow.

(4) A curator ad litem appointed under rule 2.7(1) (freeing), in addition to the duties laid out in paragraphs (1) and (3), shall

(a) where the child who is the subject of the petition is of or over the age of 12 years, ascertain whether he understands the effect of the petition and whether he wishes to consent to it or not; and

(b) witness any such consent given by the child; and

(c) ascertain whether any payment or reward prohibited by section 51 of the Act (prohibition on certain payments) has been given, received or agreed upon; (see RCS 67.11(1)(r) although the duty there is on the reporting officer, not the curator.)

and shall include these matters in the report referred to in paragraph (3).

(5) A curator ad litem appointed under rule 2.16(1) (revocation of freeing), in addition to the duties laid out in paragraphs (1) and (3), shall: (based on RCS 67.14(4)(b) and (c))

(a) ascertain whether 12 months have elapsed between the making of the freeing for adoption order and the date of presentation of the minute;

(b) ascertain whether the child has been placed for adoption or not; and

(c) ascertain whether there have been any previous applications for revocation which were refused and whether there has been any change of circumstances or any other reason for the current application about which the court should be aware in determining the minute;

and shall include these matters in the report referred to in paragraph (3).

(6) A curator ad litem appointed under rule 2.25(1) (adoption), in addition to the duties laid out in paragraphs (1) and (3), shall

(a) where the child who is the subject of the petition is of or over the age of 12 years, ascertain whether he understands the effect of the petition and whether he wishes to consent to it or not;

(b) witness any such consent given by the child;

(c) obtain particulars of accommodation in the home of the petitioner and the condition of the home;

(d) obtain particulars of all members of the household of the petitioner and their relationship to the petitioner;

(e) in the case of a petition by only one of two spouses, ascertain the reason or reason for the other spouse not joining in the application;

(f) ascertain whether the means and status of the petitioner are sufficient to enable him to maintain and bring up the child suitably;

(g) ascertain what rights or interests in property the child has;

(h) establish that the petitioner understands the nature and effect of an adoption order and in particular that the making of the order will render him responsible for the maintenance and upbringing of the child;

(i) where appropriate, ascertain when the mother of the child ceased to have the care and possession of the child and to whom care and possession was then transferred;

(j) ascertain whether any payment or reward prohibited by section 51 of the Act (prohibition on certain payments) has been given, received or agreed upon; (see RCS 67.24(h) where the duty is on the curator.)

(k) ascertain whether the life of the child has been insured and if so for what sum;

(l) ascertain whether it may be in the interests of the welfare of the child that the sheriff should make any interim order or make the adoption order subject to particular terms and conditions or require the petitioner to make special provision for the child and if so what provision;

(m) where the petitioner is not ordinarily resident in the United Kingdom, establish whether a report has been obtained on the home and living conditions of the petitioner from a suitable agency in the country in which he is ordinarily resident;

(n) establish the reasons of the petitioner for wishing to adopt the child;

(o) establish the religious persuasion, racial origin and cultural and linguistic background of the child and of the petitioner;

(p) assess the considerations which might arise where the difference in ages as between the petitioner and the child is greater or less than the normal difference in age as between parents and their children; and

(q) consider such other matters, including the personality of the petitioner and, where appropriate, that of the child, which might affect the suitability of the petitioner and the child for the relationship created by adoption and affect the ability of the petitioner to bring up the child;

and shall include these matters in the report referred to in paragraph (3).

(7) A curator ad litem appointed under rule 2.51(1) (application under section 30 of the 1990 Act), in addition to the duties laid out in paragraphs (1) and (3), shall

(a) ascertain whether the conditions in subsections (2) to (7) of section 30 of the 1990 Act have been satisfied, including ascertaining whether any money or other benefit which is prohibited by section 30(7) of the 1990 Act (prohibition on gift or receipt of money or other benefit) has been given, received or agreed upon;

(b) establish that the petitioners understand that the nature and effect of a parental order is to transfer the parental rights and responsibilities in relation to the child to the petitioners and make them responsible for the maintenance and upbringing of the child; and

(c) ascertain whether it may be in the interests of the child that the court should make a parental order subject to particular conditions, including the making of special provision for the child;

and shall include these matters in the report referred to in paragraph (3).

III Appointment of more than one reporting officer

50. The court may appoint the same person as curator and reporting officer and often does this, but not always. For example, if a birth parent whose consent is sought lives in another part of the country, the court may appoint a reporting officer who works in that other area. In some circumstances, as indicated above, it would be helpful if the court could appoint more than one reporting officer, when consents need to be sought from people living in different parts of the country, including furth of Scotland, but still in the UK.

51. The rules dealing with appointments of reporting officers are: r.2.7, r.2.25, r.2.39 and r.2.51. These could all be amended by the insertion of an additional paragraph allowing more than one reporting officer.

Proposals for amendments to r. 2.7 insert into rules 2.7, 2.25, 2.39 and 2.51:

(1A) The sheriff may, when making the appointments mentioned in paragraph (1) appoint more than one reporting officer if he considers it appropriate to do so for the purposes of the duties in rule 2.4C(1)(d) and (e) only; and where a person whose agreement to the petition or application is required resides furth of Scotland but within the U.K., the sheriff may appoint such an additional reporting officer for that person from the list of reporting officers held by the County Court or equivalent court for the area where that person resides, for the purposes of the duties in rule 2.4C(1)(d) and (e) only.


Contact

Email: looked_after_children@gov.scot