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Scottish Statutory Instruments
2005 No.
SHERIFF COURT
Act of Sederunt (Child Care and Maintenance Rules) A mendment (Vulnerable Witnesses (Scotland) Act 2004) 2005
Made | 2005 |
Coming into force | 2005 |
The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971( a), section 14(2) of the Vulnerable Witnesses (Scotland) Act 2004( b), 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 the said Act of 1971, do hereby enact and declare:
Citation and commencement
- -(1) This Act of Sederunt may be cited as the Act of Sederunt (Child Care and Maintenance Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2005, and shall come into force on [1st April] 2005.
(2) This Act of Sederunt shall be inserted in the Books of Sederunt.
(3) [ Ensure that coming into force ties in with commencement of relevant provisions of the VW Act.]
Amendment of Child Care and Maintenance Rules
- -(1) The Act of Sederunt (Child Care and Maintenance Rules) 1997( c) Chapter 3 (Children (Scotland) Act 1995) is amended in accordance with the following paragraphs.
(2) In Rule 3.22(1) (applications for evidence of children by television link) after the words "under Part II of the Act" insert "other than proceedings in the sheriff court [arising from]/[related to] an appeal under section 51(1) or an application under section 65(7) or (9) or 85(1) of the Act".
(3) After Part X (Application for review of establishment of grounds of review - new evidence) insert-
"PART XI
VULNERABLE WITNESSES (SCOTLAND) ACT 2004
Interpretation
3.65. In this Part-
"Act of 2004" means the Vulnerable Witnesses (Scotland) Act 2004( a);
"child witness notice" has the meaning given in section 12(2) of the 2004 Act;
"review application" means an application for review of arrangements for vulnerable witnesses pursuant to section 13 of the Act of 2004.
Extent of application of this Part
3.66. This Part of Chapter 3 shall apply [only] to proceedings arising from an appeal under section 51(1) or applications under section 65(7) or (9) or 85(1) of the Act.
Child Witness Notice
3.67.-(1) A child witness notice lodged in accordance with section 12(2) of the Act of 2004 shall be in Form XX1.
(2) A child witness notice shall be lodged with the appeal under section 51(1) or the application under section 65(7) or (9) or 85(1) of the Act to which it relates.
(3) Where a child witness notice is not lodged in accordance with Rule 3.67(2), a copy of:
(a) the appeal under section 51(1) or the application under section 65(7) or (9) or 85(1)of the Act, as appropriate, to which the child witness notice relates; and
(b) in relation to an application under section 65(7) or (9), the grounds of referral which form the subject of that application,
shall be attached to the child witness notice.
3.68.-(1) The party lodging a child witness notice shall intimate a copy of the child witness notice to all other parties to the proceedings and complete a certificate of intimation.
(2) A certificate of intimation referred to in this rule shall be in Form XX2 and shall be lodged together with the child witness notice.
(3) On receipt of a child witness notice the sheriff clerk shall endorse on the notice the time and date on which it was received.
3.69.-(1) On receipt of a child witness notice, a sheriff may-
(a) make an order under section 12(1) of the Act of 2004 without holding a hearing;
(b) require of any of the parties further information before making such an order; or
(c) fix a date for a hearing.
(2) [The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate].
(3) Where a hearing is fixed for the child witness notice, the applicant shall intimate the date and time of the hearing to all other parties to the proceedings and any person or persons the sheriff deems appropriate.
Review of arrangements for vulnerable witnesses
3.70.-(1) A review application under section 13 of the Act of 2004 shall be by minute in the appeal under section 51(1) or the application under section 65(7) or (9) or 85(1) of the Act to which it relates and shall be in Form XX3.
(2) A review application shall be lodged prior to the date fixed for the hearing under section 51(1), 65(7) or (9) or 85(1), as appropriate, and a copy of-
(a) the appeal under section 51(1) or the application under section 65(7) or (9) or 85(1) of the Act, as appropriate, and
(b) in relation to an application under section 65(7) or (9) of the Act, the grounds of referral which form the subject of that application,
shall be attached to the review application.
(3) Where the review application is made during the sheriff's hearing of the case, the sheriff may dispense with [all or some of] the requirements of subsection (2).
3.71.-(1) The applicant for a review under section 13 of the Act of 2004 shall intimate a copy of the review application to all other parties to the proceedings and complete a certificate of intimation.
(2) A certificate of intimation referred to in this rule shall be in Form XX4 and shall be lodged together with the review application in the appeal under section 51(1) or the application under section 65(7) or (9) or 85(1) of the Act to which the review application relates.
(3) On receipt of a review application the sheriff clerk shall endorse on the application the time and date on which it was received.
3.72.-(1) On receipt of a review application, a sheriff may-
(a) make an order under section 13(2) of the Act of 2004 without holding a hearing;
(b) require of any of the parties further information before making such an order; or
(c) fix a date for a hearing of the review application.
(2) [The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate].
(3) Where a hearing is fixed for the review application, the applicant shall intimate the date and time of the hearing to all parties to the proceedings and any person or persons as the sheriff deems appropriate.
Determination of special measures
3.73. When making an order under section 12(1) or 13(2) of the Act of 2004 a sheriff may make such further orders as the sheriff deems appropriate in all the circumstances.
Use of evidence on commission
3.74. [Notwithstanding the generality of rule 3.73, a sheriff when making an order under section 12(1) or 13(2) of the Act of 2004 authorising the special measure of use of evidence on commission, may, in particular, make such further directions as the sheriff deems appropriate in relation to the methods by which parties may-
(a) watch and hear proceedings; and
(b) communicate with legal representations during the taking of evidence on commission.]
Intimation of an order under section 12(1) or 13(2)
3.75. An order under section 12(1) or 13(2) of the Act of 2004 shall be intimated by the sheriff clerk on the day the order is made to all parties to the proceedings and any other person named in the order where such persons are not present when the order is made.
Custody of video record and documents
3.76.-(1) Where evidence is taken on commission pursuant to an order made under section 12(1) or 13(2) of the Act of 2004 the commissioner shall lodge the video record of the commission and relevant documents to the sheriff clerk.
(2) On the video record and any documents being lodged the sheriff clerk shall-
(a) note-
(i) the documents lodged;
(ii) by whom they were lodged; and
(iii) the date on which they were lodged, and
(b) intimate what he or she has noted to all parties concerned.
Custody of video record and documents
3.77.-(1) The video record and documents referred to in rule 3.76(1) shall, subject to paragraph (2), be kept in the custody of the sheriff clerk.
(2) Where the video record of the evidence of a witness is in the custody of the sheriff clerk under this rule and where intimation has been given to that effect under rule 3.76(2), the name and address of that witness and the record of his or her evidence shall be treated as being in the knowledge of the parties; and no party shall be required, notwithstanding any enactment to the contrary-
(a) to include the name of that witness in any list of witnesses; or
(b) to include the record of his or her evidence in any list of productions.".
Lord President
I.P.D.
Edinburgh
2005
Schedule
Rule 3.67 FORM XX1
VULNERABLE WITNESSES (SCOTLAND) ACT 2004 Section 12
the ……….. day of ………….. 200…. at ………… [am/pm] (Date and time of receipt of this notice) ……..…………………………. [signed] Sheriff Clerk |
[FORM OF] CHILD WITNESS NOTICE
Sheriff Court ................................ 20.... (Court Ref. No.)
1. [A.B.] (the [applicant]) is a party to [an appeal under section 51] or [an application under section [65(7)] or [65(9)] or [85(1)]] of the Children (Scotland) Act 1995. [( Specify nature of interest of the party.)]
2. The applicant [has cited [or intends to cite] [C.D.]( date of birth) as a witness.
3. [C.D.] is a child witness under section 11 of the Vulnerable Witnesses (Scotland) Act 2004 [and was under the age of sixteen on the date of commencement of proceedings].
4. The [applicant] considers that the following special measure[s] is [are] the most appropriate for the purpose of taking the evidence of [C.D.]:-
( here specify special measure(s) sought).
5. [(a) The reason[s] this [these] special measure[s] is [are] considered the most appropriate is [are] as follows:-
( here specify reason(s) for the special measure(s) sought).] OR
[(b) The reason[s] that no special measures are being considered is [are]-
( here explain why it is felt that no special measures are required).
The [applicant] is satisfied that this reflects [C.D.]'s wish-
( here provide information to satisfy court that it is [C.D.]'s wish).
6. [C.D.] [and the parent[s] of [ or person[s] with parental responsibility for] [C.D.]] have expressed the following view[s] on the special measure[s] that is [are] considered most appropriate:-
(here set out the view(s) expressed and how they were obtained).
7. Other information considered relevant to this application is as follows:-
( here set out any other information relevant to the child witness notice).
8. The [applicant] has intimated a copy of the Notice on [E.F. and G.H.] [ or the legal representative(s) of [E.F. and G.H.]] conform to the [certificate of intimation] attached to this Notice.
9. The [applicant] asks the court to-
(a) consider the Child Witness Notice;
(b) make an order authorising the [standard] special measure[s] sought; and [ or
(c) make an order authorising the further special measures sought; [ or
(d) make an order authorising the giving of evidence without the benefit of special measures];
(e) order the [sheriff clerk]/[applicant] to intimate the order to ( specify).
(Signed)
[A.B.]
[ or Legal representative of A.B.] ( include full designation)
Rule 3.67 FORM XX2
VULNERABLE WITNESSES (SCOTLAND) ACT 2004 Section [ ]
CERTIFICATE OF INTIMATION
[Sheriff Court ] [................................20....] [Court Ref. No.]
I certify that intimation of the child witness notice relating to [A.B.] was made to ( insert names of parties or solicitors for parties, as appropriate) by ( insert method of intimation; where intimation is by facsimile transmission, insert fax number to which intimation sent) on ( insert date of intimation).
Date: ……………......................................
Signed
Solicitor [or Sheriff Officer]
( include full business designation)
Rule 3.70
FORM XX3
VULNERABLE WITNESSES (SCOTLAND) ACT 2004 Section 13
the ……….. day of ………….. 200…. at ………… [am/pm] (Date and time of receipt of this notice) ……..…………………………. [signed] Sheriff Clerk |
[FORM OF] APPLICATION FOR REVIEW OF ARRANGEMENTS FOR VULNERABLE WITNESSES
Sheriff Court ................................20.... (Court Ref. No.)
1. [A.B.], the applicant, is a party to [an appeal under section 51] or [an application under section [65(7)] or [65(9)] or [85(1)]] of the Children (Scotland) Act 1995. [( Specify nature of interest of the party.)]
2. A hearing is fixed for [ (date)] at [ (time)].
3. [C.D.] is a witness who is to give evidence at, or for the purposes of, the hearing. [C.D.] is a vulnerable witness under section 11 of the Vulnerable Witnesses (Scotland) Act 2004.
4. The current arrangements for taking the evidence of [C.D.] are ( here specify current arrangements).
5. The current arrangements should be reviewed as ( here specify reasons for review).
6. [C.D.] [and the parent[s] of [ or person[s] with parental responsibility for] [C.D.]] have expressed the following view[s] on the special measure[s] that is [are] considered most appropriate:-
( here set out the view(s) expressed and how they were obtained).
7. The applicant seeks ( here specify the order sought).
8. A copy of this Minute has been intimated conform to the [certificate of intimation] attached to this Minute.
9. The applicant asks the court-
(a) to make an order authorising ( specify); and
(b) [to order the [sheriff clerk]/[applicant] to intimate the order to ( specify)].
IN RESPECT WHEREOF
( Signed)
[A.B.]
[ or Legal representative of A.B.] ( include full designation)
Rule 3.70(2)
FORM XX4
VULNERABLE WITNESSES (SCOTLAND) ACT 2004 Section [13]
[Sheriff Court ] [................................20....] [Court Ref. No.]
CERTIFICATE OF INTIMATION
I certify that intimation of the review application relating to [A.B.] was made to ( insert names of parties or solicitors for parties, as appropriate) by ( insert method of intimation; where intimation is by facsimile transmission, insert fax number to which intimation sent) on ( insert date of intimation).
Date …………………………………………
Signed
Solicitor [or Sheriff Officer]
( include full business designation)
EXPLANATORY NOTE
(This note is not part of the Act of Sederunt)
(a) 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). [NOTE: CONFIRM DETAILS.]
(b) 2004 asp 3.
(c) S.I. 1997/291 (S.19). [NOTE: HISTORY REQUIRED.]
(a) 2004 asp 3.