New rules have been developed by the Family Law Committee of the Scottish Civil Justice Council for defended family and civil partnership cases in the sheriff court.
Under the Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (SSI 2022/289), chapter 9 (standard procedure in defended causes) and chapter 10 (additional procedure) will no longer apply to family actions, the relevant provisions being accommodated within amended chapters 33 and 33A instead. The current chapter 33AA is removed and the relevant provisions incorporated into the new rules.
Options hearings replaced
Under these new rules, family actions are saying goodbye to options hearings. Instead we will have "initial" and "full" case management hearings. Under the current rules, an options hearing is assigned no sooner than 10 weeks after expiry of the notice period. Under the new rules, the "initial" case management hearing must be assigned no sooner than 21 days and no later than 49 days after that expiry. Where a party craves a s 11 order, a child welfare hearing can – at the sheriff’s discretion – call alongside the initial case management hearing. Depending on the circumstances, agents may wish to address the timing of a child welfare hearing in their covering letter to the court.
As with options hearings, the attendance of parties at a case management hearing (both initial and full) is necessary. The rules narrate that parties "must" attend. In practice, parties are (in my experience) rarely in attendance at an options hearing despite the terms of OCR 33.36. It seems unlikely that this will persist at an initial case management hearing where it calls alongside a child welfare hearing, but it will be interesting to see if the courts insist on parties’ attendance otherwise.
These case management hearings (initial and full) have a checklist and parties will be expected to address the court on each point. It is fuller (and arguably clearer and more focused) than the checklist under the current OCR 33.AA4 and now applies to all family actions, not just those including a s 11 crave.
In advance of a full case management hearing, the procedure under current OCR 33.AA.3 broadly remains the same. The parties must hold a pre-hearing meeting (no longer a "conference") to discuss settlement; agree – as far as possible – the matters not in dispute; discuss the checklist; and thereafter, lodge a joint minute of the pre-hearing meeting. The only real change is that parties must lodge the joint minute no later than two days before the full case management hearing. Currently, lodging is only required "prior to the case management hearing".
A list of witnesses must also be lodged, seven days before a full case management hearing. This must include a summary (up to 50 words) of the evidence each witness is to give. This will allow the court to ascertain what evidence is to be given and if necessary, request that experts confer.
Who is to lodge a form F9, and when, is also changing slightly. Currently, the defender only needs to draft and lodge a form F9 if a s 11 order is craved by the defender but <not> by the pursuer. Where both parties crave a s 11 order, only the pursuer lodges a form F9. That form is then amended (in my experience by the pursuer) to narrate the s 11 order sought by the defender, and sent to the child (sometimes without the defender ever having seen the form). Under the new rules, where the defender craves a s 11 order, a draft form F9 must be lodged at the same time as the NID, irrespective of whether the pursuer also craves a s 11 order. Where both parties crave a s 11 order, this appears to result in two form F9s. No amendments have been made to OCR 33.19C (views of the child where orders sought by both pursuer and defender), so it is unclear how this will work in practice.
Under the new rules, sists in family actions will be until a specific date, with a "review of sist hearing" being assigned for no later than 30 days following expiry of the sist. In my experience, some courts currently resist (sometimes to the point of refusal) sisting a family action for fear it drifts into the abyss. This sometimes has the effect of numerous procedural hearings being assigned while negotiations are ongoing, or a legal aid application is pending. The new rule will hopefully provide security to both the court and parties that the action will not fall by the wayside, as well as potentially reducing the number of procedural hearings.
The rules on mediation have also been expanded to include all family actions, not just those including a s 11 crave. The sheriff must have regard to averments of domestic abuse when considering the appropriateness of the referral, which in my experience is almost always considered under the current rules (although the need to do so is not explicit).
One of the most welcome additions, certainly in my opinion, is in relation to judicial continuity. The new rules say that "where possible" the same sheriff shall preside over the case management hearing (initial and full), the pre-proof hearing, any child welfare hearing and any proof, proof before answer or debate. Some may say that doesn’t go far enough: what about opposed motion hearings or review of sist hearings, for example? My own view is that it is certainly a good starting point, although I wonder how often judicial continuity will prove to be possible.
It is anticipated these rules shall afford greater judicial case management, resulting in cases being resolved faster. They apply to actions raised on or after 25 September 2023, presumably to allow courts to address any scheduling requirements which may arise. In theory, the additions all seem positive, but it will be interesting to see if they are applied consistently across the sheriffdoms.
This article was first published in the Journal.
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