There have recently been some key developments in the way family actions and civil partnership actions will proceed through court and be subject to judicial monitoring and control. The aim of these changes is to promote swifter outcomes in disputed family and civil partnership actions by way of increased case management by sheriffs, and, where possible, continuity of judiciary. These changes will apply to actions raised in the Sheriff's Court after 25th September 2023.
The new rules have been developed by the Family Law Committee of the Scottish Civil Justice Council. 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) no longer applies to family actions and civil partnerships, the new provisions being contained within amended chapters 33 and 33A instead. The current chapter 33AA has been removed, and the relevant provisions incorporated into the new rules.
Options Hearings have now been replaced by “Initial” and “Full” Case Management Hearings. Under the new rules, the “Initial” Case Management Hearing must be assigned no sooner than 21 days and no later than 49 days after the expiry of the period of notice.
Where a party craves a s 11 order ( a crave relating to matters affecting parental rights to children such as contact and residence), a Child Welfare Hearing can also call alongside the Initial Case Management Hearing. The rules require parties to attend at both Initial and Full Case Management Hearings, and this applies whether or not they call alongside a Child Welfare Hearing. There is also a detailed check list for agents to address in advance of the Initial Case Management Hearing, which applies to all family actions, whether or not they include craves relating to s 11 orders. The agents will be expected to address the court on each point in the check list.
In advance of a Full Case Management Hearing, the new procedure remains similar to that previously applicable to case management hearings in family actions, in that the parties must hold a pre-hearing meeting, to discuss the scope for settlement, identify non-contentious matters that can be agreed, and go over the checklist; they must thereafter lodge in court a joint minute of the pre-hearing meeting, to be done two days before the Full Case Management Hearing. A list of witnesses requires to be lodged seven days before a Full Case Management Hearing which must include a brief summary of each witness’s evidence – this is important as it will enable the court to ascertain what evidence is being given by particular witnesses, avoid duplication, and, for example, request that competing experts confer.
Children’s views are still taken by way of a child-friendly questionnaire (F9) being sent to them asking them, in simple terms, for their views on s 11 orders craved by either or both parents. The draft F9 is still to be lodged by the Pursuer along with the Initial Writ, for court approval. However, whilst the Pursuer previously just adapted this in response to the terms of the NID to include questions about the Defender’s s 11 craves, the new rules depart from this, and Defenders now require to lodge their own draft Form 9 at the same time as lodging the NID, should any s 11 order be sought by them. This new approach is aimed at avoiding the previous situation where the Pursuer was tasked with adapting their own pre-approved draft form 9, to reflect Defender’s S 11 craves, and sending this to the child without the court approving the alterations or Defender ever having sight of the form. Under the new rules, where both parties crave 11 orders, there will be two separate draft form F9s lodged in court and in terms of intimation of these on the child, it remains to be seen how the arrangements will operate in practice.
The benefit of the mediation process, which encourages and enables parties to engage in supported discussions with each other and take more responsibility for their family arrangements post-separation, is further recognized by the new rules, in terms of the expansion of the mediation rules to all family and civil partnership actions, not just those including s 11 craves. It is also expressly stated in the new rules that the sheriff must have regard to averments of domestic abuse when considering whether to make a referral to mediation.
Another significant development is that judicial continuity i.e. the same Sheriff presiding at hearings, is now required by the new rules, “where possible”. The benefit of having the same Sheriff presiding over the Case Management Hearings, Child Welfare Hearings, and any debate or proof, is to allow Sheriffs to develop a more in-depth and focused knowledge of the particular case, the issues and the parties involved, and thereby facilitate quicker resolution of the case, whether this is ultimately by parties achieving a joint minute of agreement, or by judicial determination.
Finally, with regard periods of sist i.e. when the action is put on hold, which can be of significant benefit in family actions to allow for negotiations and/or monitoring of interim arrangements or for parties to attend at mediation, under the new rules, sists be for a specific time period, rather than open-ended. A “review of sist hearing” will be assigned no later than 30 days following expiry of the specified period of sist. The benefit of this is that it will still allow a suitable sist period to meet the requirements of the case and avoid having numerous repeat procedural hearings, but at the same time the automatic review will ensure that there continues to be an appropriate degree of judicial monitoring.