Made | 1st March 2005 | ||
Coming into force | 2nd March 2005 |
Disapplication of certain rules to this Part
62.68.
The following rules shall not apply to an application under this Part:-
Enforcement of judgments from another Member State
62.69.
- (1) An application under Article 28 of the Council Regulation (enforceable judgments) shall be made by petition in Form 62.69.
(2) There shall be produced with the petition -
Warrant for registration under the Council Regulation
62.70.
- (1) The court shall, on being satisfied that the petition complies with the requirements of the Council Regulation, pronounce an interlocutor-
(2) The interlocutor pronounced under paragraph (1) shall specify-
Intimation to the petitioner
62.71.
Where the court pronounces an interlocutor under rule 62.70(1) the Deputy Principal Clerk shall intimate such interlocutor to the petitioner by sending to his address for service in Scotland a certified copy of the interlocutor by registered post or the first class recorded delivery service.
Registration under the Council Regulation
62.72.
- (1) Where the court pronounces an interlocutor under rule 62.70(1) granting warrant for registration, the Deputy Principal Clerk shall enter the judgment in the register of judgments, authentic instruments and court settlements kept in the Petition Department.
(2) On presentation by the petitioner to the Keeper of the Registers of-
they shall be registered in the register of judgments of the Books of Council and Session.
(3) On registration under paragraph (2), the Keeper of the Registers of Scotland shall issue an extract of the registered document with a warrant for execution.
Service of warrant for registration under the Council Regulation
62.73.
The petitioner shall serve a copy of the interlocutor under rule 62.70(1) granting warrant for registration of a judgment and notice in Form 62.73 on the person against whom enforcement is sought.
Appeals under the Council Regulation
62.74.
- (1) An appeal under Article 33 (appeals against the enforcement decision) of the Council Regulation shall be made by motion-
(2) Where the respondent in any such appeal is domiciled furth of the United Kingdom-
Reclaiming under the Council Regulation
62.75.
Any party dissatisfied with the interlocutor of the Lord Ordinary in any appeal mentioned in rule 62.74 (appeals under the Council Regulation) may reclaim on a point of law against that interlocutor.
Recognition of judgments from another Member State
62.76.
- (1) For the purpose of Article 21 of the Council Regulation (recognition of a judgment), an interlocutor pronounced under rule 62.70(1) (warrant for registration under the Council Regulation) shall imply recognition of the judgment so dealt with.
(2) In an application under Article 21(3) of the Council Regulation for recognition of a judgment, rules 62.67 to 62.75 shall apply to such an application as they apply to an application under Article 28 of the Council Regulation (declarator of enforceability).
(3) In an application under Article 21(3) of the Council Regulation for non-recognition of a judgment, the rules under this part shall apply to such an application as they apply to an application under Article 28 of the Council Regulation (declarator of enforceability) subject to the following provisions-
Cancellation of registration under the Council Regulation
62.77.
Where an interlocutor under rule 62.70(1) (warrant for registration under the Council Regulation) is recalled and registration under rule 62.72(2) (registration under the Council Regulation) is ordered to be cancelled after an appeal under Article 33 of the Council Regulation (appeal against decision on enforceability) a certificate to that effect by the Deputy Principal Clerk shall be sufficient warrant to the Keeper of the Registers to cancel the registration and return the judgment, certificate or other documents to the person who applied for registration.
Enforcement in another Member State of Court of Session judgments etc.
62.78.
- (1) Where a person seeks to apply under the Council Regulation for recognition or enforcement in another Member State of a judgment given by the court, he shall apply by letter to the Deputy Principal Clerk for-
Rectification of certificates under Articles 41 and 42 of the Council Regulation
62.79.
Where a party seeks rectification of a certificate issued under Article 41 or 42 of the Council Regulation (certificate concerning rights of access or return of a child) he shall apply by letter to the Deputy Principal Clerk stating the details of the certificate that are to be rectified.
Practical arrangements for the exercise of rights of access
62.80.
- (1) An application by a party having an enforceable judgment granting a right of access, that has been certified under Article 41 of the Council Regulation or registered for enforcement, seeking an order making practical arrangements for organising the exercise of rights of access under Article 48 of the Council Regulation, shall be made by petition.
(2) There shall be produced with the petition -
Intimation on child
70.16.
- (1) In a petition under rule 70.5(1)(application for the return of a child) where the Council Regulation applies, the petitioner shall insert a warrant for intimation to the child to whom the petition relates, if not a party to the petition.
(2) Where paragraph (1) applies a copy of the petition shall not be intimated to the child but a notice of intimation in Form 49.8-N(c) shall be intimated.
(3) Where a petitioner considers that a warrant for intimation to a child under paragraph (1) is inappropriate, he shall-
and the court may dispense with such intimation or make such other order as it thinks fit.
Views of child
70.17.
- (1) In an application under rule 70.5(1)(application for the return of a child) where the Council Regulation applies and the child has-
the court shall not grant any order unless an opportunity has been given for the views of that child to be obtained or heard.
(2) Where a child has indicated his wish to express his views, the court shall order such steps to be taken as it considers appropriate to ascertain the views of that child.
(3) The court shall not grant an order in a petition under rule 70.5(1) (return of a child) affecting a child who has indicated his wish to express his views, unless due weight has been given by the court to the views expressed by that child, having regard to his age and maturity.
Continuations
70.18.
In an application under rule 70.5(1) (application for the return of the child), where the Council Regulation applies, the court may allow a continuation of the hearing for a period not exceeding 7 days or to the first suitable court date thereafter but any further continuations shall only be allowed on special cause shown.
Recording of hearings under Article 12 of the Hague Convention
70.19.
- (1) Evidence at a hearing on an application for the return of a child under rule 70.5(1) and Article 12 of the Hague Convention, where the Council Regulation applies, shall be recorded by -
(2) The record of the evidence taken at the hearing shall include -
(5) The court may make such alterations to the transcript of the record of the evidence as appear to it to be necessary after hearing parties; and, where such alterations are made, the Lord Ordinary shall authenticate the alterations.
Order under Article 13 of the Hague Convention
70.20.
Where an order is made under Article 13 of the Hague Convention refusing to order the return of a child in an application under rule 70.5(1) where the Council Regulation applies, the Deputy Principal Clerk shall transmit a copy of the order and a transcript of the proceedings to the central authority of the Member State where the child was habitually resident immediately before the wrongful removal or retention.".
Transfers of cases involving matters of parental responsibility
88.2.
Where the court receives a request from a court in another Member State under Article 15 of the Council Regulation (transfer to court better placed to hear the case) to accept or decline jurisdiction of an action involving parental responsibilities the request shall -
Transfers where proceedings ongoing in the sheriff court
88.3.
- (1) Where a request to decline jurisdiction is received under rule 88.2 (transfer of case involving matters of parental responsibility) and states that proceedings involving the same parties and matters involving parental responsibility are ongoing in a sheriff court, the Deputy Principal Clerk shall, within four days after the request is received, transmit the request to the sheriff clerk of the sheriff court specified in the request.
(2) When transmitting a request under paragraph (1) the Deputy Principal Clerk shall give written intimation of the transmission to-
(3) Failure by the Deputy Principal Clerk to comply with paragraph (2) shall not affect the validity of a transfer under paragraph (1).
Translations of documents
88.4.
Where any document received under rule 88.2 (transfer of cases involving matters of parental responsibility) is in a language other than English, 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.
Requests to accept transfer from a court in another Member State
88.5.
- (1) A request to the court to accept jurisdiction of an action involving parental responsibilities under rule 88.2 (request to transfer a case) shall be lodged with a summons in Form 13.2-A(a).
(2) When the summons lodged under paragraph (1) is signetted the pursuer shall request the Keeper of the Rolls to allocate a hearing within 14 days of the signetting, to determine whether the court will accept jurisdiction in the action.
(3) On allocation of the date of the hearing the pursuer shall serve a copy of the summons on the defender and at the same time intimate the date and time of the hearing on the defender by serving on him a notice in Form 88.5 (form of notice of intimation of a hearing to determine jurisdiction), not less than 7 days before the date of the hearing.
(4) The pursuer shall lodge a certificate of intimation in Form 16.2 (certificate of intimation furth of United Kingdom), 16.3 (certificate of service by messenger-at-arms) or 16.4 (certificate of service by post), as appropriate, at least 2 days before the date of the hearing.
(5) Where the court orders that it will accept jurisdiction of an action after a hearing under paragraph (2) the Deputy Principal Clerk shall, within seven days, send a copy of the interlocutor to the requesting court.
Request to decline jurisdiction from a court in another Member State
88.6.
Where a request is received under rule 88.2 (request for transfer of a case) for the court to decline jurisdiction in an action involving parental responsibilities the Deputy Principal Clerk shall -
CULLEN of WHITEKIRK
Lord President I.P.D.
Edinburgh
1st March 2005
YES | NO |
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YES | NO |
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YES | NO |
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[2] S.I. 1994/1443, last amended by S.S.I. 2004/514.(c) O.J. No L.338, 23.12.2003, p.1.(a) Rule 70.5(1) was amended by S.I. 1996/1756.(b) Rule 70.6(2) was amended by S.I. 1996/1756.(c) Rule 70.6(5) was inserted by S.I. 1996/1756.(a) O.J. No L338, 23.12.2003, p. 1.(b) 1985 c.60.(c) Form 49.8-N was inserted by S.I. 1996/2587.(a) Form 13.2-A was amended by S.I. 1994/2901 and S.S.I. 2004/537.(a) Form 49.8-N was inserted by S.I. 1996/2587.(b) Form 62.65 was inserted by S.I. 1996/2168.(c) Form 87.1 was inserted by S.S.I. 2004/514.back
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