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The Lords of Council and Session, under and by virtue of the powers conferred on them by sections 17, 20, 22, 23, 24 and 28(1) of the Maintenance Orders Act 1950[1], sections 2(4)(c), 2A(1) and 21(1) of the Maintenance Orders Act 1958[2], section 32 of the Sheriff Courts (Scotland) Act 1971[3], section 59 of the Adoption (Scotland) Act 1978[4] (as modified and applied in relation to parental orders under section 30 of the Human Fertilisation and Embryology Act 1990[5] and applications for such orders by paragraph 15 of Schedule 1 to the Parental Orders (Human Fertilisation and Embryology) (Scotland) Regulations 1994[6]), section 48 of the Civil Jurisdiction and Judgments Act 1982[7], sections 27(2), 28(1) and 42(1) of the Family Law Act 1986[8] and section 91 of the Children (Scotland) Act 1995[9] and of all other powers enabling them in that behalf, having approved, with modifications, draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the Sheriff Courts (Scotland) Act 1971, do hereby enact and declare:

"Ordinary Cause Rules" means the First Schedule to the Sheriff Courts (Scotland) Act 1907[10];

"Principal Reporter" has the same meaning as in section 93(1) of the Children (Scotland) Act 1995;

"sheriff clerk" includes sheriff clerk depute.

    (2) Unless the context otherwise requires, any reference in this Act of Sederunt to a specified Chapter, Part or rule shall be construed as a reference to the Chapter, Part or rule bearing that number in this Act of Sederunt, and a reference to a specified paragraph, sub-paragraph or head shall be construed as a reference to the paragraph, sub-paragraph or head so numbered or lettered in the provision in which that reference occurs.

    (3) Any reference in this Act of Sederunt to a numbered Form shall be construed as a reference to the Form so numbered in Schedule 1 to this Act of Sederunt and includes a form substantially to the same effect with such variation as circumstances may require.

Affidavits
     1 .3 An affidavit required in terms of any provision of this Act of Sederunt may be emitted-

(a) in the United Kingdom, before a notary public or any other competent authority;

(b) outwith the United Kingdom, before a British diplomatic or consular officer, or any person authorised to administer an oath or affirmation under the law of the place where the oath or affirmation is made.

Revocations and transitional provisions
     1 .4  - (1) Subject to paragraphs (2) and (3), the Acts of Sederunt mentioned in column (1) of Schedule 2 to this Act of Sederunt are revoked to the extent specified in column (3) of that Schedule.

    (2) Nothing in paragraph (1) or in Chapter 2 shall affect any cause which has been commenced before 1st April 1997 and to which that Chapter would otherwise apply, and such a cause shall proceed according to the law and practice in force immediately before that date.

    (3) Nothing in paragraph (1) shall affect any cause to which paragraph 8(1) of Schedule 3 to the Children (Scotland) Act 1995 applies, and such a cause shall proceed according to the law and practice in force immediately before 1st April 1997.

"the Act" means the Adoption (Scotland) Act 1978[11];

"the 1995 Act" means the Children (Scotland) Act 1995[12];

"adoption agency" means a local authority or an approved adoption society;

"Her Majesty's Forces" means the Royal Navy, the regular forces as defined by section 225 of the Army Act 1955[13], the regular air force as defined by section 223 of the Air Force Act 1955[14], the Queen Alexandra's Royal Naval Nursing Service and the Woman's Royal Naval Service; and

"Registrar General" means the Registrar General of Births, Deaths and Marriages for Scotland.

Expenses
     2 .2 The sheriff may make such an order with regard to the expenses, including the expenses of a reporting officer and a curator ad litem or any other person who attended a hearing, of an application under this Chapter as he thinks fit and may modify such expenses or direct them to be taxed on such scale as he may determine.

Intimation to Principal Reporter
     2 .3 Where in such proceedings as are referred to in subsection (2)(c) of section 54 of the 1995 Act (reference to the Principal Reporter by court) a matter is referred by the sheriff to the Principal Reporter under that section, the interlocutor making the reference shall be intimated by the sheriff clerk forthwith to the Principal Reporter; and that intimation shall specify which of the conditions in paragraph (2)(a) to (h), (j), (k) or (l) of section 52 of the 1995 Act it appears to the sheriff has been satisfied.

Timetables under section 25A of the Act
     2 .4 In proceedings in which such a timetable as is referred to in section 25A(a) of the Act (timetable for resolving question)[15] is required, the court shall draw up the timetable forthwith where-

(a) there is presented a petition with a crave for the agreement of a parent or guardian to be dispensed with;

(b) it appears to the court from a report by an adoption agency, local authority or reporting officer that a question as to dispensing with such agreement arises; or

(c) such agreement previously given is withdrawn.

(a) an extract of the entry in the Register of Births relating to the child who is the subject of the application;

(b) a report of the adoption agency which deals with the following matters:-


(i) how the needs of the child came to the notice of the petitioner;

(ii) any relevant family circumstances of the child;

(iii) a description of the physical and mental health of the child (including any special needs) and his emotional, behavioural and educational development;

(iv) an account of the discussion by the petitioner with the parents or guardians of the child and, if appropriate, with the child about their wishes and the alternatives to adoption;

(v) the knowledge of the petitioner of the position of other relatives or persons likely to be involved;

(vi) an account of the search by the petitioner for any parent or guardian who cannot be found;

(vii) the likelihood of placement of the child for adoption and whether a petition for an adoption order is likely in the near future;

(viii) the arrangements of the petitioner to care for the child after the granting of the prayer of the petition for an order freeing the child for adoption;

(ix) whether the petitioner has given each parent or guardian who can be found an opportunity to make a declaration under section 18(6) of the Act[17] that he prefers not to be involved in future questions concerning the adoption of the child;

(x) an account of the enquiries by the petitioner into the circumstances of any reputed father;

(xi) the intentions of the petitioner about giving notice to a former parent or guardian under section 19(2) and (3) of the Act (progress reports to former parent)[18]; and

(xii) any other information which may be of assistance to the Court; and



(c) any other document founded upon by the petitioner in support of the terms of the petition.

    (3) Where an adoption agency which proposes to apply under paragraph (1) wishes to prevent the address of the child being disclosed to any person whose agreement or consent is required by section 18(1)(a) or (2) of the Act respectively, the agency may apply to the sheriff clerk for a serial number to be assigned for that purpose.

Agreement and consents to order freeing child for adoption
     2 .6  - (1) An agreement required by section 18(1)(a), or a consent required by section 18(2) or 18(8) of the Act[19], if given in writing shall be in Form 2, 3 or 4 as appropriate and such form, duly executed, shall be sufficient evidence of such agreement or consent.

    (2) A form of agreement or of consent executed outwith the United Kingdom shall be sufficient evidence of such agreement or consent if it is witnessed-

(a) where the person who executes the form is serving in Her Majesty's Forces, by an officer holding a commission in any of those forces; or

(b) in any other case, by a British consular official, or by any person for the time being authorised by the law of the country in which the form is executed to administer an oath for any judicial or legal purpose.

Appointment of curator ad litem and reporting officer
     2 .7  - (1) The sheriff shall, after the lodging of a petition under rule 2.5(1), appoint a curator ad litem and reporting officer and the same person may be appointed as curator ad litem and reporting officer in the same petition, if the sheriff considers that doing so is appropriate in the circumstances.

    (2) The sheriff may appoint a person who is not a member of a panel established under regulations made by virtue of section 101 of the 1995 Act to be a curator ad litem or a reporting officer.

    (3) The sheriff may, on cause shown, appoint a reporting officer prior to the lodging of a petition.

    (4) An application for an appointment under paragraph (3) shall be made by letter addressed to the sheriff clerk specifying the reasons for the appointment, and shall not require to be intimated to any other person.

Duties of reporting officer and curator ad litem
     2 .8  - (1) A reporting officer appointed under this Part shall-

(a) witness any consent to the making of an application for an order freeing a child for adoption executed within the United Kingdom by a parent or guardian of the child and shall lodge the consent in process;

(b) witness any agreement executed within the United Kingdom by a parent or guardian of a child to the making of an adoption order in respect of the child and lodge the agreement in process;

(c) ascertain that each parent or guardian who can be found understands that the effect of an adoption order would be to extinguish his parental responsibilities and rights;

(d) ascertain from any parent or guardian who can be found, whether alternatives to adoption have been discussed with him;

(e) ascertain whether there is any person other than those mentioned in the petition upon whom notice of the petition should be served;

(f) ascertain whether the child is subject to a supervision requirement;

(g) confirm that each parent or guardian who can be found understands the implications of an order freeing the child for adoption;

(h) confirm that each parent or guardian who has given his agreement and can be found understands that he may withdraw his agreement at any time before an order under section 18(1) of the Act is made;

(i) confirm that each parent or guardian who can be found is aware that he may in the circumstances set forth in section 20 of the Act (revocation of section 18 order) apply to the court for revocation of any order under section 18(1) of the Act and of the appropriate procedure for such an application;

(j) confirm that each parent or guardian who can be found has been given an opportunity to make a declaration in terms of section 18(6) of the Act and, where the parent or guardian elects to make such declaration, shall comply with rule 2.10; and

(k) in the case of a child whose father is not married to the mother, consider the likelihood of any person claiming to be the father of the child-


(i) applying for or being refused an order under section 11 of the 1995 Act (court orders relating to parental responsibilities); or

(ii) entering into an agreement in terms of section 4(1) of that Act (agreement as to parental responsibilities and rights),



and shall report in writing thereon to the sheriff within 4 weeks from the date of the interlocutor appointing the reporting officer, or within such other period as the sheriff in his discretion may allow.

    (2) A curator ad litem appointed under this Part shall have regard to the welfare of the child as his paramount duty and shall further-

(a) generally safeguard the interests of the child who is the subject of the petition and ensure that consideration has been given to the interests of the child for the purposes of section 6 of the Act (duty to promote welfare of child)[20];

(b) ascertain whether the facts stated in the petition are correct except where investigation of such facts falls within the duties of the reporting officer;

(c) where the child who is sought to be freed for adoption is over the age of 12 years, witness any consent to the order executed by him in the United Kingdom and lodge the consent in process;

(d) ascertain from the child whether he wishes to express a view and where a child indicates his wish to express a view, ascertain that view;

(e) ascertain whether an order freeing the child for adoption would safeguard and throughout his life promote the welfare of the child;

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

(g) report on the current circumstances and care of the child,

and, subject to paragraph (3), shall report in writing thereon to the sheriff within 4 weeks from the date of the interlocutor appointing the curator, or within such other period as the sheriff in his discretion may allow.

    (3) Subject to any order made by the sheriff under rule 2.9(1)(a), the views of the child ascertained in terms of paragraph (2)(d) may, if the curator ad litem considers appropriate, be conveyed to the sheriff orally.

Procedure where child wishes to express a view
     2 .9  - (1) Where a child had indicated his wish to express his views the sheriff, without prejudice to rule 2.8(2)(d)-

(a) may order such procedural steps to be taken as he considers appropriate to ascertain the views of that child; and

(b) shall not make an order under this Part unless an opportunity has been given for the views of that child to be obtained or heard.

    (2) Where the views of a child, whether obtained under this rule or under rule 2.8(2)(d), have been recorded in writing, the sheriff may direct that such a written record shall-

(a) be sealed in an envelope marked "Views of the child - confidential";

(b) be available to a sheriff only;

(c) not be opened by any person other than a sheriff; and

(d) not form a borrowable part of the process.

Declaration made under section 18(6) of the Act
     2 .10  - (1) A declaration made under section 18(6) of the Act (declaration of preference not to be involved in future questions concerning the adoption of the child) shall be in Form 5, be signed by each parent or guardian of the child and shall, subject to paragraph (3), be witnessed by the reporting officer.

    (2) The reporting officer shall provide a copy of the form of declaration to each parent or guardian of the child for signature and shall explain to him the consequences of signing the declaration and of the terms of section 19 of the Act (progress reports to former parents).

    (3) A declaration executed outwith the United Kingdom shall be witnessed in the manner prescribed by rule 2.6(2)(a) or (b).

    (4) The reporting officer shall submit the executed declaration to the sheriff clerk who shall thereafter record the declaration in the manner prescribed in rule 2.13.

    (5) A withdrawal of a declaration made under section 18(6) of the Act may be made at any time and shall be made by notice in writing in Form 6 to the sheriff clerk who shall forthwith record the withdrawal in the manner prescribed in rule 2.13 and intimate the withdrawal to the adoption agency.

Hearing
     2 .11  - (1) When the reports of the reporting officer and the curator ad litem have been received by the court, the sheriff shall order a diet of hearing to be fixed.

    (2) The petitioner shall intimate the diet of hearing in accordance with Form 7-

(a) to every person, whose whereabouts are known to him 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, to any person whose whereabouts are known to him 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 has been made.

    (3) Subject to paragraph (5), if no person entitled to appear appears and wishes to be heard, the sheriff may make an order freeing the child for adoption on the motion of the petitioner.

    (4) Subject to paragraph (5), if a person entitled to appear appears and wishes to be heard, the sheriff may hear him or may order a further diet to be fixed at which he may be heard and evidence given at any such diet shall be given in the presence of the petitioner or his solicitor.

    (5) Before making an order, the sheriff shall consider any report received by him in terms of section 73(14) of the 1995 Act (report by children's hearing).

Confidentiality
     2 .12  - (1) Unless the sheriff otherwise directs, all documents lodged in process including the reports by the curator ad litem and the reporting officer shall be available only to the sheriff, the curator ad litem, the reporting officer and the parties; and such documents shall be treated as confidential by any persons involved in, or a party to, the proceedings and by the sheriff clerk.

    (2) The reporting officer and curator ad litem shall treat all information obtained in the exercise of their duties as confidential and shall not disclose any such information to any person unless disclosure of such information is necessary for the proper discharge of their duties.

    (3) This rule is subject to rule 2.9(2).

Adoption Register
     2 .13  - (1) The sheriff clerk shall maintain a register known as "the Adoption Register".

    (2) The sheriff clerk shall enter in the Adoption Register any declaration made under section 18(6) of the Act submitted to him by the reporting officer and any withdrawal made in terms of rule 2.10(5).

    (3) A declaration under section 19(4) of the Act (declaration by former parent not to be involved in future questions concerning the adoption)[21] shall be made in Form 5 and the adoption agency shall submit the declaration to the sheriff clerk who shall enter it in the Adoption Register.

Final procedure
     2 .14  - (1) Where an order under this Part has been granted the sheriff clerk shall-

(a) after the expiry of 14 days from the date of, or date of confirmation of, the order without appeal having been taken, issue an extract of the order to the petitioner and thereafter seal the process in an envelope marked "Confidential"; and

(b) where that order includes a determination under section 18(9) of the Act (cancellation of supervision requirement)[22], intimate the making of that determination to the Principal Reporter.

    (2) The envelope referred to in paragraph (1)(a) shall not be unsealed by the sheriff clerk or any other person having control of the records of that or any court, and the process shall not be made accessible to any person, for one hundred years after the date of the granting of the order except-

(a) to the person freed for adoption by the order once he has attained the age of sixteen years;

(b) to the sheriff clerk, on an application made to him by an adoption agency, with the consent of the person to whom the process relates, for the purpose only of ascertaining the name of the agency, if any, responsible for the placement of that person and informing the applicant of that name;

(c) to a person, on an application made by him to the sheriff setting forth the reasons for which access to the process is required;

(d) to a court, public authority or administrative board (whether in the United Kingdom or not) having power to authorise an adoption, on petition by it to the court which granted the original order requesting that information be made available from the process for the purpose of discharging its duties in considering an application for adoption and specifying the precise reasons for which access to the process is required; or

(e) to a person who is authorised by the Secretary of State to obtain information from the process for the purposes of such research as is intended to improve the working of adoption law and practice.

and, subject to paragraph (2), shall report in writing thereon to the sheriff within 4 weeks from the date of the interlocutor appointing the curator, or within such other period as the sheriff in his discretion may allow.

    (2) Subject to any order made by the sheriff under rule 2.17(1)(a), the views of the child ascertained in terms of paragraph (1)(c) may, if the curator ad litem considers appropriate, be conveyed to the sheriff orally.

Procedure where child wishes to express a view
     2 .17.  - (1) Where a child has indicated his wish to express his views the sheriff, without prejudice to rule 2.16(1)(c)-

(a) may order such procedural steps to be taken as he considers appropriate to ascertain the views of that child; and

(b) shall not make an order under this Part unless an opportunity has been given for the views of that child to be obtained or heard.

    (2) Where the views of a child, whether obtained under this rule or under rule 2.16(1)(c), have been recorded in writing, the sheriff may direct that such a written record shall-

(a) be sealed in an envelope marked "Views of the child - confidential";

(b) be available to a sheriff only;

(c) not be opened by any person other than a sheriff; and

(d) not form a borrowable part of the process.

Hearing
     2 .18  - (1) Where answers have been lodged under rule 2.15(3), the sheriff shall order a diet of hearing to be fixed.

    (2) Where no answers to the minute under rule 2.15(1) have been lodged the sheriff may-

(a) order the relevant adoption agency to submit a report to him;

(b) order a diet of hearing to be fixed; or

(c) order both such a report and such a diet of hearing.

    (3) An order made under this Part shall specify the person-

(a) to whom parental rights are given in consequence of the making of the order; and

(b) on whom parental responsibilities are imposed in consequence of the making of the order,

and intimation shall be given to such a person on the making of such an order.

Application to place a child
     2 .19  - (1) An application by an adoption agency under section 20(2) of the Act (leave of court to place a child) shall be made by minute in Form 9 in the original process.

    (2) A minute under paragraph (1) shall be intimated by the applicant to such persons as shall to the sheriff seem appropriate.

Further application with leave of the court
     2 .20 A further application made with leave of the sheriff in terms of section 20(5) of the Act (further application by former parent with leave of the court) shall be made by minute in Form 10 in the original process and the provisions of rules 2.15(2) and (3), 2.16 and 2.17 shall apply to such a further application.

(a) an extract of the entry in the Register of Births relating to the child who is the subject of the application;

(b) in the case of a joint petition by a married couple, an extract of the entry in the Register of Marriages relating to their marriage;

(c) where the child was not placed for adoption with the applicant by an adoption agency, three copies of a medical report showing the physical and mental health of the child (including any special needs) and his emotional, behavioural and educational development;

(d) any report by the local authority required by section 22(2) of the Act (investigation by local authority on receipt of notice of intention to apply for adoption order);

(e) any report by an adoption agency required by section 23 of the Act (report on the suitability of the applicants);

(f) where appropriate, an extract of the order freeing the child for adoption; and

(g) any other document founded upon by the petitioner in support of the terms of his petition.

    (3) A report by a local authority under section 22(2), or an adoption agency under section 23, of the Act shall include the following matters:-

(a) information about how the needs of the child came to the notice of the agency;

(b) the family circumstances of the child;

(c) where the child was placed for adoption by an adoption agency, a description of the physical and mental health of the child (including any special needs) and his emotional, behavioural and educational development;

(d) an account of the discussion with the parents or guardians of the child and, if appropriate, with the child about their wishes and the alternatives to adoption;

(e) the position of other relatives or persons likely to be involved;

(f) an account of the search for a parent or guardian who cannot be found;

(g) information about the mutual suitability of the petitioner and the child for the relationship created by adoption and the ability of the petitioner to bring up the child including an assessment of the personality of the petitioner and, where appropriate, that of the child;

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

(i) a description of the accommodation in the home of the petitioner;

(j) in a petition by one of two spouses, why the other spouse has not joined in the petition;

(k) whether the petitioner understands the nature and effect of an adoption order and in particular that the order, if made, will make the petitioner responsible for the maintenance and upbringing of the child;

(l) whether the means and standing of the petitioner are such as to enable him to maintain and bring up the child suitably, and what right or interest in property the child has;

(m) whether any payment or other reward in consideration of the adoption, other than an approved adoption allowance, has been received or agreed upon;

(n) what insurance has been offered on the life of the child;

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

(p) considerations arising from the difference in age between the petitioner and the child if this is more or less than the normal difference in age between parents and children;

(q) whether adoption is likely to safeguard and promote the welfare of the child throughout its life; and

(r) any other information which may be of assistance to the court.

    (4) A report by a local authority under section 22(2) of the Act shall also specify whether the child was placed with the applicant in contravention of section 11 of the Act (restriction on arranging adoptions).

    (5) If no report by an adoption agency or local authority under paragraph (2)(d) or (e) is available to be lodged along with the petition, the sheriff shall pronounce an interlocutor requiring the adoption agency or local authority concerned to prepare and lodge such a report in court within 4 weeks from the date of the interlocutor, or within such other period as the sheriff in his discretion may allow.

[2] 1958 c.39; section 2A was inserted by the Civil Jurisdiction and Judgments Act 1982, Schedule 11, Part II, paragraph 6(2); section 21(1) contains a relevant definition of prescribed. back

[3] 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) and the Children (Scotland) Act 1995 (c.36), Schedule 4, paragraph 18(2). back

[4] 1978 c.28; section 59 was amended by the Children (Scotland) Act 1995, Schedule 2, paragraph 27. back

[5] 1990 c.37. back

[6] S.I. 1994/2804. back

[7] 1982 c.27; section 48 was amended by the Civil Jurisdiction and Judgments Act 1991 (c.12), Schedule 2, paragraph 23. back

[8] 1986 c.55; section 42(1) contains a relevant definition of prescribed. back

[9] 1995 c.36. back

[10] 1907 c.51, the First Schedule was substituted by S.I. 1993/1956. back

[11] 1978 c.28. back

[12] 1995 c.36. back

[13] 1955 c.18. back

[14] 1955 c.19. back

[15] Section 25A was inserted by the Children (Scotland) Act 1995, Schedule 2, paragraph 18. back

[16] Section 18(1) was amended by the Children (Scotland) Act 1995, Schedule 2, paragraph 11(a). back

[17] Section 18(6) was amended by the Health and Social Services and Social Security Adjudications Act 1983 (c.41), Schedule 2, paragraph 40. back

[18] Subsections (2) and (3) of section 19 were amended by the Children (Scotland) Act 1995, Schedule 2, paragraph 12(b) and (c). back

[19] Section 18(8) was substituted by the Age of Legal Capacity (Scotland) Act 1991 (c.50), section 2(3)(b). back

[20] Section 6 was substituted by the Children (Scotland) Act 1995, section 95. back

[21] Section 19(4) was amended by the Children (Scotland) Act 1995, Schedule 2, paragraph 12(d). back

[22] Section 18(9) was added by the Children (Scotland) Act 1995, Schedule 2, paragraph 11(d). back

[23] Section 20 was amended by the Children (Scotland) Act 1995, Schedule 2, paragraph 13. back

[24] Section 49 was amended by the Children Act 1989 (c.41), Schedule 10, paragraph 42(a). back