Event papers: Reports for Court

Posted On: 19 October 2011

Author: Janys M Scott QC

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Court reporters in children's cases who attended the seminar for Family Court Practitioners at Edinburgh Sheriff Court on 10 October 2011 and would like a copy of the notes prepared by Janys Scott QC, will find them here.  The notes contain references to legislation, court rules and case law on reports for the court and are available for anyone who wishes to access this material.

 

 

EDINBURGH SHERIFF COURT

SEMINAR FOR FAMILY COURT PRACTITIONERS

10 OCTOBER 2011 

REPORTERS AND CURATORS AD LITEM

 

[1]  Legal basis for ordering reports

  • May derive from Court of Session power to order a report into the facts in petition procedure?  See old cases Mitchell v Wright (1905) 7F 568, remit to sheriff to inquire into facts and report to Court of Session; Walker v Cuthbertson 1921 1 SLT 192, remit to Lord Ordinary to report to Inner ousHouseHouse.
  • Matrimonial Proceedings (Children) Act 1958, s 11 allows appointment of a local authority (extended to all actions relating to care and upbringing of children by Children (Scotland) Act 1995, which repealed separate provision in s 12 of Guardianship Act 1973).
  • Now recognised practice in sheriff court – see OCR 33.21.

 

[2] Reason for ordering reports

  • Adverse comment in older cases on using reports as a substitute for party making own inquiries (Wallace v Wallace 1963 SC 256 – an attempt to use as “cheap and convenient private inquiry agents”) or recovering medical reports by Commission and Diligence (Hardie v Hardie 1993 SCLR 60).  No point if proof imminent as court requires to make own assessment (Kristiansen v Kristiansen 1987 SCLR 462; Oliver v Oliver 1988 SCLR 285). 
  • Older cases out of date since Civil Evidence (Scotland) Act 1988, s 2, makes hearsay admissible (see Glaser v Glaser 1997 SLT 456) and Children (Scotland) Act 1995 allows sheriff to make orders ex proprio motu, with requirement to consider children in divorce under s 12. Law now consistent with commitment to children’s rights in UNCRC.  Procedure has become more flexible, with introduction of child welfare hearing.  Final decisions may be taken at child welfare hearings on the basis of reports (K v K 2004 FamLR 25).  Reports should be taken into into consideration when making interim or final orders (Bailey v Bailey 2001 FamLR 133).  Where report ordered, application should not be determined until the report is lodged (OCR 33.21(6).
  • There has been historic resistance to citing reporters as witnesses.  There is an old Court of Session Practice Note (6 June 1968) preventing a reporter who has furnished a report under s11 of the 1958 Act from being cited, unless the Court requires appearance.  The same applies as a matter of practice in the sheriff court (Bailey v Bailey, supra).
  • Reports are now a useful tool for provision of information direct to the sheriff.  While this is of particular assistance at the interim stage, reports may be relevant to final orders and reporters may (exceptionally) be asked to give evidence.

 

(Continued...to read the full notes please click on the link at the top of the page.)