Family Law: An overview of civil court procedure

What happens at court? This question is commonly asked by clients prior to attending court. This article provides definitions of legal jargon you will hear as well as an overview of basic civil court procedure.

Definitions

Parties: The parties are the Pursuer and the Defender. The Pursuer is the party who raises the court action. The Defender is the party whom the action is served upon. Both parties can seek orders from the court. Examples of orders sought from court are contact or residence orders.

Initial Writ: This is a document which raises court proceedings. The Pursuer will be asked about their case and what they want from the court. This position is written down and contained within the Initial Writ.

Warrant: The Initial Writ is sent to court for a Sheriff to grant a warrant. The warrant provides authority for the court action to be served upon the Defender.  

Serving the action: This is when the Initial Writ is sent to the Defender. There are various methods of serving the action such as by recorded delivery post or by Sheriff Officers. Successful service on the Defender means the court is satisfied the Defender has received the Initial Writ and can therefore decide what to do next.                     

Defences: This is a document which contains the Defender's response to the Initial Writ. Lodging defences provides the Defender with an opportunity to provide their side of the story.  

Sheriff: The judge in the Sheriff Court is called a Sheriff. Sheriffs are experienced lawyers who practised law before becoming Sheriffs. Beforehand they were either Solicitors or Advocates. An advocate in England is called a barrister. The Sheriff is referred to as 'My Lord' or 'My Lady'.

Child Welfare Hearing: This is a type of court hearing. It is heard by a Sheriff. Child Welfare Hearings are less formal than other types of court hearings. The purpose of Child Welfare Hearings is for the court to be addressed on the welfare of the child / children. The court may make orders that are in the best interests of the child / children. Child Welfare Hearings are not open to the public. Present in court will be the Sheriff, clerk of court and the Pursuer and Defender with their solicitors.  Sometimes issues of contact or residence can be agreed through Child Welfare Hearings.

Options Hearing: This is a procedural court hearing. At an Options Hearing the court will be informed by each party what further procedure they seek. The court will decide what further procedure is most appropriate.

Amendment: This is a process of making changes to written pleadings after the period of adjustment.

Proof: is an evidential hearing. The parties may give evidence. Any witnesses called by either party would also give evidence. Evidence is given under oath from the witness box in court.

Civil court procedure

The Initial Writ goes on a procedural journey. The journey has certain stages it must pass through. Following service of the Initial Writ upon the Defender, the Defender has 21 day to inform the court of their intention to defend the action. If the Defender wishes to defend the action they must lodge a Notice of Intention to Defend. This is commonly referred to as a NID. If a NID is lodged the court will set a timetable which both parties must adhere to. The Defender will have 14 days to lodge Defences. Both parties will then have 6 weeks in which they can make adjustments to their written case. After the 6 weeks period of adjustment the Initial Writ and the Defences are combined into a document called a Record. There would then be an Options Hearing at which the court will decide what to do next. In order to resolve the case a proof may be assigned. Time is allowed by the court for preparation by the parties for the proof.

In family actions involving children the court will assign a Child Welfare Hearing. The Sheriff may decide that a lawyer not connected with the case should be instructed to represent the interests of the child. That person is called a Curator ad Litem. Alternatively, the Sheriff may decide he/she wishes a Report to be prepared to assist the court to decide matters such as contact and residence. The person instructed by the court to prepare a report is called a Reporter. The report is available at proof for consideration by the Sheriff and parties.

When the Proof is over the Sheriff decides the case and gives his / her decision in a document called a judgement. Proofs are usually open to the public however sometimes the Court will decide the case is to be closed to the public. Very often Adoption cases are closed to the public.

Drummond Miller are very well placed to advise on all aspects of family law. As well as providing you with legal advice our team will keep you informed of the procedural journey your case takes and what each stage means. If you need advice about any aspect of family law such as contact, residence, adoption, separation, divorce, dissolution of civil partnership, please contact one of our offices. There are family law solicitors at our offices in Edinburgh, Musselburgh, Dalkeith and Bathgate.