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Sheriff court – what’s happening with my case?

Recent guidance from the sheriff courts may open the door for clients re-starting divorce or child contact cases, but how things will work in practice remains unclear.

Following the lockdown all ‘active’ court cases were administratively adjourned or sisted by order of the sheriff.

Since then, courts have only been dealing with ‘urgent’ matters, which have related to issues where there was a time restriction on the claim (time bar) or where the order was deemed necessary as it fell into one of the limited acceptable categories such as child protection orders, interim orders for interdicts, non-harassment orders and so on.

From a family law perspective, a number of people, of course, have been waiting on news of divorce decrees. These were deemed not urgent and were put on hold. Matters relating to children such as child contact have similarly been paused.

This meant a person pursuing contact with their child, and who had a child welfare hearing assigned, was unable to progress that contact without the consent of the other parent, and we cover this in more detail in a previous post.

Updated guidance

On 1 May, the sheriff courts issued further guidance to allow some actions to be re-started, but stressed this wasn’t business as usual and attached to it certain requirements before the sheriff would allow it to proceed.

For civil actions, which include family work, individuals who are representing themselves or your solicitor have to prove —

  • There is good reason to re-start the case
  • The case can progress remotely
  • A hearing requiring the leading of evidence is not required

If the person seeking to re-start the case thinks they can satisfy these elements they need to submit a form to the opposing solicitor or party, who then have two working days to either agree or to set out their opposition.

Either way the papers need to be submitted to the sheriff for consideration and they make a decision.

The outcome

While no doubt this will go some of the way to opening the door for family clients to try and get their case restarted, it will probably still be confusing for many individuals.

Plus, whether many cases will be capable of being restarted remains to be seen.

The reality is if the sheriff decides the case should not restart, individuals will be left waiting until the government lifts the lockdown or until the courts issue further guidance.

If you are experiencing difficulty with your family law matter and would like to chat through your options, please do get in touch.

Emma Somerville

Emma has a wealth of experience of appearing regularly in the sheriff court in both criminal, child and family cases. She assists clients, both in and out of court, with a wide range of other family matters, including separation; child residence and contact; cohabitation agreements; adoption; and divorce.

Posted, 17 May 2020 by Emma Somerville
Categories: Coronavirus | Coronavirus and family law | Family law | Insights | Private client