SECRETARY OF STATE FOR WORKS AND PENSIONS v. JAMES McCULLOCH [2009] ScotSC 58 (06 January 2009)

SECRETARY OF STATE FOR WORKS AND PENSIONS v. JAMES McCULLOCH [2009] ScotSC 58 (06 January 2009)

The sheriff erred by failing to make the mandatory inquiries required by Section 39A(3) of the Child Support Act 1991 before dismissing the action. The requirements of the statute are mandatory and must be followed.

Citation
[2009] ScotSC 58
Parties
Appellant and Pursuer: Secretary of State for Work and Pensions; Respondent and Defender: James McCulloch
Jurisdiction
Scotland
Judgment Date
06 January 2009
Procedural Posture
Appeal / Appeal Against Dismissal of Action at Proof Hearing
Outcome
Appeal allowed; interlocutor of 25 July 2008 recalled; case remitted for inquiry under Section 39A of the Child Support Act 1991.
Legal Topics
Child Support, Enforcement of Maintenance Orders, Procedural Fairness
Family Law Social Security Law Child Support Enforcement of Maintenance Orders Procedural Fairness

Case Brief

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Parties

Secretary of State for Work and Pensions

Appellant and Pursuer

James McCulloch

Respondent and Defender

Procedural Posture

Appeal / Appeal Against Dismissal of Action at Proof Hearing

Legal Issues

  1. 1 Whether the sheriff erred in dismissing the action without making mandatory inquiries under Section 39A of the Child Support Act 1991
  2. 2 Whether the requirements of Section 39A(3) are mandatory and were complied with

Ratio Decidendi

The sheriff erred by failing to make the mandatory inquiries required by Section 39A(3) of the Child Support Act 1991 before dismissing the action. The requirements of the statute are mandatory and must be followed.

Court Disposition

Appeal allowed; interlocutor of 25 July 2008 recalled; case remitted for inquiry under Section 39A of the Child Support Act 1991.

Orders

  • Allows the appeal
  • Recalls the interlocutor of 25 July 2008