ALLISON ELABY OR McEWEN v. ANGUS DEWSON McEWEN [2000] ScotSC 22 (25th August, 2000)

ALLISON ELABY OR McEWEN v. ANGUS DEWSON McEWEN [2000] ScotSC 22 (25th August, 2000)

The action was incompetent because all orders sought were section 11 orders, which must be made by minute in the divorce process under OCR 33.44. No exceptional circumstances justified departure from the mandatory procedural rule. The interim orders and the action were therefore recalled and dismissed.

Citation
[2000] ScotSC 22
Parties
Pursuer and Respondent: Allison Elaby or McEwen; Defender and Appellant: Angus Dewson McEwen
Jurisdiction
Scotland
Procedural Posture
Family Law (residence Order, Delivery, Interdict) / Appeal From Interim Orders in Sheriff Court
Outcome
Appeal allowed; action dismissed as incompetent; interim orders recalled.
Legal Topics
Residence Orders, Competency of Proceedings, Section 11 Children (scotland) Act 1995, Ordinary Cause Rules, Interim Orders, Jurisdiction, Procedural Requirements
Family Law Civil Procedure Residence Orders Competency of Proceedings Section 11 Children (scotland) Act 1995 Ordinary Cause Rules Interim Orders Jurisdiction +1 more

Case Brief

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Parties

Allison Elaby or McEwen

Pursuer and Respondent

Angus Dewson McEwen

Defender and Appellant

Procedural Posture

Family Law (residence Order, Delivery, Interdict) / Appeal From Interim Orders in Sheriff Court

Legal Issues

  1. 1 Whether the action for a residence order, delivery, and interdict was competent when not brought by minute in the divorce process as required by OCR 33.44
  2. 2 Whether the Sheriff erred in granting interim residence and delivery orders
  3. 3 Whether the welfare of the child justified departure from procedural rules

Ratio Decidendi

The action was incompetent because all orders sought were section 11 orders, which must be made by minute in the divorce process under OCR 33.44. No exceptional circumstances justified departure from the mandatory procedural rule. The interim orders and the action were therefore recalled and dismissed.

Court Disposition

Appeal allowed; action dismissed as incompetent; interim orders recalled.

Orders

  • Interim residence order and interim order for delivery recalled
  • Action dismissed as incompetent