child Maintendnace And Enforcement Commission v. Smith [2011] ScotSC 6 (07 January 2011)

child Maintendnace And Enforcement Commission v. Smith [2011] ScotSC 6 (07 January 2011)

The sheriff failed to conduct the hearing in accordance with the normal rules of civil litigation, depriving the pursuer of the opportunity to present their case and test the defender's evidence, thus failing to hold the required inquiry under the 1991 Act.

Citation
[2011] ScotSC 6
Parties
Pursuer and Appellant: Child Maintenance and Enforcement Agency; Defender and Respondent: Mr. Garry John Smith
Jurisdiction
Scotland
Judgment Date
07 January 2011
Procedural Posture
Summary Application Under the Child Support Act 1991 / Appeal Against Sheriff's Interlocutor Dismissing Application
Outcome
appeal allowed
Legal Topics
Child Maintenance Enforcement, Judicial Inquiry Procedure, Rules of Evidence
Family Law Civil Procedure Child Maintenance Enforcement Judicial Inquiry Procedure Rules of Evidence

Case Brief

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Parties

Child Maintenance and Enforcement Agency

Pursuer and Appellant

Mr. Garry John Smith

Defender and Respondent

Procedural Posture

Summary Application Under the Child Support Act 1991 / Appeal Against Sheriff's Interlocutor Dismissing Application

Legal Issues

  1. 1 Whether the sheriff failed to conduct an inquiry as required by Section 39A of the Child Support Act 1991
  2. 2 Whether the sheriff deprived the pursuer of the opportunity to present their case and test the defender's evidence
  3. 3 Whether the sheriff's process complied with the rules of civil litigation

Ratio Decidendi

The sheriff failed to conduct the hearing in accordance with the normal rules of civil litigation, depriving the pursuer of the opportunity to present their case and test the defender's evidence, thus failing to hold the required inquiry under the 1991 Act.

Court Disposition

appeal allowed

Orders

  • interlocutor of 28 January 2010 recalled
  • cause remitted to another sheriff to fix a diet for hearing of evidence in an inquiry under Section 39A of the Child Support Act 1991