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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11143
Experience:  30 years as a practising solicitor.
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I am opposing an application to the Scottish Sherriff Court

Resolved Question:

I am opposing an application to the Scottish Sherriff Court for renewal of a welfare and financial guardianship order. I am representing myself. The guardian has prevented me from getting legal aid. There have been two hearings at the Sherriff court. A
safeguarder has been appointed to the adult. I had made complaints of neglect to the social work department prior to the hearings. I have heard from the social work department asking me for permission to disclose my reports of neglect to my opponent’s (the
guardian’s) solicitors. My Questions are; 1. Is there any part of law or due proses that obliges me by law to give that consent? 2. Is there any reason why I wouldn’t intimate my opponent’s solicitors 2 weeks before a proof hearing if one is ever set by the
Sherriff? 3. Given that the guardian has refused consent for me to have disclosure to any of the adult’s files, should I indicate that I want consent for disclosure before I will give consent. 4. Are any of these actions likely to be frowned upon by a Sherriff
or compromise me in any way?
Submitted: 2 years ago.
Category: Scots Law
Customer: replied 2 years ago.
This is a different question to the one before. It is just the first few sentences of explanatory text that are the same. Although, if someone is researching the matter before answering, I appreciate their time and trouble.
Expert:  JGM replied 2 years ago.
1. No, but I don't see why you wouldn't want your reports to be disclosed to the court.
2. In summary application procedure, the sheriff would normally indicate the exact procedure but in the absence of a specific direction the summary application rules would apply which would be 14 days.
3. I would not conduct this type of litigation on a tit for tat basis, no.
4. A lack of candour or an obvious attempt to act otherwise than in interests of progressing the litigation in the best interests of the ward will be frowned on by the court.
Customer: replied 2 years ago.
I do want these reports to come to the attention of the court. I intend to produce them as evidence. However, I am worried that if my reports are made available to the guardian to early they will alert the guardian to cover her tracks. E. g. The adult has been subject to neglect. One of its forms has been a poor standard of care. this occurs when the adult is not in my care. I have been refused contact to remedy this. No other remedy has been attained. I would like the safeguarder mentioned in my previous question to see it for himself. The Guardian, (my opponent), is capable of caring properly for the adult. for whatever reason, she just doesn't. If the guardian sees my reports she will care for the adult for the safeguarder's benefit. By experience, when the authorities backs are turned the adult will be neglected again. Social work and the Mental Welfare Commission have demonstrated that they will not act on matters. How do the courts typically address a problem like this?
Expert:  JGM replied 2 years ago.
So you want the guardian not to care for the adult so that you can prove that she didn't care before?
I would have thought that a safeguarder's appointment would be enough to make her start caring.
A court will want to see your evidence and will be wise enough to know that these proceedings will instigate a higher standard of care on the part of the guardian. For that reason all you can do is present your evidence for what it is and the court will be able to put it into context.
If you start playing tactics it will backfire on you and that is what you don't want to happen.
Customer: replied 2 years ago.
Thank you! When I give my consent for my reports to be disclosed, do I have the right to ask for copies or details of what has been disclosed along with their report to the guardian's solicitor? and if I do, do they have the right to refuse.
Expert:  JGM replied 2 years ago.
As a party to the action you are entitled to copies of anything that the guardian is entitled to.
Customer: replied 2 years ago.
Now that the action is in progress does that include the adult's social work, medical and education files? (there has been neglect in each of these areas.) If so, can you tell me which sections of which acts would entitle me to that? I expect they will avoid disclosing that information to me if they can.
Expert:  JGM replied 2 years ago.
Again this is the summary application rules that I have already mentioned to you before which gives the sheriff a discretion as to the procedure. You would have to apply to the court for an order in respect of these files.
Customer: replied 2 years ago.
Please excuse me for asking for such detailed references. I am dyslexic and it is difficult for me to look things up. I use the "Scottish Legislation" web site. I haven't found a tab or field to do a word search in an opened act. If you use the site yourself, have you found anything like that? Or, can you recommend a better site?The next hearing is in late august. Do I have to wait until then to apply for an order, or should I make an application to the sheriff clerk? If so, what kind of application should I make? Also, would it require a hearing for the sheriff to grant the order? And how long would the court typically take to process such an order?
Expert:  JGM replied 2 years ago.
I use www.legislation.gov.uk
To search I tend to save the latest version of the Act as a PDF file and then use the word finder in the Adobe programme to find references to what I want.
You can apply to the court by way of motion for a specification of documents provided that your Answers refer to these documents and ask for production of them. Generally you can ask for such an orde at any time but you can't embark on a fishing expedition which is why your written case has to be relevant as regards ***** *****
The sheriff will generally follow the procedure laid down in the sheriff court Ordinary Cause Rules for documents and you can get these rules at www.scotcourts.gov.uk
Customer: replied 2 years ago.
I have mentioned in my answers that I don't have any powers of disclosure. Is that too generic? I can only point to misconduct by the local authority. The adult's files may have more conclusive proof than what I already have. I don't know what's in the adult's files until I see them. Do you know of any way that I can get copies of them? Or is that something a safeguarder would do if he deemed it necessary.I understand your answer about requesting an order for specific documents. In practice, if its within the safeguarder's power and remit I would try that avenue first. However, can I just be clear for the future, would it be dismissed by a sheriff if I made a motion along the lines of; "I suspect misconduct or foul play, "a", "b" and "c" are the reasons why, access to the adult's file may provide proof (such as long term negligence)", and request an order?
Expert:  JGM replied 2 years ago.
You have averments about the standard of care so your specification of documents would be for "such documents as tend to show reports as to the standard of care by the guardian" or words to that effect.
The safeguarder in any event may get access for the purposes of his report.
JGM and 2 other Scots Law Specialists are ready to help you
Customer: replied 2 years ago.
thanks again!