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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10102
Experience:  30 years as a practising solicitor.
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This Question is under Scots law Is my application

Customer Question

This Question is for JGM under Scots law Is my application for welfare and financial guardianship competent? The sheriff said at the first hearing that my opponent’s application was lodged a few days before the expiry of the previous order and so she would
continue as guardian until these proceedings were concluded. He then said at the last hearing that section 71 of the act is no longer competent because my opponent’s guardianship order has expired and my son no longer has a guardian. And that section 57 would
be the competent section. No transcript was recorded that I know about. My application refers to section 71. Can I lodge a supplementary application to include section 57? Or, should I withdraw that application and lodge a new application referring to section
57? Also, Can I ask to be appointed as interim guardian until these proceedings are concluded under section 3 of the act?
Submitted: 12 months ago.
Category: Scots Law
Expert:  JGM replied 12 months ago.
If your opponent's application was for renewal of the guardianship order under section 60 then your application for replacement is properly made under section 71 as the existing guardianship order continues until determination of the section 71 application. However, if no such application was made and the guardianship order has expired, your correct course of action is to apply by Petition under section 57. I have no information as to what the original application to the sheriff was and I am making certain assumptions as a result.
Customer: replied 11 months ago.
The application for renewal was made under section 60 of the act as you assume. The guardianship order expired on the 11th of the month, (this was over 6 months ago). The sheriff clerk told me that the application for renewal was lodged on the 12th of the month. I included that fact in my answers. The sheriff said that the application had in fact been lodged on the 7th of the month and that I was simply wrong. He ruled that the order would continue in the way that you assume.The safeguarder has made me aware that if I am successful in preventing the guardianship order from being renewed that my son will be left without a guardian. Thus I have applied for sole welfare and financial guardianship under section 71 of the act.The sheriff recently corrected my opponent’s solicitor saying that section 71 of the act was not competent because proceedings had gone on so long and the existing guardianship order had expired. And that section 57 was the competent section. I find this confusing. Can the sheriff change things that way? Is there a technicality that he is aware of that isn’t obvious? Should I ask for clarification? Is there another course of action I should take? Or, should I just leave things as they are with my application under section 71 of the act?
Expert:  JGM replied 11 months ago.
I would say that step 1 is to go to the sheriff clerk's office and find out precisely when the application for renewal was made as it appears to me from what you say that this is a question of fact, irrespective of what the sheriff says. Subsequent procedure will be determined by the answer to that issue.
Customer: replied 11 months ago.
What proof can I ask for from the sheriff clerk if it turns out that the application was lodged after the 11th? They have a tendency to be a bit ratty.
Expert:  JGM replied 11 months ago.
The sheriff clerk has to give you the correct date. Lodging dates of all court documents are carefully recorded. You can look at the original application and it will be stamped with the date it was lodged.
Customer: replied 11 months ago.
Happy New year! Sorry that I disappeared for so long. The Sheriff said that the pre-proof information that I submitted was not nearly enough. He asked me for a full report on what I intended to prove and how I intended to prove it. I have just lodged a 72-page report. It was a bit of a flap to get it ready on time as it had to be intimated to all parties. They were supposed to intimate me also. This hasn’t happened, at this hearing or the last. Does that sound correct to you?I have been to the sheriff clerks office as you said. The original application for renewal was the 7th of the month. The previous order expired on the 11th. So my opponent should be continuing to act as guardian. That is how it is happening in practice. I am guessing that my application for guardianship should be under section 71 and not 57 as the sheriff said?I am also having some trouble with the Social Work department. They have not appointed an MHO to make a report to complete my application. My original request was well over 3 weeks ago. The person in charge of that department has become unreachable. This is reminiscent of the way that my application was sabotaged 3 years ago when the GP refused to provide a schedule 1 report. I am thinking I should raise this with the sheriff as time is getting short. What is the best way to do it? His favorite fraise seems to be, “that’s your responsibility”
Expert:  JGM replied 11 months ago.
Any documents required to be lodged by any party should be copied to the other parties.
From what you have confirmed the procedure here is that of a contested application for renewal of the guardianship order.
If the authority and the doctor haven't produced reports after having been asked to do so this is something that has to be raised with the court at the next diet.
Customer: replied 10 months ago.
What courses of action are available to me? I have intimated my opponent with my arguments as instructed by the sheriff. I have not received any intimation from my opponent regarding their counter arguments. They have had my answers since May of last year. My answers were detailed. (About 85 large paragraphs). I was told by the sheriff that my opponent is obliged to intimate me with the same information that he had requested of me. If I don’t receive any intimation, Can I ask that their arguments and evidence are disallowed on the grounds that I have not been able to prepare? Or can I ask that the proof hearing is postponed? I am also conscious that intimating my opposition with my evidence and arguments in advance compromises my case by giving them the opportunity to Prepare their answers and arguments whereas I have no such opportunity, they Have the opportunity to destroy evidence, fabricate evidence Etc. Please could you give me your thoughts on that?Again, I need you to farther my education, by Diet, do you mean the next Hearing?What can I expect the sheriff to do? I will need to be able to quote him the relevant legislation. He will simply refuse otherwise.
I intend to inform the sheriff that the local authority have not made an MHO’s report. I also have to inform him that I have a difficulty with 2 of the MHOs that are available. One of whom I am already informing the court that they have misled the court on 2 previous occasions. The other was heavily led by my opponent when I was making an opposing application 3 years ago. Thus, both are prejudiced against me. I have informed the chief social worker of this today. I am hoping that the local authority have more than 2 MHOs. The GP did not provide a schedule 1 report when I was making the aforementioned opposing application 3 years ago. Thus I have a difficulty with the medical reports if the sheriff changes his mind about using the existing medical reports provided by my opponent for her application. Again what can I reasonably ask the sheriff to do? And under what legislation can I justify my request with?
Expert:  JGM replied 10 months ago.
When is the diet of proof?
Customer: replied 10 months ago.
The pre-proof is on the 25th January 2016. I was told by the sheriff to intimates all parties before that date. I think he said 2 weeks before but I’m not sure. I’ve lodged my case 2 weeks before anyway. Its about 72 pages. The actual proof hearing is scheduled for the 15th of February.
Customer: replied 10 months ago.
The sheriff wanted to see what evidence could be agreed and what was disputed. I expect it will all be disputed.
Expert:  JGM replied 10 months ago.
The time to raise these issues is at the pre proof hearing. As far as the reports are concerned the old ones are out of date I presume. The sheriff may have to make an order to have these brought up to date.
Customer: replied 10 months ago.
The sheriff has a tendency to refuse anything I ask him for. I am going to try only asking for things based on specific legislation and see if that makes any difference. What can I competently ask him to do so that I can find a non-prejudiced MHO to provide a report and to make a relevant medical practitioner provide a schedule 1 report? Again, I need the relevant legislation. My requests will just be refused otherwise.
Customer: replied 10 months ago.
is this a situation where I would ask him to order a commission?
Customer: replied 10 months ago.
The sheriff has a tendency to ask me what I want him to do and then refuses what ever I ask him for. My requests seem to me to be logical, reasonable and in the interests of fair play. He usually tells me that he doesn't have that power. Hence my question what is it reasonable to ask him to do? As I have said I am having trouble communicating with this man. I am trying to find a way to ask for things that he will respect.

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