Office of Public Sector Information
Section 105(4).
1 (1) The Lands Clauses Consolidation (Scotland) Act 1845 shall be amended in accordance with this paragraph.
(2) In section 7 (which makes provision for certain persons to have full power to sell and convey land)—
(a) after the word “husbands,” insert “persons who, within the meaning of Part I of the Children (Scotland) Act 1995, are entitled to act as the legal representatives of a child,”;
(b) after the words “guardians for” the words “persons under a legal disability by reason of nonage” shall cease to have effect; and
(c) after the word “whether”, the words “persons under legal disability by reason of nonage” shall cease to have effect;
(d) after the word “such” where it appears for the sixth time, insert “legal representatives,”; and
(e) after the word “such” where it appears for the seventh time, the words “persons under legal disability by reason of nonage” shall cease to have effect.
(3) In section 67 (certain payments to persons under a disability to be deposited with the Bank)—
(a) after the word “husband,” insert “a person who, within the meaning of Part I of the Children (Scotland) Act 1995, is entitled to act as a legal representative of a child”; and
(b) the words “persons under legal disability by reason of nonage” shall cease to have effect.
(4) In section 69 (nomination of trustees to whom certain payments of under £200 may be paid)—
(a) the words “legal disability by reason of nonage” shall cease to have effect; and
(b) after the word “husbands,” insert “legal representatives of a child (within the meaning of Part I of the Children (Scotland) Act 1995),”.
(5) In section 70 (sums of under £20 to be paid to certain persons), after the word “husbands,” insert “legal representatives of a child (within the meaning of Part I of the Children (Scotland) Act 1995),”.
2 (1) The Judicial Factors (Scotland) Act 1849 shall be amended in accordance with this paragraph.
(2) In section 1 (interpretation), the words from “the word “Guardian”” to “years;” shall cease to have effect.
(3) In section 10 (duty of accountant to supervise judicial factors and others), for the words “guardians and tutors” substitute “, tutors”.
(4) Section 25(2) (guardians to be subject to the provisions of the Act), shall cease to have effect.
(5) In section 27 (limitation by court of amount of caution), the words “guardians and” shall cease to have effect.
(6) In section 31 (power of court to remove tutors etc.), the word “guardian” shall cease to have effect.
(7) In section 32 (provisions of the Act not to alter existing powers, rights and duties of offices), the word “guardian,” shall cease to have effect.
(8) In section 33 (power of accountant to obtain information from banks), the words “guardians or” shall cease to have effect.
(9) In section 34 (petitions for discharge of office), in both places where it occurs, the word “guardian,” shall cease to have effect.
(10) In section 34A (act of sederunt to provide for other forms of discharge), for the words “, death or coming of age” substitute “or death”.
(11) In section 36 (records held by accountant to be open to inspection), the word “guardianships,” shall cease to have effect.
(12) In section 37 (accumulation of interest on accounts), the word “guardian,” shall cease to have effect.
(13) In section 40 (act of sederunt to regulate inter alia application of the Act to offices other than judicial factors), in both places where it occurs, the word “guardians,” shall cease to have effect.
3 In section 24 of the Improvement of Land Act 1864 (representation of persons under disability in certain applications etc.), for the words from the beginning to “feoffee” where it last occurs substitute “Any person entitled to act as the legal representative of a person under legal disability by reason of non-age or mental incapacity shall be entitled to act on behalf of that person for the purposes of this Act; and any trustee, judicial factor, executor or administrator shall, subject to any other enactment, have the same rights and powers for the purposes of this Act as if the property vested in or administered by him had been vested in him in his own right; but no such legal representative”.
4 In section 3 of the Judicial Factors (Scotland) Act 1880 (interpretation), in the definition of “judicial factor”—
(a) for the word “absentis,” substitute “absentis and”; and
(b) the words from “and” to “required,” shall cease to have effect.
5 In section 13 of the Heritable Securities (Scotland) Act 1894 (persons to have powers conferred by Act where person subject to legal disability), for the words “and trustees” substitute “and—
(a) any person entitled, within the meaning of Part I of the Children (Scotland) Act 1995, to act as the legal representative of a child; and
(b) trustees”.
6 In section 2 of the Trusts (Scotland) Act 1921 (interpretation)—
(a) in the definition of “trustee” the words “(including a father or mother acting as guardian of a child under the age of 16 years)” shall cease to have effect; and
(b) after the definition of “trustee” insert—
““curator” and “tutor” shall have respectively the meanings assigned to these expressions by section 1 of the Judicial Factors Act 1849;
“guardian” shall not include any person who, within the meaning of Part I of the Children (Scotland) Act 1995, is entitled to act as the legal representative of a child;”.
7 (1) The Children and Young Persons (Scotland) Act 1937 shall be amended in accordance with this paragraph.
(2) In section 12 (cruelty to persons under sixteen)—
(a) in subsection (1), for the words from “has the custody” to “that age” substitute “who has parental responsibilities in relation to a child or to a young person under that age or has charge or care of a child or such a young person,”;
(b) in subsection (2)(a), after the words “young person” insert “or the legal guardian of a child or young person”; and
(c) in subsection (4), for the words from “of whom” to “or care” substitute “and he had parental responsibilities in relation to, or charge or care of, that child or young person”.
(3) In section 15 (causing or allowing persons under sixteen to be used for begging), in each of subsections (1) and (2), for the words “the custody” substitute “parental responsibilities in relation to, or having”.
(4) In section 22 (exposing children under seven to risk of burning), for the words from “having the custody” to “seven years” substitute “and who has parental responsibilities in relation to a child under the age of seven years or charge or care of such a child”.
(5) In section 27 (interpretation)—
(a) the first paragraph shall cease to have effect; and
(b) in the second paragraph, for the words “the custody of” substitute “parental responsibilities in relation to”.
(6) In section 110(1) (interpretation)—
(a) after the definition of “local authority” insert—
““parental responsibilities” has the same meaning as in section 1(3) of the Children (Scotland) Act 1995 and includes the responsibilities which a father would have as a parent but for the operation of section 3(1)(b) of that Act;”;
(b) for the definition of “Place of Safety”, substitute
““place of safety” has the meaning give by section 93(1) of the Children (Scotland) Act 1995;”; and
(c) for the definition of “Residential establishment” substitute
““residential establishment” has the meaning given by the said section 93(1);”.
8 In section 182(1) of the Mines and Quarries Act 1954 (interpretation), in the definition of “parent”, for the words from “means” to “and includes” substitute “means a parent of a young person or any person who is not a parent of his but who has parental responsibility for him (within the meaning of the [1989 c. 41.] Children Act 1989) or who has parental responsibilities in relation to him (within the meaning of section 1(3) of the Children (Scotland) Act 1995), and includes”.
9 In section 11(1) of the Matrimonial Proceedings (Children) Act 1958 (reports as to arrangements for future care and upbringing of children), for the words from the beginning to “the court may” substitute “Where the court is considering any question relating to the care and upbringing of a child, it may”.
10 In section 176(1) of the Factories Act 1961 (interpretation)—
(a) for the definition of “child” substitute—
““child” means any person who is not over—
(a) compulsory school age (construed in accordance with section 277 of the [1993 c. 35.] Education Act 1993); or
(b) school age (construed in accordance with section 31 of the [1980 c. 44.] Education (Scotland) Act 1980);”
(b) in the definition of “parent”, for the words from “means” to “and includes” substitute “means a parent of a child or young person or any person who is not a parent of his but who has parental responsibility for him (within the meaning of the Children Act 1989) or who has parental responsibilities in relation to him (within the meaning of section 1(3) of the Children (Scotland) Act 1995), and includes”.
11 In section 145(33) of the Education (Scotland) Act 1962 (interpretation), for the words “the actual custody of” substitute “parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to, or has the care of,”.
12 (1) The Registration of Births, Deaths and Marriages (Scotland) Act 1965 shall be amended in accordance with this paragraph.
(2) In section 20(3)(a) (re-registration of birth of person under sixteen), for sub-paragraphs (i) and (ii) substitute “, by any person (whether or not he has himself attained the age of sixteen years) having parental responsibilities in relation to that person;”.
(3) In section 43 (recording of baptismal name or change of name or surname)—
(a) in subsection (3), the words from “In this” to the end shall cease to have effect;
(b) in subsections (6)(a) and (7), for the words “the parent or guardian” substitute “the qualified applicant”;
(c) after subsection (9) insert—
“(9A) In this section “qualified applicant” means—
(a) where only one parent has parental responsibilities in relation to the child, that parent;
(b) where both parents have such responsibilities in relation to the child, both parents; and
(c) where neither parent has such responsibilities, any other person who has such responsibilities.
(9B) A person may be a qualified applicant for the purposes of this section whether or not he has attained the age of sixteen years”; and
(d) subsection (10) shall cease to have effect.
(4) In section 53(3)(c) (offence of failure by parent to give information concerning birth), after the word “fails” insert “without reasonable excuse”.
(5) In section 56(1) (interpretation), after the definition of “parentage” insert—
““parental responsibilities” has the meaning given in section 1(3) of the Children (Scotland) Act 1995;”
13 Where, at any time after the coming into force of the [1991 c. 50.] Age of Legal Capacity (Scotland) Act 1991 but before the coming into force of—
(a) sub-paragraph (2) of paragraph 12 of this Schedule, a person’s mother or father, who had not at that time attained the age of sixteen years, purported to apply under section 20(3)(a) of that Act to re-register the person’s birth, the mother, or as the case may be the father, shall be presumed to have had legal capacity to make the application; or
(b) sub-paragraph (3)(c) of that paragraph, a person who had not at that time attained the age of sixteen years purported to make an application under any provision of section 43 of that Act (“making an application” including for the purposes of this sub-paragraph, without prejudice to the generality of that expression, signing and delivering a certificate in accordance with subsection (3) of that section) the person shall be presumed to have had legal capacity to make the application.
14 In section 8 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1966 (variation and recall of certain orders in respect of maintenance, custody etc.)—
(a) in subsection (1), after paragraph (c) insert—
“(cc) an order under section 11 of the Children (Scotland) Act 1995 (orders in respect of parental responsibilities etc.) or under any earlier enactment relating to the custody, care or supervision of a child, or access to a child;”; and
(b) in subsection (6), in the definition of “sheriff”, in paragraph (a), for the words “or (c)” substitute “, (c) or (cc)”.
15 (1) The Social Work (Scotland) Act 1968 shall be amended in accordance with this paragraph.
(2) In section 1(1) (duty of local authority to implement statutory duties not falling on other authorities), after the word “Act” insert “or Part II of the Children (Scotland) Act 1995”.
(3) In section 4 (arrangements for provision of assistance to local authorities by other bodies), after “1984” insert “or Part II of the Children (Scotland) Act 1995”.
(4) In section 5 (powers of the Secretary of State in relation to certain functions of local authorities)—
(a) in subsection (1) after the word “Act” insert “and Part II of the Children (Scotland) Act 1995”;
(b) in subsection (1B)—
(i) before paragraph (o), the word “and” shall cease to have effect; and
(ii) at the end add “; and
(p) Part II of the Children (Scotland) Act 1995.”;
(c) in subsection (2), in paragraph (c) for the words “and (o)” substitute “, (o) and (p)”; and
(d) for subsection (3) substitute—
“(3) Without prejudice to the generality of subsection (2) above, regulations under this section may make such provision as is mentioned in subsection (4) of this section as regards—
(a) the boarding out of persons other than children by local authorities and voluntary organisations, whether under any enactment or otherwise; and
(b) the placing of children under paragraph (a), or the making of arrangements in respect of children under paragraph (c), of section 26(1) of the Children (Scotland) Act 1995, by local authorities.
(4) The provision referred to in subsection (3) of this section is—
(a) for the recording—
(i) by local authorities and voluntary organisations, of information relating to those with whom persons are so boarded out, or who are willing to have persons so boarded out with them; and
(ii) by local authorities, of information relating to those with whom children are so placed or with whom such arrangements are made or who are willing to have children so placed with them or to enter into such arrangements;
(b) for securing that—
(i) persons are not so boarded out in any household unless it is for the time being approved by such local authority or voluntary organisation as may be prescribed by the regulations; and
(ii) children are not so placed or, in accordance with such arrangements, provided with accommodation, in any household unless it is for the time being approved by the local authority placing the child or as the case may be making the arrangements;
(c) for securing that, where possible, the person with whom a child is so placed or with whom such arrangements are made is either of the same religious persuasion as the child or gives an undertaking that the child shall be brought up in that persuasion;
(d) for securing—
(i) that a person who is, and the place in which he is, so boarded out by a local authority or voluntary organisation is supervised and inspected by that authority or organisation; and
(ii) that a child who is, and the place in which he is, so placed or, in accordance with such arrangements, provided with accommodation, by a local authority is supervised and inspected by that authority,
and that he shall be removed from the place in question if his welfare appears to require it.
(5) In subsections (3) and (4) of this section, “child” has the same meaning as in Chapters 2 and 3 of Part II of the Children (Scotland) Act 1995.”
(5) In section 5B (requirement to establish complaints procedures)—
(a) in subsection (4), in paragraph (b), for the words “rights in respect of” substitute “responsibilities and parental rights (within the meaning of section 1(3) and section 2(4) respectively of the Children (Scotland) Act 1995) in relation to”; and
(b) in subsection (5), at the end of the definition of “child”, the words from “and” to the end of the subsection shall cease to have effect.
(6) In section 6 (power to enter certain establishments to conduct examination)—
(a) in subsection (1)—
(i) in paragraph (a), after the word “1984” insert “or Part II of the Children (Scotland) Act 1995”;
(ii) in paragraph (b), sub-paragraph (ii) shall cease to have effect;
(iii) in paragraph (c), after the word “person” insert “, other than a child,”; and
(iv) after paragraph (c) add—
“(cc) any place where a child is for the time being accommodated under paragraph (a) of, or by virtue of paragraph (c) of, section 26(1) of the Children (Scotland) Act 1995.”; and
(b) in subsection (2), after the words “1984” insert “or Part II of the Children (Scotland) Act 1995”.
(7) For subsection (1) of section 6A (power of the Secretary of State to hold inquiries), substitute—
“(1) Without prejudice to section 6B(1) of this Act, the Secretary of State may cause an inquiry to be held into—
(a) the functions of a local authority under this Act or any of the enactments mentioned in section 5(1B) of this Act;
(b) the functions of an adoption society, within the meaning of section 65 of the [1978 c. 28.] Adoption (Scotland) Act 1978;
(c) the functions of a voluntary organisation in so far as those functions relate to establishments to which sections 61 to 68 of this Act apply;
(d) the detention of a child under—
(i) section 57 of the [1937 c. 37.] Children and Young Persons (Scotland) Act 1937; or
(ii) section 206 or 413 of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975; or
(e) the functions of the Principal Reporter under Part III of the [1994 c. 39.] Local Government (Scotland) Act 1994, the Children (Scotland) Act 1995 or any other enactment.”
(8) In section 9 (powers of the Secretary of State with regard to training etc.), in subsections (1) and (2), after the word “Act” insert “or Part II of the Children (Scotland) Act 1995”.
(9) In section 10(1) (making of grants and loans for social work), for the words “and (l)” substitute “, (l) and (p)”.
(10) In section 11(1) (local authority authorised by Secretary of State to purchase compulsorily land), in subsection (1), after the word “Act” insert “or Part II of the Children (Scotland) Act 1995”.
(11) In section 12 (general social welfare services of local authorities), for the words from “be given” in subsection (1) to “a person” in subsection (2)(b) substitute— “, subject to subsections (3) to (5) of this section, be given in kind or in cash to, or in respect of, any relevant person.
(2) A person is a relevant person for the purposes of this section if, not being less than eighteen years of age, he is”.
(12) In section 28 (burial or cremation)—
(a) in subsection (1), after the word “from,” insert “or was a child being looked after by,”; and
(b) after subsection (2) add—
“(3) In subsection (1) of this section, the reference to a child being looked after by a local authority shall be construed in accordance with section 17(6) of the Children (Scotland) Act 1995.”.
(13) In section 29 (power of local authority to defray expenses of parents etc. visiting persons accommodated by a local authority or attending certain funerals)—
(a) in subsection (1)—
(i) for the words from “a person” to “respect” substitute— “—
(a) a person, other than a child, in the care of the authority or receiving assistance from the authority; or
(b) a child who is being looked after by the authority,
in respect”;
(ii) after the words “visiting the person” insert “or child”; and
(iii) for the words “the person”, where they occur for the second time, substitute “him”;
(b) in subsection (2), for the words from “a person” to “for” substitute— “—
(a) a person, other than a child, who had been in the care of the authority or receiving assistance from the authority; or
(b) a child who had been looked after by the authority,
for”; and
(c) after subsection (2), add—
“(3) In subsections (1) and (2) above, references to a child looked after by a local authority shall be construed as is mentioned in subsection (3) of section 28 of this Act.”.
(14) Part III (children in need of compulsory measures of care) shall cease to have effect, with the exception of subsections (1) and (3) of section 31 and the amendments provided for by the said subsection (3) and contained in Schedule 2 to that Act.
(15) In section 59(1) (provision and maintenance of residential and other establishments) after the word “Act,”, where it occurs for the second time, insert “or under Part II of the Children (Scotland) Act 1995,”
(16) In section 68 (visiting of persons in establishments)—
(a) in subsection (2), for the words “in the care or under the supervision of the authority under Part II or Part III of this Act” substitute “being looked after by the authority”; and
(b) after subsection (3) add—
“(4) In subsection (2) of this section, the reference to children being looked after by a local authority shall be construed in accordance with section 17(6) of the Children (Scotland) Act 1995.”.
(17) In section 78 (duty to make contributions in respect of children in care etc.)—
(a) in subsection (1)—
(i) for the words “has been received into care under Part II of this Act” substitute “is being looked after by a local authority”; and
(ii) in paragraph (a), for the words “his father and mother” substitute “any natural person who has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to him”; and
(b) for subsection (2) substitute—
“(2) This Part of this Act applies to any supervision requirement which, under paragraph (a) of section 70(3) of the Children (Scotland) Act 1995, requires the child concerned to reside in a place or places other than his own home.”.
(18) In section 78A (recovery of contributions), in subsection (2)(a), for the words “in their care or under their supervision” substitute “looked after by them”.
(19) In section 79 (recipients of contributions)—
(a) in subsection (1), for the words “in the care or under the supervision of” substitute “looked after by”; and
(b) in subsection (2), for the words “having the care or supervision of” substitute “looking after”.
(20) In section 80 (enforcement of duty to make contributions)—
(a) in subsection (1), for the words from “received” to “requirement” substitute “looked after by a local authority”;
(b) in subsection (4), for paragraphs (a) and (b) substitute “throughout the period during which he is looked after by a local authority”;
(c) in subsection (5), for the words “is the maintainable child’s father or mother” substitute “, being a natural person, has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to the maintainable child”; and
(d) in subsection (7), for the words “having the care or supervision of” substitute “looking after”.
(21) In section 82(1) (recovery of arrears of contributions), for the words “having the care or supervision of” substitute “looking after”.
(22) In section 83(2) (variation of trusts where person in whose care a child has been residing is for the time being residing in England, Wales or Northern Ireland), for the words “having the care or supervision of” substitute “looking after”.
(23) After section 83 insert—
In this Part of this Act, references to a child being looked after by a local authority shall be construed in accordance with section 17(6) of the Children (Scotland) Act 1995.”.
(24) In section 86 (adjustments between local authorities as regards certain expenditure)—
(a) in subsection (1)—
(i) in paragraph (a), after the word “Act” insert “, or under section 25 of the Children (Scotland) Act 1995,”; and
(ii) in paragraph (b), for the words from “of services” to “Act”, where it occurs for the second time, substitute “, or under or by virtue of Part II of the said Act of 1995, of services and facilities for a person ordinarily so resident (including, in the case of a child, any expenses incurred after he has ceased to be a child, and, in the event of another local authority taking over, under section 24(4) of that Act, the provision of accommodation for him,”; and
(b) in subsection (3), after the words “1989” insert “or provided with accommodation under paragraph (a) of, or by virtue of paragraph (c) of, section 26(1) of the Children (Scotland) Act 1995”.
(25) In section 87 (charges which may be made for services and accommodation), in each of subsections (1) and (1A), after the words “1984” there shall be inserted “or under or by virtue of Part II of the Children (Scotland) Act 1995”.
(26) Section 88 (duty of parents to notify change of address) shall cease to have effect.
(27) In section 90(1) (power to make regulations, orders or rules), the words “(other than orders under section 52 and 58 and Part V of this Act)”) shall cease to have effect.
(28) In section 94(1) (interpretation)—
(a) the definition of “children’s panel” and of “children’s hearing” shall cease to have effect;
(b) the definition of “compulsory measures of care” shall cease to have effect;
(c) in the definition of “establishment”, after the word “Act,” insert “or of Part II of the Children (Scotland) Act 1995,”;
(d) the definition of “guardian” shall cease to have effect;
(e) for the definition of “parent” substitute—
““parent” means either parent or both parents, except that where the child was born out of wedlock and the parents have not subsequently married each other it means the natural mother but not the natural father;”;
(f) the definition of “place of safety” shall cease to have effect;
(g) in the definition of “prescribed”—
(i) in paragraph (a), for the words “sections 3 and 36” substitute “section 3”; and
(ii) paragraph (b) shall cease to have effect;
(h) in the definition of “residential establishment”, after the word “Act” insert “or of Part II of the Children (Scotland) Act 1995”;
(i) the definition of “school age” shall cease to have effect;
(j) in the definition of “supervision requirement”, for the words “section 44(1) of this Act” substitute “section 70(1) of the Children (Scotland) Act 1995”.
(k) for the definition of “training school” substitute—
““training school” has the meaning assigned to it by section 180(1) of the Children and Young Persons Act (Northern Ireland) 1968;”)
(29) In section 97 (provisions of the Act which extend to England and Wales)—
(a) subsection (1), the words “section 44(1) (except head (b)) and (1A)”, “section 58” and “Part V” shall cease to have effect; and
(b) subsections (2) and (3) shall cease to have effect.
(30) In Schedule 2 (general adaptations of Part IV of [1937 c. 37.] Children and Young Persons (Scotland) Act 1937), for paragraph 1 substitute—
“1 Any reference to a child or to a young person shall be construed as a reference to a child as defined in section 93(2)(b) of the Children (Scotland) Act 1995.”.
Children (Scotland) Act 1995