Office of Public Sector Information
SCHEDULE 4 continued
(5) In section 12 (removal of foster children on complaint of local authority), for subsection (5) substitute—
“(5) For the purposes of section 24 of the Children (Scotland) Act 1995 (and for the reason mentioned in subsection (1)(c) of that section) a child removed under this section shall be regarded as requiring accommodation.”.
(6) In section 13 (which makes provision as to the effect of a refusal to allow a visit to a foster child or to allow premises to be inspected), for the words from “sections” to the end substitute “section 54 of the Children (Scotland) Act 1995 (child assessment orders) as giving the local authority reasonable cause for the suspicion mentioned in subsection (1)(a) of that section.”.
(7) In section 21(1) (interpretation)—
(a) in the definition of “residential establishment”, after the word “1968” insert “or of Part II of the Children (Scotland) Act 1995”; and
(b) for the definition of “supervision requirement”, substitute—
““supervision requirement” has the meaning given by section 69(1) of the Children (Scotland) Act 1995;”.
36 In section 2 of the Family Law (Scotland) Act 1985 (actions for aliment)—
(a) in subsection (2), for paragraph (c) substitute—
“(c) concerning parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) or guardianship in relation to children;”; and
(b) in subsection (4)(c), for sub-paragraph (iii) substitute—
“(iii) a person with whom the child lives or who is seeking a residence order (within the meaning of section 11(2)(c) of the Children (Scotland) Act 1995) in respect of the child.”.
37 (1) The Child Abduction and Custody Act 1985 shall be amended in accordance with this paragraph.
(2) In section 9 (suspension of court’s powers in cases of wrongful removal), for paragraph (d) substitute—
“(d) making, varying or discharging an order under section 86 of the Children (Scotland) Act 1995;”.
(3) In section 20 (further provision as regards suspension of court’s powers)—
(a) for paragraph (d) substitute—
“(d) in the case of proceedings for, or for the variation or discharge of, a parental responsibilities order under section 86 of the Children (Scotland) Act 1995, make, vary or discharge any such order;”; and
(b) in subsection (5), for the words “within the meaning of Part III of [1968 c. 49.] the Social Work (Scotland) Act 1968” substitute “(as defined in section 93(1) of the Children (Scotland) Act 1995)”.
(4) In section 25 (termination of existing custody orders etc.), subsection (6) shall cease to have effect.
(5) In section 27(4) (interpretation), after the word “Wales” insert “or Scotland”.
(6) In Schedule 3 (custody orders)—
(a) in paragraph 5—
(i) for the words “custody, care or control of a child or” substitute “residence, custody, care or control of a child or contact with, or”;
(ii) in sub-paragraph (iii), for the words “tutory or curatory” substitute “guardianship”;
(iii) in sub-paragraph (iv), for the words “16(8), 16A(3) or 18(3) of the Social Work (Scotland) Act 1968” substitute “86 of the Children (Scotland) Act 1995”; and
(iv) for sub-paragraph (v), substitute—
“(v) an order made, or warrant or authorisation granted, under or by virtue of Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995 to remove the child to a place of safety or to secure accommodation, to keep him at such a place or in such accommodation, or to prevent his removal from a place where he is being accommodated (or an order varying or discharging any order, warrant or authorisation so made or granted);”;
(b) for paragraph 6 substitute—
“6 A supervision requirement made by a children’s hearing under section 70 of the Children (Scotland) Act 1995 (whether or not continued under section 73 of that Act) or made by the sheriff under section 51(5)(c)(iii) of that Act and any order made by a court in England and Wales or in Northern Ireland if it is an order which, by virtue of section 33(1) of that Act, has effect as if it were such a supervision requirement.”; and
(c) paragraph 7 shall cease to have effect.
38 (1) The Law Reform (Parent and Child) (Scotland) Act 1986 shall be amended in accordance with this paragraph.
(2) In section 1 (legal equality of children), for subsection (3) substitute—
“(3) Subsection (1) above is subject to subsection (4) below, to section 9(1) of this Act and to section 3(1)(b) of the Children (Scotland) Act 1995 (parental responsibilities and parental rights of natural father).”.
(3) In section 6(2) (consent to taking of sample of blood), for the words from “guardian” to “custody or” substitute “any person having parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to him or having”.
39 (1) The Disabled Persons (Services, Consultation and Representation) Act 1986 shall be amended in accordance with this paragraph.
(2) In section 1(3) (regulations with respect to appointment of authorised representatives of disabled persons)—
(a) in paragraph (a), for the words from the beginning to “appoint” substitute— “may provide for—
(i) any person who has parental responsibilities in relation to a disabled person under the age of sixteen (“parental responsibilities” having the meaning given by section 1(3) of the Children (Scotland) Act 1995); or
(ii) any other person who is entitled to act as the disabled person’s legal representative (as defined in section 15(5) of the Children (Scotland) Act 1995),
to appoint”; and
(b) in paragraph (b), for the words “in the care of” substitute “looked after by.”
(3) In section 2 (rights of certain authorised representatives of disabled persons)—
(a) in subsection (3)(a), for the words “the words “the parent or guardian of” shall be inserted after the words “if so requested by”;” substitute “for the words “by the disabled person” there shall be substituted the words “by any person appointed by virtue of regulations made under section 1(3)(a)(i) or (ii) of this Act”;”; and
(b) in subsection (5), after paragraph (bb) insert—
“(bc) in Scotland, in accommodation provided by or on behalf of a local authority under Chapter 1 of Part II of the Children (Scotland) Act 1995, or”.
(4) In section 13(8)(b) (limitation on requirement for assessment of needs)—
(a) for the words “his parent” substitute “any person having parental responsibilities in relation to him”; and
(b) after the word “request” insert “(“parental responsibilities” having the meaning given in section 1(3) of the Children (Scotland) Act 1995)”.
(5) In section 16 (interpretation)—
(a) in the definition of “disabled person”, for paragraph (b) substitute—
“(b) in relation to Scotland, means—
(i) in the case of a person aged eighteen or over, one chronically sick or disabled or one suffering from mental disorder (being, in either case, a relevant person for the purposes of section 12 of the Social Work (Scotland) Act 1968; and
(ii) in any other case, a disabled child (“disabled child” being construed in accordance with Chapter 1 of Part II of the Children (Scotland) Act 1995);”;
(b) in the definition of “guardian”, paragraph (b) shall cease to have effect;
(c) in the definition of “the welfare enactments”, in paragraph (b), for the words “and sections 7 and 8 of the 1984 Act”, substitute “, sections 7 and 8 of the 1984 Act and Chapter 1 of Part II of the Children (Scotland) Act 1995”.
(d) the existing provisions as so amended shall be subsection (1) of the section and at the end of the section there shall be added—
“(2A) In this Act as it applies in relation to Scotland, any reference to a child who is looked after by a local authority shall be construed in accordance with section 17(6) of the Children (Scotland) Act 1995.”)
40 In section 41 of the Legal Aid (Scotland) Act 1986 (interpretation)—
(a) in the definition of “legal aid”, for the words “Part III of the Social Work (Scotland Act 1968” substitute “Chapter 2 or Chapter 3 of Part II of the Children (Scotland) Act 1995” and
(b) in the definition of “person”, the existing words from “does” to the end shall be paragraph (a) and after that paragraph there shall be added— “; and
(b) includes a person under the age of sixteen years.”.
41 (1) The Family Law Act 1986 shall be amended in accordance with this paragraph.
(2) In section 1(1)(b) (meaning of “custody order”)—
(a) for the words “custody, care or control of a child” substitute “residence, custody, care or control of a child, contact with or”; and
(b) in sub-paragraph (iv), for the words “for the custody of” substitute “giving parental responsibilities and parental rights in relation to”.
(3) In section 13 (jurisdiction ancillary to matrimonial proceedings)—
(a) in subsection (2), for the words “under section 9(1) of the [6 & 7 Eliz. c.40.] Matrimonial Proceedings (Children) Act 1958” substitute “in those proceedings”; and
(b) in subsection (4), for the words “under section 9(1) of the Matrimonial Proceedings (Children) Act 1958” substitute “in matrimonial proceedings where the court has refused to grant the principal remedy sought in the proceedings”.
(4) In section 15 (duration, variation and recall of orders)—
(a) in subsection (1)(b), for the words “for the custody of” substitute “relating to the parental responsibilities or parental rights in relation to”; and
(b) in subsection (4), for the words from the beginning to “above” substitute “Where, by virtue of subsection (1) above, a child is to live with a different person”.
(5) In section 17 (orders for delivery of child)—
(a) in subsection (3), for the words from “is the child” to “other party” substitute “, although not a child of both parties to the marriage, is a child of the family of those parties”; and
(b) at the end of the section add—
“(4) In subsection (3) above, “child of the family” means any child who has been treated by both parties as a child of their family, except a child who has been placed with those parties as foster parents by a local authority or a voluntary organisation.”.
(6) For section 26 (recognition: special Scottish rule), substitute—
An order relating to parental responsibilities or parental rights in relation to a child which is made outside the United Kingdom shall be recognised in Scotland if the order was made in the country where the child was habitually resident.”.
(7) In section 33(3) (power to order disclosure of child’s whereabouts), for the words “for the custody of” substitute “relating to parental responsibilities or parental rights in relation to”.
(8) In section 35(3) (power to restrict removal of child from jurisdiction), for the words “whose custody” substitute “whose care”.
(9) In section 42 (interpretation)—
(a) in subsection (1), before the definition of “part of the United Kingdom” insert—
““parental responsibilities” and “parental rights” have the meanings respectively given by sections 1(3) and 2(4) of the Children (Scotland) Act 1995;”; and
(b) in subsection (4)(b), for the words from “of one of the parties” to the end substitute “who has been treated by both parties as a child of their family, except a child who has been placed with those parties as foster parents by a local authority or a voluntary organisation;”.
42 In section 61 of the Housing (Scotland) Act 1987 (exemption from secure tenant’s right to purchase)—
(a) in subsection (4)(f)(iii), for the words “have left the care of” substitute “as children have been looked after by”; and
(b) after subsection (4) add—
“(4A) The reference in subsection (4)(f)(iii) above to children looked after by a local authority shall be construed in accordance with section 17(6) of the Children (Scotland) Act 1995.”.
43 In section 49(4)(b) of the Criminal Justice (Scotland) Act 1987 (right to have someone informed when detained), for the words “actual custody” substitute “care”.
44 In paragraph (a) of the definition of “civil proceedings” in section 9 of the Civil Evidence (Scotland) Act 1988 (interpretation)—
(a) the words “under section 42 of the Social Work (Scotland) Act 1968” shall cease to have effect;
(b) after the word “application” where it first occurs insert “under section 65(6) or (8) of the Children (Scotland) Act 1995”;
(c) after the word “established,” insert “or of an application for a review of such a finding under section 84 of that Act”;
(d) after the word “application” where it occurs for the second time insert “or, as the case may be, the review”; and
(e) for the words “32(2)(g)” substitute “51(2)(i)”.
45 In section 5 of the Court of Session Act 1988 (power to regulate procedure etc. by act of sederunt), after paragraph (e) insert—
“(ee) to permit a person who is not an advocate or solicitor and is not represented by an advocate or solicitor to transmit, whether orally or in writing, the views of a child to the Court for the purposes of any enactment which makes provision (however expressed) for the Court to have regard to those views;”.
46 In section 22(2) of the School Boards (Scotland) Act 1988 (interpretation), in the definition of “parent”, for the word “custody” substitute “parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to him or who has care”.
47 In section 80(1) of the Self-Governing Schools etc. (Scotland) Act 1989 (interpretation), in the definition of “parent”, for the words “the actual custody” substitute “parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to him or has care”.
48 (1) The Children Act 1989 shall be amended in accordance with this paragraph.
(2) In section 31(7)(b)(iii) (restriction on applications for care and supervision orders), for the words “the Social Work (Scotland) Act 1968” substitute “Part II of the Children (Scotland) Act 1995”.
(3) In section 51(7) (enactments which do not apply where a child is granted refuge), for paragraph (b) substitute—
“(b) sections 82 (recovery of certain fugitive children) and 83 (harbouring) of the Children (Scotland) Act 1995, so far as they apply in relation to anything done in England and Wales;”.
(4) In section 79(e) (application of Part X to Scotland), for the words from “in whom” to “vested” substitute “having parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) relating to the child”.
(5) In Schedule 8 (privately fostered children), in paragraph 3(b), for the words “the Social Work (Scotland) Act 1968” substitute “Part II of the Children (Scotland) Act 1995”.
49 (1) The Local Government and Housing Act 1989 shall be amended in accordance with this paragraph.
(2) In section 14(5) (restriction of effect of provisions of that section in relation to certain committees), for paragraph (d) substitute—
“(d) a Children’s Panel Advisory Committee formed under paragraph 3, or a joint advisory committee formed under paragraph 8, of Schedule 1 to the Children (Scotland) Act 1995;”.
50 (1) The Access to Health Records Act 1990 shall be amended in accordance with this paragraph.
(2) In section 3(1) (right of access to health records), for paragraphs (c) and (d) substitute—
“(cc) where the patient is a child, a person having parental responsibility for him;”.
(3) In section 4 (cases where right of access may be wholly excluded)—
(a) in subsection (1), for paragraphs (a) and (b) substitute “the patient is a child”; and
(b) in subsection (2), for the words “(1)(c) or (d)” substitute “(1)(cc)”.
(4) In section 5(3) (access to records not to be given where record compiled on basis that access would not be available to particular applicant), for the words “(1)(c), (d), (e) or (f)” substitute “(1)(cc), (e) or (f)”.
(5) In section 11 (interpretation), for the definition of “parental responsibility” substitute—
““parental responsibility”, in the application of this Act—
(a) to England and Wales, has the same meaning as in the [1989 c. 41.] Children Act 1989; and
(b) to Scotland, shall be construed as a reference to “parental responsibilities” within the meaning given by section 1(3) of the Children (Scotland) Act 1995.”.
51 In section 1(2)(a)(ii) (application), of the Horses (Protective Headgear for Young Riders) Act 1990, for the word “custody” substitute “parental responsibilities (within the meaning given by section 1(3) of the Children (Scotland) Act 1995) in relation to, or has”.
52 (1) The Child Support Act 1991 shall be amended in accordance with this paragraph.
(2) In section 3(4)(d) (interpretation), for the words from “having” to the end substitute “with whom a child is to live by virtue of a residence order under section 11 of the Children (Scotland) Act 1995.”.
(3) In section 5(1) (supplemental provisions as respects child support maintenance), the words “(or, in Scotland, parental rights over)”, in both places where they occur, shall cease to have effect.
(4) In section 54 (interpretation)—
(a) for the definition of “parental responsibility” substitute—
““parental responsibility”, in the application of this Act—
(a) to England and Wales, has the same meaning as in the [1968 c. 34 (N.I.)] Children Act 1989; and
(b) to Scotland, shall be construed as a reference to “parental responsibilities” within the meaning given by section 1(3) of the Children (Scotland) Act 1995;”; and
(b) the definition of “parental rights” shall cease to have effect.
53 (1) The Age of Legal Capacity (Scotland) Act 1991 shall be amended in accordance with this paragraph.
(2) In section 1(3) (age of legal capacity)—
(a) in sub-paragraph (i) of paragraph (f), for the words “who has no guardian or whose guardian” substitute “in relation to whom there is no person entitled to act as his legal representative (within the meaning of Part I of the Children (Scotland) Act 1995), or where there is such a person”; and
(b) in paragraph (g), for sub-paragraphs (i) and (ii) substitute “exercising parental responsibilities and parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) in relation to any child of his.”.
(3) In section 2 (exceptions to the general rule), after subsection (4) insert—
“(4A) A person under the age of sixteen years shall have legal capacity to instruct a solicitor, in connection with any civil matter, where that person has a general understanding of what it means to do so; and without prejudice to the generality of this subsection a person twelve years of age or more shall be presumed to be of sufficient age and maturity to have such understanding.
(4B) A person who by virtue of subsection (4A) above has legal capacity to instruct a solicitor shall also have legal capacity to sue, or to defend, in any civil proceedings.
(4C) Subsections (4A) and (4B) above are without prejudice to any question of legal capacity arising in connection with any criminal matter.”.
(4) In section 5(1) (construction of references to “tutor”)—
(a) the words “or tutory” shall cease to have effect; and
(b) for the words from “the guardian”, where they first appear, to the end substitute “a person entitled to act as a child’s legal representative (within the meaning of Part I of the Children (Scotland) Act 1995), and any reference to the tutory of such a child shall be construed as a reference to the entitlement to act as a child’s legal representative enjoyed by a person by, under or by virtue of the said Part I.”.
(5) In section 5(2) (restriction on appointment of guardian to person under sixteen), for the words from “section 3” to the end substitute “section 7 of the Children (Scotland) Act 1995.”.
54 (1) The Armed Forces Act 1991 shall be amended in accordance with this paragraph.
(2) In paragraph (f) of section 17(4) (persons to whom notice of an application for an assessment order must be given)—
(a) after the word “order” insert “—
(i)”; and
(b) at the end insert “; or
(ii) under section 88 of the Children (Scotland) Act 1995”.
(3) In paragraph (f) of section 18(7) (persons who may apply for variation etc. of assessment order)—
(a) after the word “order” insert “—
(i)”; and
(b) at the end insert “; or
(ii) under section 88 of the Children (Scotland) Act 1995”.
(4) In section 21(4) (which makes provision in relation to a child returned to the United Kingdom under a protection order under that Act) for the words “[1968 c. 49.] Social Work (Scotland) Act 1968” substitute “Children (Scotland) Act 1995”.
(5) In section 23(1) (interpretation)—
(a) in the definition of “contact order”—
(i) after the word “meaning” insert “—
(a) except in relation to an order made in Scotland,”; and
(ii) at the end, add “; and
(b) in relation to an order there made, given by section 11(2)(d) of the Children (Scotland) Act 1995.”; and
(b) in the definition of “parental responsibility”—
(i) after the word “responsibility” insert “—
(a) except in relation to Scotland,”; and
(ii) at the end add “; and
(b) in relation to Scotland, shall be construed as a reference to “parental responsibilities” within the meaning given by section 1(3) of the Children (Scotland) Act 1995;”.
55 In paragraph 61 in column 2 of Schedule 1 to the Tribunals and Inquiries Act 1992 (which specifies certain tribunals in relation to social work in Scotland)—
(a) in sub-paragraph (a), for the words “Social Work (Scotland) Act 1968 (c. 49)” substitute “Children (Scotland) Act 1995 (c. 00)”; and
(b) in sub-paragraph (b), for the words “that Act” substitute “the Social Work (Scotland) Act 1968 (c. 49)”.
56 (1) The Prisoners and Criminal Proceedings (Scotland) Act 1993 shall be amended in accordance with this paragraph.
(2) In paragraph 8 of Schedule 3 (which provides for the definition of certain expressions in relation to the admission of documentary evidence in criminal proceedings), in the definition of “criminal proceedings”—
(a) the words “under section 42 of the Social Work (Scotland) Act 1968” shall cease to have effect;
(b) after the word “application” where it appears for the first time insert “under section 65(6) or (8) of the Children (Scotland) Act 1995”;
(c) after the word “established” insert “or for a review of such a finding under section 85 of that Act”; and
(d) after the word “application” where it appears for the second time insert “or, as the case may be, the review”.
(3) In paragraph 1 of Schedule 6 (which provides for the definition of certain expressions in relation to transitional provisions), in the definition of “existing child detainee”, for the words “section 30 of the Social Work (Scotland) Act 1968” substitute “section 93(2)(b) of the Children (Scotland) Act 1995”.
57 (1) The Local Government etc. (Scotland) Act 1994 shall be amended in accordance with this paragraph.
(2) In section 128 (establishment of Scottish Children’s Reporter Administration)—
(a) in subsection (3), for the words from “the 1968 Act” to the end substitute “the Children (Scotland) Act 1995 and any other enactment conferring functions upon him”; and
(b) in subsection (8), for the words from “the 1968 Act” to the end substitue “the Children (Scotland) Act 1995 and any other enactment conferring functions upon him”.
(3) In section 130 (annual reports by Principal Reporter) in sub-paragraph (i) of paragraph (a) of subsection (1), for the words “the 1968 Act and the Criminal Procedure (Scotland) Act 1975” substitute “the Children (Scotland) Act 1995 and any other enactment (except this Act) conferring functions upon him”.
(4) In section 132 (duty of Administration to provide accommodation for children’s hearings), for the words “section 34 of the 1968 Act” substitute “section 39 of the Children (Scotland) Act 1995”.
58 In Article 70(7) of the Children (Northern Ireland) Order 1995 (enactments not to apply where child given refuge), in sub-paragraph (c), for the words “section 71 of the Social Work (Scotland) Act 1968” substitute “section 83 of the Children (Scotland) Act 1995”.
59 In section 2 of the Civil Evidence (Family Mediation) (Scotland) Act 1995 (which provides for exceptions to the general inadmissibility of evidence concerning family mediation), in paragraph (d)(ii)—
(a) for the words “Part III of the Social Work (Scotland) Act 1968” substitute “Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995”; and
(b) after the word “hearing” insert— “, before a sheriff or before a justice of the peace;
(iia) on any appeal arising from such proceedings as are mentioned in sub-paragraph (ii) above”.
60 In section 20 of the Criminal Justice (Scotland) Act 1995 (construction of sections relating to the admissibility of certain evidence)—
(a) in subsection (3), in the definition of “criminal proceedings”—
(i) for the words from “under” to “application” where it appears for the first substitute “of an application made under Chapter 3 of Part II of the Children (Scotland) Act 1995”; and
(ii) after the word “child” insert “or for a review of such a finding”; and
(b) in subsection (5), after the word “1968” insert “or by virtue of Chapter 3 of Part II of the Children (Scotland) Act 1995”.
Children (Scotland) Act 1995