Office of Public Sector Information
PART II continued CHAPTER 1 continued
(3) For section 61A there shall be substituted—
(1) A grant-aided or independent school, provided it is not a residential establishment the whole or a substantial part of whose functions is as described in subsection (1)(a) of section 61 of this Act, may be carried on by a person without his being registered in respect of it as mentioned in subsection (2) of that section; but he may if he wishes apply in accordance with section 62, or as the case may be 63, of this Act for such registration.
(2) Sections 62(8) and (8A) and 65 of this Act shall not apply in relation to establishments as respects which registration has been by virtue of subsection (1) above.”.
(4) After section 62 there shall be inserted—
A certificate of registration granted under section 62 of this Act as respects an establishment which is a grant-aided, or independent, school shall relate to the whole of the establishment except so much as is used exclusively for educational purposes.”.
(5) In section 65(1) (removal of persons from establishment), after the word “ought”—
(a) where it first occurs, there shall be inserted “(by virtue of subsections (2) and (3)) of section 61 of this Act)”; and
(b) where it occurs for the second time, there shall be inserted “(by virtue of the said subsections (2) and (3))”.
(6) For section 67 there shall be substituted—
(1) A person duly authorised by a local authority may in the area of that authority, at all reasonable times, enter, for a relevant purpose—
(a) any establishment as regards which a person is registered, or ought (by virtue of subsections (2) and (3) of section 61 of this Act) to be registered, under section 62 of this Act; or
(b) any place which the person so authorised has reasonable cause to believe is being used as such an establishment,
and subsections (2A) to (2D), (4) and (5) of section 6 of this Act shall apply in respect of a person so authorised as they apply in respect of a person duly authorised under subsection (1) of that section.
(2) “Relevant purpose” in subsection (1) above means—
(a) the purpose of making such examinations into the state and management of the establishment or place, and the condition and treatment of the persons in it, as the person so authorised thinks necessary; or
(b) the purpose of inspecting any records, or registers (in whatever form they are held) relating to the place, or to any person for whom, under or by virtue of this Act, section 7 (functions of local authorities) or 8 (provision of after-care services) of the [1984 c. 36.] Mental Health (Scotland) Act 1984, or Part II of the [1995 c. 36.] Children (Scotland) Act 1995, services are being or have been provided in the place.”.
After section 125 of the [1980 c. 44.] Education (Scotland) Act 1980 there shall be inserted—
Where, for the purposes of his being in attendance at a school, a child or young person is provided with residential accommodation, in a place in or outwith that school, by—
(a) an education authority, the board of management of a self-governing school or the managers of a grant-aided or independent school; or
(b) by any other person in pursuance of arrangements made by any such authority, board of management or managers,
the authority, board of management or managers in question shall have the duty to safeguard and promote the welfare of the child or young person while he is so accommodated; and the powers of inspection exercisable by virtue of section 66(1) of this Act shall include the power to inspect the place to determine whether his welfare is adequately safeguarded and promoted there.”.
(1) Where a child is provided with residential accommodation by a person mentioned in subsection (3) below and it appears to the person that the child either—
(a) has had no parental contact for a continuous period of three months or more; or
(b) is likely to have no parental contact for a period which, taken with any immediately preceding period in which the child has had no such contact, will constitute a continuous period of three months or more,
the person shall (whether or not the child has been, or will be, so accommodated throughout the continuous period) so notify the local authority in whose area the accommodation is provided.
(2) A local authority receiving notification under subsection (1) above shall—
(a) take such steps as are reasonably practicable to enable them to determine whether the child’s welfare is adequately safeguarded and promoted while he is so accommodated; and
(b) consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child.
(3) The persons are—
(a) any health board constituted under section 2 of the [1978 c. 29.] National Health Service (Scotland) Act 1978;
(b) any national health service trust established under section 12A of that Act;
(c) any person carrying on—
(i) a private hospital registered under Part IV of the [1984 c. 36.] Mental Health (Scotland) Act 1984; or
(ii) a nursing home in respect of which either he is registered under section 1(3) of the [1938 c. 73.] Nursing Homes Registration (Scotland) Act 1938 or exemption has been granted under section 6 or 7 of that Act.
(4) For the purposes of subsection (1) above, a child has parental contact only when in the presence of a person having parental responsibilities in relation to him.
(5) A person duly authorised by a local authority may in the area of that authority, at all reasonable times, enter for the purposes of subsection (2) above or of determining whether there has been compliance with subsection (1) above any such place as is mentioned in sub-paragraph (i) or (ii) of subsection (3)(c) above and may for those purposes inspect any records or registers relating to that place; and subsections (2A) to (2D) and (4) of section 6 of the [1968 c. 49.] Social Work (Scotland) Act 1968 (exercise of powers of entry and inspection) shall apply in respect of a person so authorised as they apply in respect of a person duly authorised under subsection (1) of that section.
In paragraph 2 of Schedule 9 to the [1989 c. 41.] Children Act 1989 (which provides for regulations disqualifying certain persons from registration as a child minder or as a provider of day care for young children), at the end of sub-paragraph (1) there shall be added “unless he has—
(a) disclosed the fact to the appropriate local authority; and
(b) obtained their written consent.”.
(1) Where a child appears—
(a) to a local authority to be at risk of harm, they may at the child’s request—
(i) provide him with refuge in a residential establishment both controlled or managed by them and designated by them for the purposes of this paragraph; or
(ii) arrange for a person whose household is approved by virtue of section 5(3)(b) of the [1968 c. 49.] Social Work (Scotland) Act 1968 (provision for securing that persons are not placed in any household unless the household has prescribed approval) and is designated by them for the purposes of this paragraph, to provide him with refuge in that household,
for a period which does not exceed the relevant period;
(b) to a person who carries on a residential establishment in respect of which the person is for the time being registered (as mentioned in section 61(2) of that Act), or to any person for the time being employed in the management of that establishment, to be at risk of harm, the person to whom the child so appears may at the child’s request provide him with refuge, for a period which does not exceed the relevant period, in the establishment but shall do so only if and to the extent that the local authority within whose area the establishment is situated have given their approval to the use of the establishment (or a part of the establishment) for the purposes of this paragraph.
(2) The Secretary of State may by regulations make provision as to—
(a) designation, for the purposes of paragraph (a) of subsection (1) above, of establishments and households;
(b) application for, the giving of and the withdrawal of, approval under paragraph (b) of subsection (1) above;
(c) requirements (if any) which must be complied with while any such approval remains in force;
(d) the performance by a person mentioned in the said paragraph (b) of anything to be done by him under that paragraph;
(e) the performance by a local authority of their functions under this section; and
(f) the giving, to such persons or classes of person as may be specified in the regulations, of notice as to the whereabouts of a child provided with refuge under this section,
and regulations made under this subsection may include such incidental and supplementary provisions as he thinks fit.
(3) While a child is being provided with refuge under, and in accordance with regulations made under, this section, none of the enactments mentioned in subsection (4) below shall apply in relation to him unless the commencement of the period of refuge has followed within two days of the termination of a prior period of refuge so provided to him by any person.
(4) The enactments are—
(a) section 89 of this Act and, so far as it applies in relation to anything done in Scotland, section 83 of this Act; and
(b) section 32(3) of the [1969 c. 54.] Children and Young Persons Act 1969 (compelling, persuading, inciting or assisting any person to be absent from detention etc.), so far as it applies in relation to anything done in Scotland.
(5) References in this section to the relevant period shall be construed as references either to a period which does not exceed seven days or, in such exceptional circumstances as the Secretary of State may prescribe, to a period which does not exceed fourteen days.
(6) A child who is provided with refuge for a period by virtue of such arrangements as are mentioned in subsection (1)(a) above shall not be regarded as a foster child for the purposes of the [1984 c. 56.] Foster Children (Scotland) Act 1984 by reason only of such provision.
(1) For every local government area there shall be a children’s panel for the purposes of this Act, and any other enactment conferring powers on a children’s hearing (or on such a panel).
(2) Schedule 1 to this Act shall have effect with respect to the recruitment, appointment, training and expenses of members of a children’s panel and the establishment of Children’s Panel Advisory Committees and joint advisory committees.
(3) Sittings of members of the children’s panel (to be known as “children’s hearings”) shall be constituted from the panel in accordance with subsection (5) below.
(4) A children’s hearing shall be constituted for the performance of the functions given to such a hearing by or by virtue of—
(a) this Act; or
(b) any other enactment conferring powers on a children’s hearing.
(5) A children’s hearing shall consist of three members, one of whom shall act as chairman; and shall not consist solely of male, or solely of female, members.
(1) The qualifications of a reporter shall be such as the Secretary of State may prescribe.
(2) A reporter shall not, without the consent of the Scottish Children’s Reporter Administration, be employed by a local authority.
(3) The Secretary of State may make regulations in relation to the functions of any reporter under this Act and the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975.
(4) The Secretary of State and the Lord Advocate may—
(a) by regulations empower a reporter, whether or not he is an advocate or solicitor, to conduct before a sheriff any proceedings which under this Chapter or Chapter 3 of this Part of this Act are heard by the sheriff;
(b) prescribe such requirements as they think fit as to qualifications, training or experience necessary for a reporter to be so empowered.
(5) In this section, “reporter” means—
(a) the Principal Reporter; or
(b) any officer of the Scottish Children’s Reporter Administration to whom there is delegated, under section 131(1) of the [1994 c. 39.] Local Government etc. (Scotland) Act 1994, any of the functions which the Principal Reporter has under this or any other enactment.
(1) Subject to subsection (2) below, in any proceedings under this Chapter or Chapter 3 of this Part of this Act either at a children’s hearing or before the sheriff, the hearing or, as the case may be, the sheriff—
(a) shall consider if it is necessary to appoint a person to safeguard the interests of the child in the proceedings; and
(b) if they, or he, so consider, shall make such an appointment, on such terms and conditions as appear appropriate.
(2) Subsection (1) above shall not apply in relation to proceedings under section 57 of this Act.
(3) Where a children’s hearing make an appointment under subsection (1)(b) above, they shall state the reasons for their decision to make that appointment.
(4) The expenses of a person appointed under subsection (1) above shall—
(a) in so far as reasonably incurred by him in safeguarding the interests of the child in the proceedings, and
(b) except in so far as otherwise defrayed in terms of regulations made under section 101 of this Act,
be borne by the local authority—
(i) for whose area the children’s panel from which the relevant children’s hearing has been constituted is formed;
(ii) where there is no relevant children’s hearing, within whose area the child resides.
(5) For the purposes of subsection (4) above, “relevant children’s hearing” means, in the case of proceedings—
(a) at before a children’s hearing, that hearing;
(b) under section 68 of this Act, the children’s hearing who have directed the application;
(c) on an appeal under section 51 of this Act, the children’s hearing whose decision is being appealed against.
(1) Subject to the following provisions of this Act, the Secretary of State may make rules for constituting and arranging children’s hearings and other meetings of members of the children’s panel and for regulating their procedure.
(2) Without prejudice to the generality of subsection (1) above, rules under that subsection may make provision with respect to—
(a) the conduct of, and matters which shall or may be determined by, a business meeting arranged under section 64 of this Act;
(b) notification of the time and place of a children’s hearing to the child and any relevant person in relation to the child and to such other persons as may be prescribed;
(c) how the grounds for referring the case to a children’s hearing under section 65(1) of this Act are to be stated, and the right of the child and any such relevant person to dispute those grounds;
(d) the making available by the Principal Reporter, subject to such conditions as may be specified in the rules, of reports or information received by him to—
(i) members of the children’s hearing;
(ii) the child concerned;
(iii) any relevant person; and
(iv) any other person or class of persons so specified;
(e) the procedure in relation to the disposal of matters arising under section 41(1) of this Act;
(f) the functions of any person appointed by a children’s hearing under section 41(1) of this Act and any right of that person to information relating to the proceedings in question;
(g) the recording in writing of any statement given under section 41(3) of this Act;
(h) the right to appeal to the sheriff under section 51(1)(a) of this Act against a decision of the children’s hearing and notification to such persons as may be prescribed of the proceedings before him;
(i) the right of the child and of any such relevant person to be represented at a children’s hearing;
(j) the entitlement of the child, of any such relevant person and of any person who acts as the representative of the child or of any such relevant person to the refund of such expenses, incurred by the child or as the case may be the person or representative, as may be prescribed in connection with a children’s hearing and with any proceedings arising from the hearing;
(k) persons whose presence shall be permitted at a children’s hearing.
(1) Subject to subsection (3) below, a children’s hearing shall be conducted in private, and, subject to any rules made under section 42 of this Act, no person other than a person whose presence is necessary for the proper consideration of the case which is being heard, or whose presence is permitted by the chairman, shall be present.
(2) The chairman shall take all reasonable steps to ensure that the number of persons present at a children’s hearing at any one time is kept to a minimum.
(3) The following persons have the right to attend a children’s hearing—
(a) a member of the Council on Tribunals, or of the Scottish Committee of that Council, in his capacity as such; and
(b) subject to subsection (4) below, a bona fide representative of a newspaper or news agency.
(4) A children’s hearing may exclude a person described in subsection (3)(b) above from any part or parts of the hearing where, and for so long as, they are satisfied that—
(a) it is necessary to do so, in the interests of the child, in order to obtain the child’s views in relation to the case before the hearing; or
(b) the presence of that person is causing, or is likely to cause, significant distress to the child.
(5) Where a children’s hearing have exercised the power conferred by subsection (4) above to exclude a person, the chairman may, after that exclusion has ended, explain to the person the substance of what has taken place in his absence.
(1) No person shall publish any matter in respect of proceedings at a children’s hearing, or before a sheriff on an application under section 57, section 60(7), section 65(6) or (8), section 76(1) or section 85(1) of this Act, or on any appeal under this Part of this Act, which is intended to, or is likely to, identify—
(a) any child concerned in the proceedings or appeal; or
(b) an address or school as being that of any such child.
(2) Any person who contravenes subsection (1) above shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale in respect of each such contravention.
(3) It shall be a defence in proceedings for an offence under this section for the accused to prove that he did not know, and had no reason to suspect, that the published matter was intended, or was likely, to identify the child or, as the case may be, the address or school.
(4) In this section “to publish” includes, without prejudice to the generality of that expression,—
(a) to publish matter in a programme service, as defined by section 201 of the [1990 c. 42.] Broadcasting Act 1990 (definition of programme service); and
(b) to cause matter to be published.
(5) The requirements of subsection (1) above may, in the interests of justice, be dispensed with by—
(a) the sheriff in any proceedings before him;
(b) the Court of Session in any appeal under section 51(11) of this Act; or
(c) the Secretary of State in relation to any proceedings at a children’s hearing,
to such extent as the sheriff, the Court or the Secretary of State as the case may be considers appropriate.
(1) Where a child has been notified in accordance with rules made under subsection (1) of section 42 of this Act by virtue of subsection (2)(b) of that section that his case has been referred to a children’s hearing, he shall—
(a) have the right to attend at all stages of the hearing; and
(b) subject to subsection (2) below, be under an obligation to attend those stages in accordance with the notice.
(2) Without prejudice to subsection (1)(a) above and section 65(4) of this Act, where a children’s hearing are satisfied—
(a) in a case concerned with an offence mentioned in Schedule 1 to the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975, that the attendance of the child is not necessary for the just hearing of that case; or
(b) in any case, that it would be detrimental to the interests of the child for him to be present at the hearing of his case,
they may release the child from the obligation imposed by subsection (1)(b) above.
(3) Subject to subsection (2) above, the Principal Reporter shall be responsible for securing the attendance of the child at the hearing of his case by a children’s hearing (and at any subsequent hearing to which the case is continued under section 69(1)(a) of this Act).
(4) On the application of the Principal Reporter, a children’s hearing, if satisfied on cause shown that it is necessary for them to do so, may issue, for the purposes of subsection (3) above, a warrant under this subsection to find the child, to keep him in a place of safety and to bring him before a children’s hearing.
(5) Where a child has failed to attend a children’s hearing in accordance with such notice as is mentioned in subsection (1) above, they may, either on the application of the Principal Reporter or of their own motion, issue a warrant under this subsection, which shall have the same effect as a warrant under subsection (4) above.
(6) A child who has been taken to a place of safety under a warrant granted under this section shall not be kept there after whichever is the earlier of—
(a) the expiry of seven days beginning on the day he was first so taken there; or
(b) the day on which a children’s hearing first sit to consider his case in accordance with subsection (7) below.
(7) Where a child has been found in pursuance of a warrant under this section and he cannot immediately be brought before a children’s hearing, the Principal Reporter shall, wherever practicable, arrange a children’s hearing to sit on the first working day after the child was so found.
(8) Subject to section 46 of this Act, a person who is a relevant person as respects a child shall, where a children’s hearing are considering the case of the child—
(a) have the right to attend at all stages of the hearing; and
(b) be obliged to attend at all stages of the hearing unless the hearing are satisfied that it would be unreasonable to require his attendance or that his attendance is unnecessary for the proper consideration of the case.
(9) Any person who fails to attend a hearing which, under subsection (8)(b) above, he is obliged to attend shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(1) Where a children’s hearing are considering the case of a child in respect of whom a person is a relevant person, they may exclude that person, or that person and any representative of his, or any such representative, from any part or parts of the hearing for so long as is necessary in the interests of the child, where they are satisfied that—
(a) they must do so in order to obtain the views of the child in relation to the case before the hearing; or
(b) the presence of the person or persons in question is causing, or is likely to cause, significant distress to the child.
(2) Where a children’s hearing exercise the power conferred by subsection (1) above, the chairman of the hearing shall, after that exclusion has ended, explain to any person who was so excluded the substance of what has taken place in his absence.
(1) Where a children’s hearing has been arranged in respect of any person, the hearing—
(a) shall, at the commencement of the proceedings, make inquiry as to his age and shall proceed with the hearing only if he declares that he is a child or they so determine; and
(b) may, at any time before the conclusion of the proceedings, accept a declaration by the child, or make a fresh determination, as to his age.
(2) The age declared to, or determined by, a children’s hearing to be the age of a person brought before them shall, for the purposes of this Part of this Act, be deemed to be the true age of that person.
(3) No decision reached, order continued, warrant granted or requirement imposed by a children’s hearing shall be invalidated by any subsequent proof that the age of a person brought before them had not been correctly declared to the hearing or determined by them.
(1) Where a children’s hearing are satisfied, in relation to a case which they are hearing, that it could be better considered by a children’s hearing constituted from a children’s panel for a different local government area, they may at any time during the course of the hearing request the Principal Reporter to arrange for such other children’s hearing to dispose of the case.
(2) Where a case has been transferred in pursuance of subsection (1) above, the grounds of referral accepted or established for the case shall not require to be further accepted or established for the purposes of the children’s hearing to which the case has been transferred.
(1) In section 173 of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975 (reference or remission to children’s hearing where child guilty of an offence: solemn proceedings), for subsections (1) to (3) there shall be substituted—
“(1) Where a person who is charged with an offence and pleads guilty to, or is found guilty of, that offence is a child who is not subject to a supervision requirement, the court on that plea or finding may—
(a) instead of making an order, remit the case to the Principal Reporter to arrange a children’s hearing to dispose of the case; or
(b) request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the child.
(2) Where a person, who is charged with an offence and pleads guilty to, or is found guilty of, that offence, is aged sixteen years or over and is subject to a supervision requirement, the court if it is—
(a) the High Court, may; and
(b) the sheriff court shall,
proceed in accordance with either paragraph (a) or (b) of subsection (1) above.
(3) Where a child who is charged with an offence and pleads guilty to, or is found guilty of, that offence—
(a) is aged under sixteen years; and
(b) is subject to a supervision requirement,
the court dealing with the case if it is—
(i) the High Court, may; and
(ii) the sheriff court, shall,
request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the child.
(3A) Where a court has obtained the advice of a children’s hearing in pursuance—
(a) of paragraph (b) of subsection (1) above; or
(b) of subsection (3) above,
the court, after consideration of the advice received from the children’s hearing may, as it thinks proper, itself dispose of the case or remit the case as mentioned in paragraph (a) of the said subsection (1).”.
(2) In section 372 of that Act (reference or remission to children’s hearing where child guilty of an offence: summary proceedings), for subsections (1) to (3) there shall be substituted—
“(1) Where a person who is charged with an offence and pleads guilty to, or is found guilty of, that offence is a child who is not subject to a supervision requirement the court on that plea or finding may—
(a) instead of making an order, remit the case to the Principal Reporter to arrange a children’s hearing to dispose of the case; or
(b) request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the child.
(2) Where a person, who is charged with an offence and pleads guilty to, or is found guilty of, that offence, is aged sixteen years or over and is subject to a supervision requirement, the court shall proceed in accordance with either paragraph (a) or (b) of subsection (1) above.
(3) Where a child who is charged with an offence and pleads guilty to, or is found guilty of, that offence and—
(a) is aged under sixteen years; and
(b) is subject to a supervision requirement,
the court dealing with the case shall request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the child.
(3A) Where a court has obtained the advice of a children’s hearing in pursuance—
(a) of paragraph (b) of subsection (1) above; or
(b) of subsection (3) above,
the court, after consideration of the advice received from the children’s hearing may, as it thinks proper, itself dispose of the case or remit the case as mentioned in paragraph (a) of the said subsection (1).”.
Children (Scotland) Act 1995