Office of Public Sector Information
PART II continued CHAPTER 2 continued
(1) Where a court has, under section 173, 372 or 373 of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975, remitted a case to a children’s hearing for disposal, a certificate signed by the clerk of the court stating that the child or person concerned has pled guilty to, or has been found guilty of, the offence to which the remit relates shall be conclusive evidence for the purposes of the remit that the offence has been committed by the child or person.
(2) Where a court has under the said section 373 remitted a case to a children’s hearing for disposal, the provisions of this Act shall apply to the person concerned as if he were a child.
(1) Subject to subsection (15) below, a child or a relevant person (or relevant persons) or both (or all)—
(a) may, within a period of three weeks beginning with the date of any decision of a children’s hearing, appeal to the sheriff against that decision; and
(b) where such an appeal is made, shall be heard by the sheriff.
(2) The Principal Reporter shall, in respect of any appeal under subsection (1) above, ensure that all reports and statements available to the hearing, along with the reports of their proceedings and the reasons for the decision, are lodged with the sheriff clerk.
(3) The sheriff may, on appeal under subsection (1) above, hear evidence from, or on behalf of, the parties in relation to the decision; and, without prejudice to that generality the sheriff may—
(a) examine the Principal Reporter;
(b) examine the authors or compilers of any reports or statements; and
(c) call for any further report which he considers may assist him in deciding the appeal.
(4) Where the sheriff decides that an appeal under this section has failed, he shall confirm the decision of the children’s hearing.
(5) Where the sheriff is satisfied that the decision of the children’s hearing is not justified in all the circumstances of the case he shall allow the appeal, and—
(a) where the appeal is against a warrant to find and keep or, as the case may be, to keep a child in a place of safety, he shall recall the warrant;
(b) where the child is subject to a supervision requirement containing a condition imposed under section 70(9) of this Act, he shall direct that the condition shall cease to have effect; and
(c) in any case, he may, as he thinks fit—
(i) remit the case with reasons for his decision to the children’s hearing for reconsideration of their decision; or
(ii) discharge the child from any further hearing or other proceedings in relation to the grounds for the referral of the case; or
(iii) substitute for the disposal by the children’s hearing any requirement which could be imposed by them under section 70 of this Act.
(6) Where a sheriff imposes a requirement under subsection (5)(c)(iii) above, that requirement shall for the purposes of this Act, except of this section, be treated as a disposal by the children’s hearing.
(7) Where the sheriff is satisfied that an appeal under subsection (1) above against the decision of a children’s hearing arranged under section 73(8) of this Act is frivolous, he may order that no subsequent appeal against a decision to continue (whether with or without any variation) the supervision requirement in question shall lie until the expiration of twelve months beginning with the date of the order.
(8) An appeal under subsection (1) above in respect of the issue of a warrant by a children’s hearing shall be disposed of within three days of the lodging of the appeal; and failing such disposal the warrant shall cease to have effect at the end of that period.
(9) Where a child or a relevant person appeals under subsection (1) above against a decision of a children’s hearing in relation to a supervision requirement, the child or the relevant person may make application to a children’s hearing for the suspension of the requirement appealed against.
(10) It shall be the duty of the Principal Reporter forthwith to arrange a children’s hearing to consider the application under subsection (9) above, and that hearing may grant or refuse the application.
(11) Subject to subsections (13) and (15) below, an appeal shall lie by way of stated case either on a point of law or in respect of any irregularity in the conduct of the case—
(a) to the sheriff principal from any decision of the sheriff—
(i) on an appeal under subsection (1) of this section;
(ii) on an application made under section 65(7) or (9) of this Act; or
(iii) on an application made under section 85(1) of this Act; and
(b) to the Court of Session from any decision of the sheriff such as is mentioned in sub-paragraphs (i) to (iii) of paragraph (a) above and, with leave of the sheriff principal, from any decision of the sheriff principal on an appeal under that paragraph; and the decision of the Court of Session in the matter shall be final.
(12) An appeal under subsection (11) above may be made at the instance of—
(a) the child or any relevant person, either alone or together; or
(b) the Principal Reporter on behalf of the children’s hearing.
(13) An application to the sheriff, or as the case may be the sheriff principal, to state a case for the purposes of an appeal under subsection (11)(a) or (b) above shall be made within a period of twenty-eight days beginning with the date of the decision appealed against.
(14) On deciding an appeal under subsection (11) above the sheriff principal or as the case may be the Court of Session shall remit the case to the sheriff for disposal in accordance with such directions as the court may give.
(15) No appeal shall lie under this section in respect of—
(a) a decision of the sheriff on an application under section 57 of this Act; or
(b) a decision of a children’s hearing continuing a child protection order under section 59(4) of this Act.
(1) The question of whether compulsory measures of supervision are necessary in respect of a child arises if at least one of the conditions mentioned in subsection (2) below is satisfied with respect to him.
(2) The conditions referred to in subsection (1) above are that the child—
(a) is beyond the control of any relevant person;
(b) is falling into bad associations or is exposed to moral danger;
(c) is likely—
(i) to suffer unnecessarily; or
(ii) be impaired seriously in his health or development,
due to a lack of parental care;
(d) is a child in respect of whom any of the offences mentioned in Schedule 1 to the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975 (offences against children to which special provisions apply) has been committed;
(e) is, or is likely to become, a member of the same household as a child in respect of whom any of the offences referred to in paragraph (d) above has been committed;
(f) is, or is likely to become, a member of the same household as a person who has committed any of the offences referred in paragraph (d) above;
(g) is, or is likely to become, a member of the same household as a person in respect of whom an offence under sections 2A to 2C of the [1976 c. 67.] Sexual Offences (Scotland) Act 1976 (incest and intercourse with a child by step-parent or person in position of trust) has been committed by a member of that household;
(h) has failed to attend school regularly without reasonable excuse;
(i) has committed an offence;
(j) has misused alcohol or any drug, whether or not a controlled drug within the meaning of the [1971 c. 38.] Misuse of Drugs Act 1971;
(k) has misused a volatile substance by deliberately inhaling its vapour, other than for medicinal purposes;
(l) is being provided with accommodation by a local authority under section 25, or is the subject of a parental responsibilities order obtained under section 86, of this Act and, in either case, his behaviour is such that special measures are necessary for his adequate supervision in his interest or the interest of others.
(3) In this Part of this Act, “supervision” in relation to compulsory measures of supervision may include measures taken for the protection, guidance, treatment or control of the child.
(1) Where information is received by a local authority which suggests that compulsory measures of supervision may be necessary in respect of a child, they shall—
(a) cause inquiries to be made into the case unless they are satisfied that such inquiries are unnecessary; and
(b) if it appears to them after such inquiries, or after being satisfied that such inquiries are unnecessary, that such measures may be required in respect of the child, give to the Principal Reporter such information about the child as they have been able to discover.
(2) A person, other than a local authority, who has reasonable cause to believe that compulsory measures of supervision may be necessary in respect of a child—
(a) shall, if he is a constable, give to the Principal Reporter such information about the child as he has been able to discover;
(b) in any other case, may give the Principal Reporter that information.
(3) A constable shall make any report required to be made under paragraph (b) of section 17(1) of the [1967 c. 77.] Police (Scotland) Act 1967 (duty to make reports in relation to commission of offences) in relation to a child to the Principal Reporter as well as to the appropriate prosecutor.
(4) Where an application has been made to the sheriff—
(a) by the Principal Reporter in accordance with a direction given by a children’s hearing under section 65(7) or (9) of this Act; or
(b) by any person entitled to make an application under section 84 of this Act,
the Principal Reporter may request any prosecutor to supply him with any evidence lawfully obtained in the course of, and held by the prosecutor in connection with, the investigation of a crime or suspected crime, being evidence which may assist the sheriff in determining the application; and, subject to subsection (5) below, it shall be the duty of the prosecutor to comply with such a request.
(5) A prosecutor may refuse to comply with a request issued under subsection (4) above where he reasonably believes that it is necessary to retain the evidence for the purposes of any proceedings in respect of a crime, whether the proceedings have been commenced or are to be commenced by him.
(6) The Lord Advocate may direct that in any specified case or class of cases any evidence lawfully obtained in the course of an investigation of a crime or suspected crime shall be supplied, without the need for a request under subsection (4) above, to the Principal Reporter.
(7) In subsections (3), (4) and (5) above “crime” and “prosecutor” have the same meanings respectively given by section 462 of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975.
(1) Where in any relevant proceedings it appears to the court that any of the conditions in section 52(2)(a) to (h), (j), (k) or (l) of this Act is satisfied with respect to a child, it may refer the matter to the Principal Reporter, specifying the condition.
(2) In this section “relevant proceedings” means—
(a) an action for divorce or judicial separation or for declarator of marriage, nullity of marriage, parentage or non-parentage;
(b) proceedings relating to parental responsibilities or parental rights within the meaning of Part I of this Act;
(c) proceedings for an adoption order under the [1978 c. 28.] Adoption (Scotland) Act 1978 or for an order under section 18 of that Act declaring a child free for adoption; and
(d) proceedings for an offence against section 35 (failure by parent to secure regular attendance by his child at a public school), 41 (failure to comply with attendance order) or 42(3) (failure to permit examination of child) of the [1980 c. 44.] Education (Scotland) Act 1980.
(3) Where the court has referred a matter to the Principal Reporter under subsection (1) above, he shall—
(a) make such investigation as he thinks appropriate; and
(b) if he considers that compulsory measures of supervision are necessary,
arrange a children’s hearing to consider the case of the child under section 69 of this Act; and subsection (1) of that section shall apply as if the condition specified by the court under subsection (1) above were a ground of referral established in accordance with section 68 of this Act.
(1) A sheriff may grant an order under this section for an assessment of the state of a child’s health or development, or of the way in which he has been treated (to be known as a “child assessment order”), on the application of a local authority if he is satisfied that—
(a) the local authority have reasonable cause to suspect that the child in respect of whom the order is sought is being so treated (or neglected) that he is suffering, or is likely to suffer, significant harm;
(b) such assessment of the child is required in order to establish whether or not there is reasonable cause to believe that the child is so treated (or neglected); and
(c) such assessment is unlikely to be carried out, or be carried out satisfactorily, unless the order is granted.
(2) Where—
(a) an application has been made under subsection (1) above; and
(b) the sheriff considers that the conditions for making a child protection order under section 57 of this Act are satisfied,
he shall make such an order under that section as if the application had been duly made by the local authority under that section rather than this section.
(3) A child assessment order shall—
(a) specify the date on which the assessment is to begin;
(b) have effect for such period as is specified in the order, not exceeding seven days beginning with the date specified by virtue of paragraph (a) above;
(c) require any person in a position to produce the child to—
(i) produce him to any authorised person;
(ii) permit that person or any other authorised person to carry out an assessment in accordance with the order; and
(iii) comply with any other conditions of the order; and
(d) be carried out by an authorised person in accordance with the terms of the order.
(4) A child assessment order may—
(a) where necessary, permit the taking of the child concerned to any place for the purposes of the assessment; and
(b) authorise the child to be kept at that place, or any other place, for such period of time as may be specified in the order.
(5) Where a child assessment order makes provision under subsection (4) above, it shall contain such directions as the sheriff considers appropriate as to the contact which the child shall be allowed to have with any other person while the child is in any place to which he has been taken or in which he is being kept under a child assessment order.
(6) In this section “authorised person” means any officer of the local authority, and any person authorised by the local authority to perform the assessment, or perform any part of it.
(1) Where the Principal Reporter receives information from any source about a case which may require a children’s hearing to be arranged he shall, after making such initial investigation as he thinks necessary, proceed with the case in accordance with subsection (4) or (6) below.
(2) For the purposes of making any initial investigation under subsection (1) above, the Principal Reporter may request from the local authority a report on the child and on such circumstances concerning the child as appear to him to be relevant; and the local authority shall supply the report which may contain such information, from any person whomsoever, as the Principal Reporter thinks, or the local authority think, fit.
(3) A report requested under subsection (2) above may contain information additional to that given by the local authority under section 53 of this Act.
(4) The Principal Reporter may decide, after an initial investigation under subsection (1) above, that a children’s hearing does not require to be arranged; and where he so decides—
(a) he shall inform the child, any relevant person and the person who brought the case to his notice, or any of those persons, that he has so decided; and
(b) he may, if he considers it appropriate, refer the case to a local authority with a view to their making arrangements for the advice, guidance and assistance of the child and his family in accordance with Chapter 1 of this Part of this Act.
(5) Where the Principal Reporter has decided under subsection (4) above that a children’s hearing does not require to be arranged, he shall not at any other time, on the basis solely of the information obtained during the initial investigation referred to in that subsection, arrange a children’s hearing under subsection (6) below.
(6) Where it appears to the Principal Reporter that compulsory measures of supervision are necessary in respect of the child, he shall arrange a children’s hearing to which he shall refer the case for consideration and determination.
(7) Where the Principal Reporter has arranged a children’s hearing in accordance with subsection (6) above, he—
(a) shall, where he has not previously done so, request a report under subsection (2) above;
(b) may request from the local authority such information, supplementary or additional to a report requested under subsection (2) above, as he thinks fit;
and the local authority shall supply that report, or as the case may be information, and any other information which they consider to be relevant.
(1) Where the sheriff, on an application by any person, is satisfied that—
(a) there are reasonable grounds to believe that a child—
(i) is being so treated (or neglected) that he is suffering significant harm; or
(ii) will suffer such harm if he is not removed to and kept in a place of safety, or if he does not remain in the place where he is then being accommodated (whether or not he is resident there); and
(b) an order under this section is necessary to protect that child from such harm (or such further harm),
he may make an order under this section (to be known as a “child protection order”).
(2) Without prejudice to subsection (1) above, where the sheriff on an application by a local authority is satisfied—
(a) that they have reasonable grounds to suspect that a child is being or will be so treated (or neglected) that he is suffering or will suffer significant harm;
(b) that they are making or causing to be made enquiries to allow them to decide whether they should take any action to safeguard the welfare of the child; and
(c) that those enquiries are being frustrated by access to the child being unreasonably denied, the authority having reasonable cause to believe that such access is required as a matter of urgency,
he may make a child protection order.
(3) Without prejudice to any additional requirement imposed by rules made by virtue of section 91 of this Act, an application for a child protection order shall—
(a) identify—
(i) the applicant; and
(ii) in so far as practicable, the child in respect of whom the order is sought;
(b) state the grounds on which the application is made; and
(c) be accompanied by such supporting evidence, whether in documentary form or otherwise, as will enable the sheriff to determine the application.
(4) A child protection order may, subject to such terms and conditions as the sheriff considers appropriate, do any one or more of the following—
(a) require any person in a position to do so to produce the child to the applicant;
(b) authorise the removal of the child by the applicant to a place of safety, and the keeping of the child at that place;
(c) authorise the prevention of the removal of the child from any place where he is being accommodated;
(d) provide that the location of any place of safety in which the child is being kept should not be disclosed to any person or class of person specified in the order.
(5) Notice of the making of a child protection order shall be given forthwith by the applicant to the local authority in whose area the child resides (where that authority is not the applicant) and to the Principal Reporter.
(6) In taking any action required or permitted by a child protection order or by a direction under section 58 of this Act the applicant shall only act where he reasonably believes that to do so is necessary to safeguard or promote the welfare of the child.
(7) Where by virtue of a child protection order a child is removed to a place of safety provided by a local authority, they shall, subject to the terms and conditions of that order and of any direction given under section 58 of this Act, have the like duties in respect of the child as they have under section 17 of this Act in respect of a child looked after by them.
(1) When the sheriff makes a child protection order, he shall at that time consider whether it is necessary to give a direction to the applicant for the order as to contact with the child for—
(a) any parent of the child;
(b) any person with parental responsibilities in relation to the child; and
(c) any other specified person or class of persons;
and if he determines that there is such a necessity he may give such a direction.
(2) Without prejudice to the generality of subsection (1) above, a direction under that subsection may—
(a) prohibit contact with the child for any person mentioned in paragraphs (a) to (c) of that subsection;
(b) make contact with the child for any person subject to such conditions as the sheriff considers appropriate to safeguard and promote the welfare of the child.
(3) A direction under subsection (1) above may make different provision in relation to different persons or classes of person.
(4) A person applying for a child protection order under section 57(1) or (2) of this Act may at the same time apply to the sheriff for a direction in relation to the exercise or fulfilment of any parental responsibilities or parental rights in respect of the child concerned, if the person considers such a direction necessary to safeguard or promote the welfare of the child.
(5) Without prejudice to the generality of subsection (4) above, a direction under that subsection may be sought in relation to—
(a) any examination as to the physical or mental state of the child;
(b) any other assessment or interview of the child; or
(c) any treatment of the child arising out of such an examination or assessment,
which is to be carried out by any person.
(6) The sheriff may give a direction sought under subsection (4) above where he considers there is a necessity such as is mentioned in that subsection; and such a direction may be granted subject to such conditions, if any, as the sheriff (having regard in particular to the duration of the child protection order to which it relates) considers appropriate.
(7) A direction under this section shall cease to have effect when—
(a) the sheriff, on an application under section 60(7) of this Act, directs that it is cancelled; or
(b) the child protection order to which it is related ceases to have effect.
(1) This section applies where—
(a) a child in respect of whom a child protection order has been made—
(i) has been taken to a place of safety by virtue of section 57(4)(b) of this Act; or
(ii) is prevented from being removed from any place by virtue of section 57(4)(c) of this Act;
(b) the Principal Reporter has not exercised his powers under section 60(3) of this Act to discharge the child from the place of safety; and
(c) the Principal Reporter has not received notice, in accordance with section 60(9) of this Act, of an application under subsection (7) of that section.
(2) Where this section applies, the Principal Reporter shall arrange a children’s hearing to conduct an initial hearing of the child’s case in order to determine whether they should, in the interests of the child, continue the child protection order under subsection (4) below.
(3) A children’s hearing arranged under subsection (2) above shall take place on the second working day after that order is implemented.
(4) Where a children’s hearing arranged under subsection (2) above are satisfied that the conditions for the making of a child protection order under section 57 of this Act are established, they may continue the child protection order and any direction given under section 58 of this Act (whether with or without variation of the order or, as the case may be, the direction) until the commencement of a children’s hearing in relation to the child arranged in accordance with section 65(2) of this Act.
(5) In subsection (3) above, section 60 and section 65(2) of this Act any reference, in relation to the calculation of any period, to the time at which a child protection order is implemented shall be construed as a reference—
(a) in relation to such an order made under paragraph (b) of subsection (4) of section 57 of this Act, to the day on which the child was removed to a place of safety in accordance with the order; and
(b) in relation to such an order made under paragraph (c) of that subsection, to the day on which the order was made,
and “implement” shall be construed accordingly.
(1) Where, by the end of twenty-four hours of a child protection order being made (other than by virtue of section 57(4)(c) of this Act), the applicant has made no attempt to implement the order it shall cease to have effect.
(2) Where an application made under subsection (7) below has not been determined timeously in accordance with subsection (8) below, the order to which the application relates shall cease to have effect.
(3) A child shall not be—
(a) kept in a place of safety under a child protection order;
(b) prevented from being removed from any place by such an order; or
(c) subject to any term or condition contained in such an order or a direction given under section 58 of this Act,
where the Principal Reporter, having regard to the welfare of the child, considers that, whether as a result of a change in the circumstances of the case or of further information relating to the case having been received by the Principal Reporter, the conditions for the making of a child protection order in respect of the child are no longer satisfied or that the term, condition or direction is no longer appropriate and notifies the person who implemented the order that he so considers.
(4) The Principal Reporter shall not give notice under subsection (3) above where—
(a) proceedings before a children’s hearing arranged under section 59(2) of this Act in relation to the child who is subject to the child protection order have commenced; or
(b) the hearing of an application made under subsection (7) of this section has begun.
(5) Where the Principal Reporter has given notice under subsection (3) above, he shall also, in such manner as may be prescribed, notify the sheriff who made the order.
(6) A child protection order shall cease to have effect—
(a) where an initial hearing arranged under section 59(2) of this Act does not continue the order under subsection (4) of that section;
(b) where an application is made to the sheriff under subsection (7) below, on the sheriff recalling such order under subsection (13) below;
(c) on the person who implemented the order receiving notice from the Principal Reporter that he has decided not to refer the case of a child who is subject to the order to a children’s hearing arranged in accordance with section 65(2) of this Act;
(d) on the Principal Reporter giving notice in accordance with subsection (3) above in relation to the order that he considers that the conditions for the making of it are no longer satisfied; or
(e) where such order is continued under section 59(4) of this Act or subsection (12)(d) below, on the commencement of a children’s hearing arranged under section 65(2) of this Act.
(7) An application to the sheriff to set aside or vary a child protection order made under section 57 of this Act or a direction given under section 58 of this Act or such an order or direction continued (whether with or without variation) under section 58(4) of this Act, may be made by or on behalf of—
(a) the child to whom the order or direction relates;
(b) a person having parental rights over the child;
(c) a relevant person;
(d) any person to whom notice of the application for the order was given by virtue of rules; or
(e) the applicant for the order made under section 57 of this Act.
(8) An application under subsection (7) above shall be made—
(a) in relation to a child protection order made under section 56, or a direction given under section 58, of this Act, before the commencement of a children’s hearing arranged in accordance with section 59(2) of this Act; and
(b) in relation to such an order or direction continued (whether with or without variation) by virtue of subsection (4) of the said section 59, within two working days of such continuation,
and any such application shall be determined within three working days of being made.
(9) Where an application has been made under subsection (7) above, the applicant shall forthwith give notice, in a manner and form prescribed by rules, to the Principal Reporter.
(10) At any time which is—
(a) after the giving of the notice required by subsection (9) above; but
(b) before the sheriff has determined the application in accordance with subsection (11) below,
the Principal Reporter may arrange a children’s hearing the purpose of which shall be to provide any advice they consider appropriate to assist the sheriff in his determination of the application.
(11) The sheriff shall, after hearing the parties to the application and, if he wishes to make representations, the Principal Reporter, determine whether—
(a) the conditions for the making of a child protection order under section 57 of this Act are satisfied; or
(b) where the application relates only to a direction under section 58 of this Act, the direction should be varied or cancelled.
(12) Where the sheriff determines that the conditions referred to in subsection (11)(a) above are satisfied, he may—
(a) confirm or vary the order, or any term or condition on which it was granted;
(b) confirm or vary any direction given, in relation to the order, under section 58 of this Act;
(c) give a new direction under that section; or
(d) continue in force the order and any such direction until the commencement of a children’s hearing arranged in accordance with section 65(2) of this Act.
(13) Where the sheriff determines that the conditions referred to in subsection (11)(a) above are not satisfied he shall recall the order and cancel any direction given under section 58 of this Act.
Children (Scotland) Act 1995