Children Act 1975 (c. 72)

Part II E+W+S Custody

Modifications etc. (not altering text)

C1 Pt. II (Ss. 33–55) modified (E.W.) by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), ss. 8(3), 12, Sch. 1

C2 Pt II (Ss. 33–55) amended (E.W.) by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 2(1)(e)

Custody in Scotland E+W+S

51 Restriction on removal of child where applicant has provided home for three years. S

(1) Where a person has applied for [F1 a residence order in relation to] a child, it shall be an offence, except with the authority of a court or under authority conferred by any enactment or on the arrest of the child, to remove the child from the [F2 care and possession] of the applicant against the will of the applicant if—

(a) the child has been in the care and possession of that person for a period or periods before the making of the application which amount to at least three years; and

(b) the application is pending in any court.

F3 [( 2 ) In any case where subsection (1) applies, and the child—

(a) was being looked after by a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 before he began to have his home with the applicant, and

(b) continues to be looked after by such a council,

the council by whom the child is being looked after shall not remove him from the applicant’s care and possession except—

(i) with the applicant’s consent;

(ii) with the leave of the court; [F4 or]

(iii) in accordance with an order made[F5 , or authority or warrant granted,] under Chapter [F5 2 or] 3 of Part II of the Children (Scotland) Act 1995.]

[F6 (iv) in accordance with section 56 of the Children’s Hearings (Scotland) Act 2011 (asp 1) (constable’s power to remove child to place of safety); or

(v) in accordance with an order or warrant under that Act of 2011.]

(3) Any person who contravenes the provisions of subsection (1) commits an offence and shall be liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding [F7 level 5 on the standard scale] or both.

(4) The Secretary of State may by order, a draft of which has been approved by each House of Parliament, amend subsection (1) to substitute a different period for the period mentioned in that subsection (or for the period which, by a previous order under this subsection, was substituted for that period).

F8 [( 5 ) In this section “ looked after ” and “ residence order ” have the meanings given respectively by section 17(6) and section 11(2)(c) of the Children (Scotland) Act 1995; and “ residence order ” shall have the same meaning in sections 52 and 53 of this Act. ]

Textual Amendments

F1 Words in s. 51(1) substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 26(4)(a) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.

F2 Words substituted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 9, Sch. 2 para. 25

F3 S. 51(2) substituted (1.4.1997) by 1995 c. 36, s. 105(4), Sch. 4 para. 26(4)(b) (with s. 103(1)); S.I. 1996/3201, art. 3(7)

F4 Word in s. 51(2) repealed (S.) (24.6.2013) by The Children's Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, Sch. 1 para. 3(a)

F5 Words in s. 51(2)(iii) repealed (S.) (24.6.2013) by The Children's Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, Sch. 1 para. 3(b)

F6 S. 51(2)(iv)(v) inserted (S.) (24.6.2013) by The Children's Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, Sch. 1 para. 3(c)

F7 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G

F8 S. 51(5) added (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 26(4)(c) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.