Children (Scotland) Act 1995

Chapter 4 U.K. Parental Responsibilities Orders, etc.

Modifications etc. (not altering text)

C1 Pt. II Ch. 4 modified (1.4.1997) by S.I. 1996/3255, reg. 7(1)

Parental responsibilities orders S

86 Parental responsibilities order: general. S

F1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 Ss. 86-89 repealed (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), ss. 120(2), 121(2), Sch. 3; S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21)

[F2 86A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

F3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F2 S. 86A added (1.3.2005 with application in accordance with reg. 7 of the amending S.S.I.) by The European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgments) (Scotland) Regulations 2005 (S.S.I. 2005/42), reg. 5(3) (with reg. 6)

F3 Ss. 86-89 repealed (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), ss. 120(2), 121(2), Sch. 3; S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21)

87 Further provision as respects parental responsibilities orders. S

F4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F4 Ss. 86-89 repealed (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), ss. 120(2), 121(2), Sch. 3; S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21)

88 Parental contact. S

F5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F5 Ss. 86-89 repealed (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), ss. 120(2), 121(2), Sch. 3; S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21)

89 Offences in relation to parental responsibilities orders. S

F6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F6 Ss. 86-89 repealed (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), ss. 120(2), 121(2), Sch. 3; S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21)

Miscellaneous S

90 Consent of child to certain procedures. S

Nothing in this Part of this Act shall prejudice any capacity of a child enjoyed by virtue of section 2(4) of the M1 Age of Legal Capacity (Scotland) Act 1991 (capacity of child with sufficient understanding to consent to surgical, medical or dental procedure or treatment; and without prejudice to that generality where a condition contained, by virtue of—

(a) section 66(4)(a), section 67(2) or section 69(9)(a) of this Act, in a warrant; or

(b) section 70(5)(a) of this Act, in a supervision requirement,

requires a child to submit to any examination or treatment but the child has the capacity mentioned in the said section 2(4), the examination or treatment shall only be carried out if the child consents.

Marginal Citations

M1 1991 c.50.

91 Procedural rules in relation to certain applications etc. S

(1) All proceedings to which this section applies are civil proceedings for the purposes of section 32 of the M2 Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate civil procedure in the sheriff court).

(2) Any reference in this Part of this Act to regulation or prescription by rules in relation to any proceedings to which this section applies shall be construed, unless the context otherwise requires, as a reference to regulation or prescription by rules made under the said section 32.

(3) Without prejudice to the generality of the said section 32, rules may make provision as to—

(a) the functions of a person appointed by the sheriff under section 41(1) of this Act and any right of that person to information relating to the proceedings;

(b) the circumstances in which any person who has been given notice in accordance with such rules of an application for a child assessment order, or any other person specified in the rules, may apply to the court to have that order varied or discharged;

(c) the persons to whom notice of the making of a child protection order shall be given by the applicant for that order, and without prejudice to that generality may in making such provision require such notice to be given to either or both of the child and any relevant person in relation to that child;

(d) the persons to whom notice of an application for an exclusion order or, under section 79(3) of this Act, for the recall or variation of such an order or of anything done under section 77(2) of this Act shall be given;

(e) the period within which a hearing shall be held under subsection (5) of section 76 of this Act after the granting of an order under subsection (4) of that section;

(f) the service of any exclusion order on the named person and the appropriate person within such period as may be specified in the rules.

(4) In relation to any proceedings to which this section applies, rules may permit a party to such proceedings, in such circumstances as may be specified in the rules, to be represented by a person who is neither an advocate nor a solicitor.

(5) This section applies to any application made to the sheriff, and any other proceeding before the sheriff (whether on appeal or otherwise), under any provision of this Part of this Act.

Marginal Citations

M2 1971 c.58.

92 Legal aid in respect of certain proceedings. S

For section 29 of the M3 Legal Aid (Scotland) Act 1986 substitute the following section—

“29 Legal aid in respect of certain proceedings relating to children.

(1) This section applies to legal aid in connection with—

(a) proceedings before the sheriff (including, without prejudice to that generality, proceedings on an appeal to the sheriff principal from a decision of the sheriff) in respect of any matter arising under Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995 (in this section referred to as “the 1995 Act”); or

(b) an appeal to the Court of Session in connection with such proceedings.

(2) Subject to subsections (3) to (5) below, legal aid to which this section applies shall be available to a child and any relevant person in relation to him in connection with—

(a) proceedings before the sheriff on an application for a child protection order or child assessment order, or for the variation or recall of such an order;

(b) an appeal to the sheriff under section 51 of the 1995 Act against—

(i) a decision of a children’s hearing to grant a warrant such as is mentioned in subsection (5)(a) of that subsection; or

(ii) any other decision of a children’s hearing;

(c) an application—

(i) by virtue of section 65(7) or (9) of the 1995 Act for a finding as to whether the grounds for a referral are established; or

(ii) under section 85 of the 1995 Act for a review of such a finding;

(d) an appeal to the sheriff principal or to Court of Session under section 51 of the 1995 Act.

(3) Legal aid shall be available under subsection (2)(b)(i) above on an application made to the sheriff without inquiry into the resources of the child or the relevant person.

(4) Legal aid shall be available under subsection (2)(a),(b)(ii) or (c) above on an application made to the sheriff if the sheriff is satisfied—

(a) that it is in the interests of the child that legal aid be made available; and

(b) after consideration of the financial circumstances of the child and any relevant person in relation to him that the expenses of the case cannot be met without undue hardship to the child or to any relevant person in relation to him or the dependants of any of them.

(5) Legal aid shall be available under subsection (2)(d) above on an application made to the Board if it is satisfied—

(a) after consideration of the financial circumstances of the child and any relevant person in relation to him that the expenses of the appeal cannot be met without undue hardship to the child or to any relevant person in relation to him or the dependants of any of them; and

(b) that the child, or as the case may be the relevant person has substantial grounds for making or responding to the appeal and it is reasonable, in the particular circumstances of the case, that legal aid should be made available accordingly.

(6) The Board may require a person receiving legal aid under subsection (2)(d) above or subsection (9) below to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive such legal aid.

(7) Subject to subsection (8) below, legal aid to which this section applies shall be available in connection with proceedings before the sheriff on an application for an exclusion order (or for the variation or recall of such an order) to—

(a) a child;

(b) a relevant person in relation to a child;

(c) a person who is a named person, or will be such a person if the application is granted;

(d) a spouse or partner of a person mentioned in paragraph (c) above; and

(e) a person who is an appropriate person, or will be such a person if the application is granted.

(8) Legal aid shall be available under subsection (7) above on an application to the sheriff if the sheriff is satisfied after consideration of the financial circumstances of the applicant and, where the applicant is a child, of any relevant person or appropriate person in relation to him that the expenses of the case cannot be met without undue hardship to the applicant or any dependant of the applicant.

(9) Legal aid shall be available in connection with any appeal from a decision of the sheriff on an application for an exclusion order or for the variation or recall of such an order to any of the persons mentioned in paragraphs (a) to (e) of subsection (7) above on an application to the Board if it is satisfied—

(a) after consideration of the financial circumstances of the applicant and, where the applicant is a child, of any relevant person or appropriate person in relation to him, that the expenses of the appeal cannot be met without undue hardship to the applicant or any dependant of the applicant; and

(b) that the applicant has substantial grounds for making or responding to the appeal and that it is reasonable, in the particular circumstances of the case, that legal aid should be made available accordingly.

(10) Where in connection with any proceedings—

(a) the sheriff has been satisfied as is mentioned in subsection (4)(b) or subsection (8) above; or

(b) the Board has been satisfied as is mentioned in subsection (5)(a) or subsection (9)(a) above,

and has made legal aid available to any person, it shall not be necessary for the sheriff or, as the case may be, the Board to be so satisfied in respect of an application for legal aid by such a person in connection with any subsequent proceedings arising from such proceedings.

(11) Legal aid to which this section applies shall consist of representation by a solicitor and, where appropriate, by counsel in any proceedings (including any appeal) mentioned in subsection (1) above and shall include all such assistance as is usually given by solicitor or counsel in the steps preliminary or incidental to such proceedings.

(12) In this section—

(a) “child” and “relevant person” have the meanings given by section 93(2)(b) of the 1995 Act;

(b) “child protection order”, “child assessment order” and “exclusion order” have the meanings given by section 93(1) of that Act;

(c) “named person” and “appropriate person” have the meanings given by section 76 of that Act; and

(d) “partner” shall be construed in accordance with section 79(4) of that Act.”.

Marginal Citations

M3 1986 c.47.

Interpretation of Part II U.K.

93 Interpretation of Part II. U.K.

(1) In this Part of this Act, unless the context otherwise requires,—

• “accommodation” shall be construed in accordance with section 25(8) of this Act;

• “chief social work officer” means an officer appointed under section 3 of the M4 Social Work (Scotland) Act 1968;

• “child assessment order” has the meaning given by section 55(1) of this Act;

• “child protection order” has the meaning given by section 57(1) of this Act;

• “children’s hearing” shall be construed in accordance with section 39(3), but does not include a business meeting arranged under section 64, of this Act;

• “compulsory measures of supervision” means, in respect of a child, such measures of supervision as may be imposed upon him by a children’s hearing;

• “constable” means a constable of a police force within the meaning of the M5 Police (Scotland) Act 1967;

• “contact order” has the meaning given by section 11(2)(d) of this Act;

• “disabled” has the meaning given by section 23(2) of this Act;

• [F7 “education authority” has the meaning given by section 135(1) of the Education (Scotland) Act 1980 (c. 44);]

• “exclusion order” has the meaning given by section 76(12) of this Act;

• “family”, in relation to a child, includes—

  (a)

  any person who has parental responsibility for the child; and

  (b)

  any other person with whom the child has been living;

• “local authority” means a council constituted under section 2 of the M6 Local Government etc. (Scotland) Act 1994;

• “local government area” shall be construed in accordance with section 1 of the said Act of 1994;

• “parental responsibilities” has the meaning given by section 1(3) of this Act;

• F8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “parental rights” has the meaning given by section 2(4) of this Act;

• “place of safety”, in relation to a child, means—

  (a)

  a residential or other establishment provided by a local authority;

  (b)

  a community home within the meaning of section 53 of the M7 Children Act 1989;

  (c)

  a police station;

  (d)

  [F9 a hospital, or surgery, the person or body of persons responsible for the management of which is willing temporarily to receive the child;

  (e)

  the dwelling-house of a suitable person who is so willing; or

  (f)

  any other suitable place the occupier of which is so willing.

• “the Principal Reporter” means the Principal Reporter appointed under section 127 of the said Act of 1994 or any officer of the Scottish Children’s Reporter Administration to whom there is delegated, under section 131(1) of that Act, any function of the Principal Reporter under this Act;

• “relevant local authority”, in relation to a child who is subject to a warrant granted under this Part of this Act or to a supervision requirement, means the local authority for whose area [F10 there is established] the children’s panel from which the children’s hearing which granted the warrant or imposed the supervision requirement was [F11 constituted];

• “residence order” has the meaning given by section 11(2)(c) of this Act;

• “residential establishment”—

  (a)

  in relation to a place in Scotland, means an establishment (whether managed by a local authority, by a voluntary organisation or by any other person) which provides residential accommodation for children for the purposes of this Act or the M8 Social Work (Scotland) Act 1968;

  (b)

  in relation to a place in England and Wales, means a community home, voluntary home or [F12 private] children’s home (within the meaning of the Children Act 1989); and

  (c)

  in relation to a place in Northern Ireland, means a home provided under Part VIII of the M9 Children (Northern Ireland) Order 1995, or a voluntary home, or a registered children’s home (which have respectively the meanings given by that Order);

• “school age” shall be construed in accordance with section 31 of the M10 Education (Scotland) Act 1980;

• “secure accommodation” means accommodation provided in a residential establishment, approved F13 [by the Scottish Ministers in accordance with regulations made under section 29(9)(a) of the Regulation of Care (Scotland) Act 2001 (asp 8) or] by the Secretary of State in accordance with regulations made under F14 . . . [F15 section 22(8)(a) of the Care Standards Act 2000], for the purpose of restricting the liberty of children;

• “supervision requirement” has the meaning given by 70(1) of this Act, and includes any condition contained in such a requirement or related to it;

• “voluntary organisation” means a body (other than a public or local authority) whose activities are not carried on for profit; and

• “working day” means every day except—

  (a)

  Saturday and Sunday;

  (b)

  December 25th and 26th; and

  (c)

  January 1st and 2nd.

(2) For the purposes of—

(a) Chapter 1 and this Chapter (except this section) of this Part [F16 and section 44], “child” means a person under the age of eighteen years; and

(b) [F17 Chapter 2 (except section 44) and Chapter] 3 [F18 (except section 75A)] of this Part—

• “child” means—

  (i)

  a child who has not attained the age of sixteen years;

  (ii)

  a child over the age of sixteen years who has not attained the age of eighteen years and in respect of whom a supervision requirement is in force; or

  (iii)

  a child whose case has been referred to a children’s hearing by virtue of section 33 of this Act;

  and for the purposes of the application of those Chapters to a person who has failed to attend school regularly without reasonable excuse includes a person who is over sixteen years of age but is not over school age; and

• “relevant person” in relation to a child means—

  (a)

  any parent enjoying parental responsibilities or parental rights under Part I of this Act;

  (b)

  any person in whom parental responsibilities or rights are vested by, under or by virtue of this Act;

  (ba)

  [F19 any person in whom parental responsibilities or parental rights are vested by, under or by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007 (asp 4));] and

  (c)

  any person who appears to be a person who ordinarily (and other than by reason only of his employment) has charge of, or control over, the child.

(3) Where, in the course of any proceedings under Chapter 2 or 3 of this Part, a child ceases to be a child within the meaning of subsection (2) above the provisions of those Chapters of this Part and of any statutory instrument made under those provisions, shall continue to apply to him as if he had not so ceased to be a child.

(4) Any reference in this Part of this Act to a child—

(a) being “in need”, is to his being in need of care and attention because—

(i) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development unless there are provided for him, under or by virtue of this Part, services by a local authority;

(ii) his health or development is likely significantly to be impaired, or further impaired, unless such services are so provided;

(iii) he is disabled; or

(iv) he is affected adversely by the disability of any other person in his family;

(b) who is “looked after” by a local authority, shall be construed in accordance with section 17(6) of this Act.

(5) Any reference to any proceedings under this Part of this Act, whether on an application or on appeal, being heard by the sheriff, shall be construed as a reference to such proceedings being heard by the sheriff in chambers.]

Textual Amendments

F7 S. 93(1): definition of "education authority" inserted (S.) (31.1.2005) by Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), ss. 137(4), 145(2); S.S.I 2004/420, {art. 3}, Sch. 4

F8 S. 93(1): definition of "parental responsibility order" repealed (S.) (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), ss. 120(2), 121(2), Sch. 3; S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21)

F9 S. 93(1): paragraphs (d)(e)(f) in definition of "place of safety" substituted (S.) (19.7.2001) for paragraph (d) and word "or" immediately preceding by 2001 asp 8, ss. 74, 81(2)

F10 S. 93(1): words in the definition of "relevant local authority" inserted (S.) (28.10.2004) by Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), ss. 144(1), 145(2), Sch. 4 para. 4(6)(a)(i); S.S.I. 2004/420, art. 3, Sch. 1

F11 S. 93(1): word in the definition of "relevant local authority" substituted (S.) (28.10.2004) by Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), ss. 144(1), 145(2), {Sch. 4 para. 4(6)(a)(ii}; S.S.I. 2004/420, art. 3, Sch. 1

F12 Word in the definition of "residential establishment" in s. 93 substituted (1.4.2002 for E. and otherwise prosp.) by 2000 c. 14, ss. 116, 122, Sch. 4 para. 23(a); S.I. 2001/4150, art. 3(3)(a) (subject to transitional provisions in art. 4)

F13 S. 93(1) words in definition of “secure accommodation” inserted (1.4.2002) (S.) by 2001 asp 8, s. 79, Sch. 3 para. 19(4)(a); S.S.I. 2002/162, arts. 2(f)(h) (subject to arts. 3-13)

F14 S. 93(1) words in definition of “secure accommodation” repealed (1.4.2002) (S.) by 2001 asp 8, s. 79, Sch. 3 para. 19(4)(b); S.S.I. 2002/162, arts. 2(f)(h) (subject to arts. 3-13)

F15 Words in the definition of "secure accommodation" in s. 93 substituted (1.4.2002 for E. and otherwise prosp.) by 2000 c. 14, ss. 116, 122, Sch. 4 para. 23(b); S.I. 2001/4150, art. 3(3)(a) (subject to transitional provisions in art. 4)

F16 Words in s. 93(2)(a) inserted (S.) (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 52(b)(i), 89; S.S.I. 2003/288, art. 2, Sch.

F17 Words in s. 93(2)(b) substituted (S.) (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 52(b)(ii), 89; S.S.I. 2003/288, art. 2, Sch.

F18 Words in s. 93(2)(b) inserted (S.) (28.10.2004) by Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), ss. 144(1), 145(2), Sch. 4 para. 4(6)(b); S.S.I. 2004/420, art. 3, Sch. 1

F19 S. 93(2): para. (ba) inserted in definition of "relevant person" (S.) (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), ss. 120(1), 121(2), Sch. 2 para. 9(8); S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21)

Marginal Citations

M4 1968 c.49.

M5 1967 c.77.

M6 1994 c.39.

M7 1989 c. 41.

M8 1968 c.49.

M9 S.I. 1995/755 (N.I.2)

M10 1980 c.44.