Search Legislation

Children (Scotland) Act 1995

 Help about what version

What Version

 Help about advanced features

Advanced Features

Changes over time for: Section 78

 Help about opening options

Changes to legislation:

Children (Scotland) Act 1995, Section 78 is up to date with all changes known to be in force on or before 29 March 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

Close

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.

View outstanding changes

Changes and effects yet to be applied to the whole Act associated Parts and Chapters:

  • Act applied (with modifications) by S.I. 2010/875 reg. 16 Sch. 2 (This amendment not applied to legislation.gov.uk. These Regulations never came into effect, having been revoked before coming into force by S.I. 2010/1906, reg. 2)

Whole provisions yet to be inserted into this Act (including any effects on those provisions):

78 Powers of arrest etc. in relation to exclusion order.S

(1)The sheriff may, whether or not on an application such as is mentioned in subsection (2) below, attach a power of arrest to any interdict granted under section 77(2) of this Act by virtue of subsection (3) of that section.

(2)A local authority may at any time while an exclusion order has effect apply for such attachment of a power of arrest as is mentioned in subsection (1) above.

(3)A power of arrest attached to an interdict by virtue of subsection (1) above shall not have effect until such interdict, together with the attached power of arrest, is served on the named person.

(4)If, by virtue of subsection (1) above, a power of arrest is attached to an interdict, the local authority shall, as soon as possible after the interdict, together with the attached power of arrest, is served on the named person, ensure that there is delivered [F1to the chief constable of the Police Service of Scotland]

F2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

a copy of the application for the interdict and of the interlocutor granting the interdict together with a certificate of service of the interdict and, where the application to attach the power of arrest was made after the interdict was granted, a copy of that application and of the interlocutor above granting it and a certificate of service of the interdict together with the attached power of arrest.

(5)Where any interdict to which a power of arrest is attached by virtue of subsection (1) above is varied or recalled, the person who applied for the variation or recall shall ensure that there is delivered to [F3the chief constable of the Police Service of Scotland] a copy of the application for such variation or recall and of the interlocutor granting the variation or recall.

(6)A constable may arrest without warrant the named person if he has reasonable cause for suspecting that person to be in breach of an interdict to which a power of arrest has been attached by virtue of subsection (1) above.

(7)Where a person has been arrested under subsection (6) above, the constable in charge of a police station may—

(a)if satisfied there is no likelihood of that person further breaching the interdict to which the power of arrest was attached under subsection (1) above, liberate him unconditionally; or

(b)refuse to liberate that person.

(8)Such a refusal to liberate an arrested person as is mentioned in subsection (7)(b) above, and the detention of that person until his appearance in court by virtue of either subsection (11) below, or any provision of the [F4Criminal Procedure (Scotland) Act 1995], shall not subject that constable to any claim whatsoever.

(9)Where a person has been liberated under subsection (7)(a) above, the facts and circumstances which gave rise to the arrest shall be reported to the procurator fiscal forthwith.

(10)Subsections (11) to (13) below apply only where—

(a)the arrested person has not been released under subsection (7)(a) above; F5...

F5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)A person arrested under subsection (6) above shall wherever practicable be brought before the sheriff sitting as a court of summary criminal jurisdiction for the district in which he was arrested not later than in the course of the first day after the arrest, such day not being a Saturday, a Sunday or a court holiday prescribed for that court under [F6section 8 of the said Act of 1995], on which the sheriff is not sitting for the disposal of criminal business.

F7(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F8(12A)Subsection (13) applies where—

(a)a person is brought before the sheriff under subsection (11) above; and

(b)the procurator fiscal has decided that no criminal proceedings are to be taken in respect of the facts and circumstances which gave rise to the arrest.]

(13)Where [F9this subsection applies]

(a)the procurator fiscal shall present to the court a petition containing—

(i)a statement of the particulars of the person arrested under subsection (6) above;

(ii)a statement of the facts and circumstances which gave rise to that arrest; and

(iii)a request that the person be detained for a further period not exceeding two days;

(b)the sheriff, if it appears to him that—

(i)the statement referred to in paragraph (a)(ii) above discloses aprima facie breach of interdict by the arrested person;

(ii)proceedings for breach of interdict will be taken; and

(iii)there is a substantial risk of violence by the arrested person against any member of the family, or an appropriate person, resident in the family home,

may order the arrested person to be detained for a period not exceeding two days; and

(c)the sheriff shall, in any case in which paragraph (b) above does not apply, order the release of the arrested person from custody (unless that person is in custody in respect of some other matter);

and in computing the period of two days referred to in paragraphs (a) and (b) above, no account shall be taken of a Saturday, a Sunday or any holiday in the court in which proceedings for breach of interdict will require to be raised.

[F10(13A)Subsection (14) applies where—

(a)a person has been liberated under subsection (7)(a) above; or

(b)the following conditions are met—

(i)a person is to be brought before the sheriff under subsection (11) above; and

(ii)the procurator fiscal has decided that no criminal proceedings are to be taken in respect of the facts and circumstances which gave rise to the arrest.]

(14)[F11Where this subsection applies], the procurator fiscal shall at the earliest opportunity, and, [F12where the conditions in subsection (13A)(b) above are met, before the] person is brought before the sheriff, take all reasonable steps to intimate to—

(i)the local authority which made the application for the interdict;

(ii)an appropriate person who will reside in, or who remains in residence in, the family home mentioned in the order; and

(iii)any solicitor who acted for the appropriate person when the interdict was granted or to any other solicitor who the procurator fiscal has reason to believe acts for the time being for that person,

that he has decided that no criminal proceedings should be taken in respect of the facts and circumstances which gave rise to the arrest of the named person.

Textual Amendments

F1Words in s. 78(4) inserted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 11(2)(a)(ii); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F2S. 78(4)(a)(b) repealed (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 11(2)(a)(i); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F3Words in s. 78(5) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 11(2)(b); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F4Words in s. 78(8) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 97(7)(a)

F6Words in s. 78(11) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 97(7)(b)

Back to top

Options/Help

Print Options

You have chosen to open The Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act as a PDF

The Whole Act you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open the Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

See additional information alongside the content

Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.

Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

Timeline of Changes

This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.

Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources