Children’s Hearings (Scotland) Act 2011 Explanatory Notes

  • Explanatory Notes Table of contents

  1. Introduction

  2. Commentary on Sections

    1. Part 1 – the National Convener and Children’s Hearings Scotland (Chs)

      1. The National Convener and CHS

        1. Section 1 – The National Convener

        2. Section 2 – Children’s Hearings Scotland

        3. Section 3 – Further provision about National Convener and CHS

      2. The Children’s Panel

        1. Section 4 –The Children’s Panel

      3. Children’s hearings

        1. Section 5 – Children’s hearing

        2. Section 6 – Selection of members of children’s hearing

        3. Section 7 – Holding of children’s hearing

        4. Section 8 – Provision of advice to children’s hearing

        5. Section 9 – Independence of children’s hearing

      4. Power to change National Convener’s functions

        1. Section 10 – Power to change National Convener’s functions

      5. Functions of CHS

        1. Section 11 – Provision of assistance to National Convener

        2. Section 12 – Independence of National Convener

        3. Section 13 – Directions

    2. Part 2 – the Principal Reporter and the Scottish Children’s Reporter Administration (Scra)

      1. The Principal Reporter and SCRA

        1. Section 14 – The Principal Reporter

        2. Section 15 – The Scottish Children’s Reporter Administration

        3. Section 16 – Further provision about Principal Reporter and SCRA

      2. The Principal Reporter

        1. Section 17 – Duty as respects location of children’s hearing

        2. Section 18 – Power to change Principal Reporter’s functions

        3. Section 19 – Rights of audience

      3. Functions of SCRA

        1. Section 20 – Assisting Principal Reporter

        2. Section 21 – Provision of accommodation for children’s hearings

        3. Section 22 – Independence of Principal Reporter

        4. Section 23 – Directions

      4. Transfer of staff, property etc.

        1. Section 24 – Transfer of staff, property etc.

    3. Part 3 – General Considerations

      1. General considerations

        1. Section 25 – Welfare of the child

        2. Section 26 – Decisions inconsistent with section 25

        3. Section 27 – Views of the child

        4. Section 28 – Children’s hearing: pre-condition for making certain orders and warrants

        5. Section 29 – Sheriff: pre-condition for making certain orders and warrants

        6. Section 30 – Children’s hearing: duty to consider appointing safeguarder

        7. Section 31 – Sheriff: duty to consider appointing safeguarder

    4. Part 4 – Safeguarders

      1. Section 32 – The Safeguarders Panel

      2. Section 33 – Functions of safeguarder

      3. Section 34 – Safeguarders: regulations

    5. Part 5 – Child Assessment and Child Protection Orders

      1. Child assessment orders

        1. Section 35 – Child assessment orders

        2. Section 36 – Consideration by sheriff

      2. Child protection orders

        1. Section 37 – Child protection orders

      3. Consideration of application by sheriff

        1. Section 38 – Consideration by sheriff: application by local authority only

        2. Section 39 – Consideration by sheriff: application by a local authority or other person

      4. Ancillary measures

        1. Section 40 – Information non-disclosure directions

        2. Section 41 – Contact directions

        3. Section 42 – Parental responsibilities and rights directions

      5. Notice of order

        1. Section 43 – Notice of child protection order

      6. Obligations of local authority

        1. Section 44 – Obligations of local authority

      7. Review by children’s hearing of certain orders

        1. Section 45 – Review by children’s hearing where child in place of safety

        2. Section 46 – Review by children’s hearing where order prevents removal of child

      8. Decision of children’s hearing

        1. Section 47 – Decision of children’s hearing

      9. Variation or termination of order by sheriff

        1. Section 48 – Application for variation or termination

        2. Section 49 – Notice of application for variation or termination

        3. Section 50 – Children’s hearing to provide advice to sheriff in relation to application

        4. Section 51 – Determination by sheriff

      10. Termination of order

        1. Section 52 – Automatic termination of order

        2. Section 53 – Power of Principal Reporter to terminate order

        3. Section 54 – Termination of order after maximum of 8 working days

      11. Other emergency measures

        1. Section 55 – Application to justice of the peace

        2. Section 56 – Constable’s power to remove child to place of safety

        3. Section 57 – Sections 55 and 56: regulations

      12. Implementation of orders: welfare of child

        1. Section 58 – Implementation of orders: welfare of child

      13. Offences

        1. Section 59 – Offences

    6. Part 6 – Investigation and Referral to Children’s Hearing

      1. Provision of information to Principal Reporter

        1. Section 60 – Local authority’s duty to provide information to Principal Reporter

        2. Section 61 – Constable’s duty to provide information to Principal Reporter

        3. Section 62 – Provision of information by court

        4. Section 63 – Provision of evidence from certain criminal cases

        5. Section 64 – Provision of information by other persons

        6. Section 65 – Provision of information by constable: child in place of safety

      2.  Investigation and determination by Principal Reporter

        1. Section 66 – Investigation and determination by Principal Reporter

        2. Section 67 – Meaning of “section 67 ground”

        3. Section 68 – Determination under section 66: no referral to children’s hearing

        4. Section 69 – Determination under section 66: referral to children’s hearing

        5. Section 70 – Requirement under Antisocial Behaviour etc. (Scotland) Act 2004

        6. Section 71 – Case remitted under section 49 of Criminal Procedure (Scotland) Act 1995

        7. Section 72 – Child in place of safety: Principal Reporter’s powers

    7. Part 7 – Attendance at Children’s Hearing

      1. Section 73 – Child’s duty to attend children’s hearing

      2. Section 74 – Relevant person’s duty to attend children’s hearing

      3. Section 75 – Power to proceed in absence of relevant person

      4. Section 76 – Power to exclude relevant person from children’s hearing

      5. Section 77 – Power to exclude relevant person’s representative from children’s hearing

      6. Section 78 – Rights of certain persons to attend children’s hearing

    8. Part 8 – Pre-Hearing Panel

      1. Section 79 – Referral of certain matters for pre-hearing determination

      2. Section 80 – Determination of matter referred under section 79

      3. Section 81 – Determination of claim that person be deemed a relevant person

      4. Section 82 – Appointment of safeguarder

    9. Part 9 – Children’s Hearing

      1. Key definitions

        1. Section 83 – Meaning of “compulsory supervision order”

        2. Section 84 – Meaning of “movement restriction condition”

        3. Section 85 – Meaning of “secure accommodation authorisation”

        4. Section 86 – Meaning of “interim compulsory supervision order”

        5. Section 87 – Meaning of “medical examination order”

        6. Section 88 – Meaning of “warrant to secure attendance”

      2. Statement of grounds

        1. Section 89 – Principal Reporter’s duty to prepare statement of grounds

      3. Grounds hearing

        1. Section 90 – Grounds to be put to child and relevant person

        2. Section 91 – Grounds accepted: powers of grounds hearing

        3. Section 92 – Powers of grounds hearing on deferral

        4. Section 93 – Grounds not accepted: application to sheriff or discharge

        5. Section 94 – Child or relevant person unable to understand grounds

        6. Section 95 – Child fails to attend grounds hearing

      4. Children’s hearing to consider need for further interim order

        1. Section 96 – Children’s hearing to consider need for further interim compulsory supervision order

      5. Application of Part where compulsory supervision order in force

        1. Section 97 – Application of Part where compulsory supervision order in force

    10. Part 10 – Proceedings before Sheriff

      1. Application for extension or variation of interim compulsory supervision order

        1. Section 98 – Application for extension or variation of interim compulsory supervision order

        2. Section 99 – Further extension or variation of interim compulsory supervision order

      2. Power to make interim compulsory supervision order

        1. Section 100 - Sheriff’s power to make interim compulsory supervision order

      3. Application to establish grounds

        1. Section 101 – Hearing of application

        2. Section 102 – Jurisdiction and standard of proof: offence ground

        3. Section 103 – Child’s duty to attend hearing unless excused

        4. Section 104 – Child and relevant person: representation at hearing

      4. Ground accepted before application determined

        1. Section 105 – Application by virtue of section 93: ground accepted before determination

        2. Section 106 – Application by virtue of section 94: ground accepted by relevant person before determination

      5. Withdrawal of application: termination of orders etc.

        1. Section 107 – Withdrawal of application: termination of orders etc. by Principal Reporter

        2.  Section 108 – Determination: ground established

        3. Section 109 – Determination: power to make interim compulsory supervision order etc.

      6. Review of sheriff’s determination

        1. Section 110 – Application for review of grounds determination

        2. Section 111 – Sheriff: review or dismissal of application

        3. Section 112 – Child’s duty to attend review hearing unless excused

        4. Section 113 – Child and relevant person: representation at review hearing

        5. Section 114 – Sheriff’s powers on review of grounds determination

        6. Section 115 – Recall: power to refer other grounds

        7. Section 116 – Recall: powers where no grounds accepted or established

        8. Section 117 – New section 67 ground established: sheriff to refer to children’s hearing

      7. Application of Part where compulsory supervision order in force

        1. Section 118 - Application of Part where compulsory supervision order in force

    11. Part 11 – Subsequent Children’s Hearings

      1. Section 119 – Children’s hearing following deferral or proceedings under Part 10

      2. Section 120 – Powers of children’s hearing on deferral under section 119

    12. Part 12 – Children’s Hearings: General

      1. Views of child

        1. Section 121 - Confirmation that child given opportunity to express views before hearing

      2. Children’s advocacy services

        1. Section 122 - Children’s advocacy services

      3. Warrants to secure attendance

        1. Section 123 – General power to grant warrant to secure attendance

      4. Child’s age

        1. Section 124 – Requirement to establish child’s age

      5. Compulsory supervision orders: review

        1. Section 125 – Compulsory supervision order: requirement to review

      6. Contact orders and permanence orders

        1. Section 126 – Review of contact direction

      7. Referral where failure to provide education for excluded pupil

        1. Section 127 – Referral where failure to provide education for excluded pupil

      8. Parenting order

        1. Section 128 – Duty to consider applying for parenting order

    13. Part 13 – Review of Compulsory Supervision Order

      1. Requirement for review

        1. Section 129 – Requirement under Antisocial Behaviour etc. (Scotland) Act 2004

        2. Section 130 – Case remitted under section 49 of Criminal Procedure (Scotland) Act 1995

        3. Section 131 – Duty of implementation authority to require review

        4. Section 132 – Right of child or relevant person to require review

        5. Section 133 – Principal Reporter’s duty to initiate review

        6. Section 134 – Duty to initiate a review if child to be taken out of Scotland

        7. Section 135 – Duty to initiate review: secure accommodation authorisation

        8. Section 136 – Duty to initiate review where child transferred

      2. Functions of Principal Reporter and children’s hearing

        1. Section 137 – Duty to arrange children’s hearing

        2. Section 138 – Powers of children’s hearing on review

        3. Section 139 – Powers of children’s hearing on deferral under section 138

        4. Section 140 – Interim variation of compulsory supervision order

        5. Section 141 – Preparation of report in circumstances relating to permanence order or adoption

      3. Review of relevant person determination

        1. Section 142 – Review of determination that person be deemed a relevant person

    14. Part 14 – Implementation of Orders

      1. Power to transfer child in cases of urgent necessity

        1. Section 143 – Transfers in cases of urgent necessity

      2. Implementation of compulsory supervision order

        1. Section 144 – Implementation of compulsory supervision order: general duties of implementation authority

        2. Section 145 – Duty where order requires child to reside in certain place

        3. Section 146 – Breach of duties imposed by sections 144 and 145

        4. Section 147 – Application for order

        5. Section 148 – Order for enforcement

      3. Compulsory supervision orders etc.: further provision

        1. Section 149 – Compulsory supervision orders etc.: further provision

      4. Movement restriction conditions: regulations etc.

        1. Section 150 – Movement restriction conditions: regulations etc.

      5. Secure accommodation

        1. Section 151 – Implementation of secure accommodation authorisation

        2. Section 152 – Secure accommodation: placement in other circumstances

        3. Section 153 – Secure accommodation: regulations

    15. Part 15 – Appeals

      1. Appeal against decision of children’s hearing

        1. Section 154 – Appeal to sheriff against decision of children’s hearing

        2. Section 155 – Procedure

        3. Section 156 – Determination of appeal

        4. Section 157 – Time limit for disposal of appeal against certain decisions

      2. Compulsory supervision order: suspension pending appeal

        1. Section 158 − Compulsory supervision order: suspension pending appeal

      3. Frivolous and vexatious appeals

        1. Section 159 – Frivolous and vexatious appeals

      4. Other appeals

        1. Section 160 – Appeal to sheriff against relevant person determination

        2. Section 161 – Appeal to sheriff against decision affecting contact or permanence order

        3. Section 162 – Appeal to sheriff against decision to implement secure accommodation authorisation

      5. Appeals to the sheriff principal and Court of Session

        1. Section 163 – Appeals to the sheriff principal and Court of Session: children’s hearings etc.

        2. Section 164 – Appeals to the sheriff principal and Court of Session: relevant persons

        3. Section 165 – Appeals to the sheriff principal and Court of Session: contact and permanence orders

      6. Requirement imposed on local authority: review and appeal

        1. Section 166 – Review of requirement imposed on local authority

        2. Section 167 – Appeals to the sheriff principal: section 166

    16. Part 16 – Enforcement of Orders

      1. Section 168 – Enforcement of orders

      2. Section 169 – Child absconding from place

      3. Section 170 – Child absconding from person

      4. Section 171 – Offences related to absconding

    17. Part 17 – Proceedings under Part 10: Evidence

      1. Section 172 – Use of evidence obtained from prosecutor

      2. Section 173 – Cases involving sexual behaviour: evidence

      3. Section 174 – Cases involving sexual behaviour: taking of evidence by a commissioner

      4. Section 175 – Sections 173 and 174: application to sheriff for order as to evidence

      5. Section 176 – Amendments of Vulnerable Witnesses (Scotland) Act 2004

    18. Part 18 – Miscellaneous

      1. Children’s hearings: procedural rules

        1. Section 177 – Children’s hearings: procedural rules

      2. Disclosure of information

        1. Section 178 – Children’s hearing: disclosure of information

        2. Section 179 – Sharing of information: prosecution

        3. Section 180 – Sharing of information: panel members

      3. Implementation of compulsory supervision orders: annual report

        1. Section 181 - Implementation of compulsory supervision orders: annual report

      4. Publishing restrictions

        1. Section 182 – Publishing restrictions

      5. Mutual assistance

        1. Section 183 – Mutual assistance

        2. Section 184 – Enforcement of obligations on health board under section 183

      6. Proceedings before sheriff under Act

        1. Section 185 – Amendment of section 32 of Sheriff Courts (Scotland) Act 1971

      7. Consent of child to medical examination or treatment

        1. Section 186 – Consent of child to medical examination or treatment

      8. Rehabilitation of offenders

        1. Section 187 – Rehabilitation of Offenders Act 1974: treatment of certain disposals by children’s hearings

      9. Criminal record certificates

        1. Section 188 – Criminal record certificates

      10. Places of safety

        1. Section 189 – Places of safety: restrictions on use of police stations

      11. Orders made outwith Scotland

        1. Section 190 – Effect of orders made outwith Scotland

    19. Part 19 – Legal Aid and Advice

      1. Section 191 – Legal aid and advice

        1. New Part 5a – Children’s Legal Aid

          1. Section 28B – Children’s legal aid

          2. Section 28C – Circumstances where children’s legal aid automatically available

          3. Section 28D – Availability of children’s legal aid: child

          4. Section 28E – Availability of children’s legal aid: relevant person

          5. Section 28F – Availability of children’s legal aid: appeals relating to deemed relevant person

          6. Section 28G – Conditions

          7. Section 28H – Board to establish review procedures

          8. Section 28J – Board’s power to require compliance with conditions

          9. Section 28K – Contributions to the Fund

          10. Section 28L – Power of Scottish Ministers to modify circumstances in which children’s legal aid to be available

        2. New Part 5b – Children’s Legal Assistance

          1. Section 28M – Register of solicitors and firms eligible to provide children’s legal assistance

          2. Section 28N – Code of practice

          3. Section 28P – Duty to comply with code of practice

          4. Section 28Q – Non-compliance with code of practice

          5. Section 28R – Further provision as to removal of name from register

          6. Section 28S – Publication of register etc.

      2. Section 192 – Power to make regulations about contracts for provision of children’s legal aid

    20. Part 20 – General

      1. Formal communications

        1. Section 193 – Formal communications

      2. Forms

        1. Section 194 – Forms

      3. Subordinate legislation

        1. Section 195 – Subordinate legislation

        2. Section 196 – Negative procedure

        3. Section 197 – Affirmative procedure

        4. Section 198 - Super-affirmative procedure

      4. Interpretation

        1. Section 199 – Meaning of “child”

        2. Section 200 – Meaning of “relevant person”

        3. Section 201 – Meaning of “relevant local authority”

        4. Section 202 – Interpretation

      5. General

        1. Section 203 – Consequential amendments and repeals

        2. Section 204 – Ancillary provision

        3. Section 205 – Transitional provision etc.

        4. Section 206 – Short title and commencement

    21. Schedule 1 – Children’s Hearings Scotland

      1. Status

      2. Membership

      3. Persons disqualified from membership

      4. Resignation of members

      5. Removal of members

      6. Remuneration, allowances etc.

      7. Chairing meetings

      8. The National Convener

      9. Supplementary powers of National Convener

      10. Delegation of National Convener’s functions

      11. Staff

      12. Area support teams: establishment and membership

      13. Transfer of members from CPACs

      14. Area support teams: functions

      15. Committees

      16. CHS’s supplementary powers

      17. Procedure

      18. Delegation of CHS’s  functions

      19. Financial interests

      20. Grants

      21. Accounts

      22. Provision of accounts and other information to Scottish Ministers

      23. CHS’s annual report

      24. National Convener’s annual report

      25. Validity of proceedings and actions

    22. Schedule 2 – The Children’s Panel

      1. Recruitment and tenure of panel members

      2. List of panel members

      3. Training

      4. Allowances

    23. Schedule 3 – The Scottish Children’s Reporter Administration

      1. Status

      2. Membership

      3. Persons disqualified from membership

      4. Resignation of members

      5. Removal of members

      6. Remuneration, allowances etc.

      7. Chairing meetings

      8. The Principal Reporter

      9. Supplementary powers of Principal Reporter

      10. Delegation of Principal Reporter’s functions

      11. Staff

      12. Appeals against dismissal

      13. Committees

      14. SCRA’s supplementary powers

      15. Procedure

      16. Delegation of SCRA’s functions

      17. Financial interests

      18. Grants

      19. Accounts

      20. Provision of accounts and other information to Scottish Ministers

      21. SCRA’s annual report

      22. Principal Reporter’s annual report

      23. Validity of proceedings and actions

    24.  Schedule 4 – Transfer of staff and property to CHS

      1. Interpretation

      2. Staff transfer orders

      3. Schemes for transfer of staff: consultation

      4. Effect on existing contracts of employment

      5. Transfer of property etc. to CHS

    25. Schedule 5 – Minor and consequential amendments

      1. Legal Aid (Scotland) Act 1986 (c.47)

      2. Children (Scotland) Act 1995 (c.36)

      3. Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8)

    26. Schedule 6 – Repeals

  3. Parliamentary History

  • Explanatory Notes Table of contents

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