Children (Scotland) Act 2020

22 Failure to obey order

(1) The Children (Scotland) Act 1995 is modified as follows.

(2) After section 11F (which is inserted by section 20(2) of this Act) insert—

“11G Duty to investigate failure to obey order under section 11

(1) This section applies where a court is considering whether to—

(a) find a person in contempt of court for failing to obey an order under section 11, or

(b) vary or discharge an order under section 11 on the basis (solely or partly) that a person has failed to obey it.

(2) If it is satisfied that the person has failed to obey the order, the court must—

(a) seek to establish the reasons for that failure, and

(b) in so doing—

(i) give the child concerned an opportunity to express the child’s views in—

(A) the manner that the child prefers, or

(B) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child’s preference, and

(ii) have regard to any views expressed by the child, taking into account the child’s age and maturity.

(3) But the court is not required to comply with subsection (2)(b) if satisfied that—

(a) the child is not capable of forming a view, or

(b) the location of the child is not known.

(4) The child is to be presumed to be capable of forming a view unless the contrary is shown.

(5) The court may appoint a child welfare reporter to investigate and report to the court on the person’s failure (or alleged failure) to obey the order (see section 101A).

(6) References in this section to an order include an interim order.

(7) The Scottish Ministers may by regulations modify subsection (5) to—

(a) add a description of person,

(b) vary a description of person,

(c) remove a description of person.

(8) Regulations under subsection (7) are subject to the affirmative procedure.”.