Part II

Promotion of Children’s Welfare by Local Authorities and by Children’s Hearings etc.
Chapter 1

Support for Children and Their Families

Miscellaneous and General

Short-term refuges for children at risk of harm.
38
1
Where a child appears—
a
to a local authority to be at risk of harm, they may at the child’s request—
i
provide him with refuge in a residential establishment both controlled or managed by them and designated by them for the purposes of this paragraph; or
ii
arrange for a person whose household is approved by virtue of section 5(3)(b) of the Social Work (Scotland) Act 1968 (provision for securing that persons are not placed in any household unless the household has prescribed approval) and is designated by them for the purposes of this paragraph, to provide him with refuge in that household,
for a period which does not exceed the relevant period;
b
to a person who provides a care home service (as defined by paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8)), or to any person for the time being employed in the management of the accomodation in question, to be at risk of harm, the person to whom the child so appears may at the child’s request provide him with refuge, for a period which does not exceed the relevant period, in the accommodation but shall do so only if and to the extent that the local authority within whose area the accommodation is situated have given their approval to the use of the accommodation (or a part of the accommodation) for the purposes of this paragraph.
2
The Secretary of State may by regulations make provision as to—
a
designation, for the purposes of paragraph (a) of subsection (1) above, of establishments and households;
b
application for, the giving of and the withdrawal of, approval under paragraph (b) of subsection (1) above;
c
requirements (if any) which must be complied with while any such approval remains in force;
d
the performance by a person mentioned in the said paragraph (b) of anything to be done by him under that paragraph;
e
the performance by a local authority of their functions under this section; and
f
the giving, to such persons or classes of person as may be specified in the regulations, of notice as to the whereabouts of a child provided with refuge under this section,
and regulations made under this subsection may include such incidental and supplementary provisions as he thinks fit.
3
While a child is being provided with refuge under, and in accordance with regulations made under, this section, none of the enactments mentioned in subsection (4) below shall apply in relation to him unless the commencement of the period of refuge has followed within two days of the termination of a prior period of refuge so provided to him by any person.
4
The enactments are—
a
section 89 of this Act and, so far as it applies in relation to anything done in Scotland, section 171 of the Children's Hearings (Scotland) Act 2011; and
b
section 32(3) of the Children and Young Persons Act 1969 (compelling, persuading, inciting or assisting any person to be absent from detention etc.), so far as it applies in relation to anything done in Scotland.
5
References in this section to the relevant period shall be construed as references either to a period which does not exceed seven days or, in such exceptional circumstances as the Secretary of State may prescribe, to a period which does not exceed fourteen days.
6
A child who is provided with refuge for a period by virtue of such arrangements as are mentioned in subsection (1)(a) above shall not be regarded as a foster child for the purposes of the Foster Children (Scotland) Act 1984 by reason only of such provision.
S. 38 wholly in force at 1.4.1997; s. 38 not in force at Royal Assent see s. 105(1); s. 38 in force for certain purposes at 12.12.1996 by S.I. 1996/3201, art. 3(1) (with arts. 4-6 (as inserted (7.3.1997) by S.I. 1997/744, art. 3)); s. 38 in force at 1.4.1997 insofar as not already in force by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (7.3.1997) by S.I. 1997/744, arts. 2, 3)
1968 c.49.
Words in s. 38(1)(b) substituted (1.4.2002) by 2001 asp 8, s. 79, Sch. 3 para. 19(3)(a); S.S.I. 2002/162, art. 2(f)(h) (subject to arts. 3-13)
Words in s. 38(1)(b) substituted (1.4.2002) by 2001 asp 8, s. 79, Sch. 3 para. 19(3)(b); S.S.I. 2002/162, art. 2(f)(h) (subject to arts. 3-13)
Word in s. 38(1)(b) substituted (1.4.2002) by 2001 asp 8, s. 79, Sch. 3 para. 19(3)(c); S.S.I. 2002/162, art. 2(f)(h) (subject to arts. 3-13)
1969 c.54.
S. 38(5) explained (1.4.1997) by S.I. 1996/3259, reg. 11
1984 c.56.
Pt. II Ch. 1 (ss. 16-38) modifed (1.4.1997) by S.I. 1996/3255, reg. 7(1)
Words in s. 38(1)(b) substituted (1.4.2011) by The Public Services Reform (Scotland) Act 2010 (Consequential Modifications) Order 2011 (S.S.I. 2011/211), art. 1, sch. 1 para. 6(b)
Words in s. 38(4) substituted (24.6.2013) by Children’s Hearings (Scotland) Act 2011 (asp 1), s. 206(2), sch. 5 para. 2(7) (with s. 186); S.S.I. 2013/195, arts. 2, 3