Office of Public Sector Information
PART II continued CHAPTER 3 continued
(5) Where the relevant local authority are aware that an application has been made and is pending, or is about to be made, under section 12 of the said Act of 1978 for an adoption order in respect of a child who is subject to a supervision requirement, they shall forthwith refer his case to the Principal Reporter.
(6) A child or any relevant person may require a review of a supervision requirement in respect of the child at any time at least three months after—
(a) the date on which the requirement is made; or
(b) the date of the most recent continuation, or variation, by virtue of this section of the requirement.
(7) Where a child is subject to a supervision requirement and, otherwise than in accordance with that requirement or with an order under section 11 of this Act, a relevant person proposes to take the child to live outwith Scotland, the person shall, not later than twenty-eight days before so taking the child, give notice of that proposal in writing to the Principal Reporter and to the relevant authority.
(8) The Principal Reporter shall—
(a) arrange for a children’s hearing to review any supervision requirement in respect of a child where—
(i) the case has been referred to him under subsection (4) or (5) above;
(ii) the review has been required under subsection (6) above;
(iii) the review is required by virtue of section 70(7) or section 72(2) of this Act;
(iv) he has received in respect of the child such notice as is mentioned in subsection (7) above; or
(v) in any other case, the supervision requirement will expire within three months; and
(b) make any arrangements incidental to that review.
(9) Where a supervision requirement is reviewed by a children’s hearing arranged under subsection (8) above, they may—
(a) where they are satisfied that in order to complete the review of the supervision requirement it is necessary to have a further investigation of the child’s case, continue the review to a subsequent hearing;
(b) terminate the requirement;
(c) vary the requirement;
(d) insert in the requirement any requirement which could have been imposed by them under section 70(3) of this Act; or
(e) continue the requirement, with or without such variation or insertion.
(10) Subsections (3) to (10) of section 69 of this Act shall apply to a continuation under paragraph (a) of subsection (9) above of a review of a supervision requirement as they apply to the continuation of a case under subsection (1)(a) of that section.
(11) Where a children’s hearing vary or impose a requirement under subsection (9) above which requires the child to reside in any specified place or places, they may order that such place or places shall not be disclosed to any person or class of persons specified in the requirement.
(12) Where a children’s hearing is arranged under subsection (8)(a)(v) above, they shall consider whether, if the supervision requirement is not continued, the child still requires supervision or guidance; and where a children’s hearing consider such supervision or guidance is necessary, it shall be the duty of the local authority to provide such supervision or guidance as the child is willing to accept.
(13) Where a children’s hearing is arranged by virtue of subsection (4)(c) or (5) above, then irrespective of what the hearing do under subsection (9) above they shall draw up a report which shall provide advice in respect of, as the case may be, the proposed application under section 86 of this Act or under section 18 of the said Act of 1978, or the proposed placing for adoption or the application, or prospective application, under section 12 of that Act, for any court which may subsequently require to come to a decision, in relation to the child concerned, such as is mentioned in subsection (14) below.
(14) A court which is considering whether, in relation to a child, to grant an application under section 86 of this Act or under section 18 or 12 of the said Act of 1978 and which, by virtue of subsection (13) above, receives a report as respects that child, shall consider the report before coming to a decision in the matter.
The Secretary of State may by regulations provide—
(a) for the transmission of information regarding a child who is subject to a supervision requirement to any person who, by virtue of that requirement, has, or is to have, control over the child;
(b) for the temporary accommodation, where necessary, of a child so subject; and
(c) for the conveyance of a child so subject—
(i) to any place in which, under the supervision requirement, he is to reside;
(ii) to any place to which he falls to be taken under subsection (1) or (5) of section 82 of this Act; or
(iii) to any person to whom he falls to be returned under subsection (3) of that section.
(1) The Secretary of State may by regulations make provision with respect to the placing in secure accommodation of any child—
(a) who is subject to a requirement imposed under section 70(3)(a) of this Act but not subject to a requirement under subsection (9) of that section; or
(b) who is not subject to a supervision requirement but who is being looked after by a local authority in pursuance of such enactments as may be specified in the regulations.
(2) Regulations under subsection (1) above may—
(a) specify the circumstances in which a child may be so placed under the regulations;
(b) make provision to enable a child who has been so placed or any relevant person to require that the child’s case be brought before a children’s hearing within a shorter period than would apply under regulations made under subsection (3) below; and
(c) specify different circumstances for different cases or classes of case.
(3) Subject to subsection (4) below and without prejudice to subsection (2)(b) above, the Secretary of State may prescribe—
(a) the maximum period during which a child may be kept under this Act in secure accommodation without the authority of a children’s hearing or of the sheriff;
(b) the period within which a children’s hearing shall be arranged to consider the case of a child placed in secure accommodation by virtue of regulations made under this section (and different periods may be so prescribed in respect of different cases or classes of case).
(4) Subsection (8) of section 66 of this Act shall apply in respect of a child placed in secure accommodation under regulations made under this section as if such placing took place by virtue of that section.
(5) The Secretary of State may by regulations vary the period within which a review of a condition imposed under section 70(9) of this Act shall be reviewed under section 73 of this Act.
(6) The Secretary of State may by regulations make provision for the procedures to be applied in placing children in secure accommodation; and without prejudice to the generality of this subsection, such regulations may—
(a) specify the duties of the Principal Reporter in relation to the placing of children in secure accommodation;
(b) make provision for the referral of cases to a children’s hearing for review; and
(c) make provision for any person with parental responsibilities in relation to the child to be informed of the placing of the child in secure accommodation.
(1) Subject to subsections (3) to (9) below, where on the application of a local authority the sheriff is satisfied, in relation to a child, that the conditions mentioned in subsection (2) below are met, he may grant an order under this section (to be known as “an exclusion order”) excluding from the child’s family home any person named in the order (in this Part of this Act referred to as the “named person”).
(2) The conditions are—
(a) that the child has suffered, is suffering, or is likely to suffer, significant harm as a result of any conduct, or any threatened or reasonably apprehended conduct, of the named person;
(b) that the making of an exclusion order against the named person—
(i) is necessary for the protection of the child, irrespective of whether the child is for the time being residing in the family home; and
(ii) would better safeguard the child’s welfare than the removal of the child from the family home; and
(c) that, if an order is made, there will be a person specified in the application who is capable of taking responsibility for the provision of appropriate care for the child and any other member of the family who requires such care and who is, or will be, residing in the family home (in this section, sections 77 to 78 and section 91(3)(f) of this Act referred to as an “appropriate person”).
(3) No application under subsection (1) above for an exclusion order shall be finally determined under this section unless—
(a) the named person has been afforded an opportunity of being heard by, or represented before, the sheriff; and
(b) the sheriff has considered any views expressed by any person on whom notice of the application has been served in accordance with rules making such provision as is mentioned in section 91(3)(d) of this Act.
(4) Where, on an application under subsection (1) above, the sheriff—
(a) is satisfied as mentioned in that subsection; but
(b) the conditions mentioned in paragraphs (a) and (b) of subsection (3) above for the final determination of the application are not fulfilled,
he may grant an interim order, which shall have effect as an exclusion order pending a hearing by the sheriff under subsection (5) below held within such period as may be specified in rules made by virtue of section 91(3)(e) of this Act.
(5) The sheriff shall conduct a hearing under this subsection within such period as may be specified in rules made by virtue of section 91(3)(e) of this Act, and, if satisfied at that hearing as mentioned in subsection (1) above, he may, before finally determining the application, confirm or vary the interim order, or any term or condition on which it was granted, or may recall such order.
(6) Where the conditions mentioned in paragraphs (a) and (b) of subsection (3) above have been fulfilled, the sheriff may, at any point prior to the final determination of the application, grant an interim order.
(7) An order under subsection (5) or (6) above shall have effect as an exclusion order pending the final determination of the application.
(8) Where—
(a) an application is made under subsection (1) above; and
(b) the sheriff considers that the conditions for making a child protection order under section 57 of this Act are satisfied,
he may make an order under that section as if the application had been duly made by the local authority under that rather than under this section.
(9) The sheriff shall not make an exclusion order if it appears to him that to do so would be unjustifiable or unreasonable, having regard to—
(a) all the circumstances of the case, including without prejudice to the generality of this subsection the matters specified in subsection (10) below; and
(b) any requirement such as is specified in subsection (11) below and the likely consequences in the light of that requirement of the exclusion of the named person from the family home.
(10) The matters referred to in subsection (9)(a) above are—
(a) the conduct of the members of the child’s family (whether in relation to each other or otherwise);
(b) the respective needs and financial resources of the members of that family;
(c) the extent (if any) to which—
(i) the family home; and
(ii) any relevant item in that home,
is used in connection with a trade, business or profession by any member of the family.
(11) The requirement referred to in subsection (9)(b) above is a requirement that the named person (whether alone or with any other person) must reside in the family home, where that home—
(a) is or is part of an agricultural holding within the meaning of the [1991 c. 55.] Agricultural Holdings (Scotland) Act 1991; or
(b) is let, or is a home in respect of which possession is given, to the named person (whether alone or with any other person) by an employer as an incident of employment.
(12) In this Part of this Act—
“caravan” has the meaning given to it by section 29(1) of the [1960 c. 62.] Caravan Sites and Control of Development Act 1960;
“exclusion order”, includes an interim order granted under subsection (4) above and such an order confirmed or varied under subsection (5) above and an interim order granted under subsection (6) above; except that in subsection (3) above and in section 78 of this Act, it does not include an interim order granted under subsection (4) above;
“family” has the meaning given in section 93(1) of this Act;
“family home” means any house, caravan, houseboat or other structure which is used as a family residence and in which the child ordinarily resides with any person described in subsection (13) below and the expression includes any garden or other ground or building attached to and usually occupied with, or otherwise required for the amenity or convenience of, the house, caravan, houseboat or other structure.
(13) The description of person referred to in the definition of “family home” in subsection (12) above, is a person who has parental responsibilities in relation to the child, or who ordinarily (and other than by reason only of his employment) has charge of, or control over him.
(1) An exclusion order shall, in respect of the home to which it relates, have the effect of suspending the named person’s rights of occupancy (if any) and shall prevent him from entering the home, except with the express permission of the local authority which applied for the order.
(2) The sheriff, on the application of the local authority, may, if and in so far as he thinks fit, when making an exclusion order do any of the things mentioned in subsection (3) below.
(3) The things referred to in subsection (2) above are—
(a) grant a warrant for the summary ejection of the named person from the home;
(b) grant an interdict prohibiting the named person from entering the home without the express permission of the local authority;
(c) grant an interdict prohibiting the removal by the named person of any relevant item specified in the interdict from the home, except either—
(i) with the written consent of the local authority, or of an appropriate person; or
(ii) by virtue of a subsequent order of the sheriff;
(d) grant an interdict prohibiting the named person from entering or remaining in a specified area in the vicinity of the home;
(e) grant an interdict prohibiting the taking by the named person of any step of a kind specified in the interdict in relation to the child;
(f) make an order regulating the contact between the child and the named person,
and the sheriff may make any other order which he considers is necessary for the proper enforcement of a remedy granted by virtue of paragraph (a), (b) or (c) of this subsection.
(4) No warrant, interdict or order (except an interdict granted by virtue of paragraph (b) of subsection (3) above) shall be granted or made under subsection (2) above if the named person satisfies the sheriff that it is unnecessary to do so.
(5) Where the sheriff grants a warrant of summary ejection under subsection (2) above in the absence of the named person, he may give directions as to the preservation of any of that person’s goods and effects which remain in the family home.
(6) The sheriff may make an order of the kind specified in subsection (3)(f) above irrespective of whether there has been an application for such an order.
(7) On the application of either the named person or the local authority, the sheriff may make the exclusion order, or any remedy granted under subsection (2) above, subject to such terms and conditions as he considers appropriate.
(8) In this Part of this Act references to a “relevant item” are references to any item within the home which both—
(a) is owned or hired by any member of the family concerned or an appropriate person or is being acquired by any such member or person under a hire purchase agreement or conditional sale agreement; and
(b) is reasonably necessary to enable the home to be used as a family residence,
but does not include any such vehicle, caravan or houseboat or such other structure so used as is mentioned in the definition of “family home” in section 76(12) of this Act.
(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—
(a) to the chief constable of the police area in which the family home is situated; and
(b) where the interdict was granted by virtue of section 77(3)(e) of this Act, to the chief constable of the area in which the step or conduct which is prevented by the interdict may take place,
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 each chief constable specified in subsection (4) above 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 [1975 c. 21.] Criminal Procedure (Scotland) Act 1975, 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; and
(b) the procurator fiscal decides that no criminal proceedings are to be taken in respect of the facts and circumstances which gave rise to the arrest.
(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 section 10 of the [1980 c. 4.] Bail etc. (Scotland) Act 1980, on which the sheriff is not sitting for the disposal of criminal business.
(12) Subsections (1) and (3) of section 3 of the [1980 c. 62.] Criminal Justice (Scotland) Act 1980 (intimation to a person named by the person arrested) shall apply to a person arrested under subsection (6) above as they apply to a person who has been arrested in respect of an offence.
(13) Where a person is brought before the sheriff under subsection (11) above—
(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 a prima 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.
(14) Where a person—
(a) is liberated under subsection (7)(a) above; or
(b) is to be brought before the sheriff under subsection (11) above,
the procurator fiscal shall at the earliest opportunity, and, in the case of a person to whom paragraph (b) above applies, before that 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.
(1) Subject to subsection (2) below, an exclusion order shall cease to have effect on a date six months after being made.
(2) An exclusion order shall cease to have effect on a date prior to the date mentioned in subsection (1) above where—
(a) the order contains a direction by the sheriff that it shall cease to have effect on that prior date;
(b) the sheriff, on an application under subsection (3) below, recalls the order before the date so mentioned; or
(c) any permission given by a third party to the spouse or partner of the named person, or to an appropriate person, to occupy the home to which the order relates is withdrawn.
(3) The sheriff may, on the application of the local authority, the named person, an appropriate person or the spouse or partner of the named person, if that spouse or partner is not excluded from the family home and is not an appropriate person, vary or recall an exclusion order and any warrant, interdict, order or direction granted or made under section 77 of this Act.
(4) For the purposes of this section, partners are persons who live together in a family home as if they were husband and wife.
(1) The Secretary of State may make regulations with respect to the powers, duties and functions of local authorities in relation to exclusion orders.
(2) An application for an exclusion order, or under section 78(3) of this Act for the variation or recall of such an order or of any thing done under section 76(2) of this Act, shall be made to the sheriff for the sheriffdom within which the family home is situated.
A person who intentionally obstructs—
(a) any person acting under a child protection order;
(b) any person acting under an authorisation granted under section 61(1) or (2) of this Act; or
(c) a constable acting under section 61(5) of this Act,
shall, subject to section 38(3) and (4) of this Act, be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(1) A child who absconds—
(a) from a place of safety in which he is being kept under or by virtue of this Part of this Act;
(b) from a place (in this section referred to as a “relevant place”) which, though not a place of safety such as is mentioned in paragraph (a) above, is a residential establishment in which he is required to reside by virtue of section 70(3)(a) of this Act or a hospital or other institution in which he is temporarily residing while subject to such a requirement; or
(c) from a person who, by virtue of a supervision requirement or of section 74 of this Act, has control over him while he is being taken to, is awaiting being taken to, or (whether or not by reason of being on leave) is temporarily away from, such place of safety or relevant place,
may be arrested without warrant in any part of the United Kingdom and taken to the place of safety or as the case may be the relevant place; and a court which is satisfied that there are reasonable grounds for believing that the child is within any premises may, where there is such power of arrest, grant a warrant authorising a constable to enter those premises and search for the child using reasonable force if necessary.
(2) Without prejudice to the generality of subsection (1) above, a child who at the end of a period of leave from a place of safety or relevant place fails to return there shall, for the purposes of this section, be taken to have absconded.
(3) A child who absconds from a person who, not being a person mentioned in paragraph (c) of subsection (1) above, is a person who has control over him by virtue of a supervision requirement may, subject to the same provisions as those to which an arrest under that subsection is subject, be arrested as is mentioned in that subsection and returned to that person; and the provision in that subsection for a warrant to be granted shall apply as respects such a child as it applies as respects a child mentioned in that subsection.
(4) If a child—
(a) is taken under subsection (1) above to a place of safety or relevant place; or
(b) is returned under subsection (3) above to a person,
but the occupier of that place of safety or of that relevant place, or as the case may be that person, is unwilling or unable to receive him, that circumstance shall be intimated forthwith to the Principal Reporter.
(5) Where intimation is required by subsection (4) above as respects a child, he shall be kept in a place of safety until—
(a) in a case where he is subject to a supervision requirement, he can be brought before a children’s hearing for that requirement to be reviewed; or
(b) in any other case, the Principal Reporter has, in accordance with section 56(6) of this Act, considered whether compulsory measures of supervision are required in respect of him.
A person who—
(a) knowingly assists or induces a child to abscond in circumstances which render the child liable to arrest under subsection (1) or (3) of section 82 of this Act;
(b) knowingly and persistently attempts to induce a child so to abscond;
(c) knowingly harbours or conceals a child who has so absconded; or
(d) knowingly prevents a child from returning—
(i) to a place mentioned in paragraph (a) or (b) of the said subsection (1);
(ii) to a person mentioned in paragraph (c) of that subsection, or in the said subsection (3),
shall, subject to section 38(3) and (4) of this Act, to section 52(5) and (6) of the [1989 c. 41.] Children Act 1989 and to Article 70(5) and (6) of the [S.I. 1995/755 (N.I.2)] Children (Northern Ireland) Order 1995 (analogous provision for England and Wales and for Northern Ireland), be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment.
Where an order, authorisation or warrant under this Chapter or Chapter 2 of this Part of this Act grants power to find a child and to keep him in a place of safety, such order, authorisation or warrant may be implemented as if it were a warrant for the apprehension of an accused person issued by a court of summary jurisdiction; and any enactment or rule of law applying to such a warrant shall, subject to the provisions of this Act, apply in like manner to the order, authorisation or warrant.
(1) Subject to subsections (3) and (4) below, where subsection (2) below applies an application may be made to the sheriff for a review of a finding such as is mentioned in section 68(10) of this Act.
(2) This subsection applies where the sheriff, on an application made by virtue of subsection (6) or (8) of section 65 of this Act (in this section referred to as the “original application”), finds that any of the grounds of referral is established.
(3) An application under subsection (1) above may only be made where the applicant claims—
(a) to have evidence which was not considered by the sheriff on the original application, being evidence the existence or significance of which might materially have affected the determination of the original application;
(b) that such evidence—
(i) is likely to be credible and reliable; and
(ii) would have been admissible in relation to the ground of referral which was found to be established on the original application; and
(c) that there is a reasonable explanation for the failure to lead such evidence on the original application.
(4) An application under subsection (1) above may only be made by—
(a) the child in respect of whom the ground of referral was found to be established; or
(b) any person who is a relevant person in relation to that child.
(5) Where the sheriff on an application under subsection (1) above is not satisfied that any of the claims made in the application are established he shall dismiss the application.
(6) Where the sheriff is satisfied on an application under subsection (1) above that the claims made in the application are established, he shall consider the evidence and if, having considered it, he is satisfied that—
(a) none of the grounds of referral in the original application to which the application relates is established, he shall allow the application, discharge the referral to the children’s hearing in respect of those grounds and proceed in accordance with subsection (7) below in relation to any supervision requirement made in respect of the child (whether or not varied under section 73 of this Act) in so far as it relates to any such ground; or
(b) any ground of referral in the original application to which the application relates is established, he may proceed in accordance with section 68(10) of this Act.
Children (Scotland) Act 1995