Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Children's Hearings (Scotland) Act 2011

Type Act of the Scottish Parliament

Publication 2011-01-06

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — The National Convener and Children's Hearings Scotland

The National Convener and CHS

Duty to consider applying for parenting order

1

(1) There is to be an officer to be known as the National Convener of Children's Hearings Scotland (referred to in this Act as “the National Convener”).

(2) The Scottish Ministers are to appoint a person as the first National Convener.

(3) The Scottish Ministers must take reasonable steps to involve persons who are under 21 years of age in the process for selection of a person for appointment under subsection (2).

(4) The period for which the person is appointed is 5 years.

(5) The terms and conditions on which the person holds and vacates office are to be determined by the Scottish Ministers.

Children’s Hearings Scotland

2

There is established a body corporate to be known as Children's Hearings Scotland (referred to in this Act as “CHS”).

Further provision about National Convener and CHS

3

Schedule 1 makes further provision about the National Convener and CHS.

The Children's Panel

The Children’s Panel

4

(1) The National Convener must appoint persons to be members of a panel to be known as the Children's Panel.

(2) The National Convener must endeavour to ensure that—

(a) the number of persons that the National Convener considers appropriate is appointed, and

(b) the panel includes persons from all local authority areas.

(3) Schedule 2 makes further provision about the Children's Panel.

Children's hearings

Children’s hearing

5

A children's hearing consists of three members of the Children's Panel selected in accordance with section 6 for the purpose of carrying out functions conferred on a children's hearing by virtue of this Act or any other enactment.

Selection of members of children’s hearing

6

(1) This section applies where a children's hearing requires to be arranged by virtue of, or for the purposes of, this Act or any other enactment.

(2) The members of the children's hearing are to be selected by the National Convener.

(3) The National Convener must ensure that the children's hearing—

(a) so far as practicable, includes both male and female members of the Children's Panel, and

(b) so far as practicable, consists only of members of the Children's Panel who live or work in the area of the local authority which is the relevant local authority for the child to whom the hearing relates.

(4) The National Convener may select one of the members of the children's hearing to chair the hearing.

(5) In this section “children’s hearing” includes a pre-hearing panel.

Holding of children’s hearing

7

The National Convener must ensure that a children's hearing is held for the purpose of carrying out any function conferred on a children's hearing by virtue of this Act or any other enactment.

Provision of advice to children’s hearing

8

(1) The National Convener may provide advice to children's hearings about any matter arising in connection with the functions conferred on children's hearings by virtue of this Act or any other enactment.

(2) The National Convener may in particular provide—

(a) legal advice,

(b) advice about procedural matters,

(d) advice about how decisions of children's hearings are implemented.

(3) In this section, “children's hearing” includes pre-hearing panel.

Independence of children’s hearings

9

Nothing in this Act authorises the National Convener or the Principal Reporter to direct or guide a children's hearing in carrying out the functions conferred on children's hearings by virtue of this Act or any other enactment.

Power to change National Convener's functions

Power to change National Convener’s functions

10

(1) The Scottish Ministers may by order—

(a) confer additional functions on the National Convener,

(b) remove functions from the National Convener,

(d) transfer functions from the National Convener to another person,

(e) specify the manner in which, or period within which, any function conferred on the National Convener by virtue of this Act is to be carried out.

(2) An order under this section is subject to the super-affirmative procedure (other than an order under subsection (1)(e), which is subject to the affirmative procedure).

Functions of CHS

Provision of assistance to National Convener

11

CHS must—

(a) assist the National Convener in carrying out the functions conferred on the National Convener by virtue of this Act or any other enactment,

(b) facilitate the carrying out of those functions.

Independence of National Convener

12

(1) Nothing in this Act authorises CHS or any other person to direct or guide the National Convener in carrying out the functions conferred on the National Convener by virtue of this Act or any other enactment.

(2) This section is subject to section 10(1)(e).

Directions

13

(1) The Scottish Ministers may give CHS general or specific directions about the carrying out of its functions.

(2) CHS must comply with a direction under subsection (1).

(3) The Scottish Ministers may vary or revoke a direction under subsection (1) by giving a subsequent direction under that subsection.

Part 2 — The Principal Reporter and the Scottish Children's Reporter Administration

The Principal Reporter and SCRA

The Principal Reporter

14

There continues to be an officer known as the Principal Reporter.

The Scottish Children’s Reporter Administration

15

There continues to be a body corporate known as the Scottish Children's Reporter Administration (in this Act referred to as “SCRA”).

Further provision about Principal Reporter and SCRA

16

Schedule 3 makes further provision about the Principal Reporter and SCRA.

The Principal Reporter

Duty as respects location of children’s hearing

17

The Principal Reporter must ensure that, so far as practicable, a children's hearing takes place in the area of the relevant local authority for the child to whom the hearing relates.

Power to change Principal Reporter’s functions

18

(1) The Scottish Ministers may by order—

(a) confer additional functions on the Principal Reporter,

(b) remove functions from the Principal Reporter,

(d) transfer functions from the Principal Reporter to another person,

(e) specify the manner in which, or period within which, any function conferred on the Principal Reporter by virtue of this Act or the Criminal Procedure (Scotland) Act 1995 (c.46) is to be carried out.

(2) An order under this section is subject to the super-affirmative procedure (other than an order under subsection (1)(e), which is subject to the affirmative procedure).

Rights of audience

19

(1) The Scottish Ministers may by regulations—

(a) empower the Principal Reporter to conduct proceedings which by virtue of this Act require to be conducted before the sheriff, the sheriff principal or the Sheriff Appeal Court,

(b) prescribe qualifications or experience that must be acquired or training that must be undertaken by the Principal Reporter before conducting such proceedings.

(2) References in subsection (1) to the Principal Reporter include references to a person carrying out a function on behalf of the Principal Reporter by virtue of paragraph 10(1) of schedule 3.

Functions of SCRA

Assisting Principal Reporter

20

SCRA must—

(a) assist the Principal Reporter in carrying out the functions conferred on the Principal Reporter by virtue of this Act or any other enactment, and

(b) facilitate the carrying out of those functions.

Provision of accommodation for children’s hearings

21

(1) SCRA must provide suitable accommodation and facilities for children's hearings.

(2) Accommodation and facilities must, so far as practicable, be provided in the area of each local authority.

(3) Accommodation and facilities must be dissociated from courts exercising criminal jurisdiction and police stations.

Independence of Principal Reporter

22

(1) Nothing in this Act authorises SCRA or any other person to direct or guide the Principal Reporter in carrying out the functions conferred on the Principal Reporter by virtue of this Act or any other enactment.

(2) This section is subject to section 18(1)(e).

Directions

23

(1) The Scottish Ministers may give SCRA general or specific directions about the carrying out of its functions.

(2) SCRA must comply with a direction under subsection (1).

(3) The Scottish Ministers may vary or revoke a direction under subsection (1) by giving a subsequent direction under that subsection.

Transfer of staff, property etc.

24

Schedule 4 makes provision about the transfer of staff, property, rights, liabilities and obligations to CHS.

Part 3 — General considerations

Welfare of the child

25

(1) This section applies where by virtue of this Act a children's hearing, pre-hearing panel or court is coming to a decision about a matter relating to a child.

(2) The children's hearing, pre-hearing panel or court is to regard the need to safeguard and promote the welfare of the child throughout the child's childhood as the paramount consideration.

(3) The children's hearing, pre-hearing panel or court is to have regard to any risk of prejudice to the child's welfare that delay in proceedings would pose.

Decisions inconsistent with section 25

26

(1) A children's hearing or a court may make a decision that is inconsistent with the requirement imposed by section 25(2) if—

(a) the children's hearing, pre-hearing panel or court considers that, for the purpose of protecting members of the public from serious harm (whether physical or not), it is necessary that the decision be made, and

(b) in coming to the decision, the children's hearing, pre-hearing panel or court complies with subsection (2).

(2) The children's hearing, pre-hearing panel or court is to regard the need to safeguard and promote the welfare of the child throughout the child's childhood as a primary consideration rather than the paramount consideration.

Views of the child

27

(1) This section applies where by virtue of this Act a children's hearing, pre-hearing panel or the sheriff is coming to a decision about a matter relating to a child.

(2) This section does not apply where the sheriff is deciding whether to make a child protection order in relation to a child.

(3) The children's hearing, pre-hearing panel or the sheriff must, so far as practicable and taking account of the age and maturity of the child—

(a) give the child an opportunity to indicate whether the child wishes to express the child's views,

(b) if the child wishes to do so, give the child an opportunity to express them, and

(4) Without prejudice to the generality of subsection (3), a child who is aged 12 or over is presumed to be of sufficient age and maturity to form a view for the purposes of that subsection.

(5) In this section “coming to a decision about a matter relating to a child”, in relation to a children's hearing, pre-hearing panel, includes—

(a) providing advice by virtue of section 50,

(b) preparing a report under section 141(2).

Children’s hearing: pre-condition for making certain orders and warrants

28

(1) Subsection (2) applies where a children's hearing is—

(a) considering whether to make a compulsory supervision order,

(b) considering whether to vary or continue a compulsory supervision order,

(d) considering whether to make an interim variation of a compulsory supervision order,

(e) considering whether to make a medical examination order, or

(f) considering whether to grant a warrant to secure attendance.

(2) The children's hearing may make, vary or continue the order or interim variation or grant the warrant, only if the children's hearing considers that it would be better for the child if the order, interim variation or warrant were in force than not.

Sheriff: pre-condition for making certain orders and warrants

29

(1) Subsection (2) applies where—

(a) the sheriff is considering making a child assessment order,

(b) the sheriff is considering making or varying a child protection order,

(i) varying or continuing a compulsory supervision order,

(ii) making or varying an interim compulsory supervision order or an interim variation of a compulsory supervision order,

(iii) varying a medical examination order, or

(iv) granting a warrant to secure attendance,

(d) the sheriff is otherwise considering—

(i) making an interim compulsory supervision order or an interim variation of a compulsory supervision order, or

(ii) granting a warrant to secure attendance, or

(e) the sheriff is considering extending or varying an interim compulsory supervision order under section 98 or 99.

(2) The sheriff may make, vary, continue or extend the order or interim variation or grant the warrant, only if the sheriff considers that it would be better for the child if the order, interim variation or warrant were in force than not.

Children’s hearing: duty to consider appointing safeguarder

30

(1) A children's hearing must consider whether to appoint a person to safeguard the interests of the child to whom the children's hearing relates (a “safeguarder”).

(2) A children's hearing may appoint a safeguarder at any time when the children's hearing is still deciding matters in relation to the child.

(3) A children's hearing must record an appointment made under subsection (2).

(4) If a children's hearing appoints a safeguarder, it must give reasons for its decision.

(5) Subsection (1) does not apply where a safeguarder has already been appointed.

Sheriff: duty to consider appointing safeguarder

31

(1) This section applies where—

(a) proceedings are being taken before the sheriff under Part 10 or 15 in relation to a child, and

(b) a safeguarder has not been appointed for the child in relation to proceedings under those Parts.

(2) The sheriff must consider whether to appoint a safeguarder for the child.

(3) The sheriff may appoint a safeguarder for the child.

(4) A safeguarder appointed under this section is to be treated for the purposes of this Act (other than this section and section 33) as having been appointed by a children's hearing by virtue of section 30.

(5) An appointment under subsection (3) must be recorded.

(6) If the sheriff appoints a safeguarder, the sheriff must give reasons for the decision.

Part 4 — Safeguarders

The Safeguarders Panel

32

(1) The Scottish Ministers must establish and maintain a panel of persons (to be known as the Safeguarders Panel) from which any appointment under this Act of a safeguarder is to be made.

(2) The Scottish Ministers may by regulations make provision for or in connection with—

(a) the recruitment and selection of persons who may be appointed as members of the Safeguarders Panel,

(b) the appointment and removal of members of the Safeguarders Panel,

(d) the training of members and potential members of the Safeguarders Panel,

(e) the payment of expenses, fees and allowances by the Scottish Ministers to members and potential members of the Safeguarders Panel,

(f) the operation and management of the Safeguarders Panel.

(3) For the purpose of complying with the requirements imposed by subsection (1) and regulations under subsection (2), the Scottish Ministers may enter into arrangements (contractual or otherwise) with any person other than CHS or SCRA.

Functions of safeguarder

33

(1) A safeguarder appointed in relation to a child by virtue of section 30 must—

(a) except where subsection (2) or (3) applies, on being so appointed, prepare a report setting out anything that, in the opinion of the safeguarder, is relevant to the consideration of the matter before the children's hearing,

(b) so far as reasonably practicable, attend the children's hearing, and

(2) This subsection applies where the children's hearing directs the Principal Reporter under section 93(2)(a) or 94(2)(a) to make an application to the sheriff.

(3) This subsection applies where the children's hearing was arranged under section 45, 46, 50, 96, 126 or 158.

Safeguarders: regulations

34

(1) The Scottish Ministers may by regulations make further provision about safeguarders.

(2) Regulations under this section may in particular make provision for or in connection with—

(a) imposing additional requirements on safeguarders,

(b) conferring additional powers (including rights of appeal) on safeguarders,

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.