Legalize / United Kingdom / Public General Act

Children (Scotland) Act 1995

Type Public General Act

Publication 1995-07-19

Last updated 2025-09-21

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

Review of case of child arrested by police

63

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Business meeting preparatory to children’s hearing

64

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Referral to, and disposal of case by, children’s hearing

Referral to, and proceedings at, children’s hearing

65

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Warrant to keep child where children’s hearing unable to dispose of case

66

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Warrant for further detention of child

67

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Application to sheriff to establish grounds of referral

68

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Continuation or disposal of referral by children’s hearing

69

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Disposal of referral by children’s hearing: supervision requirements, including residence in secure accommodation

70

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Duties of local authority with respect to supervision requirements

71

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Transfer of child subject to supervision requirement in case of necessity

72

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Duration and review of supervision requirement

73

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Further provision as respects children subject to supervision requirements

74

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Powers of Secretary of State with respect to secure accommodation

75

(1) The Secretary of State may by regulations make provision with respect to the placing in secure accommodation of any child—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) who is not subject to a compulsory supervision order, interim compulsory supervision order, medical examination order or warrant to secure attendance (all within the meaning of the Children's Hearings (Scotland) Act 2011) 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

(2A) In subsection (2), “relevant person” has the meaning given by section 200 of the Children's Hearings (Scotland) Act 2011 and includes a person deemed to be a relevant person by virtue of section 81(3), 160(4)(b) or 164(6) of that Act.

(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) A child may not be kept in secure accommodation by virtue of regulations made under this section for a period exceeding 66 days from the day when the child was first taken to the secure accommodation.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

Exclusion orders

76

(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 79and 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 Part 5 of the Children's Hearings (Scotland) Act 2011 are satisfied,

he may make a child protection order as if the application had been duly made by the local authority under that Part 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;

(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 on or comprised in a lease constituting a 1991 Act tenancy within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11) or in a lease constituting a short limited duration tenancy , a limited duration tenancy, a modern limited duration tenancy or a repairing tenancy (within the meaning of that Act); 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 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 79 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.

Effect of, and orders etc. ancillary to, exclusion order

77

(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.

Powers of arrest etc. in relation to exclusion order

78

(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 to the chief constable of the Police Service of Scotland —

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(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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 the chief constable of the Police Service of Scotland 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 Criminal Procedure (Scotland) Act 1995, 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; ...

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(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 8 of the said Act of 1995, on which the sheriff is not sitting for the disposal of criminal business.

(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12A) Subsection (13) applies where—

(a) a person is brought before the sheriff under subsection (11) above; and

(b) the procurator fiscal has decided that no criminal proceedings are to be taken in respect of the facts and circumstances which gave rise to the arrest.

(13) Where this subsection applies —

(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 aprima 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.

(13A) Subsection (14) applies where—

(a) a person has been liberated under subsection (7)(a) above; or

(b) the following conditions are met—

(i) a person is to be brought before the sheriff under subsection (11) above; and

(ii) the procurator fiscal has decided that no criminal proceedings are to be taken in respect of the facts and circumstances which gave rise to the arrest.

(14) Where this subsection applies, the procurator fiscal shall at the earliest opportunity, and, where the conditions in subsection (13A)(b) above are met, before the 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.

Duration, variation and recall of exclusion order

79

(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.

Exclusion orders: supplementary provisions

80

(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 79(3) of this Act for the variation or recall of such an order or of any thing done under section 77(2) of this Act, shall be made to the sheriff for the sheriffdom within which the family home is situated.

Offences in connection with orders etc. for protection of children

81

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Fugitive children and harbouring

Recovery of certain fugitive children

82

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Harbouring

83

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Implementation of authorisations etc.

Implementation of authorisations etc

84

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New evidence: review of establishment of grounds of referral

Application for review of establishment of grounds of referral

85

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Chapter 4 — Parental Responsibilities Orders, etc.

Parental responsibilities orders

Parental responsibilities order: general

86

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Further provision as respects parental responsibilities orders

87

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Parental contact

88

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Offences in relation to parental responsibilities orders

89

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Miscellaneous

90

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Procedural rules in relation to certain applications etc

91

(1) All proceedings to which this section applies are civil proceedings for the purposes of section 32 of the Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate civil procedure in the sheriff court).

(2) Any reference in this Part of this Act to regulation or prescription by rules in relation to any proceedings to which this section applies shall be construed, unless the context otherwise requires, as a reference to regulation or prescription by rules made under the said section 32.

(3) Without prejudice to the generality of the said section 32, rules may make provision as to—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) the persons to whom notice of an application for an exclusion order or, under section 79(3) of this Act, for the recall or variation of such an order or of anything done under section 77(2) of this Act shall be given;

(e) the period within which a hearing shall be held under subsection (5) of section 76 of this Act after the granting of an order under subsection (4) of that section;

(f) the service of any exclusion order on the named person and the appropriate person within such period as may be specified in the rules.

(4) In relation to any proceedings to which this section applies, rules may permit a party to such proceedings, in such circumstances as may be specified in the rules, to be represented by a person who is neither an advocate nor a solicitor.

(5) This section applies to any application made to the sheriff, and any other proceeding before the sheriff (whether on appeal or otherwise), under any provision of this Part of this Act.

Legal aid in respect of certain proceedings

92

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Interpretation of Part II

93

(1) In this Part of this Act, unless the context otherwise requires,—

“accommodation” shall be construed in accordance with section 25(8) of this Act;

“children’s hearing” shall be construed in accordance with section 5 of the Children's Hearings (Scotland) Act 2011;

“constable” means a constable of the Police Service of Scotland;

“contact order” has the meaning given by section 11(2)(d) of this Act;

“disabled” has the meaning given by section 23(2) of this Act;

“exclusion order” has the meaning given by section 76(12) of this Act;

“family”, in relation to a child, includes—any person who has parental responsibility for the child; andany other person with whom the child has been living;

“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;

“parental responsibilities” has the meaning given by section 1(3) of this Act;

. . .

“parental rights” has the meaning given by section 2(4) of this Act;

“residence order” has the meaning given by section 11(2)(c) of this Act;

“residential establishment”—in relation to a place in Scotland, means an establishment (whether managed by a local authority, by a voluntary organisation or by any other person) which provides residential accommodation for children for the purposes of this Act or the Social Work (Scotland) Act 1968; or the Children’s Hearings (Scotland) Act 2011; in relation to a place in England and Wales, means a community home, voluntary home or private children’s home (within the meaning of the Children Act 1989); andin relation to a place in Northern Ireland, meansa private children’s home within the meaning of the Children (Northern Ireland) Order 1995 (S.I. 1995/755),an authority home provided under Part VII of that Order, ora voluntary home provided under Part VIII of that Order,

“school age” shall be construed in accordance with section 31 of the Education (Scotland) Act 1980;

“secure accommodation” means accommodation provided for the purpose of restricting the liberty of children which—in Scotland, is provided in a residential establishment approved in accordance with regulations made under section 78(2) of the Public Services Reform (Scotland) Act 2010 (asp 8),in England, is provided in a children’s home (within the meaning of the Care Standards Act 2000 (c.14) (“the 2000 Act”)) in respect of which a person is registered under Part 2 of that Act, except that before the coming into force of section 107(2) of the Health and Social Care (Community Health Standards) Act 2003 (c.43), “secure accommodation” means accommodation in relation to England which—is provided in a children’s home (within the meaning of the 2000 Act) in respect of which a person is registered under Part 2 of that Act, andis approved by the Secretary of State for the purpose of restricting the liberty of children,in Wales, is provided in a children’s home (within the meaning of the 2000 Act) in respect of which a person is registered under Part 2 of that Act,

“voluntary organisation” means a body (other than a public or local authority) whose activities are not carried on for profit; and

(2) For the purposes of—

(a) Chapter 1 and this Chapter (except this section) of this Part and section 44, “child” means a person under the age of eighteen years; and

(b) Chapter 2 (except section 44) and Chapter 3 ... of this Part—

“child” means—a child who has not attained the age of sixteen years;a child over the age of sixteen years who has not attained the age of eighteen years and in respect of whom a supervision requirement is in force; ora child whose case has been referred to a children’s hearing by virtue of section 33 of this Act;and for the purposes of the application of those Chapters to a person who has failed to attend school regularly without reasonable excuse includes a person who is over sixteen years of age but is not over school age; and“child” means—in relation to section 75, a person under the age of 18 years,in relation to any other section, a person under the age of 16 years;

(3) Where, in the course of any proceedings under Chapter 2 or 3 of this Part, a child ceases to be a child within the meaning of subsection (2) above the provisions of those Chapters of this Part and of any statutory instrument made under those provisions, shall continue to apply to him as if he had not so ceased to be a child.

(4) Any reference in this Part of this Act to a child—

(a) being “in need”, is to his being in need of care and attention because—

(i) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development unless there are provided for him, under or by virtue of this Part, services by a local authority;

(ii) his health or development is likely significantly to be impaired, or further impaired, unless such services are so provided;

(iii) he is disabled; or

(iv) he is affected adversely by the disability of any other person in his family;

(b) who is “looked after” by a local authority, shall be construed in accordance with section 17(6) of this Act.

(5) Any reference to any proceedings under this Part of this Act, whether on an application or on appeal, being heard by the sheriff, shall be construed as a reference to such proceedings being heard by the sheriff in chambers.

Part III — Adoption

Approval of adoption society for specific services

94

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Welfare of child paramount consideration

95

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Duty of adoption agency to consider alternatives to adoption

96

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Adoption by person married to natural parent

97

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Further amendments of the 1978 Act; and interpretation of Part III

98

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Part IV — General and Supplemental

Registration of births by persons who are themselves children

99

(1) In paragraph (a) of section 14(1) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (duty of father and mother to give information of particulars of birth), for the words “father or mother of the child” substitute “ child’s father or mother (whether or not they have attained the age of sixteen years) ”.

(2) Where, at any time after the coming into force of the Age of Legal Capacity (Scotland) Act 1991 but before the coming into force of subsection (1) above, a person mentioned in the said paragraph (a) who had not at that time attained the age of sixteen years purported to fulfill the duty mentioned in the said section 14(1), he shall be presumed to have had legal capacity to fulfill that duty.

(3) In section 18 of the said Act of 1965 (registration of birth of child born out of wedlock), after subsection (2) add—

(3) A person under the age of sixteen years has legal capacity— (a) to make a request, declaration or statutory declaration under subsection (1) or (2)(b) above if, in the opinion of the registrar; or (b) to make an application under subsection (2)(c) above if, in the opinion of the sheriff, that person understands the nature of the request or, as the case may be, of the declaration, statutory declaration or application; and without prejudice to the generality of this subsection a person twelve years of age or more shall be presumed to be of sufficient age and maturity to have such understanding.

(4) Where, at any time after the coming into force of the Age of Legal Capacity (Scotland) Act 1991 but before the coming into force of subsection (3) above, a person who had not at that time attained the age of sixteen years made a request, declaration, statutory declaration or application mentioned in subsection (1) or (2) of the said section 18 in relation to a child in respect of whose birth an entry was consequently made under the said subsection (1) in a register of births, or as the case may be under the said subsection (2) in the Register of Corrections etc., the person shall be presumed to have had legal capacity to make the request, declaration, statutory declaration, or application in question.

Inquiries into matters affecting children

100

After section 6A of the Social Work (Scotland) Act 1968 there shall be inserted—

(6B) (1) Without prejudice to section 6A(1) of this Act, a local authority may cause an inquiry to be held into their functions under this Act, or any of the enactments mentioned in section 5(1B) of this Act, in so far as those functions relate to children. (2) The local authority may, before an inquiry under this section is commenced, direct that it be held in private; but where no such direction is given, the person holding the inquiry may if he thinks fit hold it, or any part of it, in private. (3) Subsections (2) to (6) of section 210 of the Local Government (Scotland) Act 1973 (powers in relation to local inquiries) shall apply in relation to an inquiry under this section as they apply in relation to a local inquiry under that section, so however that, for the purposes of the application, any reference in those subsections to a Minister shall be construed as a reference to the local authority and any reference to an officer of his Department as a reference to an officer of that authority. (4) The expenses incurred by a local authority in relation to an inquiry under this section (including such reasonable sum as the authority may determine for the services of any of their officers engaged in the inquiry) shall, unless the authority are of the opinion that those expenses should be defrayed in whole or in part by them, be paid by such party to the inquiry as they may direct; and the authority may certify the amount of the expenses so incurred. (5) Any sum certified under subsection (4) above and to be defrayed in accordance with a direction under that subsection shall be a debt due by the party directed and shall be recoverable accordingly. (6) The local authority may make an award as to the expenses of the parties at the inquiry and as to the parties by whom such expenses shall be paid.

Panel for curators ad litem, reporting officers and safeguarders

101

(1) The Scottish Ministers may by regulations make provision for the establishment of one or more of each of the following—

(a) a panel of persons from which curators ad litem may be appointed by virtue of section 108 of the Adoption and Children (Scotland) Act 2007 (asp 4) ...;

(b) a panel of persons from which reporting officers may be appointed under either of those sections; ...

(2) Regulations under subsection (1) above may provide, without prejudice to generality of that subsection—

(a) for the appointment, qualifications and training of persons who may be appointed to those panels; and

(b) for the management and organisation of persons available for appointment from those panels.

(3) Regulations under subsection (1) above may provide—

(a) for the defrayment by local authorities of expenses incurred by members of any panel established by virtue of that subsection; and

(b) for the payment by local authorities of fees and allowances for such members.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Removal of duty to report on operation of Children Act 1975

102

Section 105 of the Children Act 1975 (which among other things provides that every five years there shall be laid before Parliament by the Secretary of State a report on the operation of such sections of that Act as are for the time being in force) shall cease to have effect.

Interpretation, rules, regulations and Parliamentary control

103

(1) Any reference in this Act, or in any enactment amended by this Act, to a person having, or to there being vested in him, parental responsibilities or parental rights shall, unless the context otherwise requires, be construed as a reference to his having, or to there being so vested, any of those rights or as the case may be responsibilities.

(2) Any reference in this Act to something being “prescribed” is, unless the context otherwise requires, a reference to its being prescribed by regulations; and any power conferred by this Act on the Secretary of State or the Lord Advocate to make rules or regulations shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3) Rules or regulations made under this Act—

(a) may make different provision for different cases or classes of case; and

(b) may exclude certain cases or classes of case.

Financial provision

104

There shall be paid out of money provided by Parliament—

(a) any expenses of the Secretary of State incurred in consequence of the provisions of this Act; and

(b) any increase attributable to this Act in the sums payable out of money so provided under any other enactment.

Extent, short title, minor and consequential amendments, repeals and commencement

105

(1) This Act, which subject to subsections (8) to (10) below extends to Scotland only—

(a) may be cited as the Children (Scotland) Act 1995; and

(b) except for subsections (1), (2) and (6) to (10) of this section, shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint;

and different days may be appointed under paragraph (b) above for different purposes.

(2) An order under subsection (1)(b) above may contain such transitional and consequential provisions and savings as appear to the Secretary of State to be necessary or expedient in connection with the provisions brought into force.

(3) The transitional provisions and savings contained in Schedule 3 to this Act shall have effect but are without prejudice to sections 16 and 17 of the Interpretation Act 1978 (effect of repeals).

(4) Schedule 4 to this Act, which contains minor amendments and amendments consequential upon the provisions of this Act, shall have effect.

(5) The enactments mentioned in Schedule 5 to this Act (which include spent provisions) are hereby repealed to the extent specified in the third column of that Schedule.

(6) The Secretary of State may by order made by statutory instrument make such further amendments or repeals, in such enactments as may be specified in the order, as appear to him to be necessary or expedient in consequence of any provision of this Act.

(7) A statutory instrument containing an order under subsection (6) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(8) Sections 18, 26(2), 33, 44, ..., 93 and 104 of this Act and this section extend to England and Wales, and those sections and this section ... also extend to Northern Ireland; but—

(a) subsection (4) of this section so extends—

(i) to England and Wales, only in so far as it relates to paragraphs 8, 10, 19, 31, 37, 41(1), (2) and (7) to (9), 48 to 52, 54 and 55 of Schedule 4; and

(ii) to Northern Ireland, only in so far as it relates to paragraphs 31, 37, 41(1), (2) and (7) to (9), 54, 55 and 58 of that Schedule; and

(b) subsection (5) of this section so extends—

(i) to England and Wales, only in so far as it relates to the entries in Schedule 5 in respect of Part V of the Social Work (Scotland) Act 1968, the Maintenance Orders (Reciprocal Enforcement) Act 1972, section 35(4)(c) of the Family Law Act 1986, the Children Act 1989, the Child Support Act 1991 and the Education Act 1993; and

(ii) to Northern Ireland, only in so far as it relates to the entries in that Schedule in respect of Part V of the Social Work (Scotland) Act 1968, the Maintenance Orders (Reciprocal Enforcement) Act 1972 and section 35(4)(c) of the Family Law Act 1986.

(9) This section, so far as it relates to the repeal of Part V of the Social Work (Scotland) 1968, also extends to the Channel Islands.

(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 1

Appointment

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Children’s Panel Advisory Committees

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Joint Advisory Committees

8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recruitment and training of panel members

9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Expenses of panel members

11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Publication of list of members of children’s panel

12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 2

1

The Adoption (Scotland) Act 1978 shall be amended in accordance with this Schedule.

2

In section 1(2) (facilities to be provided as part of adoption service)—

(a) paragraph (a) shall cease to have effect; and

(b) for paragraph (c) substitute—

(bb) counselling and assistance (but, without prejudice to sections 51 to 51B, not assistance in cash) to children who have been adopted and to persons who have adopted a child; and (c) counselling for other persons if they have problems relating to adoption.

3

4

Section 8 (direction where adoption society inactive or defunct) shall cease to have effect.

5

In section 9 (regulations relating to an adoption agency’s exercise of its functions)—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) after subsection (3) insert—

(3A) Regulations under this section may make provision— (a) as to the determination by an adoption agency of whether, as regards a child for whose adoption it proposes to make arrangements, any such agreement as is mentioned in sections 16(1)(b)(i) and 18(1)(a) is likely to be forthcoming and as to a period by the end of which, if they have determined that the agreement is unlikely to be forthcoming and if no application has been made for an adoption order in relation to the child, application for an order under section 18(1) shall require to be made in relation to him; and (b) where the case of a child for whose adoption an adoption agency proposes to make arrangements is referred under section 73(4)(c)(ii) or (iii) of the Children (Scotland) Act 1995 to the Principal Reporter (within the meaning of Part II of that Act), as to circumstances in which and, on the occurrence of such circumstances, a period by the end of which, if no application has been made for an adoption order in relation to the child, application for an order under section 18(1) shall require to be made in relation to him.

6

In section 11(3) (offence of receiving child illegally placed for adoption), for paragraph (c) substitute—

(c) both receives a child placed with him in contravention of subsection (1) and knows that the placement is with a view to his adopting the child,

7

In section 12 (adoption orders)—

(a) in subsection (1)—

(i) for the words “rights and duties relating” substitute “ responsibilities and parental rights in relation ”; and

(ii) at the end add—

; except that an adoption order may be made in relation to a person who has attained the age of 18 years if the application for it was made before such attainment.

;

(b) in subsection (2), for the words “rights and duties” substitute “ responsibilities and parental rights ”;

(i) in paragraph (a), for the words “right or duty” substitute “ responsibility or parental right ”; and

(ii) in paragraph (b)(ii), for the words “rights and duties” substitute “ responsibilities and parental rights ”; and

(d) at the end add—

(9) Where a court making an adoption order in relation to a child who is subject to a supervision requirement is satisfied that, in consequence of its doing so, compulsory measures of supervision in respect of the child are no longer necessary, it may determine that the child shall forthwith cease to be subject to that requirement.

8

In section 14 (adoption by married couple)—

(a) in subsection (1), the words from “subject” to “certain cases)” shall cease to have effect; and

(b) in subsection (2), after paragraph (b) add—

, or (c) both of them were habitually resident in any of the places mentioned in paragraph (a) above throughout the period of one year which ends with the date of their application

9

In section 15 (adoption by one person)—

(a) in subsection (1), the words from “subject” to “certain cases)” shall cease to have effect; and

(b) in subsection (2), after paragraph (b) add—

, or (c) he was habitually resident in any of the places mentioned in paragraph (a) above throughout the period of one year which ends with the date of his application

10

In section 16 (provision for parental agreement to adoption order)—

(a) for subsection (2) substitute—

(2) The grounds mentioned in subsection (1)(b)(ii) are, that the parent or guardian— (a) is not known, cannot be found or is incapable of giving agreement; (b) is withholding agreement unreasonably; (c) has persistently failed, without reasonable cause, to fulfil one or other of the following parental responsibilities in relation to the child— (i) the responsibility to safeguard and promote the child’s health, development and welfare; or (ii) if the child is not living with him, the responsibility to maintain personal relations and direct contact with the child on a regular basis; (d) has seriously ill-treated the child, whose reintegration into the same household as the parent or guardian is, because of the serious ill-treatment or for other reasons, unlikely.

; and

(b) subsection (5) shall cease to have effect.

11

In section 18 (making and effect of orders freeing for adoption)—

(a) in subsection (1), after the word “agency” insert “ which is a local authority ”;

(b) for subsection (5) substitute—

(5) On the making of an order under this section, the parental responsibilities and parental rights in relation to the child are transferred to the adoption agency.

;

(7) Before making an order under this section in the case of a child whose father is not, and has not been, married to the mother and does not have any parental responsibilities or parental rights in relation to the child, the court shall satisfy itself in relation to any person claiming to be the father that— (a) he has no intention of applying for, or, if he did so apply, it is likely that he would be refused, an order under section 11 of the Children (Scotland) 1995 Act (orders in relation to parental responsibilities and parental rights); and (b) he has no intention of entering into an agreement with the mother under section 4(1) of that Act (acquisition by natural father by agreement of such responsibilties and rights), or, if he has such an intention, that no agreement under that subsection is likely to be made.

; and

(d) at the end add—

(9) Where a court making an order under this section in relation to a child who is subject to a supervision requirement is satisfied that, in consequence of its doing so, compulsory measures of supervision in respect of the child are no longer necessary, it may determine that the child shall forthwith cease to be subject to that requirement.

12

In section 19 (progress reports)—

(a) in subsection (1)—

(i) for the words “(”the former parent”)” substitute “ (in this section and in section 20 referred to as the “relevant parent”) ”; and

(ii) for the words “did not do so” substitute—

either— (a) did not do so; or (b) having done so, subsequently by written notice under this subsection to the adoption agency to which the parental responsibilities and parental rights have been transferred, has withdrawn such declaration.

;

(b) in subsection (2)—

(i) for the words “in which the parental rights and duties were vested” substitute “ to which the parental responsibilities and parental rights were transferred ”; and

(ii) for the word “former”, in both places where it occurs, substitute “ relevant ”;

(i) for the word “former”, wherever it occurs, substitute “ relevant ”; and

(ii) for the words “have his home with a person with whom he has been placed for adoption” substitute “ be placed with a person with a view to his being adopted by that person ”; and

(d) in subsection (4)—

(i) for the words “the former” substitute “ the relevant ”;

(ii) after paragraph (b) add— “ but a declaration under this subsection may be withdrawn in the same way as may a declaration under subsection (6) of section 18, in which event the agency shall no longer be so released ”; and

(iii) for the words “that former” substitute “ that relevant ”.

13

In section 20 (revocation of order under section 18)—

(a) in subsection (1)—

(i) for the word “former” substitute “ relevant ”; and

(ii) for the words “rights and duties” substitute “ responsibilities and parental rights ”;

(b) after subsection (1) insert—

(1A) The adoption agency, at any time after the making of the order under section 18 when the conditions mentioned in paragraphs (a) and (b) of subsection (1) above are satisfied, may apply to the court which made the order for a further order revoking it.

;

(i) for the words “the application” substitute “ an application under subsection (1) or (1A) ”; and

(ii) for the words “rights and duties” substitute “ responsibilities and parental rights ”;

(d) for subsection (3) substitute—

(3) Where an order freeing a child for adoption is revoked under this section, the court shall, by an order under section 11 of the Children (Scotland) Act 1995 determine on whom are to be imposed the parental responsibilities, and to whom are to be given the parental rights, in relation to the child.

;

(e) in subsection (4)—

(i) for the words “if the application” substitute “ if an application under subsection (1) ”; and

(ii) in paragraph (a), for the word “former” substitute “ relevant ”; and

(f) in subsection (5), for the word “former” substitute “ relevant ”.

14

In section 21 (variation of order under section 18 so as to substitute one adoption agency for another)—

(a) in subsection (1)—

(i) for the words “rights and duties” substitute “ responsibilities and parental rights ”; and

(ii) for the words “in which they are vested under” substitute “ to which they are transferred by virtue of ”; and

(b) in subsection (3)—

(i) for the words “rights and duties” substitute “ responsibilities and parental rights ”; and

(ii) for the words “vested in” substitute “ been transferred to ”.

15

After section 22 insert—

(22A) (1) An approved adoption society shall refer the case of a child who is subject to a supervision requirement to the Principal Reporter where it is satisfied that the best interests of the child would be served by its placing the child for adoption and it intends so to place him. (2) On a case being referred to him under subsection (1), the Principal Reporter shall arrange for a children’s hearing to review the supervision requirement in question and shall make any arrangements incidental to that review. (3) Subsections (9), (13) and (14) of section 73 of the Children (Scotland) Act 1995 (which provide, respectively, for acting on the review of a supervision requirement, a report by a children’s hearing and consideration of that report) shall apply in relation to a children’s hearing arranged under this section as those subsections apply in relation to one arranged by virtue of subsection (4)(c)(iii) of that section. (4) In this section “Principal Reporter” has the same meaning as in Part II of the Children (Scotland) Act 1995.

16

In section 24 (restrictions on making adoption orders), for subsection (2) substitute—

(2) The court may make an adoption order in relation to a child even where it is found that the applicants have, as respects the child, contravened section 51. (3) In considering whether to make an adoption order or an order under section 18(1), the court shall regard the welfare of the child concerned as its paramount consideration and shall not make the order in question unless it considers that it would be better for the child that it should do so than that it should not.

17

In section 25(1) (making of interim order and preconditions for so doing)—

(a) for the words “of sections 16(1) and 22(1) are complied with” substitute—

— (a) of section 16(1); and (b) in a case where the child was not placed with the applicant by an adoption agency, of section 22(1), are complied with

; and

(b) for the words “vesting the custody of the child in” substitute “ giving parental responsibilities and parental rights to ”.

18

After section 25 insert—

(25A) In proceedings in which the question arises as to whether the court is satisfied as is mentioned in section 16(1)(b)(ii) or 18(1)(b), the court shall, with a view to determining the question without delay— (a) draw up a timetable specifying periods within which certain steps must be taken in relation to those proceedings; and (b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that the timetable is adhered to.

19

In section 27 (restrictions on removal of a child by a parent or guardian who has agreed to an adoption order or to an order freeing the child for adoption)—

(a) for subsections (1) and (2), substitute—

(1) Where— (a) an adoption agency has placed a child with a person with a view to his being adopted by the person; and (b) the consent of each parent or guardian of the child has been duly obtained to that placement (whether or not in knowledge of the identity of the person), any such parent or guardian shall not be entitled to remove the child from the care and possession of the person without the leave either of the adoption agency or of the court. (2) The reference in subsection (1) to consent having been duly obtained is to its having been obtained in accordance with such regulations as may be made by the Secretary of State for the purposes of this section.

; and

(b) in subsection (3), for the words “contravenes subsection (1) or (2)” substitute “ removes a child in contravention of subsection (1) ”.

20

In section 28 (restriction on removal of child from care and possession of applicant for adoption order etc.)—

(a) in subsection (4), for the words from “, in terms of” to the end substitute “ under or by virtue of Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995 ”; and

(b) in subsection (5), the words “or of a voluntary organisation” and “ or the organisation ” shall cease to have effect.

21

Sections 32 to 37 (protected children) shall cease to have effect.

22

In section 45(5) (restrictions as to persons to whom information contained in the Adopted Children Register or in certain other registers or books may be provided, including a restriction as to the minimum age which an adopted person must be for it to be provided to him), for the word “17” substitute “ 16 ”.

23

In section 49(1) (adoption of children abroad), for the words “vesting in him the parental rights and duties relating” substitute “ transferring to him the parental responsibilities and parental rights in relation ”.

24

In section 51 (prohibition on certain payments)—

(a) in subsection (1), after the word “section” insert “ and of section 51A(3) ”;

(b) in subsection (2), for the words “the court may order any child in respect of whom the offence was committed” substitute “ without prejudice to any power which the court has to make any other order in relation to the child as respects whom the offence was committed, it may order him ”;

(i) at the beginning insert “ Subject to section 51B, ”; and

(ii) at the end add “ (including any such payment made by virtue of section 51B) ”; and

(d) subsections (6)(a) and (7) to (11) shall cease to have effect.

25

After section 51 insert—

(51A) (1) Subject to subsection (2), an adoption agency which is— (a) a local authority shall, within such period after the coming into force of this section as the Secretary of State may by order direct; (b) an approved adoption society may, prepare a scheme (in this section and in section 51B referred to as an “adoption allowances scheme”) for the payment by the agency of allowances to any person who has adopted, or intends to adopt, a child in any case where arrangements for the adoption were made, or as the case may be are to be made, by the agency. (2) The Secretary of State may make regulations as respects adoption allowances schemes; and without prejudice to the generality of this subsection such regulations may in particular make provision as to— (a) the procedure to be followed by an agency in determining whether a person should be paid an allowance; (b) the circumstances in which an allowance may be paid; (c) the factors to be taken into account in determining the amount of an allowance; (d) the procedure for review, variation and termination of allowances; (e) the information about allowances which is to be supplied by an agency to a person who intends to adopt a child; and (f) the procedure to be followed by an agency in drawing up, in making alterations to, or in revoking and replacing, an adoption allowances scheme. (3) Section 51(1) shall not apply to any payment made in accordance with an adoption allowances scheme (including any such payment made by virtue of section 51B). (51B) After the coming into force of section 51A— (a) no scheme for the payment of allowances shall be submissible under subsection (5) of section 51; and (b) a scheme which has been approved under that subsection of that section shall forthwith be revoked under subsection (6)(b) of that section, so however that where a person was before its revocation receiving payments made in accordance with that scheme he may continue to receive payments so made which, had there been no revocation, would have fallen to be made to him or he may agree to receive, instead of the continued payments, payments made in accordance with an adoption allowances scheme.

26

In section 58 (curatorsad litem and reporting officers), in subsection (2)(c), for the words “rights and duties relating” substitute “ responsibilities and parental rights in relation ”.

27

In section 59(4) (disapplication of provisions regarding rules), for the words “, 11 and 32 to 37” substitute “ and 11 ”.

28

In section 60(3) (affirmative procedure for certain orders), the words “or 51(9)” shall cease to have effect.

29

In section 65 (interpretation)—

(a) in subsection (1)—

(i) in the definition of “adoption order”, in each of paragraphs (b) and (c), for the words “and 30 to 32” substitute “ 30 and 31 ”;

(ii) after the definition of “child” insert—

“compulsory measures of supervision” has the same meaning as in Part II of the Children (Scotland) Act 1995;

;

(iii) in the definition of “guardian”, paragraph (b) shall cease to have effect;

(iv) in the definition of “local authority”, the words “, 35(1)” shall cease to have effect;

(v) after the definition of “overseas adoption” insert—

“parent” means, irrespective of whether or not they are, or have been, married to each other— (a) the mother of the child, where she has parental responsibilities or parental rights in relation to him; (b) the father of the child where he has such responsibilities or rights; and (c) both of his parents, where both have such responsibilities or rights; “parental responsibilities” and “parental rights” have the meanings respectively given by sections 1(3) and 2(4) of the Children (Scotland) Act 1995 (analogous expressions being construed accordingly);

;

(vi) in the definition of “relative” for the words from “and any person” to the end substitute “ where he is not a parent within the meaning of this Act, and any person who would be a relative within the meaning of this definition if the father were such a parent; ” and

(vii) after the definition of “specified order” insert—

“supervision requirement” has the same meaning as in Part II of the Children (Scotland) Act 1995;

;

(b) in subsection (3), for the words “44 of the Social Work (Scotland) Act 1968” substitute “ 70 of the Children (Scotland) Act 1995 ”; and

(6) Any reference in this Act to a child being in, received into or kept in, care (whether or not such care is expressed as being the care of a local authority and except where the context otherwise requires) shall be taken to be a reference to his being looked after by a local authority and shall be construed in accordance with section 17(6) of the Children (Scotland) Act 1995; and any reference to the authority in whose care a child is, shall be construed accordingly.

SCHEDULE 3

1

Where, immediately before the day appointed for the coming into force of section 25 of this Act, a child is by virtue of section 15 of the 1968 Act (duty of local authority to provide for orphans, deserted children etc.) in the care of a local authority, the child shall on and after that day be treated as if he had been provided with accommodation under (and within the meaning of) subsection (1) of the said section 25.

2

Sections 29 and 30 of this Act shall apply in respect of a person who, at the time when he ceased to be of school age (as defined in section 31 of the Education (Scotland) Act 1980) or at any subsequent time, was—

(a) in the care of a local authority by virtue of the said section 15 or of section 16 of the 1968 Act (assumption of parental rights and powers); or

(b) subject to a supervision requirement (within the meaning of section 44(1) of the 1968 Act),

as they apply in respect of a person who at such time was looked after (within the meaning of Part II of this Act) by a local authority.

3

Where the parental rights in respect of a child have, by a resolution under the said section 16 or under section 16A of the 1968 Act (duty of local authority in cases of necessity to assume parental rights and powers vested in a voluntary organisation), vested in a local authority and immediately before the day appointed for the coming into force of section 86 of this Act those rights remain so vested, the resolution shall on and after that day have effect as if it were a parental responsibilities order transferring the appropriate parental rights and responsibilities (as defined in subsection (3) of the said section 86) relating to the child to the authority; and any access order made under section 17B of the 1968 Act in relation to the child (with any order made under section 17C of that Act as respects the access order) being (in either case) an order which immediately before that day remains undischarged, shall on and after that day have effect as if it were an order made under section 88(3) of this Act as respects the child.

4

Where the parental rights in respect of a child have, by a resolution under the said section 16, vested in a voluntary organisation (as defined in section 93 of this Act) and immediately before the day mentioned in paragraph 3 above those rights remain so vested, the resolution shall, notwithstanding the repeal by this Act of the said section 16, continue to have effect until one of the following occurs—

(a) the child attains the age of eighteen years;

(b) the resolution is rescinded by the local authority because it appears to them that their doing so would promote the child’s welfare;

(d) an order is made by virtue of section 11(2)(b), or under section 86(1), of this Act in relation to the child;

(e) the making of an adoption order (as defined in section 28(1) of the Adoption and Children (Scotland) Act 2007 (asp 4)) in respect of the child;

(f) the making of a permanence order (as defined in subsection (2) of section 80 of that Act) which includes provision such as is mentioned in paragraph (c) of that subsection in respect of the child.

5

Where the circumstance by virtue of which a resolution under the said section 16 ceases to have effect is that mentioned in sub-paragraph (c) of paragraph 4 above, the appropriate parental rights and responsibilities (defined as mentioned in paragraph 3 above) in relation to the child shall transfer forthwith to the local authority in whose area he resides; and for the purposes of sections 86(6) and 87 to 89 of this Act the transfer shall be deemed effected by a parental responsibilities order applied for by that authority.

6

While a resolution continues to have effect by virtue of paragraph 4 above, sections 17(3A) and (6) to (10), 17A, 17B, 17D, 17E and 20(3) of the 1968 Act (together with the code of practice last published under subsection (5) of the said section 17E) shall continue to have effect in relation to the child in question notwithstanding the repeal by this Act of those sections.

7

Where an order made under—

(a) section 10 (power of court in actions of divorce etc. to commit care of child to local authority) or 12 (power of court to provide for supervision of child) of the Matrimonial Proceedings (Children) Act 1958;

(b) section 11 of the Guardianship Act 1973 (orders relating to care and custody of children); or

committed the care of the child to, or as the case may be placed the child under the supervision of, a local authority and immediately before the repeal by this Act of the section in question (the “relevant repeal”) that order remained undischarged, the order shall continue to have effect notwithstanding the relevant repeal until one of the following occurs—

(i) the period of six months commencing with the date of the relevant repeal expires;

(ii) the Court of Session direct, or the sheriff directs, that the order be discharged; or

(iii) there is an event in consequence of which, but for the provisions (apart from this paragraph) of this Act, the order would have fallen to be discharged.

8

(1) Where relevant proceedings in relation to a child have been commenced and on the relevant date have not been concluded, the provisions of Part III of the 1968 Act shall continue to apply to those proceedings until the proceedings are concluded, notwithstanding the repeal of any of those provisions by this Act.

(2) For the purposes of this paragraph, “relevant proceedings” means any proceedings at a children’s hearing under Part III of the 1968 Act, any application to the sheriff under that Part for a warrant or under section 42(2)(c) of that Act to establish any ground of referral, and any appeal under section 49 or 50 of that Act; and a reference to the commencement, or to the conclusion, of such proceedings shall be construed in accordance with sub-paragraph (3) or, as the case may be, (4) below.

(3) Relevant proceedings are commenced when one of the following occurs—

(a) a children’s hearing is arranged under section 37(4) or section 39(3) of the 1968 Act;

(b) an application under section 42(2)(c) of that Act is lodged;

(d) an application under section 50(2) of that Act is made.

(4) Relevant proceedings are concluded when one of the following occurs—

(a) the sheriff discharges the referral under section 42(5) of the 1968 Act;

(b) a children’s hearing discharge the referral under section 43(2) of that Act;

(c) the period of three weeks after a children’s hearing make a supervision requirement under section 44 of that Act or on remission to them under section 49(5) of that Act, expires provided that no appeal has been lodged within that period against that decision under section 49 of that Act;

(d) subject, as respects a decision under section 49(5)(b) of that Act, to head (c) above, the period of twenty eight days after the sheriff has disposed of an appeal under section 49(4), (5) or (6) of that Act expires provided that no application has been made within that period to him to state a case under section 50(2) of that Act;

(e) the period of twenty eight days after the sheriff has disposed of a case remitted to him under section 50(3) expires provided that no further application under the said section 50(2) has been made.

9

Where a child has been taken to a place of safety, or is being detained in such a place, in accordance with section 37(2) of the 1968 Act before the relevant date, and the first lawful day for the purposes of subsection (4) of that section is on or after that date, the child’s case shall be proceeded with as if that day had been before the relevant date.

10

(1) Where on the relevant date a child is subject to a supervision requirement imposed under section 44 of the 1968 Act, he shall be treated as if the requirement had been imposed under section 70 of this Act; and in calculating any period of time for the purposes of section 73 of this Act, that requirement shall be deemed to have been imposed on the day on which the requirement was imposed under the said section 44 or, as the case may be, was last reviewed or varied under the said Act of 1968.

(2) Where any relevant proceedings are concluded as mentioned in paragraph 8(4)(c) above, a supervision requirement imposed under section 44 of the 1968 Act shall have effect as if it were made under section 70 of this Act.

(3) Where before the relevant date, or in any relevant proceedings, the sheriff has in relation to a supervision requirement made an order under section 49(6) of the 1968 Act, that order shall have effect in relation to the supervision requirement deemed to have been made under section 70 of this Act as it would have had effect in relation to the supervision requirement made under section 44 of the 1968 Act.

11

In this Schedule—

“the 1968 Act” means the Social Work (Scotland) Act 1968;

“the relevant date” means the date on which the repeal of Part III of the 1968 Act by this Act takes effect; and

“relevant proceedings” shall be construed in accordance with paragraph 8(2) above.

SCHEDULE 4

Lands Clauses Consolidation (Scotland) Act 1845 (c. 19)

1

(1) The Lands Clauses Consolidation (Scotland) Act 1845 shall be amended in accordance with this paragraph.

(2) In section 7 (which makes provision for certain persons to have full power to sell and convey land)—

(a) after the word “husbands,” insert “ persons who, within the meaning of Part I of the Children (Scotland) Act 1995, are entitled to act as the legal representatives of a child, ”;

(b) after the words “guardians for” the words “persons under a legal disability by reason of nonage” shall cease to have effect; and

(d) after the word “such” where it appears for the sixth time, insert “ legal representatives, ”; and

(e) after the word “such” where it appears for the seventh time, the words “persons under legal disability by reason of nonage” shall cease to have effect.

(3) In section 67 (certain payments to persons under a disability to be deposited with the Bank)—

(a) after the word “husband,” insert “ a person who, within the meaning of Part I of the Children (Scotland) Act 1995, is entitled to act as a legal representative of a child ”; and

(b) the words “persons under legal disability by reason of nonage” shall cease to have effect.

(4) In section 69 (nomination of trustees to whom certain payments of under £200 may be paid)—

(a) the words “legal disability by reason of nonage” shall cease to have effect; and

(b) after the word “husbands,” insert “ legal representatives of a child (within the meaning of Part I of the Children (Scotland) Act 1995), ”.

(5) In section 70 (sums of under £20 to be paid to certain persons), after the word “husbands,” insert “ legal representatives of a child (within the meaning of Part I of the Children (Scotland) Act 1995), ”.

Judicial Factors (Scotland) Act 1849 (c. 51)

2

(1) The Judicial Factors (Scotland) Act 1849 shall be amended in accordance with this paragraph.

(2) In section 1 (interpretation), the words from “the word ”Guardian” to” “years;” shall cease to have effect.

(3) In section 10 (duty of accountant to supervise judicial factors and others), for the words “guardians and tutors” substitute “ , tutors ”.

(4) Section 25(2) (guardians to be subject to the provisions of the Act), shall cease to have effect.

(5) In section 27 (limitation by court of amount of caution), the words “guardians and” shall cease to have effect.

(6) In section 31 (power of court to remove tutors etc.), the word “guardian” shall cease to have effect.

(7) In section 32 (provisions of the Act not to alter existing powers, rights and duties of offices), the word “guardian,” shall cease to have effect.

(8) In section 33 (power of accountant to obtain information from banks), the words “guardians or” shall cease to have effect.

(9) In section 34 (petitions for discharge of office), in both places where it occurs, the word “guardian,” shall cease to have effect.

(10) In section 34A (act of sederunt to provide for other forms of discharge), for the words “, death or coming of age” substitute “ or death ”.

(11) In section 36 (records held by accountant to be open to inspection), the word “guardianships,” shall cease to have effect.

(12) In section 37 (accumulation of interest on accounts), the word “guardian,” shall cease to have effect.

(13) In section 40 (act of sederunt to regulateinter alia application of the Act to offices other than judicial factors), in both places where it occurs, the word “guardians,” shall cease to have effect.

Improvement of Land Act 1864 (c. 114)

3

In section 24 of the Improvement of Land Act 1864 (representation of persons under disability in certain applications etc.), for the words from the beginning to “feoffee” where it last occurs substitute “ Any person entitled to act as the legal representative of a person under legal disability by reason of non-age or mental incapacity shall be entitled to act on behalf of that person for the purposes of this Act; and any trustee, judicial factor, executor or administrator shall, subject to any other enactment, have the same rights and powers for the purposes of this Act as if the property vested in or administered by him had been vested in him in his own right; but no such legal representative ”.

Judicial Factors (Scotland) Act 1880 (c. 4)

4

In section 3 of the Judicial Factors (Scotland) Act 1880 (interpretation), in the definition of “judicial factor”—

(a) for the word “absentis,” substitute “ absentis and ”; and

(b) the words from “and” to “required,” shall cease to have effect.

Heritable Securities (Scotland) Act 1894 (c. 44)

5

In section 13 of the Heritable Securities (Scotland) Act 1894 (persons to have powers conferred by Act where person subject to legal disability), for the words “and trustees” substitute

and— (a) any person entitled, within the meaning of Part I of the Children (Scotland) Act 1995, to act as the legal representative of a child; and (b) trustees

Trusts (Scotland) Act 1921 (c. 58)

6

In section 2 of the Trusts (Scotland) Act 1921 (interpretation)—

(a) in the definition of “trustee” the words “(including a father or mother acting as guardian of a child under the age of 16 years)” shall cease to have effect; and

(b) after the definition of “trustee” insert—

“curator” and “tutor” shall have respectively the meanings assigned to these expressions by section 1 of the Judicial Factors Act 1849; “guardian” shall not include any person who, within the meaning of Part I of the Children (Scotland) Act 1995, is entitled to act as the legal representative of a child;

Children and Young Persons (Scotland) Act 1937 (c. 37)

7

(1) The Children and Young Persons (Scotland) Act 1937 shall be amended in accordance with this paragraph.

(2) In section 12 (cruelty to persons under sixteen)—

(a) in subsection (1), for the words from “has the custody” to “that age” substitute “ who has parental responsibilities in relation to a child or to a young person under that age or has charge or care of a child or such a young person, ”;

(b) in subsection (2)(a), after the words “young person” insert “ or the legal guardian of a child or young person ”; and

(c) in subsection (4), for the words from “of whom” to “or care” substitute “ and he had parental responsibilities in relation to, or charge or care of, that child or young person ”.

(3) In section 15 (causing or allowing persons under sixteen to be used for begging), in each of subsections (1) and (2), for the words “the custody” substitute “ parental responsibilities in relation to, or having ”.

(4) In section 22 (exposing children under seven to risk of burning), for the words from “having the custody” to “seven years” substitute “ and who has parental responsibilities in relation to a child under the age of seven years or charge or care of such a child ”.

(5) In section 27 (interpretation)—

(a) the first paragraph shall cease to have effect; and

(b) in the second paragraph, for the words “the custody of” substitute “ parental responsibilities in relation to ”.

(6) In section 110(1) (interpretation)—

(a) after the definition of “local authority” insert—

“parental responsibilities” has the same meaning as in section 1(3) of the Children (Scotland) Act 1995 and includes the responsibilities which a father would have as a parent but for the operation of section 3(1)(b) of that Act;

;

(b) for the definition of “Place of Safety”, substitute

“place of safety” has the meaning give by section 93(1) of the Children (Scotland) Act 1995;

; and

“residential establishment” has the meaning given by the said section 93(1);

Mines and Quarries Act 1954 (c. 70)

8

In section 182(1) of the Mines and Quarries Act 1954 (interpretation), in the definition of “parent”, for the words from “means” to “and includes” substitute “ means a parent of a young person or any person who is not a parent of his but who has parental responsibility for him (within the meaning of the Children Act 1989) or who has parental responsibilities in relation to him (within the meaning of section 1(3) of the Children (Scotland) Act 1995), and includes ”.

Matrimonial Proceedings (Children) Act 1958 (c. 40)

9

In section 11(1) of the Matrimonial Proceedings (Children) Act 1958 (reports as to arrangements for future care and upbringing of children), for the words from the beginning to “the court may” substitute “ Where the court is considering any question relating to the care and upbringing of a child, it may ”.

Factories Act 1961 (c. 34)

10

In section 176(1) of the Factories Act 1961 (interpretation)—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) in the definition of “parent”, for the words from “means” to “and includes” substitute “ means a parent of a child or young person or any person who is not a parent of his but who has parental responsibility for him (within the meaning of the Children Act 1989) or who has parental responsibilities in relation to him (within the meaning of section 1(3) of the Children (Scotland) Act 1995), and includes ”.

Education (Scotland) Act 1962 (c. 47)

11

In section 145(33) of the Education (Scotland) Act 1962 (interpretation), for the words “the actual custody of” substitute “ parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to, or has the care of, ”.

Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49)

12

(1) The Registration of Births, Deaths and Marriages (Scotland) Act 1965 shall be amended in accordance with this paragraph.

(2) In section 20(3)(a) (re-registration of birth of person under sixteen), for sub-paragraphs (i) and (ii) substitute “ , by any person (whether or not he has himself attained the age of sixteen years) having parental responsibilities in relation to that person; ”.

(3) In section 43 (recording of baptismal name or change of name or surname)—

(a) in subsection (3), the words from “In this” to the end shall cease to have effect;

(b) in subsections (6)(a) and (7), for the words “the parent or guardian” substitute “ the qualified applicant ”;

(9A) In this section “qualified applicant” means— (a) where only one parent has parental responsibilities in relation to the child, that parent; (b) where both parents have such responsibilities in relation to the child, both parents; and (c) where neither parent has such responsibilities, any other person who has such responsibilities. (9B) A person may be a qualified applicant for the purposes of this section whether or not he has attained the age of sixteen years

; and

(d) subsection (10) shall cease to have effect.

(4) In section 53(3)(c) (offence of failure by parent to give information concerning birth), after the word “fails” insert “ without reasonable excuse ”.

(5) In section 56(1) (interpretation), after the definition of “parentage” insert—

“parental responsibilities” has the meaning given in section 1(3) of the Children (Scotland) Act 1995;

13

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Children (Scotland) Act 1995

Review of case of child arrested by police

63

Business meeting preparatory to children’s hearing

Business meeting preparatory to children’s hearing

64

Referral to, and disposal of case by, children’s hearing

Referral to, and proceedings at, children’s hearing

65

Warrant to keep child where children’s hearing unable to dispose of case

66

Warrant for further detention of child

67

Application to sheriff to establish grounds of referral

68

Continuation or disposal of referral by children’s hearing

69

Disposal of referral by children’s hearing: supervision requirements, including residence in secure accommodation

70

Duties of local authority with respect to supervision requirements

71

Transfer of child subject to supervision requirement in case of necessity

72

Duration and review of supervision requirement

73

Further provision as respects children subject to supervision requirements

74

Powers of Secretary of State with respect to secure accommodation

75

Exclusion orders

Exclusion orders

76

Effect of, and orders etc. ancillary to, exclusion order

77

Powers of arrest etc. in relation to exclusion order

78

Duration, variation and recall of exclusion order

79

Exclusion orders: supplementary provisions

80

Offences in connection with orders etc. for protection of children

Offences in connection with orders etc. for protection of children

81

Fugitive children and harbouring

Recovery of certain fugitive children

82

Harbouring

83

Implementation of authorisations etc.

Implementation of authorisations etc

84

New evidence: review of establishment of grounds of referral

Application for review of establishment of grounds of referral

85

Chapter 4 — Parental Responsibilities Orders, etc.

Parental responsibilities orders

Parental responsibilities order: general

86

Further provision as respects parental responsibilities orders

87

Parental contact

88

Offences in relation to parental responsibilities orders

89

Miscellaneous

Consent of child to certain procedures

90

Procedural rules in relation to certain applications etc

91

Legal aid in respect of certain proceedings

92

Interpretation of Part II

Interpretation of Part II

93

Part III — Adoption

Approval of adoption society for specific services

94

Welfare of child paramount consideration

95

Duty of adoption agency to consider alternatives to adoption