Scotland's Children - The Children (Scotland) Act 1995 Regulations and Guidance: Volume 1 Support and Protection for Children and Their Families

Introduction

1. The Children (Scotland) Act 1995 introduces four new provisions aimed at protecting children from harm or at establishing whether children may be in need of protection from harm. They are

the child assessment order
the child protection order
the exclusion order
emergency child protection measures.

2. Local authorities may apply to use any of the new provisions. This reflects their central position in safeguarding and promoting the welfare of children in need. Child protection should, however, be seen in the context of local authorities' wider responsibilities for child care. To assist authorities in discharging those responsibilities, the Act introduces various powers enabling authorities to provide a range of different types of support for children and their families. The effective use of those powers will help to avoid situations which could lead to children being subjected to abuse and may thus avert the need for child protection intervention.

3. There will, however, be circumstances where child protection action needs to be taken, most often by local authorities but also sometimes by other public authorities and, even less frequently, by private individuals. One or other of the new measures provided for in the Act may be appropriate in such circumstances.

4. The new provisions are designed to ensure that effective action for the protection of a child can, where necessary, be taken. The Act in relation to these provisions places the child at the centre - his or her welfare is paramount. Any action authorised will, however, be taken within a framework of proper safeguards and reasonable opportunities for parents and others connected with the child to challenge such action before a court. Action authorised by the new measures is governed by prescribed time-limits.

5. All four new provisions require the condition of significant harm to be satisfied. The term "significant harm" is not defined in the Act. It will, therefore, be a matter for the judgement of those concerned with determining the outcome of applications to consider whether the degree of harm to which the child is believed to have been subjected or is suspected of having been subjected (or is likely to be subjected) is significant. Those contemplating an application for an order or authorisation will need to make a judgement based on as much information as can be obtained about the child and his or her family. They must be satisfied that they can demonstrate to a sheriff (or a justice of the peace in the case of an emergency child protection authorisation) that the criteria for granting the particular Order (or authorisation) are met.

6. A local authority's decision as to whether an exclusion order or a child protection order is the more appropriate should always be governed by what is in the best interests of the child. The sheriff may substitute a child protection order when an exclusion order is applied for but he may not substitute an exclusion order when considering an application for a child protection order.

7. The forms of application for each of the three new Orders, the procedures to be followed and the forms of Orders which may be granted are prescribed in Sheriff Court Rules as are the arrangements for service. There is no prescribed form of application for an emergency protection authorisation. The Rules of Court are available from The Stationery Office Ltd.

Child assessment order

8. A local authority, and only a local authority, may apply to a sheriff for a child assessment order to enable them to carry out an assessment of the state of a child's health or development or of the way the child has been treated so that they may determine whether or not action to protect the child should be considered. Where an application has been made for a child assessment order and the sheriff considers that the conditions for making a child protection order are satisfied, he or she must make a child protection order.

Section 55

Section 55(2)

Child protection order

9. A child protection order may be made by a sheriff, on the application of any person, to authorise (but not to require) the removal of a child to a place of safety or to prevent a child being removed from the place where he or she is being accommodated. The new provisions relating to child protection orders set out clear grounds, clearly defined responsibilities for the person holding the Order and strict time limits within which the Order must be implemented. The duration and effect of the Order are limited to what is necessary to protect the child. The parents of a child who is subject to an Order, and certain other persons specified in the Act, may challenge the Order or any direction made under it. A sheriff may not make an exclusion order or a child assessment order where an application has been made for a child protection order.

Sections 57-60

Exclusion order

10. Under previous procedures the only means of separating an adult abuser from a child who lived in the same house, apart from removing the child, was by voluntary withdrawal by the adult, by an Order made by the court under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 following an application by an entitled or non-entitled spouse or cohabiting partner, or by bail conditions imposed by the court on an accused person. None of these measures is, however, designed for or suitable to intervention by a public authority to protect a child from harm and their effectiveness in protecting a child is likely to be limited to certain circumstances. The Act now empowers sheriffs on the application by a local authority to make an exclusion order excluding a named individual from the family home. Where the sheriff considers that the conditions for making a child protection order are satisfied, he or she may make a child protection order.

Sections 76-80

Section 76(8)

11. For each of the new Orders outlined above, the court must have regard to the overriding principle that the child's welfare is paramount and in particular circumstances that making the Order is better for the child than making no Order at all.

Section 16(1)
Section 16(3)

Emergency child protection measures

12. Emergency child protection measures may be authorised by a justice of the peace, on the application of any person or in certain cases on the application of a local authority, to allow (but not to require) the removal of a child to a place of safety or to prevent a child being removed from the place where he or she is being accommodated. A constable may remove a child to a place of safety without authorisation. In each case there must be grounds to believe that the conditions for making a child protection order are satisfied and that it is not practicable for an application for a child protection order to be made to a sheriff.

Sections 61(1) & 61(2)

Section 61(5)

Child Assessment Order

Introduction

13. The new child assessment order will enable a local authority to arrange assessment of a child's health, development or the way in which he or she has been treated in order to establish whether a child is suffering or likely to suffer significant harm. It is designed for use in those cases where the degree of urgency is not considered so great as to suggest the need for a child protection order under section 57(2) of the Act, but where there is concern about a child's safety or welfare, all attempts to assess the child on a voluntary basis have failed and professionals lack sufficient information to decide whether action is needed to protect the child. The child assessment order conveys authority for intervention with a child but it is a very limited form of intervention for a clearly defined purpose and period of time. It is distinct from the child protection order and the exclusion order, as the criteria for making those Orders are different. It could, however, lead to either of those Orders being considered depending on the outcome of the assessment. Equally, it could reassure the local authority that there is no need to pursue measures of intervention in order to protect the child from harm. The child assessment order ensures that proper examination of a child's welfare can take place, where necessary, with the minimum possible disruption to the child and to the family's routine.

Section 55

Section 55(1)

Main features of child assessment order

14. These are the main features of the child assessment order

• a sheriff may, on the application of a local authority, make a child assessment order if he or she is satisfied that all of these conditions are met

  (a) the local authority have reasonable cause to suspect that the child in respect of whom the Order is sought is being so treated (or neglected) that he or she is suffering, or is likely to suffer, significant harm;

  (b) such assessment of the child is required in order to establish whether or not there is reasonable cause to believe that the child is so treated (or neglected); and

  (c) such assessment is unlikely to be carried out, or be carried out satisfactorily, unless the Order is granted.

• the period of the Order is limited to a maximum of seven days and the Order will describe how and by whom the assessment will be carried out

Section 55(1)

Section 55(3)

• if the child has to be away from home during the period of an assessment he or she will be looked after by the local authority who will have a duty to promote and safeguard the child's welfare and promote contact between the child and his or her family

Section 17(6)

• where the child assessment order permits the assessment of the child to be carried out away from home, the Order must contain such directions as to contact as the sheriff considers appropriate

Section 55(5)

• where the sheriff considers that the conditions for the making of a child protection order are satisfied he or she shall make a child protection order instead of a child assessment order.

Section 55(2)

Who can apply for a child assessment order

15. Only a local authority may apply to the sheriff for a child assessment order.

Section 55(1)

16. In considering an application from a local authority, the sheriff will have the child's welfare as the paramount consideration in deciding whether or not to make a child assessment order and will have regard to the views of the child, taking account of his or her age and maturity. The local authority should make the application in the form prescribed by Rules of Court and they should accompany the application with a clear statement of the basis for the local authority's concern about the child.

Section 16(1)

Section 16(2)

Steps to be taken by the local authority before applying for a child assessment order

17. The basis for a child assessment order application is the suspicion of harm rather than firm evidence of harm or neglect. Before making an application for a child assessment order the local authority should have made efforts to establish whether the child is at risk.

18. The child assessment order represents more limited intervention than other court orders. Nevertheless, it is likely to cause distress and disruption, and, as with all court action, any decision to proceed should be clearly in the child's best interests.

19. The local authority should talk to parents about the local authority's duty to "cause inquiries to be made" under section 53 of the Act, and give them opportunities to explain their point of view. Parents who continue to refuse to allow the local authority to see or assess their child should be advised of the options open to the local authority when they have concerns about a child, including application for a child assessment order and the effects of this and other child protection measures. Parents will need such information confirmed in writing. By giving enough information about the range of options available and possible outcomes, the local authority may help parents to agree to voluntary arrangements for assessment.

20. The court will also want to be satisfied that parents' refusal to allow professionals access to their child is unreasonable. When judging whether refusal is unreasonable and warrants an application for a child assessment order, the local authority should consider all available information about the family's circumstances, the degree of suspected risk to the child and the nature and timing of requests which have been made. Where a risk of significant harm is suspected, the local authority will have to judge the degree of urgency in the case in determining how to proceed.

21. The court will require information about the nature and source of the suspected risk, and the outcome of the local authority's earlier enquiries. Information should include details of attempts to obtain the voluntary cooperation of those caring for the child. The sheriff must be satisfied that the assessment will not be carried out satisfactorily unless he or she makes a child assessment order.

Section 55(1)(c)

22. The local authority should consider what kind of assessment is required to resolve their concerns about the child, and whether it is possible to obtain sufficient information from other sources without the need for a court order. For example, if the child is in school or nursery will staff there be able to monitor the child's circumstances? Or does the level of concern justify action sooner? The proposed assessment may include medical or psychological examination and involve specialist professionals such as paediatricians or child mental health workers. Given that a child assessment order may be made for a maximum of seven days, the local authority should ensure that proper arrangements are planned prior to an application so that the assessment can proceed smoothly and quickly if the Order is granted. This is likely to require careful consultation and negotiation with other agencies.

Serving of the application

23. The local authority should serve notice and a copy of the application for a child assessment order in accordance with Rules of Court. The local authority should provide as much information as possible about court hearings and the child assessment order at the time of serving notice and should advise the family to consider seeking legal advice and representation.

24. Those persons who receive notice of the application for a child assessment order may attend the hearing to contest the application or to seek specific directions from the sheriff about their contact with the child.

The child assessment order and what it may do

25. The child assessment order requires any person named in the Order, who is in a position to produce the child, to

• produce the child to any authorised person
• permit that person or any other authorised person to carry out an assessment in accordance with the Order
• comply with any other conditions of the Order.

Section 55(3)

(For these purposes, "authorised person" means any officer of the local authority or any person authorised by the local authority to perform the assessment or any part of it. )

The Order will specify the date on which the assessment should begin and the duration of the Order, up to a maximum of seven days from that date.

Section 55(6)

26. The child assessment order should not normally entail physical separation of the child from his or her family. Where, however, this is necessary for the purposes of assessment, the Order may include direction that the child be taken to any place and may authorise the child to be kept there or at any other place for a specified period. This provision is not for the protection of the child through removal from his or her family but solely to make sure that the assessment is properly conducted and effective.

Section 55(4)

27. If the child must stay away from home during the assessment the sheriff may make directions regarding the contact which he or she should have with parents, other family members and any person named in the Order. Any such directions would be provided for in the child assessment order and must be complied with by the local authority.

Section 55(5)

The child's status

28. During any period in which he or she is away from home the child is looked after by the local authority. As far as practicable therefore, the local authority have a duty to safeguard and promote the child's welfare and to facilitate contact with his or her parents unless, where there is no direction as to contact, this would not be in the child's interests during the assessment. They should have regard to the child's views, taking into account his or her age and maturity, and to those of the child's parents and other relevant people. They must also have regard to the child's religious persuasion, racial origin and cultural and linguistic background, when making arrangements for the child's care and accommodation.

Section 17(6)(c
Section 17(1)
Section 17(4)(a) & (b)
Section 17(4)(c)

The child's consent to medical treatment

29. The Age of Legal Capacity (Scotland) Act 1991 gives a child under sixteen years the right to consent to any surgical, medical or dental procedure or treatment if, in the opinion of a qualified medical practitioner, he or she is capable of understanding the nature and possible consequences of such procedure or treatment. The local authority should ensure that if the child is of an appropriate age and understanding he or she is aware of his or her rights under the 1991 Act, as well as under the Children (Scotland) Act 1995 and that he or she has sufficient information, both verbally and in writing, to make informed choices about giving or withholding consent to all or part of an assessment.

Section 90

Responsibilities of the local authority after the making of the child assessment order

30. As soon as the child assessment order is made, the local authority should discuss with the child's family how the assessment is to be conducted. Even though parents are obliged to comply with the assessment on the basis of the child assessment order, the local authority should attempt to inform and involve them as far as possible in making the necessary arrangements. Parents retain their responsibility for their child and their active involvement is likely to help the child take part in the assessment with fewer anxieties.

31. The family may be anxious and may be more reassured if some or all of the assessment is carried out by a professional they already know and trust. Professionals who know the family should be consulted about the best way to obtain the information needed. The local authority should consider issues of gender, race and culture when considering how and by whom assessments should be carried out. Parents' reluctance to use local child health services is unlikely to be a sufficient reason for applying for a child assessment order unless it is clear that, as a result, the child is likely to suffer significant harm. For example a child with a fluctuating medical condition may require monitoring to prevent deterioration.

32. When they have completed the assessment the local authority should consider carefully in conjunction with other professionals and the family, what, if any, further action is required. There may be one of the following outcomes

• the assessment concludes that there is no cause for concern about the child's safety or welfare, and no need for further involvement from the local authority
• findings suggest that although the child is not at risk, he or she may have other problems and be in need of further help
• findings indicate that there is demonstrable risk to the child and the local authority should continue to work with the family
• findings are inconclusive and further information is required.

33. The local authority should inform the family of the results of the assessment at the earliest opportunity. If the assessment has established that the child is at risk of harm, the authority may

• consider whether the child is in need and should be provided with support services
• hold a child protection case conference to decide whether the child should be placed on the child protection register and a child protection plan made
• in an emergency apply for a child protection order or an exclusion order
• refer the child to the Principal Reporter.

34. If findings are inconclusive the local authority must decide, on the basis of the information obtained, whether one of the above options is necessary, whether the family should be offered further support and services on a voluntary basis or whether routine monitoring by health and education services will suffice. Whatever the assessment outcome, the family should be informed in writing of the local authority's views and intentions. If the assessment indicated that the child is not at risk the local authority should assure parents of this and offer acknowledgement of the inevitable disruption and distress which such proceedings cause.

The Child Protection Order

Introduction

35. The purpose of the new child protection order is to ensure that where it is necessary urgent action can be taken to remove a child to a place of safety or to prevent the removal of a child from a place where he or she has been accommodated.

Sections 57-60

Main features of the child protection order

36. These are as follows

• any person will be able to apply to a sheriff for a child protection order under section 57(1) of the Act
• additionally, a local authority will be able to apply for a child protection order under section 57(2) of the Act
• the sheriff will not make a child protection order unless he or she is satisfied that the conditions for making the Order are met
• the conditions which have to be met in relation to section 57(1) applica-tions are that there are reasonable grounds to believe that the child

  (a) is being so treated (or neglected) that he or she is suffering significant harm; or

  (b) will suffer such harm if he or she is not removed to and kept in a place of safety or if he or she does not remain in the place where he or she is being accommodated; and

  (c) a child protection order is necessary to protect the child from such harm or such further harm.

• the conditions which have to be met in relation to an application under section 57(2) are

  (a) that there are reasonable grounds to suspect that a child is being or will be so treated (or neglected) that he or she is suffering or will suffer significant harm;

  (b) the local authority are making or causing to be made enquiries to allow them to decide whether they should take any action to safeguard the welfare of the child; and

  (c) that those enquiries are being frustrated by access to the child being unreasonably denied, the authority having reasonable cause to believe that such access is required as a matter of urgency.

Section 58

• the sheriff may make directions as to contact with the child and/or medical or psychiatric examination or assessment or treatment.
• the duration of the Order is limited to a maximum of eight working days until a children's hearing meet in accordance with section 65(2) of the Act
• a child who is the subject of a child protection order shall not be: kept in a place of safety; prevented from being removed from any place; or subject to any term or condition contained in the Order or any direction made by the sheriff, where the Principal Reporter considers that, following a change in circumstances or receiving further information relating to the case, the conditions for making a child protection order are no longer satisfied or the term, condition or direction is no longer appropriat

Section 60(3)

• a children's hearing may decide to continue or not to continue the Order at the initial hearing of the child's case

Section 59

• certain persons may apply for the discharge or variation of the Order or any directions attaching thereto. The persons are: the child to whom the Order relates or someone acting on his or her behalf; a person having parental rights over the child; a "relevant person" (see section 93(2)); any person to whom notice of the application for the child protection order has been given; and the applicant for the child protection order

Section 60(7)

• a child who becomes the subject of a child protection order and is removed to a place of safety provided by a local authority, is considered to be looked after by the local authority concerned.

Section 57(7)

Who can apply for a child protection order and the grounds for application

37. Any person may apply to a sheriff for a child protection order. Any person could include a local authority, a police constable, a teacher, a relative or friend of the child. In practice most applications are likely to be made by local authorities, but on occasion, another statutory body or a concerned relative or neighbour may want to act to protect a child. Applicants should reasonably believe that the grounds for making a child protection order are satisfied and that such an Order is necessary to protect the child from significant harm.

Section 57(1)

38. The Act also provides for an application by a local authority in particular circumstances. The sheriff will grant this Order only if he or she is satisfied that the local authority has reasonable grounds to suspect the child is suffering or will suffer significant harm because of ill-treatment or neglect (as opposed to their believing that the child has suffered or will suffer significant harm). The sheriff must also be satisfied that the local authority are making or causing to be made enquiries to allow them to decide whether they should take any action to safeguard the welfare of the child and that those enquiries are being frustrated by access to the child being unreasonably denied. Moreover the local authority must have reasonable cause to believe that such access is required as a matter of urgency. The purpose of a child protection order under these grounds is different from a child assessment order in that in the former case there will be a belief that access to the child is required as a matter of urgency, where enquiries cannot be completed because the child cannot be seen but there is enough cause to suspect the child is suffering or likely to suffer significant harm. A child assessment order applies where there is a need for an assessment of the child's health and development but where he or she is not thought to be in immediate danger.

Section 57(2)

39. When an application for a child protection order is made by a local authority under this particular section, the court will have to decide whether a parent's or carer's refusal to allow access to the child was unreasonable in the circumstances.

Section 57(2)

40. As with all Orders under the Act the sheriff will not automatically make a child protection order. He or she must still make the welfare of the child the paramount consideration. The sheriff will also wish to know why urgent action is necessary, whether, if removal of the child is justified, it can be achieved with the co-operation of the parents and whether a decision can wait until the parents have had an opportunity to prepare their case properly for presentation at a children's hearing. The applicant will be expected to give as much of this information as possible in the application form for the Order or orally to the court.

Section 16(1)

Steps for consideration by a local authority before applying for an order

41. Before deciding to apply for a child protection order there are a number of matters which local authorities should, as far as practicable, consider

• an assessment of the alternatives to an application for the Order
• the ascertainable wishes and feelings of the child having regard to the child's age and understanding
• the child's physical, emotional and educational needs, including any special needs during the period of the Order, if made
• the likely effect on the child of a change in circumstances which might result from the local authority applying for the Order
• the child's age, gender and family circumstances
• the circumstances giving rise to the application; the need for any directions relating to, for example, contact and assessments which the court may attach to the child protection order, if made
• the nature and effect of any other Orders or requirements already made in respect of the child, for example a residence order, contact order, or super-vision requirement.

Applications for a child protection order

42. All applications for a child protection order must be made to a sheriff. Justices of the peace cannot make child protection orders (although they can authorise the use of emergency child protection measures in specific circumstances). All applicants for a child protection order must demonstrate to the sheriff that the criteria for granting the Order are met. The application to the sheriff must identify the applicant and, as far as possible, the child. There must be a statement of the grounds on which the application is made and this must be accompanied by supporting evidence in written form or verbally. This information is necessary to enable the sheriff to determine the application. The sheriff will give such weight as he or she thinks appropriate to any relevant hearsay, opinions, social work and other relevant records and medical reports.

Sections 61(1) & 61(2)

Section 57(3)

The child protection order and what it may do

43. A child protection order may do one or more of the following things

• require any person in a position to do so to produce the child to the applicant
• authorise removal of the child by the applicant to a place of safety, and the keeping of the child in that place
• authorise the prevention of the removal of the child from any place where he or she is being accommodated
• provide that the location of any place of safety in which the child is being kept secret should not be disclosed to any person or class of person specified in the Order itself.

Section 57(4)

44. The applicant, in taking action required or permitted by a child protection order or by a direction attached thereto, must only act where he or she reasonably believes that to do so is necessary to safeguard or promote the welfare of the child. There may be circumstances where the need to remove the child to a place of safety is not considered necessary to safeguard the child's welfare. This may happen, for example, in circumstances where the source of the harm or risk to the child is no longer present.

Section 57(6)

45. A child protection order lapses where no attempt has been made to implement it within twenty-four hours (excepting where the authorisation granted is to prevent the removal of the child from where he or she is accommodated).

Section 60(1)

Additional powers available to the sheriff

46. When making a child protection order the sheriff is required to consider making directions concerning the contact the child may have with other named persons. The named persons can be any parent of the child, any person with parental responsibilities in relation to the child or any other specified person or class of person, for example, another member of the family, grandparents or other relatives of the child. A direction about contact may be made by the sheriff without it having been requested where the sheriff considers it necessary to safeguard or promote the welfare of the child. It may also prohibit contact with any person mentioned above. The local authority or other applicant should, therefore, in applying for a child protection order consider if it is in the interests of the child that a particular person should be prevented from seeing the child or whether contact with the child should be subject to certain conditions, for example supervision by the local authority.

Section 58

47. An applicant can also apply to the sheriff for a direction in relation to the exercise or fulfilment of parental responsibilities or rights. Such directions could concern the medical, psychiatric or other assessment or interview of the child and any treatment arising from these. Conditions can be attached to these directions. For example, the sheriff may set a limit in relation to the number of examinations a child may undergo. However, notwithstanding that the sheriff has made such a direction in relation to examination or treatment, the Age of Legal Capacity (Scotland) Act 1991 preserves a child's right to withhold his or her consent where, in the opinion of a qualified medical practitioner he or she is capable of understanding the nature and possible consequences of the procedure or treatment. Any directions attached to child protection orders continue until the Order expires or the sheriff who has been asked to recall them does so.

Section 58(4)

Section 58(5)

Section 90

Service of the Order

48. The arrangements in relation to service of the making of a child protection order and applications for the variation or recall of the Order (or a direction attached thereto) are prescribed in Rules of Court. It is the responsibility of the applicant to serve notice. Advice about the provisions for seeking variation or discharge of the Order and about the provisions of section 60(8)(a) of the Act or the effect of this provision should also be given to the persons receiving notice of the making of the Order. That particular section provides that an application to set aside or vary a child protection order or a direction attached to it must be made before the initial children's hearing of the case. The Order is served on the child, any relevant person whose whereabouts is known, the Principal Reporter and, where the applicant is not a local authority, the local authority in whose area the child is resident. The need to inform parents of their rights and responsibilities under the new Order is crucial. Explanatory notes should be served with a copy of the Order informing parents or the relevant person what will happen to their child and what they can do next.

Section 57(5)

The child's status

49. On the granting of a child protection order and the removal of a child to a place of safety provided by a local authority, the child becomes a child who is looked after by the local authority. As such, the local authority has specific duties to carry out, subject to any terms or conditions of the Order or any direction. So far as practicable they have a duty to safeguard and promote the child's welfare, to promote contact between the child and his or her parents where this is in the child's interests, to take account of the child's views having regard to his or her age and maturity and those of his or her parents or any person whom the authority consider to be relevant. They must also have regard to the child's religious persuasion, racial origin and cultural and linguistic background.

Section 57(7)

Section 17(6)

50. Where the local authority have no responsibilities as respects the child in relation to the Order, (that is they are not the holder of the Order and they do not provide a place of safety for the child), the child is not a child who is looked after by the local authority. The authority may, however, be able to offer help in safeguarding the welfare of the child.

Helping the child in a place of safety

51. When children are placed away from their families they will need reassurance and support. Attention to the following will help

• siblings should be placed together unless there are compelling reasons in their own interests for not so doing. If siblings cannot be placed together, their placement should be kept under review and reasonable contact between them, subject to any necessary supervision, should be facilitated
• allow children to take with them any personal possessions they wish or need
• in general, allow reasonable contact between a child in a place of safety and parents, relatives and friends (in accordance with any direction made by the sheriff regarding contact)
• make provision for the continued education of the child
• arrange for any necessary medical care for the child.

The role of the Principal Reporter and children's hearing in child protection orders

52. Notice of the making of a child protection order must be given by the applicant to the Principal Reporter who may, having regard to the welfare of the child, return the child to his or her family when, as a result of a change in circumstances of the case or if further information relating to the case having been received by him, he considers that the child protection order conditions are no longer satisfied or that the conditions or directions which were granted with the child protection order are no longer appropriate. If the Principal Reporter so decides then he must notify the person who implemented the Order and also the sheriff.

Section 60(3)
Sections 60(2) & 60(5)

53. If there is no application to the sheriff for variation or recall of the child protection order and the Principal Reporter does not return the child, he will arrange a children's hearing to meet on the second working day after the child protection order is implemented. At this initial early hearing a decision will be made on whether to continue the Order in the interests of the child. If the hearing does not continue the child protection order, the child will be returned home. That particular hearing can also decide whether or not to continue or vary any direction attached to a child protection order. If the children's hearing decide to continue the Order, the Principal Reporter will arrange for a children's hearing to take place on the eighth working day after the Order was implemented to hear the grounds of referral.

Section 59(2)
Section 59(4)

Advice hearing

54. If there has been an application for variation or recall of the child protection order or any direction, the Principal Reporter can, after receiving notice of such application but before the sheriff has determined the application, arrange a children's hearing in order to provide advice to the sheriff in his determination of the application.

Section 60(10)

Setting aside or varying a child protection order

55. A child protection order may need to be made without the child's parents or other relevant persons being given an opportunity at that stage to be heard or to refute any evidence presented in support of the application.

56. The Act however provides for an application to be made to the sheriff to set aside or vary a child protection order or any direction attaching thereto. The application can be made immediately and before an initial children's hearing by or on behalf of

• the child to whom the Order or direction relates
• a person having parental rights in relation to the child
• a relevant person
• any person to whom notice of the application for the Order was given
• the applicant for the Order.

Section 60(7)

57. An application can also be made to vary or recall the child protection order at a slightly later stage, that is at the stage when an initial children's hearing have decided to continue the Order. Any such application must be made within two working days of such a continuation.

Section 60(8)(b)

58. When considering an application for variation or recall of a child protection order or a direction, the sheriff can confirm or vary the Order or any term or condition on which it was granted, confirm or vary any direction given in relation to the Order; give a new direction; continue in force the Order and any direction or recall the child protection order and cancel any direction.

Section 60(12)

Exclusion Orders

Introduction

59. The exclusion order is a new addition to the statutory measures available to protect children from significant harm or the threat of harm, by excluding an alleged abuser from the family home. An exclusion order has the effect of suspending the named person's rights of occupancy (if any) to the family home in question. It also prevents the person - whether an occupier or not - from entering the home, except with the express permission of the local authority which applied for the Order. A person named in an exclusion order may be the child's parent or a member of the child's family or anyone from whom it is considered necessary to protect the child from significant harm or the threat of harm.

Section 77(1)

Main features of the exclusion order

60. These are as follows

• only a local authority is able to apply to a sheriff for an exclusion order in respect of a named person

Section 76(1)

• an application for an exclusion order should be presented to the sheriff of the sheriffdom where the family home is situated

Section 80(2)

• the sheriff will not make an exclusion order unless he or she is satisfied in relation to the child that the conditions for making the Order are met

Section 76(1)

• the conditions which have to be met are

(a) the child has suffered, is suffering or is likely to suffer significant harm as a result of any conduct of the named person such conduct being actual, threatened or reasonably apprehended;

(b) the Order is necessary for the protection of the child; and

(c) would better safeguard the welfare of the child than removing the child from the family home.

Section 76(2)

• pending the making of a final exclusion order the sheriff may grant an interim exclusion order with the power to grant warrants and interdicts as appropriate before intimation

Section 76(4)

• before an exclusion order is finally determined the person to be excluded (the named person) must be afforded the opportunity to be heard by or represented before the sheriff in accordance with Rules of Court

Section 76(3)

• the sheriff will be able to attach a power of arrest to an interdict granted on an interim or final exclusion order

Section 78(1)

• an exclusion order will endure for a maximum period of six months and will not be renewable

Section 79(1)

• the sheriff may make a child protection order on an application for an exclusion order where he or she considers that the conditions for doing so are satisfied.

Section 76(8)

61. The sheriff may decide that an exclusion order is necessary, but he or she will not make the Order if it appears unjustifiable or unreasonable having regard to all the circumstances of the case. The sheriff will have to consider

• the conduct of the members of the child's family
• the needs and financial situation of family members
• the extent to which the home is used for a family member's trade or profession and likely consequences.

Section 76(9)

Section 76(10)

Child's view

62. The sheriff, when considering whether to make, vary or discharge an exclusion order, must give the child concerned, taking account of his or her age and maturity, an opportunity to express his or her views if he or she wants to and the sheriff must have regard to any views expressed. The means of taking the views of the child are for the sheriff to determine in accordance with the Rules of Court.

Section 16(4)(b)(i)

Grounds for child protection order

63. Where the sheriff considers that the conditions for making an exclusion order are not met or that it is otherwise inappropriate for such an Order to be made, he or she is empowered, taking account of the paramountcy of the child's welfare to make a child protection order. If the sheriff considers that the conditions for making a child protection order are satisfied he or she may treat the application for an exclusion order as an application for a child protection order.

Section 76(8)

The use of exclusion orders

64. Local authorities may wish to consider applying for an exclusion order to protect a child in any number of circumstances. They should always bear in mind the need to consider applying for an interim Order under section 76(4). Illustrative examples are where

• there is acknowledgement, by the alleged abuser, that abuse has occurred but there is no apparent reduction in risk to the child or other child in the family home
• a child has made a clear allegation implicating the person, the child's account is believed by the parent(s) (in the case of allegations against a parent, the non-abusing parent) but denied or minimised by the alleged abuser
• the child, or his or her parent(s) (where not the subject of the allegations) are afraid to remain in the family home with the alleged abuser
• where it is concluded that fear, distress or conflict of loyalties caused by the alleged abuser's presence in the family home appear to prevent the parent(s) (if not the subject of the allegation) from meeting the child's needs and protecting the child from further harm
• there are clear indications of abuse of the child whether with or without direct allegations by the child, admissions by the alleged abuser or confirmation by a parent or sibling.

65. The initial stage of an investigation of allegations of abuse often prompts a crisis within a family. Fear, anxiety and anger may be present and the reactions of all family members may be unpredictable and volatile. There may be concern that the alleged abuser will attempt to persuade a child to retract an allegation of abuse and prevent effective intervention to protect the child.

66. An exclusion order is a civil order and therefore does not determine the guilt or innocence of any person named in the order in respect of the commission of any crime. In many cases there may be lack of corroboration as to acts of abuse alleged to have been perpetrated by the named person. As a result it may be often very difficult for the police to obtain evidence necessary to charge and arrest someone for any crimes connected with child abuse. In some cases the Crown Office may decide that there is insufficient evidence or even where there is sufficient evidence that it would not be in the public's interest to prosecute. Where there are clear signs that the child has suffered, is suffering or is likely to suffer from significant harm as a result of abuse perpetrated by a person or persons who can be identified, the local authority should consider taking proceedings for an exclusion order. Where abuse has been reported to the police or to the Procurator Fiscal appropriate contact and liaison with these authorities is essential at that stage since it may be necessary to act very quickly in the child's interest, especially if there is a pattern of continuing abuse.

Steps before application

67. If a local authority has concluded that a child is at risk within the family home it should before applying for an exclusion order

• examine all the available options including exclusion of the alleged abuser to try to prevent the child from being exposed to further harm or the risk of harm. Assess the nature and degree of risk to the child if the alleged abuser remains in the family home - what may happen? - what would be the consequences for the child and for other members of the family?
• assess the possibility of achieving exclusion on a voluntary basis by negotiation and agreement with the alleged abuser. Any voluntary exclusion would have to be carefully documented
• in order to avoid compromising police inquiries, seek the advice of the investigating police officer and have an on-going dialogue with the police throughout the process. Ideally, any interview with the alleged abuser should be held jointly with the investigating police officer since discussion about the details of the alleged abuse may not be possible prior to a formal police interview having taken place
• at the same time ensure that such an interview avoids contaminating the evidential value of any information disclosed whether about the alleged abuser's activities or those of other people.

Interim exclusion order

68. Before the sheriff can determine an application for an exclusion order the person who is to be excluded (the named person) must be given an opportunity to be heard by the sheriff, either personally or through a representative and the sheriff must consider any views expressed by any person notified of the application. The sheriff has the power to make interim Orders before intimation and therefore in emergency situations it may be appropriate to seek an interim exclusion order prior to the sheriff's substantive hearing. In making an interim exclusion order, which is to all intents and purposes the same as an exclusion order after final determination, the sheriff will decide which ancillary Order such as interdict, ejection and regulation of contact should be made. Those presenting the application should always be aware of the need to consider addressing the sheriff on such matters.

Section 76(4 )

Section 76(3)

69. The sheriff may make an interim Order at any stage of the application before finally determining it. If the sheriff judges that the full range of conditions is satisfied, and that the person who is to be excluded has not yet been heard or others on whom notice of the application are to be served had not received intimation, he may nevertheless grant an interim Order, pending intimation. An interim Order if granted can be implemented immediately, backed up by a range of enforcement powers including ejection and interdict. Where an interim Order is made before intimation to be named person, a hearing must be held within three working days of the making of the interim Order.

Section 76(6)

Ancillary warrants, interdicts, orders and the power of arrest

70. The responsibility for applying for any of the warrants, interdicts or orders to back up the exclusion order lies with the local authority, if they consider it necessary in the interests of the child. The sheriff may

• grant a warrant for the summary ejection of the named person
• grant an interdict prohibiting the named person from entering the home without the express permission of the local authority
• grant an interdict prohibiting the removal of any item specified from the home except with the written consent of the local authority or an appropriate person or by a subsequent order by the sheriff
• grant an interdict prohibiting the named person from entering or remaining in a specified area in the vicinity of the home
• grant an interdict prohibiting the named person from taking any step in relation to the child specified in the interdict
• make an order regulating contact between the child and the named person. (The sheriff can make this particular order irrespective of whether there has been an application by the local authority).

Sections 77 and 78

Where the sheriff grants a warrant of summary ejection when he grants an interim exclusion order, he may give directions about that person's belongings which remain in the family home.

Section 77(3)(a)
Section 77(5)

71. Once the exclusion order has been made the named person or the local authority may apply to the sheriff to make the Order subject to such terms and conditions as he or she considers appropriate. The sheriff however will not grant any of the warrants, interdicts or orders under section 77 (with the exception of 77(3)(b)) which prohibits the named person from entering the home without the express permission of the local authority, if the person to be excluded satisfies the sheriff that it is unnecessary to do so.

Section 77(7)

72. The local authority when they apply for an exclusion order or at any time throughout its duration can apply to the sheriff to attach a power of arrest to any interdict granted. The sheriff may also on his own initiative attach a power of arrest to any interdict granted. Where a power of arrest is granted the local authority must notify the Chief Constable. Such a power of arrest does not have effect until the interdict and power of arrest have been served on the named person.

Section 78(1)

Variation and recall of exclusion order

73. An exclusion order lasts for six months unless it contains a direction by the sheriff that it shall cease to have effect on an earlier date. The local authority, named person, the parent or parents or the person taking care of the child in the family home, and the spouse or partner may apply to the sheriff to discharge the Order. Application can also be made to vary or recall any warrant, interdict, order or direction made. The duration of an exclusion order cannot be extended but a further Order may be applied for. The views of the child must be sought in relation to the variation or recall of an exclusion order.

Section 79

Section 79

Serving the application

74. Under Rules of Court, the local authority is required to serve a copy of the application for an exclusion order on several people. They are

• the child in respect of whom the Order is sought (unless the sheriff decides otherwise)
• the named person
• safeguarder (if any)
• relevant person within the meaning of section 93(2)(b) of the Act
• the appropriate person (the person who will take care of the child in the family home if the alleged abuser is excluded)
• the Principal Reporter
• any other person whom the local authority consider has an interest in the application for example the family GP or the child's school.

The Rules of Court provide for service of the notice of the application for an exclusion order on the child unless service is dispensed with. This is to allow the child an opportunity to present his or her views. The forms of application should include an application for dispensing with service where it is considered that should be sought from the sheriff but this is a matter within the sheriff's discretion.

The form of intimation on a child is prescribed in the Rules of Court and they provide advice to the child as to the steps which may be taken to let the court know his or her views in relation to the application. These forms also invite the child to submit written views by completing part of the form and returning it to the court. The local authority will be obliged to provide the child with the appropriate form of intimation along with a copy of the application and this form will advise the child of his or her right to attend the hearing and with regard to matters such as representation and the expression of views. In addition, the local authority should arrange to explain the implications of the procedures involved and to provide any counselling which the child may require. It will be for the child to consider the route which he or she wishes to choose for intimating views to the court.

Intimation of the Order and variation

75. Where the sheriff grants an exclusion order the local authority in terms of the Rules of Court must serve a copy of the Order forthwith on

• the named person
• the appropriate person (within the meaning of section 76(2)(c))
• the child
• the Principal Reporter.

Rules of Court also make provision for the service of notices to the Chief Constable where interdict is granted on an interim application or on a final determination and the sheriff has decided to attach powers of arrest to the interdict. Where there are applications for variation or recall of an exclusion order, the Rules of Court provide that intimation shall be given by the applicant to such persons as the sheriff may direct. Subject to the age and maturity of the child, the child's views have to be sought.

Section 78

Section 79

Section 16(4)(b)(i)

Action following exclusion order

76. An exclusion order can last for a maximum period of six months. This period is intended to allow the family the opportunity to consider how best to secure the welfare of the child or children in the longer term. The social work department will usually have a direct role to play. For example, where the named person is a parent or other family member, the social work department should work with the family members who remain in the family home supporting and helping them to look to future arrangements for the child. Moreover, while an exclusion order is in force, the local authority will have to satisfy itself about the child's continuing safety and welfare and keep parents fully informed and involved while doing so.

The named person

77. Exclusion may be the beginning of a process of detailed assessment of current and future risk and specialist therapeutic input for the family and the named person, as required. In such circumstances the local authority should be prepared to assess the degree of risk which the named person presents and ensure that he or she receives appropriate help whether or not he or she is a family member.

78. The local authority should discuss with the named person where he or she should go, for how long and what will happen in the interim. Although the person excluded, where he or she normally resides in the family home, must be responsible for the arrangements he or she makes for accommodation outwith the family home, the local authority may provide practical assistance and advice under powers available in the Social Work (Scotland) Act 1968 and other legislation, where this seems desirable. The social work department, should ensure, so far as is reasonably practicable, that the living arrangements of any named person do not place other children at risk of harm. Where the named person is a parent, the non-abusing parent may be exposed to financial hardship and should be assisted to claim benefits to which he or she may be entitled.

79. The named person may be vulnerable in his or her own right, particularly as a family member isolated from partner and family. The local authority should be alert to the possibility of health risk such as depression or self-harm and may send a copy of the application for an exclusion order to the family's GP, or where different, the named person's GP, who may need to be aware of the exclusion and the possible need for help. The GP should also be made aware of any referral which the local authority may have made to services such as Forensic Psychiatry.

80. Whether exclusion is effected voluntarily or compulsorily, the local authority should discuss with both parents the arrangements for any contact between the named person and the child who has allegedly been abused or is likely to be abused and/or any siblings where appropriate. Despite abuse, where the named person is a family member there may be benefits for the child in having contact with the named person.

Overview of exclusion

81. The local authority should regularly review the need for exclusion to continue, taking into account the views of the child, other family members and, where the named person has parental responsibility, the capacity of the non-abusing parent to offer adequate protection to the child. The named person, where he or she has parental responsibility, should be informed separately of the outcomes of any child protection case conferences, child care reviews and children's hearings - if the child is the subject of a supervision requirement. He or she should be enabled to fulfil parental responsibilities in respect of the child in so far as this is practicable and in the interests of the child's welfare.

Emergency Child Protection Measures

Introduction

82. Section 61 of the Act makes provision for a local authority and any other person to make application in an emergency to a justice of the peace for an authorisation to remove a child to a place of safety or to prevent a child being removed from a place where he or she is being accommodated. The justice of the peace may authorise such action where certain criteria are met. An authorisation granted by a justice of the peace would only allow the child to be kept in a place of safety for a maximum of twenty-four hours.

Section 61(4)

83. The Act also empowers a constable to remove a child to a place of safety for a maximum of twenty-four hours without the authorisation of a justice of the peace where certain criteria are met.

Section 61(5)
Section 61(6)

84. One of the criteria to be met in both cases concerns the availability of sheriffs to consider applications for child protection orders. Arrangements are presently in hand, as part of an initiative being undertaken by the Scottish Court Service, to provide facilities from 1 April 1997 for sheriffs to deal with applications for child protection orders outwith normal working hours. This should minimise the need to use emergency child protection measures.

85. The Emergency Child Protection Measures (Scotland) Regulations 1996 make provisions concerning the duties of any person removing a child to, or keeping him or her in, a place of safety.

Criteria to be met for the granting of an emergency child protection authorisation

86. On the application of any person, a justice of the peace may grant an authorisation where he or she is satisfied:

(a) that the conditions for making a child protection order under section 57(1) or section 57(2) are satisfied and that it is probable that if a child protection order was made it would contain an authorisation either to remove and keep the child in a place of safety or prevent the removal of the child from any place where he or she is being accommodated; but

(b) that it is not practicable in the circumstances for a child protection order application to be made to the sheriff or for the sheriff to consider such an application.

The authorisation and what it may do

87. An authorisation granted by a justice of the peace may:

(a) require the child to be produced;

(b) prevent any person from removing the child from the place where he or she is then being accommodated;

(c) authorise the applicant to remove the child to a place of safety and keep him or her there until the authorisation expires.

Section 61(3)

88. There are very strict time limits applying to these authorisations. They would cease to have effect twelve hours after being granted if within that time arrangements had not been made to do either (b) or (c) above. Where either of these things had been done, the authorisation would cease to have effect twenty-four hours after being granted or when an application for a child protection order had been disposed of. Moreover, a child may not be kept in a place of safety or prevented from being removed from any place if the Principal Reporter considers that the conditions for granting the authorisation are not satisfied or that it is no longer in the child's interest that he or she should be so kept.

Section 61(4)

Section 61(8)

89. A child who is the subject of an authorisation in accordance with which the local authority have responsibilities would be a child who is looked after by the local authority.

Section 17(6)

Police powers to take a child to a place of safety

90. The police are given powers under the Act to protect children in emergency situations. Where a police constable has reasonable cause to believe

• that the criteria for making a child protection order under section 57(1) are satisfied
• that it is not practicable to apply for such an Order from a sheriff or for the sheriff to consider such an application; and
• that it is necessary to remove the child in order to protect the child from significant harm,

Section 61(5)

the constable may remove the child and keep him or her in a place of safety. This power for the police constable to remove and keep a child in a place of safety lasts for a maximum of twenty-four hours. The authority to keep a child in a place of safety ceases on the disposal of an application to the sheriff for a child protection order. As with authorisations granted under this section, a child may not be kept in a place of safety under the powers conferred on a constable if the Principal Reporter considers that the conditions for the exercise of that power are not satisfied or that it is no longer in the child's interest that he or she should be so kept. The constable may keep a child in a place of safety only so long as he or she has reasonable cause to believe that the conditions at (a) and (c) above are satisfied.

Section 61(6)

Section 61(8)

Regulation 6

Responsibilities of those using emergency child protection measures

91. The Regulations made under section 62 of the Act specify, among other things, the persons who should be notified and the information about which they should or may be notified where a child has been removed to a place of safety by a constable or where a justice of the peace has granted an authorisation to protect a child.

92. The Regulations also provide that the person taking emergency protection action should do what is reasonable in all the circumstances to safeguard the child's welfare. Where a child has been taken to a police station as a place of safety, all that is reasonably practicable in the circumstances should be done to take the child to another type of place of safety.

93. The Regulations also deal with the arrangements for giving notice where an authorisation ceases to have effect; for informing and taking account of the views of a child who is subject to emergency protection measures and certain other matters related to the child's welfare; and for allowing contact with a child who is subject to emergency protection measures.