Section 10 Emergency Protection of Children
The 1995 Act established a new framework for the emergency protection of children and introduced a new series of orders. These orders continue to exist in the Children's Hearings (Scotland) Act 2011. Though wide powers are available to authorities under legislation, including the removal of children from home, strict criteria and timescales are laid down for the granting of these powers and their implementation. The child and relevant persons have the ability to challenge decisions at every stage in the process and the short timescales mean that no decision has effect for too long without proper scrutiny and review. This section explains what the procedures are and at what stage the hearing becomes involved.
Child protection order (s 37)
Any person may apply to the sheriff for a child protection order ( CPO) and should, when they apply, identify the child and the grounds on which the application is made. The application needs to be supported by evidence, either documentary or verbal which is sufficient to allow the sheriff to make a decision about the application. The sheriff has to be satisfied that it would be better for the child's welfare that the order be in force than not.
Constables power to remove a child to a place of safety (s 56)
A constable may remove a child to a place of safety if satisfied that the child has suffered, is suffering or is likely to suffer significant harm and that:
- the removal of the child is necessary to protect that child from further harm and
- it is not practicable to make an application for a child protection order.
Once the child has been removed the constable must inform the principal reporter and the child cannot be kept in a place of safety longer than 24 hours.
Criteria for a child protection order (s 39)
The person who makes an application for a CPO must believe that:
- The child has been or is being treated in such a way that the child is or will suffer significant harm. or
- The child has been or is being neglected in such a way that the child is or will suffer significant harm. or
- The child is likely to suffer significant harm unless removed and kept in a place of safety. or
- The child is likely to suffer significant harm if the child does not remain where the child is staying.
and that the order is necessary to protect the child from harm.
The sheriff may also grant a child protection order to a local authority who suspects that the child is suffering significant harm but their enquiries into the child's situation are being unreasonably denied. (s 38)
If the application is for a child protection order, the sheriff can grant no other order.
If the CPO authorises the removal of a child to a place of safety, an attempt has to be made to implement this within 24 hours and if not the CPO will lapse. (s 52(2))
An application for a child protection order in relation to a child can be heard at any time, day or night. If, however, an application for a CPO cannot be heard by a sheriff and a child needs to be protected urgently, a Justice of the Peace ( JP) may authorise the removal of a child from the home or keeping of a child in a place of safety if the basic criteria for granting of a CPO are met. This buys the applicant some time to enable a CPO to be made. In similar circumstances, the police have authority to remove a child to a place of safety. (s 55(5))
What can a child protection order do? (s 37(2-3)
A CPO can:
- require any person to produce a child
- authorise a child to be removed to and kept in a place of safety
- prevent the removal of the child from any place where the child is staying
- authorise an assessment of the child's health or development
- authorise an assessment of how the child has been or is being treated or neglected
- set in place any other authorisation or requirement to safeguard or promote the welfare of the child.
Where a sheriff has made a CPO for a child, he must also consider whether to include any of the following directions:
- an information non-disclosure direction - which is a provision to withhold information about where the child is residing from any person or class of persons
- a contact direction - which is a provision which controls contact between the child and the parent or any other person
- parental responsibilities and rights direction - which is a time limited provision about parental responsibilities and rights by the person who applied for the CPO.
A CPO lapses after 6 days if any removal to a place of safety required on the order is not implemented.
What happens following the granting of a CPO?
There is a complex chain of events which takes place once a child protection order has been granted.
Application for variation or termination (s 48)
An application may be made to the sheriff by the child, relevant persons, and a person having significant involvement with the child or the person who applied for the child protection order, to vary or terminate the CPO before the second working day hearing or within 2 working days after the second working day hearing has continued the order.
Advice to sheriff relative to CPO (s 50)
If an application is made to the sheriff to vary or terminate the CPO, the reporter may arrange a hearing in order to give advice to the sheriff for consideration when the application is decided. The hearing will offer advice to the sheriff as to whether the order or any ancillary measures continue to be necessary to safeguard the child's welfare. This type of hearing takes place very rarely.
The sheriff's options (s 51)
The sheriff must make a decision about the application within 3 working days after the day on which the application was made. The sheriff has a few options open to him including:
- to terminate the CPO if the conditions are no longer met
- to vary the CPO
- to confirm the CPO.
If there is no decision by the sheriff within that period, the CPO will simply cease to have effect.
Reporter's power to terminate order (s 53)
If at any time before the start of the second working day hearing or an application for a variation or termination of the order is made, the reporter may decide to
- terminate the order
- may vary the order so as to terminate a direction previously set down by the sheriff.
The reporter can only do this if further information comes to light which means that the conditions for making the CPO are no longer satisfied. If the reporter does this, he must notify the sheriff who made the order and the person who applied for the CPO. A CPO will cease to have effect after a maximum of 8 working days. (s 54)
Second working day hearing (s 45-4)
Unless an immediate application has been made to vary or terminate the CPO or the reporter decides to terminate the order, an initial hearing must take place on the second working day after the order has been made. This is the first time that the children's hearing will become involved. Section 67 grounds will not be made available at this hearing although there should be information available to the hearing about the circumstances of the child at the time the CPO was granted.
For further information about the panel member task in a second working day hearing, see section 9 of the Legislation and Procedure Manual.
Power of reporter to terminate a CPO before the eighth working day hearing
After the second working day hearing and before the eighth working day hearing, the reporter has a further decision to make. Due to the emergency nature of the proceedings to date, there may not have been enough information about the circumstances which led to the CPO being made. Following further investigation, the reporter may decide that a child subject to a CPO does not need to be brought before a hearing, in which case the order will cease to have effect. If the reporter decides that a child subject to a CPO should be brought to a hearing and there is enough evidence to satisfy a section 67 ground, the children's hearing will take place on the eighth working day hearing after the CPO was made.
It is important for panel members to know about two other orders for the protection of children although the hearing is not involved directly with child assessment orders or exclusion orders.
Child assessment order (s 35)
Introduced by the Children (Scotland) Act 1995, this order was created and intended to be less of an intervention into the child's life than a child protection order. It is intended for use when the local authority have reasonable cause to suspect that a child is suffering significant harm through either action or inaction i.e. abuse or neglect and the local authority believes that an assessment of the child's health, development and the way that the child has been or is being treated is necessary, but unlikely to be carried out without an order. Only a local authority can apply for a child assessment order and the sheriff may grant one if satisfied.
A child assessment order has the power to require
- the child to be produced for the purposes of carrying out an assessment
- the taking and keeping of the child in a place where the assessment can take place.
It may also contain directions about contact and will stipulate the timescale. The assessment must begin no later than 24 hours after the order is granted and be complete within 3 days.
The sheriff on considering an application by the local authority for a child assessment order, may instead issue a CPO, if the sheriff is satisfied that the conditions set down for this order have been met.
Exclusion orders set in place by the Children (Scotland) Act 1995 have not been repealed and replaced by the 2011 Act.
An exclusion order has the effect of removing an abuser from the family home and may be used as an alternative to a child protection order which removes the child. The effect of this order is intended to reduce the possibility of a traumatic impact on the child being removed from the home, in addition to the suffering already caused by the abuse. Only a local authority can apply for an exclusion order and three conditions must be satisfied before the sheriff grants the order:
(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 foreseen conduct of a 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).
(ii) That, if an order is made, there will be a specified person in the family home who can take responsibility for caring for the child and any other member of the family who needs such care.
Before an exclusion order can be made, the named person must have the opportunity to be heard by the sheriff, though if this cannot happen immediately, the sheriff has power to make an interim order to achieve the same result pending the full hearing of the case.
An exclusion order can last a maximum of six months and as such is not meant to be a long term measure. It can offer a breathing space while a longer term solution is sought to ensure the protection of the child.
If an application for an exclusion order has been made but the sheriff considers that the conditions for granting a child protection order are satisfied, a child protection order may be made instead.
Although exclusion orders were initially included in legislation as a protective measure for the child, there are so many practical difficulties relating to implementation and protection of the child, and also the rights of the relevant person who is to be excluded, that in practice they have been used on a very limited number of cases.
Involvement of the reporter
The reporter will receive notification of an application for an order. The child concerned will not automatically be referred to a children's hearing but the circumstances around the application for an exclusion order and the granting of an exclusion order may provide a ground for the reporter if he/she considers that a compulsory supervision order should be made or renewed in respect of the child.