Children (Scotland) Act 1995 (c. 36)

(The document as of February, 2008)

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(a)

a residential or other establishment provided by a local authority;

(b)

a community home within the meaning of section 53 of the [1989 c. 41.] Children Act 1989;

(c)

a police station; or

(d)

a hospital, surgery or other suitable place, the occupier of which is willing temporarily to receive the child;

"the Principal Reporter" means the Principal Reporter appointed under section 127 of the said Act of 1994 or any officer of the Scottish Children's Reporter Administration to whom there is delegated, under section 131(1) of that Act, any function of the Principal Reporter under this Act;

"relevant local authority", in relation to a child who is subject to a warrant granted under this Part of this Act or to a supervision requirement, means the local authority for whose area the children's panel from which the children's hearing which granted the warrant or imposed the supervision requirement was formed;

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

"residential establishment"--

(a)

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 [1968 c. 49.] Social Work (Scotland) Act 1968;

(b)

in relation to a place in England and Wales, means a community home, voluntary home or registered children's home (within the meaning of the Children Act 1989); and

(c)

in relation to a place in Northern Ireland, means a home provided under Part VIII of the [S.I. 1995/755 (N.I.2)] Children (Northern Ireland) Order 1995, or a voluntary home, or a registered children's home (which have respectively the meanings given by that Order);

"school age" shall be construed in accordance with section 31 of the [1980 c. 44.] Education (Scotland) Act 1980;

"secure accommodation" means accommodation provided in a residential establishment, approved by the Secretary of State in accordance with regulations made under section 60(1)(bb) of the Social Work (Scotland) Act 1968 or under paragraph 4(2)(i) of Schedule 4 to the Children Act 1989, for the purpose of restricting the liberty of children;

"supervision requirement" has the meaning given by 69(1) of this Act, and includes any condition contained in such a requirement or related to it;

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

"working day" means every day except--

(a)

Saturday and Sunday;

(b)

December 25th and 26th; and

(c)

January 1st and 2nd.

(2) For the purposes of--

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

(b) Chapters 2 and 3 of this Part--

"child" means--
(i)
a child who has not attained the age of sixteen years;
(ii)
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; or
(iii)
a 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
"relevant person" in relation to a child means--
(a)
any parent enjoying parental responsibilities or parental rights under Part I of this Act;
(b)
any person in whom parental responsibilities or rights are vested by, under or by virtue of this Act; and
(c)
any person who appears to be a person who ordinarily (and other than by reason only of his employment) has charge of, or control over, the child.

(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

94 Approval of adoption society for specific services

(1) In section 3 of the 1978 Act (approval of adoption societies)--

(a) for subsections (1) and (2) substitute--

" (1) Subject to any regulations made under section 9(1), a body which is a voluntary organisation may apply to the Secretary of State for his approval to its acting, or as the case may be continuing to act, as an adoption society, whether functioning generally or in relation to some service maintained, or to be maintained, as part of the Scottish Adoption Service and specified in the application (the service so specified being in this section and in section 4 referred to as the body's "specified service").

(1A) Application under subsection (1) shall be in such manner as may be specified in regulations made by the Secretary of State under this section.

(2) In considering an application under subsection (1), the Secretary of State shall take into account the matters relating to the applicant specified in subsections (3) to (5) and any other matters which appear to him to be relevant; and if, but only if, he is satisfied that, as the case may be, the applicant is likely to make, or is making, an effective contribution to the Scottish Adoption Service or to the applicant's specified service, he shall by notice to the applicant give the approval sought.

(2A) Approval under subsection (2) shall operate from such date as may be specified in the notice or, in the case of a renewal of approval, from the date of the notice. " ;

(b) in subsection (3)(a), the words ", including in particular its ability to make provision for children who are free for adoption" shall cease to have effect;

(c) in subsection (5), for the words "areas within which" substitute "geographical areas within which, the services as respects which";

(d) in subsection (6), after the word "Service" insert ", or as the case may be to the applicant's specified service"; and

(e) in subsection (7)--

(i) for the words "a period of" substitute "such period not exceeding"; and

(ii) after the word "operative" insert "as the Secretary of State may specify in the approval.".

(2) In section 4 of that Act (withdrawal of approval), after the word "Service" insert ", or as the case may be to the body's specified service,".

(3) In section 65(1) of that Act (interpretation), in the definition of "adoption society", after the word "for" insert ", or in connection with,".

95 Welfare of child paramount consideration

For section 6 of the 1978 Act substitute--

" 6 Duty to promote welfare of child

(1) Without prejudice to sections 12(8) and 18(8), in reaching any decision relating to the adoption of a child, a court or adoption agency shall have regard to all the circumstances but--

(a) shall regard the need to safeguard and promote the welfare of the child concerned throughout his life as the paramount consideration; and

(b) shall have regard so far as practicable--

(i) to his views (if he wishes to express them) taking account of his age and maturity; and

(ii) to his religious persuasion, racial origin and cultural and linguistic background.

(2) Without prejudice to the generality of paragraph (b) of subsection (1), a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view for the purposes of that paragraph. " .

96 Duty of adoption agency to consider alternatives to adoption

After section 6 of the 1978 Act there shall be inserted--

" 6A Duty to consider alternatives to adoption

In complying with its duties under section 6 of this Act, an adoption agency shall, before making any arrangements for the adoption of a child, consider whether adoption is likely best to meet the needs of that child or whether for him there is some better, practicable, alternative; and if it concludes that there is such an alternative it shall not proceed to make those arrangements. " .

97 Adoption by person married to natural parent

(1) In section 12 of the 1978 Act (making of adoption orders)--

(a) in subsection (3), at the beginning, insert "Subject to subsection (3A)"; and

(b) after subsection (3) insert--

" (3A) Where the adoption order is made by virtue of section 15(1)(aa), its making shall not operate to extinguish the parental responsibilities and parental rights which immediately before the making of the order were vested in the natural parent to whom the adopter is married. " .

(2) In section 15(1) of that Act (adoption by one person)--

(a) after paragraph (a) insert--

" (aa) not being a person who may make application by virtue of paragraph (b) below, is married to a person--

(i) who is the natural parent of the child concerned; and

(ii) in whom are vested parental responsibilities and parental rights in relation to the child, " ; and

(b) in paragraph (b), at the beginning insert--

" not being a person who may make application by virtue of paragraph (aa) above, " .

(3) In section 39 of that Act (status conferred by adoption), for subsection (1) substitute--

" (1) A child who is the subject of an adoption order shall be treated in law--

(a) where the adopters are a married couple, as if--

(i) he had been born as a legitimate child of the marriage (whether or not he was in fact born after the marriage was constituted); and

(ii) he were not the child of any person other than the adopters;

(b) where the adoption order is made by virtue of section 15(1)(aa) as if--

(i) he had been born as a legitimate child of the marriage between the adopter and the natural parent to whom the adopter is married (whether or not he was in fact born after the marriage was constituted); and

(ii) he were not the child of any person other than the adopter and that natural parent; and

(i) he had been born as a legitimate child of the adopter; and

(ii) he were not the child of any person other than the adopter. " .

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

(1) Schedule 2 to this Act, which contains further amendments of the 1978 Act, shall have effect.

(2) In this Part of this Act, "the 1978 Act" means the [1978 c. 28.] Adoption (Scotland) Act 1978.

Part IV General and Supplemental

99 Registration of births by persons who are themselves children

(1) In paragraph (a) of section 14(1) of the [1965 c. 49.] 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 [1991 c. 50.] 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 [1991 c. 50.] 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.

100 Inquiries into matters affecting children

After section 6A of the [1968 c. 49.] Social Work (Scotland) Act 1968 there shall be inserted--

" 6B Local authority inquiries into matters affecting children

(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 [1973 c. 45.] 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. " .

101 Panel for curators ad litem, reporting officers and safeguarders

(1) The Secretary of State may by regulations make provision for the establishment of a panel of persons from whom--

(a) curators ad litem may be appointed under section 58 of the [1978 c. 28.] Adoption (Scotland) Act 1978 or under section 87(4) of this Act;

(b) reporting officers may be appointed under those sections; and

(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 that panel; and

(b) for the management and organisation of persons available for appointment from that panel.

(3) Regulations under subsection (1) above may provide for the expenses incurred by persons appointed from the panel to be defrayed by a local authority.

102 Removal of duty to report on operation of Children Act 1975

Section 105 of the [1975 c. 42.] 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.

103 Interpretation, rules, regulations and Parliamentary control

(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.

104 Financial provision

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.

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

(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 [1978 c. 30.] 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), 31, 42, 70(4), 74, 82, 83, 93 and 104 of this Act and this section extend to England and Wales, and those sections and this section (except section 70(4)) 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, 42(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), 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 [1968 c. 49.] Social Work (Scotland) Act 1968, the [1972 c. 18.] Maintenance Orders (Reciprocal Enforcement) Act 1972, section 35(4)(c) of the [1986 c. 55.] Family Law Act 1986, the [1989 c. 41.] Children Act 1989, the [1991 c. 48.] Child Support Act 1991 and the [1993 c. 35.] 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) Her Majesty may by Order in Council direct that any of the relevant provisions specified in the Order shall extend, with such exceptions, adaptations and modifications (if any) as may be specified in the Order, to any of the Channel Islands; and in this subsection "the relevant provisions" means sections 74, 82, 83 and 93 of this Act and any regulations made under section 74 of this Act.

SCHEDULES

Section 39(2).

SCHEDULE 1 Children's Panels

Appointment

1 The Secretary of State shall, for each local government area, appoint such number of members of children's panels as he considers appropriate and from among that number appoint a chairman and a deputy chairman.

2 A member of a children's panel shall hold office for such period as is specified by the Secretary of State, but may be removed from office by the Secretary of State at any time.

Children's Panel Advisory Committees

3 Subject to paragraph 8 below, each local authority shall form a body (to be known as a "Children's Panel Advisory Committee") consisting of two members nominated by the local authority and three members nominated by the Secretary of State.

4 The Secretary of State may at the request of the local authority provide for an increase in the membership of the Children's Panel Advisory Committee appointed under paragraph 3 above by such number, not exceeding five, of additional members as the authority specify in relation to their request, the additional members to be nominated as follows--

(a) the first, and any second or fourth additional member, by the Secretary of State;

(b) any third or fifth additional member, by the local authority.

5 The chairman of the Children's Panel Advisory Committee shall be appointed by the Secretary of State from among such of the members he has nominated as are resident in the local government area for which the panel is appointed.

6 It shall be the duty of the Children's Panel Advisory Committee--

(a) to submit names of possible panel members to the Secretary of State;

(b) to advise the Secretary of State, in so far as he requires advice, on the suitability of persons referred to him as potential panel members; and

(c) to advise the Secretary of State on such matters relating to the general administration of the panels as he may refer to them.

7 The Children's Panel Advisory Committee shall have power--

(a) to appoint sub-committees;

(b) to appoint to any such sub-committee a person who is not a member of the Children's Panel Advisory Committee; and

Joint Advisory Committees

8 (1) Two or more local authorities may, instead of each acting under paragraph 3 above, make arrangements to form a Children's Panel Advisory Committee for their areas (a "joint advisory committee").

(2) A joint advisory committee shall not be formed in pursuance of arrangements made under sub-paragraph (1) above unless the authorities concerned have obtained the consent in writing of the Secretary of State.

(3) The Secretary of State may give a direction, in any case where a joint advisory committee has not been formed, to two or more local authorities requiring them to form a joint advisory committee; and they shall comply with any such direction.

(4) Paragraphs 3 to 7, 10(a) and 11(b) of this Schedule shall apply to a joint advisory committee as they apply in respect of a Children's Panel Advisory Committee and, for the purposes of those paragraphs the local authorities acting under sub-paragraph (1) above shall be regarded as a single local authority.

Recruitment and training of panel members

9 The Secretary of State may make such arrangements as he considers appropriate to recruit and train members, or possible members, of the children's panels.

10 Each local authority shall make such arrangements as they consider appropriate--

(a) to enable the Children's Panel Advisory Committee to obtain names for submission to the Secretary of State as potential panel members; and

(b) to train panel members or potential panel members.

Expenses of panel members

11 A local authority may pay--

(a) to a member or a potential member of a children's panel,

(b) to a member of the Children's Panel Advisory Committee,

such allowances as may be determined by the Secretary of State; and he may determine differently in relation to different cases or different classes of case.

Publication of list of members of children's panel

12 Each local authority shall publish a list of names and addresses of members of the children's panel for their area, and that list shall be open for public inspection at the principal offices of the local authority, and at any place where an electors list for the local government area is available for inspection.

Section 98(1).

SCHEDULE 2 Amendments of the Adoption (Scotland) Act 1978

1 The [1978 c. 28.] 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

3 In section 3(3) (factors to be considered by Secretary of State in considering application for approval of adoption society), after paragraph (a) insert--

" (aa) the procedures in accordance with which the applicant deals with, or as the case may be proposes to deal with, complaints arising in relation to its exercise of its functions and, where the applicant is already an approved adoption society, the manner in which it deals with particular complaints, " .

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) in subsection (2), at the end add--

" including, without prejudice to the generality of this subsection, regulations as to procedures for dealing with complaints arising in relation to such exercise. " ; and

(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;

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