Sec | Subject | Summary | Rule/Reg | Guidance | Comment |
28 | Removal of power to arrange for emigration of children | As per title | | | Not relevant |
29 | After-care | Sets out local authority duties and powers in relation to advice and assistance for certain young people formerly looked-after by them. Obliges the local authority (but only if the young person consents) to notify another local authority when a young person receiving after-care by the first authority proposes to move into the area of another local authority. Note also S17(2), which requires the local authority to prepare looked-after children for the time when they leave care. | The Arrangements Regs, Reg 4 require that a care plan include the arrangements which need to be made for the time when the child will no longer be looked-after by the local authority. | Scottish Office guidance, Vol 2, Ch. 7: - "It is a consistent theme of the Act that children and young people should have the opportunity to express their views whenever decisions are being taken about their lives. They should be involved in planning aftercare. They should receive information about their rights and about the resources and services available, so that they can play a real part in planning and make informed decisions about their future." (Para 19)
- Young people should have the opportunity to contribute to the development and review of plans for aftercare services. Interagency, throughcare and aftercare panels should include young people's groups. (Para 23)
- Re The Arrangements Reg 4,: "The young person should be fully involved in the plans for their future and able to make their views clearly known … They may give messages that are confused and contradictory and they may need time to consider issues about their future." (Para 27)
- Re specialist aftercare services, "A keyworker … to co-ordinate services… could be drawn from a number of different agencies which are directly involved in assisting the young person and wherever possible the young person should have a say in determining who this co-ordinator might be." "Co-ordinating should involve … reviewing needs and plans in consultation with the young person." (Para 53)
| No requirement in law to give 'due regard' to children's views once a young person is no longer looked-after by the local authority. However, the young person can control the passing on of information about him or her to another local authority area. The requirement in guidance to involve young people in planning for services, applies to the group rather than the individual. Children generally do not have a choice of social worker. It is interesting that guidance emphasises the need to give young people a say in who should be their keyworker for aftercare. As with fostering, here is another specific requirement in guidance about the communication needs of disabled children, which perhaps requires more comprehensive attention. |
29 | Continued | | | - Re young people with special needs, "The local authority needs to take any steps necessary to ensure that the views of these young people about their needs, and the ways in which these can be met, are taken into account. This may necessitate the use of skilled communicators and communication support, for example, text telephones or interpreters for those with a hearing impairment." (Para 35)
| |
30 | Financial assistance towards expenses of education or training and removal of power to guarantee indentures etc. | A more focused after-care power to give grants related to education or training expenses or employment, including associated accommodation and maintenance. | | | This would normally be at the young person's request |
31 | Review of case of child looked-after by local authority | Empowers the Secretary of State to set out timescales for review by local authorities of cases of children looked-after by them. | Timescales are set out in the Arrangements Reg. 9. The process of the review is addressed by Reg. 8 which, in its referral back to Regs 4 and 5, requires account to be taken of the views of the child. | Scottish Office guidance, Vol 2, Ch. 1 includes extensive consideration of the need to ensure that reviews facilitate the expression of views by children. Parents', carers' and children's views should be taken into account, for example re: preparation, format, choice of venue, attendance list, involvement of children's rights officers, special arrangements for disabled children, ethnic minorities, and younger children. (Paras 80 - 115) | Guidance contains a very detailed analysis of issues related to children's participation. |
32 | Removal of child from residential establishment | Gives the local authority powers and duties to remove the child where placed in terms of Chapter 1 and 4 of Part II, but not Chapters 2 and 3 (placement in accordance with a children's hearing supervision requirement or in implementation of a child protection provision). | The Arrangements Reg. 19 obliges the local authority to make arrangements to terminate a placement when it is no longer in a child's interests to remain. | Scottish Office guidance, Vol 2, Ch 1 advises the local authority to take the views of the child into account when reaching a decision to terminate a placement. (Para 116) | Whilst the guidance advises that the child's views be taken into account, this would be in any event a requirement, so far as is practicable, because of S. 17 (4). However, S32 does not qualify the duty of the local authority to remove a child if requested to do so, therefore, although they might seek the child's views, their capacity to take them into account would be curtailed by their duty under S32(b). |
33 | Effect of orders etc. made in different parts of the United Kingdom | Empowers the Secretary of State to make regulations to cover cross-border transfers of children subject to child care and protection orders within the different UK jurisdictions | Children (Reciprocal Enforcement of Prescribed Orders etc. (England and Wales and Northern Ireland) (Scotland) Regulations 1996 (SI 1996 No. 3267) | | Not relevant |
34 | Registration and Inspection of certain residential grant-aided and independent schools etc. | Introduces compulsory registration with the local authority for residential or other establishments and residential schools providing personal care and support as part of their functions. Continues voluntary registration for non-residential schools where the provision of such personal care and support is not a substantial part of their functions. Extends powers of entry by persons authorised by the local authority. | | | Not relevant |
35 | Welfare of children in accommodation provided for purposes of school attendance | Places a duty on managers of schools where residential accommodation is provided for pupils, to "safeguard and promote the welfare of the child or young person while he is so accommodated." HMI are to include within their inspections consideration of whether this duty is fulfilled. | | HM Inspectors of Schools, National Briefing Document, Nov. 1999, says the views of all pupils in residence must be surveyed through questionnaires and selected interviews. | No requirement in law that children's views be considered in the course of inspection, but this is given high priority in guidance for HMIs. |
36 | Welfare of certain children in hospitals and nursing homes etc. | Hospitals or nursing homes are required to notify the local authority if the child has not had, or is likely not to have, parental contact for a period of three months. The local authority must enquire as to the child's welfare and consider whether to exercise any functions under the 1995 Act. | | Scottish Office guidance, Vol 1, Ch 1, para 72 expands on this statutory provision. | No specific reference is made to the views of the child. However this may be appropriate for such a protective trigger mechanism. The extent to which the local authority would be required to have regard to the views of the child in its subsequent action would be determined by the other provisions of this Act. |
37 | Modifications of provisions of Children Act 1989 regarding disqualification from registration as child minder etc. | As per title | | | Not relevant |
38 | Short-term refuges for children at risk of harm | Allows the local authority to designate places of refuge for children who appear to be at risk of harm. Entry is dependent upon a child requesting refuge. | The Refuges for Children (Scotland) regulations 1996: Reg 8: requires written notifications to inform specified parties of the fact that the child is being provided with refuge, but not the location. | Scottish Office guidance, Vol 1, Ch 8: - Explores how to identify that a child is asking for refuge, even if not using that word, including taking account of the views and wishes of the child, and consideration of alternatives. (Para 22)
- "The local authority should take into account the views and wishes of the child … when deciding whether to inform a responsible person, the child's family or any other party of the location of the place of refuge." (Para 16).
| Safe refuges are a child-initiated service. Regulations do not specify that children's views should be taken into account beyond this. Guidance gives greater weight to the child's views. Note: children in refuges are not 'looked-after' merely on that account, and thus have no specific rights to have their views heard in subsequent decisions on assessment etc., although they may fall within other provisions, depending upon what is under consideration. |
39 | Formation of children's panels and children's hearings | As per title | | | Not relevant |
40 | Qualification and employment of Reporters | As per title | | | Not relevant |
41 | Safeguarding child's interests in proceedings | S16 principle re views does not apply to the decision to appoint a safeguarder "to safeguard the interests of the child in the proceedings." | CH r.14 sets out general duties of safeguarders. A.S. 97, rr. 3.6-3.10: Safeguarder has powers and duties of a curator ad litem re the child. Subject to A.S. 97 r.3.5(1)(a) [sheriff's power to order such steps as he considers necessary to ascertain the views of the child], A.S. 97 r. 3.8(c) says a safeguarder should "determine whether the child wishes to express his views in relation to the application and, if so, where the child so wishes transmit his views to the sheriff." A.S. 97, r.3.9 allows the safeguarder to appear personally in the proceedings or instruct an advocate or solicitor to appear on his behalf. Any such advocate or solicitor acting for the safeguarder, shall not act also as advocate or solicitor for the child in the proceedings. | | Why should the child be excluded from the decision whether to appoint a safeguarder? CH Rules do not refer to any role of the Safeguarder re the child's views. A.S. 97 shows a clear concern to facilitate expression of the child's views to the sheriff, and envisages a role for the safeguarder. Its clear distinction between the perspectives of the Safeguarder's agent and the child's agent demonstrates an awareness of the difference between representing interests and views, and the possibility of conflict. It is possible that this awareness has not been fully translated into expectations of the Safeguarder her/himself and the child's perceptions of her/him. |
42 | Power of Secretary of State to make Rules governing procedure at children's hearings etc. | S16 does not apply to the Secretary of State. Rules may cover provision of information to children, and the right of the child to a representative. | Children's Hearing (Transmission of Information etc. (Sc) Regs 1996 (SI 1996 No. 3260; CH Rules. | | It could be argued that children should be involved in the consultation process about the content of the regulations. |
43 | Privacy of proceedings at and right to attend children's hearing | Power of children's hearing to exclude newspaper or news agency representatives, to avoid distress to the child and to facilitate expression of child's views. S16 does not apply as regards taking account of the child's views in making this decision. The Chairman may later explain to the excluded person(s) the substance of what has taken place. | | | It is arguable that non-application of S16 re views is understandable, given that the decision to exclude will be informed by a suspicion that the circumstances are not conducive to expression of the child's views. However, the chairman is not obliged to take the child's views into account when deciding whether to explain to the excluded persons the substance of what took place. |
44 | Prohibition of publication of proceedings at children's hearing | S 16 principle re views of child does not apply. | | | It is interesting to speculate on whether there might be circumstances in which a child would be able to make a good case for lifting the prohibition, and whether it should be possible for this to happen at the child's instigation (although ultimately based on an assessment of the child's interests). |
45 | Attendance of child and relevant person at children's hearing | Child has a right to attend, as well as an obligation; only the latter may be dispensed with. Warrant may be issued to secure attendance: in terms of S45(4), where it is considered that the child is unlikely to attend; in terms of S45(5) where the child has failed to attend. No requirement to ascertain child's views re these warrants. | CH Rules 15 and 26 require the hearing to take account of the child's views, so far as practicable, when considering whether to grant warrants under S45(4) or (5). | | This is an example of a situation in which the failure of S45 to require consideration of the child's views was redressed by inserting the requirement into the CH Rules. |
46 | Power to exclude relevant person from children's hearing | Applies to "relevant persons" and their representatives. Designed to avoid distress to the child and to facilitate expression of child's views. Chairman must later explain to the excluded person(s) the substance of what has taken place. S16(2) re the child's views does not apply to the decision to exclude. It is not possible to exclude the child's representative. | | | As with S43, it is arguable that non-application of S16 re views is understandable, given that the decision to exclude will be informed by a suspicion that the circumstances are not conducive to expression of the child's views. There is concern that the Chairman's duty to convey to the excluded persons the substance of what has taken place (as opposed to a power to do so in S43) may dissuade children from expressing views. While it may seem inappropriate to have a provision allowing exclusion of the child's representative, it is of interest that the children's hearing has no authority to test the legitimacy of the child's representative equivalent of that of a sheriff. See comments on Ss 68 and 91. |
47 | Presumption and determination of age | The children's hearing can proceed only if the child declares that he is a "child" for the purpose of the hearing, or the hearing so determine. | | | This is a declaration of fact by the child rather than an expression of views. |
48 | Transfer of case to another children's hearing | No requirement to take account of child's views. | | | Might there be circumstances in which the child's view was relevant? |
49 | Referral or remission to children's hearing where child guilty of an offence | Repealed by Criminal Procedure (Consequential Provisions) (Sc) Act 1995 (c.40), s.6 and Sched.5. Replaced by Criminal Procedure (Sc) Act 1995, s.49. | | | Repealed |
50 | Treatment of child's case on remission by court | Procedural re referral from criminal court. | | | Not relevant |
51 | Appeals against decision of children's hearing or sheriff | Child has right to appeal. Sheriff may hear evidence from the parties. S16 re child's views applies to disposal of appeal against a decision of a children's hearing. Child may initiate appeal on point of law or irregularity to Sheriff Principal or Court of Session. Child may apply for suspension of the supervision requirement pending appeal, but S16 re child's views does not apply to consideration of any such application, whether initiated by the child or relevant person. | Because S16 applies re the child's views, AS 97, rr3.3 to 3.5 apply. These include the possibility of the sheriff marking the child's views as "confidential" and making them unavailable to the parties. A.S. 97, rr. 3.53-3.61: Arrangements for appeal by child and intimation on child (which may be dispensed with). Rights of parties to be heard and to receive further reports ordered by sheriff. Sheriff may exclude child if presence would be contrary to child's interests; safeguarder, relevant person and child's representative may remain. Sheriff may exclude relevant person and representative to facilitate expression of views by child or prevent significant distress, but must later explain to relevant person the substance of what has taken place. | | How real is the child's right to appeal, when the child does not have a right to receive the information made available to the hearing members and the relevant persons? See comments re S65. Is there an incongruity between the confidentiality provisions and the requirement to tell the relevant persons the substance of what has been said in their absence? Anomalous that the child's views do not require to be taken into account as regards consideration of whether to suspend operation of a supervision requirement, pending appeal. Question: whether the right and obligation to attend under S45 applies to hearings to consider such applications for suspension? S45 applies the right/obligation to "all stages of the hearing." |
51 | Continued | | Child to be sent the decision and any note of reasons; notified of arrangements for any appeal to the Sheriff Principal, and invited to comment on draft stated case. CH Rule 23: Reporter to give child notice of arrangements for hearing application for suspension of supervision requirement pending appeal. Children's hearing must hear the applicant and representative. If the child is not the applicant, there is no duty to consider the child's views. | | |
52 | Children requiring compulsory measures of supervision | Sets out grounds for referral to a children's hearing. | | | Not relevant |
53 | Provision of information to the Principal Reporter | Duty of local authority and police, and power of others, to refer relevant information to the Reporter. No requirement to take account of the child's views. Child may also refer to Reporter. | | | S53 sets out duties and powers regarding investigation of concerns about a child and referral to the Reporter. It is arguable that it would be inappropriate to include reference to the child's views in the context of these triggers relating to the child's protection and welfare. |
54 | Reference to the Principal Reporter by court | Courts dealing with relevant matters can refer to the Reporter with a finding that a ground of referral has been established in their own proceedings. S16 does not apply re the child's views (although Norrie points out that this does not stop the court from ascertaining them if this would enhance the child's welfare, in respect of which S 16 does apply). S16 does not apply to action by Reporter on receipt of information. | A.S. 97, rr.3.3.-3.5 re the child's views do not apply as S16(2) does not apply to the court's decision under S.54. | | It is arguable that it would be inappropriate to include reference to the child's views in the context of this procedure relating to the child's protection and welfare. Norrie's observation does raise the point about the extent to which any decision based on the welfare principle can ignore the ascertainable views of a child. cf. the relationship between Articles 3 and 12 of the UN Convention on the Rights of the Child. [See main mapping paper.] |
55 | Child assessment orders | Allows a sheriff to make a child assessment order (CAO) on the application of a local authority. S16 applies re views to the making of a CAO. S 90 preserves child's right to refuse examination if competent in terms of S2(4) of ALCA 1991. Child's views would also require to be taken into account re directions re contact. | A.S. 97 r. 3.4 refers to Form 26 as the form of notice to the child of the making of an application for a CAO, inviting the child to express views, and offering options as the ways in which such views might be presented. Rr. 3.25 - 3.28 give further detail as to procedure. | Scottish Office guidance, Vol. 1, Ch.7, para. 16 refers to the S16 requirement that the sheriff considering an application must take account of the child's views. Para. 28 refers to the local authority's duty to take account of the child's views in terms of S17(4) where implementation of the CAO involves the child becoming "looked-after" by them. S29 reminds the local authority of their responsibility to ensure the child is aware of rights under ALCA 1991 and has sufficient information to make informed choices about consent to the assessment. | A situation could arise in which a child subject to a CAO was resident away from home, but not with the local authority. The child would not be "looked-after" in terms of S17(6), and there would be no clear responsibility on anyone to take account of the child's views on general matters. It could be argued against this that Ss5 and 6 would require any individual to take the child's views into account. |
56 | Initial investigation by the Principal Reporter | Specifies the action to be taken by the Reporter on receiving a referral from any source. S16 does not apply to Reporters. No requirement to take account of child's views. | | | This may be appropriate, although one might consider that the child's views could be an influential and helpful factor in some cases. |
57 | Child protection orders | Allows a sheriff to make a child protection order (CPO) on the application of any person. S16 re views applies to the variation or discharge of a CPO, but not to its making. | A.S. 97, r.3.4 refers to Form 27 as the form of notice to the child of an application to vary or set aside a CPO, inviting the child to express views and offering options as to how this may be done. rr.3.5 also sets out options for the sheriff. r. 3.33 gives further detail as to procedure. Paragraph (3) says: "Without prejudice to rule 3.5, any person on whom service is made may appear or be represented at the hearing of the application." | Scottish Office guidance, Vol. 1, Ch. 7, para. 41 says that, before deciding to apply for a CPO, the local authority should, as far as practicable, consider, "the ascertainable wishes and feelings of the child, having regard to the child's age and understanding." Paragraph 63 refers to the local authority's duty to have regard to the views of those children subject to CPOs who are "looked-after" by them. Paragraph 50 refers to the situation in which the child is not "looked-after," and suggests to local authorities that they may be able to offer help in safeguarding the child's welfare. | This is an example of a situation in which neither the Act nor the Rules require the child's views to be taken into account, regarding the decision to make a CPO, but guidance suggests this would be appropriate where practicable. As re the CAO (see S55 above), there remains a question about the views of children not formally "looked-after.", but Ss. 5 and 6, may apply. |
58 | Directions in relation to contact and exercise of parental responsibilities and parental rights | Allows a sheriff to make directions regarding various matters, to accompany a CPO; includes medical examination and treatment. S16 does not apply re views. S90 allows competent child to refuse medical examination or treatment. | | Scottish Office guidance, Vol. 1, Ch. 7,para. 47 refers to children's rights re consent in terms of ALCA 1991. | It seems strange that Directions are not specifically covered by S16(2). See Norrie's comments re S77, arguing that the three overarching principles apply because they apply to S76 to which S77 is ancillary. Could the same reasoning apply here, or is the S58 direction more distinct than a S77 condition? Also, see S59 comment, below. |
59 | Initial hearing of case of child subject to child protection order | Regulates the hearing, which must normally be held on the Second Working Day after the child's removal or prevention from being removed. S16 re views does not apply to the Reporter's responsibilities. S16 does not apply to hearing's decision whether to continue the CPO or to continue or vary the Order or any S58 direction accompanying it. | CH rr. 15 and 26 require the hearing to seek the views of the child, so far as practicable re continuation of the Order. Rule 26 also requires the child's views to be taken into account re continuation of any accompanying S58 direction. | Scottish Office guidance, Vol. 1, Ch. 7, para. 53, restates the statutory position. | This is an example of a situation in which the failure of the Act to require consideration of the views of the child is remedied by provisions in the CH Rules and Rules of Court. |
60 | Duration, recall or variation of child protection order | A CPO automatically lapses if no attempt to implement within 24 hours, or application to Sheriff not considered timeously. S16 does not apply to Reporter's decisions re liberation of child or decision not to take to a hearing. Child can apply for variation or discharge of CPO. S16 does not apply to Reporter's decision to call advice hearing (S60(10)), but S16(4)(a)(iii) applies the S16 views requirement to the advice hearing itself. S16 re views does apply to Sheriff's decision to vary or discharge a CPO. | CH r.15 restates the S16 duty re the S60(10) advice hearing. | Scottish Office guidance, Vol.I Ch. 7, para. 52 restates the legal position that the Reporter may, "having regard to the welfare of the child, return the child to his or her family.." No reference to the views of the child. Paras. 54-58 restate the statutory position re the advice hearing, variation and recall. | It might be advisable for the Reporter to take the views of the child into account before deciding upon liberation. The question is whether this and other decisions of the Reporter should be subject to a statutory requirement to take account of the child's views where practicable. The same might apply to the decision to take the matter to a hearing. |
61 | Emergency protection of children where child protection order not available | Allows any person to apply to a JP to authorise emergency protection measures where it is not practicable for a sheriff to consider an application for a CPO. Police constables can execute emergency protection measures on their own authority, if the criteria are satisfied. S16 re views does not apply to JPs or constables, nor to the Reporter's decision to liberate the child from the place of safety. If a child is in local authority accommodation, he or she is "looked-after" in terms of S17(6), therefore S17(4) requires the local authority to take account of the child's views. | The Emergency Regs: Reg 13: "As early as is consistent with the protection and welfare of the child, the specified person, taking or having taken emergency protection measures, shall taking account of the age and maturity of the child - (a) inform the child of the reasons for the emergency protection measures being taken or having been taken, and of any further steps which may be taken with respect to him under the Act or under these Regulations; and (b) so far as practicable, give the child an opportunity to express his views, and have regard to any views as may be expressed before continuing with emergency protection measures or taking any such further steps." | Scottish Office guidance, Vol.1, Ch.7, para.93 refers to the Regulations re views of the child. | The Regulations do not refer to any presumption about the age of twelve. As re S 60, there is no duty on the Reporter to take account of the child's views re the decision to liberate the child from the place of safety. |
62 | Regulations in respect of emergency child protection measures | Authorises the Secretary of State to make regulations No specific reference to views of child. | The Emergency Regs | | It could be argued that children should be involved in the consultation process about the content of the regulations. |
63 | Review of case of child arrested by police | Sets out Reporter's responsibilities where informed by police that no charges will be made against a child whom they have detained in a place of safety. S16(2) does not apply to Reporter's decision re liberating child or holding a hearing. S16(2) does not apply to issue of CH warrant under S63(5). | CH Rules 15 and 26 require the hearing to take account of the child's views re the granting of a S63(5) warrant. | | Same observations as re Ss60 and 61 re liberation of the child from the place of safety. The Act's failure to require consideration of the views of the child re the warrant is remedied by the CH Rules. |
64 | Business meeting preparatory to children's hearing | Business meeting of children's panel members may be called by Reporter to deal with procedural matters and receive advice on some practical arrangements relating to a future children's hearing. Reporter must notify child of right to make views known. These would be presented to the meeting by the Reporter. Child has no right to attend. | CH r. 4. Principal Reporter must notify child of: the arrangements for a business meeting; the business to be transacted; relevant documents or information; the child's entitlement to make views known to the Principal Reporter; and the Reporter's duty to present such views to the meeting. If the child gives views orally, the Reporter must record them in writing. The business meeting must consider such views before reaching any decision. | | Child is in the same position as adult re the business meeting. Does the Reporter give to the child all of the information given to the adults, as Rule 4 seems to suggest? |
65 | Referral to, and proceedings at, children's hearing | Reporter's duty to refer to hearing if conditions fulfilled. Child's views not relevant. Hearing will not proceed to consideration of the case if child does not accept the grounds for referral or is incapable of understanding them, in which case the Reporter will make application to the sheriff for a finding as to whether the grounds for referral are established. | CH r.5 obliges the Reporter to give to the "relevant persons" and specified others any information made available to the members of the children's hearing. The child has no right to receive such information. CH r. 20 obliges the chairman of the hearing to explain to the child the substance of relevant information before them, unless this would be detrimental to the child's interests. Rule 6, which obliges the Reporter to notify the child inter alia of his right to attend the hearing, also obliges the Reporter to advise the child that any information he or she provides for the hearing will have to be shared with the "relevant persons." Rule 11 allows the child to be accompanied by a "representative." Rules 15 and 26 restate the duty to take account of views re S69(4) and (7), and impose a duty to take account of the child's views re the S69(3) residential requirement for the purpose of assessment. | | Similar observations as before re the relevance of the child's views to the Reporter's decisions where these are based partly on assessments of the child's welfare needs. There is a concern that the requirement to share information given by the child with the "relevant person(s)" will inhibit children from expressing their views freely. It is also significant that children have no right to receive the information provided to members of the hearing, while their parents or "relevant persons" do have such a right. While one might argue that some such material might have to be withheld out of regard for the child's age and immaturity, and possibly the confidentiality of others, the current provisions appear to disadvantage the child both as regards receipt of information supplied by others, and as regards the lack of respect for confidentiality as regards information supplied by the child him or herself. |