Children (Scotland) Act 1995

• Citation: 1995 c. 36
• Sections: 229

Section 1 Parental responsibilities.

(1) Subject to section 3(1)(b) , and (d) and (3) of this Act, a parent has in relation to his child the responsibility—

(a) to safeguard and promote the child’s health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the child—

(i) direction;

(ii) guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child’s legal representative,

but only in so far as compliance with this section is practicable and in the interests of the child.

(2) “ Child ” means for the purposes of—

(a) paragraphs (a), (b)(i), (c) and (d) of subsection (1) above, a person under the age of sixteen years;

(b) paragraph (b)(ii) of that subsection, a person under the age of eighteen years.

(3) The responsibilities mentioned in paragraphs (a) to (d) of subsection (1) above are in this Act referred to as “ parental responsibilities ”; and the child, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those responsibilities.

(4) The parental responsibilities supersede any analogous duties imposed on a parent at common law; but this section is without prejudice to any other duty so imposed on him or to any duty imposed on him by, under or by virtue of any other provision of this Act or of any other enactment.

Section 2 Parental rights.

(1) Subject to section 3(1)(b) , and (d) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right—

(a) to have the child living with him or otherwise to regulate the child’s residence;

(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;

(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child’s legal representative.

(2) Subject to subsection (3) below, where two or more persons have a parental right as respects a child, each of them may exercise that right without the consent of the other or, as the case may be, of any of the others, unless any decree or deed conferring the right, or regulating its exercise, otherwise provides.

(3) Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in subsection (6) below.

(4) The rights mentioned in paragraphs (a) to (d) of subsection (1) above are in this Act referred to as “ parental rights ”; and a parent, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those rights.

(5) The parental rights supersede any analogous rights enjoyed by a parent at common law; but this section is without prejudice to any other right so enjoyed by him or to any right enjoyed by him by, under or by virtue of any other provision of this Act or of any other enactment.

(6) The description of a person referred to in subsection (3) above is a person (whether or not a parent of the child) who for the time being has and is exercising in relation to him a right mentioned in paragraph (a) or (c) of subsection (1) above; except that, where both the child’s parents are persons so described, the consent required for his removal or retention shall be that of them both.

(7) In this section, “ child ” means a person under the age of sixteen years.

Section 3 Provisions relating both to parental responsibilities and to parental rights.

(1) Notwithstanding section 1(1) of the Law Reform (Parent and Child) (Scotland) Act 1986 (provision for disregarding whether a person’s parents are not, or have not been, married to one another in establishing the legal relationship between him and any other person)—

(a) a child’s mother has parental responsibilities and parental rights in relation to him whether or not she is or has been married to or in a civil partnership with his father; and

(b) without prejudice to any arrangements which may be made under subsection (5) below and subject to any agreement which may be made under section 4 of this Act, his father has such responsibilities and rights in relation to him only if

(i) married to or in a civil partnership with the mother at the time of the child’s conception or subsequently, or

(ii) where not married to or in a civil partnership with the mother at that time or subsequently, the father is registered as the child's father under any of the enactments mentioned in subsection (1A).

(c) without prejudice to any arrangements which may be made under subsection (5) below, where a child has a parent by virtue of section 42 of the Human Fertilisation and Embryology Act 2008, that parent has parental responsibilities and parental rights in relation to the child;

(d) without prejudice to any arrangements which may be made under subsection (5) below and subject to any agreement which may be made under section 4A(1) of this Act, where a child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008, that parent has parental responsibilities and parental rights in relation to the child if she is registered as a parent of the child under any of the enactments mentioned in subsection (3A).

(1A) Those enactments are—

(a) section 18(1)(a), (b)(i) and (c) and (2)(b) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49);

(b) sections 10(1)(a) to (e) and 10A(1)(a) to (e) of the Births and Deaths Registration Act 1953 (c. 20); and

(c) article 14(3)(a) to (e) of the Births and Deaths Registration (Northern Ireland) Order 1976 ( S.I. 1976/1041).

(2) For the purposes of subsection (1)(b) above, the father shall be regarded as having been—

(a) married to the mother at any time when he was a party to a purported marriage with her which was—

(i) voidable; or

(ii) void but believed by them (whether by error of fact or law) in good faith at that time to be valid;

(b) in a civil partnership with the mother at any time when he was a party to a purported civil partnership with her which was—

(i) voidable; or

(ii) void but believed by them (whether by error of fact or law) in good faith at that time to be valid.

(3) Subsection (1) above is without prejudice to any order made under section 11 of this Act or section 3(1) of the said Act of 1986 (provision analogous to the said section 11 but repealed by this Act) or to any other order, disposal or resolution affecting parental responsibilities or parental rights; and nothing in subsection (1) above or in this Part of this Act shall affect any other—

(a) enactment (including any other provision of this Act or of that Act); or

(b) rule of law,

by, under or by virtue of which a person may have imposed on him (or be relieved of) parental responsibilities or may be granted (or be deprived of) parental rights.

(3A) Those enactments are—

(a) paragraphs (a), (b) and (d) of section 18B(1) and section 18B(3)(a) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965;

(b) paragraphs (a), (b) and (c) of section 10(1B) and of section 10A(1B) of the Births and Deaths Registration Act 1953;

(c) sub-paragraphs (a), (b) and (c) of Article 14ZA(3) of the Births and Deaths Registration (Northern Ireland) Order 1976.

(4) The fact that a person has parental responsibilities or parental rights in relation to a child shall not entitle that person to act in any way which would be incompatible with any court order relating to the child or the child’s property, or with any compulsory supervision order or interim compulsory supervision order (as defined in sections 83 and 86 respectively of the Children’s Hearings (Scotland) Act 2011 (asp 1) ) that is in force in relation to the child. .

(5) Without prejudice to sections 4(1) and 4A(1) of this Act, a person who has parental responsibilities or parental rights in relation to a child shall not abdicate those responsibilities or rights to anyone else but may arrange for some or all of them to be fulfilled or exercised on his behalf; and without prejudice to that generality any such arrangement may be made with a person who already has parental responsibilities or parental rights in relation to the child concerned.

(6) The making of an arrangement under subsection (5) above shall not affect any liability arising from a failure to fulfil parental responsibilities; and where any arrangements so made are such that the child is a foster child for the purposes of the Foster Children (Scotland) Act 1984, those arrangements are subject to the provisions of that Act.

Section 4 Acquisition of parental rights and responsibilities by natural father.

(1) Where a child’s mother has not been deprived of some or all of the parental responsibilities and parental rights in relation to him and, by virtue of subsection (1)(b) of section 3 of this Act, his father has no parental responsibilities or parental rights in relation to him, the father and mother, whatever age they may be, may by agreement provide that, as from the appropriate date, the father shall have the parental responsibilities and parental rights which (in the absence of any order under section 11 of this Act affecting those responsibilities and rights) he would have if married to the mother.

(2) No agreement under subsection (1) above shall have effect unless—

(a) in a form prescribed by the Secretary of State; and

(b) registered in the Books of Council and Session while the mother still has the parental responsibilities and parental rights which she had when the agreement was made.

(3) The date on which such registration as is mentioned in subsection (2)(b) above takes place shall be the “ appropriate date ” for the purposes of subsection (1) above.

(4) An agreement which has effect by virtue of subsection (2) above shall, subject only to section 11(11) of this Act, be irrevocable.

Section 4A Acquisition of parental responsibilities and parental rights by second female parent by agreement with mother

(1) Where—

(a) a child's mother has not been deprived of some or all of the parental responsibilities and parental rights in relation to the child; and

(b) the child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 and that parent is not registered as such under any of the enactments mentioned in section 3(3A),

the mother and the other parent may by agreement provide that, as from the appropriate date, the other parent shall have the parental responsibilities and rights (in the absence of any order under section 11 of this Act affecting responsibilities and rights) as if the other parent were treated as a parent by virtue of section 42 of that Act of 2008.

(2) Section 4(2), (3) and (4) applies in relation to an agreement under subsection (1) of this section as it applies in relation to an agreement under subsection (1) of section 4.

Section 5 Care or control of child by person without parental responsibilities or parental rights.

(1) Subject to subsection (2) below, it shall be the responsibility of a person who has attained the age of sixteen years and who has care or control of a child under that age, but in relation to him either has no parental responsibilities or parental rights or does not have the parental responsibility mentioned in section 1(1)(a) of this Act, to do what is reasonable in all the circumstances to safeguard the child’s health, development and welfare; and in fulfilling his responsibility under this section the person may in particular, even though he does not have the parental right mentioned in section 2(1)(d) of this Act, give consent to any surgical, medical or dental treatment or procedure where—

(a) the child is not able to give such consent on his own behalf; and

(b) it is not within the knowledge of the person that a parent of the child would refuse to give the consent in question.

(2) Nothing in this section shall apply to a person in so far as he has care or control of a child in a school (“ school ” having the meaning given by section 135(1) of the Education (Scotland) Act 1980).

Section 6 Views of children.

(1) A person shall comply with subsections (1A) and (1D) , in reaching any major decision which involves—

(a) his fulfilling a parental responsibility or the responsibility mentioned in section 5(1) of this Act; or

(b) his exercising a parental right or giving consent by virtue of that section

....

(1A) The person must—

(a) give the child an opportunity to express the child's views in—

(i) the manner that the child prefers, or

(ii) a manner that is suitable to the child if the child has not indicated a preference or it would not be reasonable in the circumstances to accommodate the child's preference, and

(b) have regard to any views expressed by the child, taking into account the child's age and maturity.

(1B) But the person is not required to comply with subsection (1A) if the person is satisfied that—

(a) the child is not capable of forming a view, or

(b) the location of the child is not known.

(1C) In considering whether the child is capable of forming a view, the person is to start with the presumption that the child is.

(1D) The person must, so far as is practicable, have regard to the views of any other person who has parental responsibilities or parental rights in relation to the child.

(2) A transaction entered into in good faith by a third party and a person acting as legal representative of a child shall not be challengeable on the ground only that the child, or a person with parental responsibilities or parental rights in relation to the child, was not consulted or that due regard was not given to his views before the transaction was entered into.

Section 7 Appointment of guardians.

(1) A child’s parent may appoint a person to be guardian of the child in the event of the parent’s death; but—

(a) such appointment shall be of no effect unless—

(i) in writing and signed by the parent; and

(ii) the parent, at the time of death, was entitled to act as legal representative of the child (or would have been so entitled if he had survived until after the birth of the child); and

(b) any parental responsibilities or parental rights (or the right to appoint a further guardian under this section) which a surviving parent has in relation to the child shall subsist with those which, by, under or by virtue of this Part of this Act, the appointee so has.

(2) A guardian of a child may appoint a person to take his place as guardian in the event of the guardian’s death; but such appointment shall be of no effect unless in writing and signed by the person making it.

(3) An appointment as guardian shall not take effect until accepted, either expressly or impliedly by acts which are not consistent with any other intention.

(4) If two or more persons are appointed as guardians, any one or more of them shall, unless the appointment expressly provides otherwise, be entitled to accept office even if both or all of them do not accept office.

(5) Subject to any order under section 11 or 86 of this Act, a person appointed as a child’s guardian under this section shall have, in respect of the child, the responsibilities imposed, and the rights conferred, on a parent by sections 1 and 2 of this Act respectively; and sections 1 and 2 of this Act shall apply in relation to a guardian as they apply in relation to a parent.

(6) Without prejudice to the generality of subsection (1) of section 6 of this Act, a decision as to the appointment of a guardian under subsection (1) or (2) above shall be regarded for the purposes of that section (or of that section as applied by subsection (5) above) as a major decision which involves exercising a parental right.

Section 8 Revocation and other termination of appointment.

(1) An appointment made under section 7(1) or (2) of this Act revokes an earlier such appointment (including one made in an unrevoked will or codicil) made by the same person in respect of the same child, unless it is clear (whether as a result of an express provision in the later appointment or by any necessary implication) that the purpose of the later appointment is to appoint an additional guardian.

(2) Subject to subsections (3) and (4) below, the revocation of an appointment made under section 7(1) or (2) of this Act (including one made in an unrevoked will or codicil) shall not take effect unless the revocation is in writing and is signed by the person making the revocation.

(3) An appointment under section 7(1) or (2) of this Act (other than one made in a will or codicil) is revoked if, with the intention of revoking the appointment, the person who made it—

(a) destroys the document by which it was made; or

(b) has some other person destroy that document in his presence.

(4) For the avoidance of doubt, an appointment made under section 7(1) or (2) of this Act in a will or codicil is revoked if the will or codicil is revoked.

(5) Once an appointment of a guardian has taken effect under section 7 of this Act, then, unless the terms of the appointment provide for earlier termination, it shall terminate only by virtue of—

(a) the child concerned attaining the age of eighteen years;

(b) the death of the child or the guardian; or

(c) the termination of the appointment by a court order under section 11 of this Act.

Section 9 Safeguarding of child’s property.

(1) Subject to section 13 of this Act, this section applies where—

(a) property is owned by or due to a child;

(b) the property is held by a person other than a parent or guardian of the child; and

(c) but for this section, the property would be required to be transferred to a parent having parental responsibilities in relation to the child or to a guardian for administration by that parent or guardian on behalf of the child.

(2) Subject to subsection (4) below, where this section applies and the person holding the property is an executor or trustee, then—

(a) if the value of the property exceeds £20,000, he shall; or

(b) if that value is not less than £5,000 and does not exceed £20,000, he may,

apply to the Accountant of Court for a direction as to the administration of the property.

(3) Subject to subsection (4) below, where this section applies and the person holding the property is a person other than an executor or trustee, then, if the value of the property is not less than £5,000, that person may apply to the Accountant of Court for a direction as to the administration of the property.

(4) Where the parent or guardian mentioned in subsection (1)(c) above has been appointed a trustee under a trust deed to administer the property concerned, subsections (2) and (3) above shall not apply, and the person holding the property shall transfer it to the parent or guardian.

(5) On receipt of an application under subsection (2) or (3) above, the Accountant of Court may do one, or (in so far as the context admits) more than one, of the following—

(a) apply to the court for the appointment of a judicial factor (whether or not the parent or guardian mentioned in subsection (1)(c) above) to administer all or part of the property concerned and in the event of the court making such an appointment shall direct that the property, or as the case may be part, concerned be transferred to the factor;

(b) direct that all or part of the property concerned be transferred to himself;

(c) direct that all or, in a case where the parent or guardian so mentioned has not been appointed by virtue of paragraph (a) above, part of the property concerned be transferred to the parent or guardian,

to be administered on behalf of the child.

(6) A direction under subsection (5)(c) above may include such conditions as the Accountant of Court considers appropriate, including in particular a condition—

(a) that in relation to the property concerned no capital expenditure shall be incurred without his approval; or

(b) that there shall be exhibited annually to him the securities and bank books which represent the capital of the estate.

(7) A person who has applied under subsection (2) or (3) above for a direction shall not thereafter transfer the property concerned except in accordance with a direction under subsection (5) above.

(8) The Secretary of State may from time to time prescribe a variation in any sum referred to in subsections (2) and (3) above.

(9) In this section “ child ” means a person under the age of sixteen years who is habitually resident in Scotland.

Section 10 Obligations and rights of person administering child’s property.

(1) A person acting as a child’s legal representative in relation to the administration of the child’s property—

(a) shall be required to act as a reasonable and prudent person would act on his own behalf; and

(b) subject to any order made under section 11 of this Act, shall be entitled to do anything which the child, if of full age and capacity, could do in relation to that property;

and subject to subsection (2) below, on ceasing to act as legal representative, shall be liable to account to the child for his intromissions with the child’s property.

(2) No liability shall be incurred by virtue of subsection (1) above in respect of funds which have been used in the proper discharge of the person’s responsibility to safeguard and promote the child’s health, development and welfare.

Section 11 Court orders relating to parental responsibilities etc.

(1) In the relevant circumstances in proceedings in the Court of Session or sheriff court, whether those proceedings are or are not independent of any other action, an order may be made under this subsection in relation to—

(a) parental responsibilities;

(b) parental rights;

(c) guardianship; or

(d) subject to section 14(1) and (2) of this Act, the administration of a child’s property.

(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The court may make such order under subsection (1) above as it thinks fit; and without prejudice to the generality of that subsection may in particular so make any of the following orders—

(a) an order depriving a person of some or all of his parental responsibilities or parental rights in relation to a child;

(b) an order—

(i) imposing upon a person (provided he is at least sixteen years of age or is a parent of the child) such responsibilities; and

(ii) giving that person such rights;

(c) an order regulating the arrangements as to—

(i) with whom; or

(ii) if with different persons alternately or periodically, with whom during what periods,

a child under the age of sixteen years is to live (any such order being known as a “ residence order ”);

(d) an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age and a person with whom the child is not, or will not be, living (any such order being known as a “ contact order ”);

(e) an order regulating any specific question which has arisen, or may arise, in connection with any of the matters mentioned in paragraphs (a) to (d) of subsection (1) of this section (any such order being known as a “ specific issue order ”);

(f) an interdict prohibiting the taking of any step of a kind specified in the interdict in the fulfillment of parental responsibilities or the exercise of parental rights relating to a child or in the administration of a child’s property;

(g) an order appointing a judicial factor to manage a child’s property or remitting the matter to the Accountant of Court to report on suitable arrangements for the future management of the property; or

(h) an order appointing or removing a person as guardian of the child.

(2A) An order doing any of the things mentioned in subsection (2) is to be regarded as an order in relation to at least one of the matters mentioned in subsection (1).

(3) The relevant circumstances mentioned in subsection (1) above are—

(a) that application for an order under that subsection is made by a person who—

(i) not having, and never having had, parental responsibilities or parental rights in relation to the child, claims an interest;

(ii) has parental responsibilities or parental rights in relation to the child;

(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(aa) that application for a contact order is made with the leave of the court by a person whose parental responsibilities or parental rights in relation to the child were extinguished on the making of an adoption order;

(ab) that application for an order under subsection (1) above ... is made by a person who has had, but for a reason other than is mentioned in subsection (4) below, no longer has, parental responsibilities or parental rights in relation to the child;

(b) that although no application for an order under subsection (1) above has been made, the court (even if it declines to make any other order) considers it should make such an order.

(4) The reasons referred to in (3)(ab) above are that the parental responsibilities or parental rights have been—

(a) extinguished on the making of an adoption order; or

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

(c) extinguished by virtue of section 55(1) of the Human Fertilisation and Embryology Act 2008 (parental orders: supplementary provision) on the making of a parental order under section 54 or 54A of that Act ; . . .

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In subsection (3)(a) and (ab) above “ person ” includes (without prejudice to the generality of that subsection) the child concerned; but it does not include a local authority.

(6) In subsections (3)(aa) and (4) above—

. . . “ adoption order ” has the meaning given by section 119 of the Adoption and Children (Scotland) Act 2007 (asp 4) .

(7) Subject to subsection (8) below, in considering whether or not to make an order under subsection (1) above and what order to make, the court—

(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all; and

(b) taking account of the child’s age and maturity, shall so far as practicable—

(i) give him an opportunity to indicate whether he wishes to express his views;

(ii) if he does so wish, give him an opportunity to express them; and

(iii) have regard to such views as he may express.

(7A) In carrying out the duties imposed by subsection (7)(a) above, the court shall have regard in particular to the matters mentioned in subsection (7B) below.

(7B) Those matters are—

(a) the need to protect the child from—

(i) any abuse; or

(ii) the risk of any abuse,

which affects, or might affect, the child;

(b) the effect such abuse, or the risk of such abuse, might have on the child;

(c) the ability of a person—

(i) who has carried out abuse which affects or might affect the child; or

(ii) who might carry out such abuse,

to care for, or otherwise meet the needs of, the child; and

(d) the effect any abuse, or the risk of any abuse, might have on the carrying out of responsibilities in connection with the welfare of the child by a person who has (or, by virtue of an order under subsection (1), would have) those responsibilities.

(7C) In subsection (7B) above—

“ abuse ” includes —

violence, harassment, threatening conduct and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress;

abuse of a person other than the child; and

domestic abuse;

“ conduct ” includes—

speech; and

presence in a specified place or area.

(7D) Where—

(a) the court is considering making an order under subsection (1) above; and

(b) in pursuance of the order two or more relevant persons would have to co-operate with one another as respects matters affecting the child,

the court shall consider whether it would be appropriate to make the order.

(7E) In subsection (7D) above, “ relevant person ”, in relation to a child, means—

(a) a person having parental responsibilities or parental rights in respect of the child; or

(b) where a parent of the child does not have parental responsibilities or parental rights in respect of the child, a parent of the child.

(8) The court shall, notwithstanding subsection (7) above, endeavour to ensure that any order which it makes, or any determination by it not to make an order, does not adversely affect the position of a person who has, in good faith and for value, acquired any property of the child concerned, or any right or interest in such property.

(9) Nothing in paragraph (b) of subsection (7) above requires a child to be legally represented, if he does not wish to be, in proceedings in the course of which the court implements that paragraph.

(10) Without prejudice to the generality of paragraph (b) of subsection (7) above, 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 both of that paragraph and of subsection (9) above.

(11) An order under subsection (1) above shall have the effect of depriving a person of a parental responsibility or parental right only in so far as the order expressly so provides and only to the extent necessary to give effect to the order; but in making any such order as is mentioned in paragraph (a) or (b) of subsection (2) above the court may revoke any agreement which, in relation to the child concerned, has effect by virtue of section 4(2) or 4A(2) of this Act.

(12) Where the court makes a residence order which requires that a child live with a person who, immediately before the order is made does not have in relation to the child all the parental responsibilities mentioned in paragraphs (a), (b) and (d) of section 1(1), and the parental rights mentioned in paragraphs (b) and (d) of section 2(1), of this Act (those which he does not so have being in this subsection referred to as the “ relevant responsibilities and rights ”) that person shall, subject to the provisions of the order or of any other order made under subsection (1) above, have the relevant responsibilities and rights while the residence order remains in force.

(13) Any reference in this section to an order includes a reference to an interim order or to an order varying or discharging an order.

Section 11A Restriction on making of orders under section 11

(1) Subsection (2) applies where a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007 (asp 4)) is in force in respect of a child.

(2) The court may not, under subsection (1) of section 11 of this Act, make an order such as is mentioned in any of paragraphs (a) to (e) of subsection (2) of that section.

Section 12 Restrictions on decrees for divorce, separation or annulment affecting children.

(1) In any action for

(a) divorce, judicial separation or declarator of nullity of marriage, or

(b) dissolution or declarator of nullity of a civil partnership or separation of civil partners,

the court shall, where this section applies, consider (in the light of such information as is before the court as to the arrangements which have been, or are proposed to be, made for the upbringing of each child by virtue of which it applies) whether to exercise with respect to him the powers conferred by section 11 of this Act or section 62 of the Children's Hearings (Scotland) Act 2011 .

(2) Where, in any case to which this section applies, the court is of the opinion that—

(a) the circumstances of the case require, or are likely to require, it to exercise any power under section 11 of this Act or section 62 of the Children's Hearings (Scotland) Act 2011 with respect to the child concerned;

(b) it is not in a position to exercise that power without giving further consideration to the case; and

(c) there are exceptional circumstances which make it desirable in the interests of that child that it should not grant decree in the action until it is in a position to exercise such a power,

it shall postpone its decision on the granting of decree in the action until it is in such a position.

(3) This section applies where a child of the family has not reached the age of sixteen years at the date when the question first arises as to whether the court should give such consideration as is mentioned in subsection (1) above.

(4) In this section “ child of the family ”, in relation to the parties to a marriage or civil partnership, means a child—

(a) of both of them; or

(b) who has been treated by both of them as a child of their family, not being a child who is placed with them as foster parents by a local authority or voluntary organisation.

Section 13 Awards of damages to children.

(1) Where in any court proceedings a sum of money becomes payable to, or for the benefit of, a child under the age of sixteen years, the court may make such order relating to the payment and management of the sum for the benefit of the child as it thinks fit.

(2) Without prejudice to the generality of subsection (1) above, the court may in an order under this section—

(a) appoint a judicial factor to invest, apply or otherwise deal with the money for the benefit of the child concerned;

(b) order the money to be paid—

(i) to the sheriff clerk or the Accountant of Court; or

(ii) to a parent or guardian of that child,

to be invested, applied or otherwise dealt with, under the directions of the court, for the benefit of that child; or

(c) order the money to be paid directly to that child.

(3) Where payment is made to a person in accordance with an order under this section, a receipt given by him shall be a sufficient discharge of the obligation to make the payment.

Section 14 Jurisdiction and choice of law in relation to certain matters.

(1) The Court of Session shall have jurisdiction to entertain an application for an order relating to the administration of a child’s property if the child is habitually resident in, or the property is situated in, Scotland.

(2) A sheriff shall have jurisdiction to entertain such an application if the child is habitually resident in, or the property is situated in, the sheriffdom.

(3) Subject to subsection (4) below, any question arising under this Part of this Act—

(a) concerning—

(i) parental responsibilities or parental rights; or

(ii) the responsibilities or rights of a guardian,

in relation to a child shall, in so far as it is not also a question such as is mentioned in paragraph (b) below, be determined by the law of the place of the child’s habitual residence at the time when the question arises;

(b) concerning the immediate protection of a child shall be determined by the law of the place where the child is when the question arises; and

(c) as to whether a person is validly appointed or constituted guardian of a child shall be determined by the law of the place of the child’s habitual residence on the date when the appointment was made (the date of death of the testator being taken to be the date of appointment where an appointment was made by will), or the event constituting the guardianship occurred.

(4) Nothing in any provision of law in accordance with which, under subsection (3) above, a question which arises in relation to an application for, or the making of, an order under subsection (1) of section 11 of this Act falls to be determined, shall affect the application of subsection (7) of that section.

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

Section 15 Interpretation of Part I.

(1) In this Part of this Act—

“ child ” means, where the expression is not otherwise defined, a person under the age of eighteen years;

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

“ parent ”, in relation to any person, means, subject to Part IV of the Adoption (Scotland) Act 1978 and sections 27 to 30 of the Human Fertilisation and Embryology Act 1990 and Part 2 of the Human Fertilisation and Embryology Act 2008 and any regulations made under section 55(1) of that Act of 2008 and Chapter 3 of Part 1 of the Adoption and Children (Scotland) Act 2007 (asp 4) , someone, of whatever age, who is that person’s genetic father or mother;

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

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

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

“ specific issue order ” has the meaning given by section 11(2)(e) of this Act; and

“ transaction ” has the meaning given by section 9 of the Age of Legal Capacity (Scotland) Act 1991 (except that, for the purposes of subsection (5)(b) below, paragraph (d) of the definition in question shall be disregarded).

(2) No provision in this Part of this Act shall affect any legal proceedings commenced, or any application made to a court, before that provision comes into effect; except that where, before section 11 of this Act comes into force, there has been final decree in a cause in which, as respects a child, an order for custody or access, or an order which is analogous to any such order as is mentioned in subsection (2) of that section, has been made, any application on or after the date on which the section does come into force for variation or recall of the order shall proceed as if the order had been made under that section.

(3) In subsection (2) above, the reference to final decree is to a decree or interlocutor which, taken by itself or along with previous interlocutors, disposes of the whole subject matter of the cause.

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

(a) having parental rights or responsibilities;

(b) acting as a legal representative; or

(c) being appointed a guardian,

is to a natural person only.

(5) Any reference in this Part of this Act to a person acting as the legal representative of a child is a reference to that person, in the interests of the child—

(a) administering any property belonging to the child; and

(b) acting in, or giving consent to, any transaction where the child is incapable of so acting or consenting on his own behalf.

(6) Where a child has legal capacity to sue, or to defend, in any civil proceedings, he may nevertheless consent to be represented in those proceedings by any person who, had the child lacked that capacity, would have had the responsibility to act as his legal representative.

(7) No provision in this Part of this Act shall permit a person to give a consent to the storage of gametes under the Human Fertilisation and Embryology Act 1990 on behalf of a child.

Section 16 Welfare of child and consideration of his views.

(1) Where under or by virtue of this Part of this Act, ... a court determines, any matter with respect to a child the welfare of that child throughout his childhood shall be ... its paramount consideration.

(1A) When considering the child's welfare, the court is to have regard to any risk of prejudice to the child's welfare that delay in proceedings would pose.

(2) In the circumstances mentioned in subsection (4) below, ... the sheriff, taking account of the age and maturity of the child concerned, shall so far as practicable—

(a) give him an opportunity to indicate whether he wishes to express his views;

(b) if he does so wish, give him an opportunity to express them; and

(c) have regard to such views as he may express;

and without prejudice to the generality of this subsection a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view.

(3) In the circumstances mentioned in subsection (4) of this section, no ... order so mentioned shall be made with respect to the child concerned unless ... the sheriff considers, that it would be better for the child that the ... order be made than that none should be made at all.

(4) The circumstances to which subsection (2) refers are that the sheriff is considering whether to make, vary or discharge an exclusion order.

(5) If, for the purpose of protecting members of the public from serious harm (whether or not physical harm)—

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

(b) a court considers it necessary to make a determination under or by virtue of Chapter 1 or 3 of this Part of this Act which (but for this paragraph) would not be consistent with its affording such paramountcy, it may make that determination.

Section 17 Duty of local authority to child looked after by them.

(1) Where a child is looked after by a local authority they shall, in such manner as the Secretary of State may prescribe—

(a) safeguard and promote his welfare (which shall, in the exercise of their duty to him be their paramount concern);

(b) make such use of services available for children cared for by their own parents as appear to the authority reasonable in his case; ...

(c) take such steps to promote, on a regular basis, personal relations and direct contact between the child and any person with parental responsibilities in relation to him as appear to them to be, having regard to their duty to him under paragraph (a) above, both practicable and appropriate ; and

(d) take such steps to promote, on a regular basis, personal relations and direct contact between the child and any person mentioned in subsection (1A) as appear to them to be appropriate having regard to their duty to the child under paragraph (a).

(1A) The persons referred to in subsection (1)(d) are—

(a) a sibling of the child, and

(b) any other person with whom the child has lived and with whom the child has an ongoing relationship with the character of a relationship between siblings.

(1B) For the purposes of subsection (1A), two people are siblings if they have at least one parent in common.

(2) The duty under paragraph (a) of subsection (1) above includes, without prejudice to that paragraph’s generality, the duty of providing advice and assistance with a view to preparing the child for when he is no longer looked after by a local authority.

(3) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the views of—

(a) the child;

(b) his parents;

(c) any person who is not a parent of his but who has parental rights in relation to him; ...

(ca) any person mentioned in subsection (1A); and

(d) any other person whose views the authority consider to be relevant,

regarding the matter to be decided.

(4) In making any such decision a local authority shall have regard so far as practicable—

(a) to the views (if he wishes to express them) of the child concerned, taking account of his age and maturity;

(b) to such views of any person mentioned in subsection (3)(b) to (d) above as they have been able to ascertain; and

(c) to the child’s religious persuasion, racial origin and cultural and linguistic background.

(5) If, for the purpose of protecting members of the public from serious harm (whether or not physical harm) a local authority consider it necessary to exercise, in a manner which (but for this paragraph) would not be consistent with their duties under this section, their powers with respect to a child whom they are looking after, they may do so.

(6) Any reference in this Chapter of this Part to a child who is “looked after” by a local authority, is to a child—

(a) for whom they are providing accommodation under section 25 of this Act;

(b) who is subject to a compulsory supervision order or an interim compulsory supervision order and in respect of whom they are the implementation authority (within the meaning of the Children's Hearings (Scotland) Act 2011);

(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) who is subject to an order in accordance with which, by virtue of regulations made under section 33(1) of this Act or section 190 of the Children’s Hearings (Scotland) Act 2011 (asp 1) (effect of Orders made outwith Scotland) , they have responsibilities as respects the child ; or

(e) in respect of whom a permanence order has, on an application by them under section 80 of the Adoption and Children (Scotland) Act 2007 (asp 4), been made and has not ceased to have effect.

(7) Regulations made by the Secretary of State under subsection (1) above may, without prejudice to the generality of that subsection, include—

(a) provision as to the circumstances in which the child may be cared for by the child’s own parents; and

(b) procedures which shall be followed in the event of the child’s death.

Section 17A Detained children to be treated as looked after children

(1) This section applies where a child is detained in secure accommodation by virtue of section 51(1)(a), 205(2), 208(1) or, as the case may be, 216(7) of the Criminal Procedure (Scotland) Act 1995.

(2) The relevant local authority in relation to the child has the same duties towards the child as it would have by virtue of sections 17, 29, 30 and 31 if the child were looked after by that local authority.

(3) In subsection (2), the “ relevant local authority ”, in relation to a child, has the same meaning as in section 201 of the Children’s Hearings (Scotland) Act 2011

Section 18 Duty of persons with parental responsibilities to notify change of address to local authority looking after child.

(1) Where a child is being looked after by a local authority, each natural person who has parental responsibilities in relation to the child shall, without unreasonable delay, inform that authority whenever the person changes his address.

(2) A person who knowingly fails to comply with the requirement imposed by subsection (1) above shall be liable on summary conviction to a fine of level 1 on the standard scale; but in any proceedings under this section it shall be a defence that—

(a) the change was to the same address as that to which another person who at that time had parental responsibilities in relation to the child was changing; and

(b) the accused had reasonable cause to believe that the other person had informed the authority of the change of address of them both.

Section 19 Local authority plans for services for children.

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

Section 20 Publication of information about services for children.

(1) A local authority shall, within such period after the coming into force of this section as the Secretary of State may direct, and thereafter from time to time, prepare and publish information—

(a) about relevant services which are provided by them for or in respect of children (including, without prejudice to that generality, services for or in respect of disabled children or children otherwise affected by disability) in their area or by any other local authority for those children; and

(b) where they consider it appropriate, about services which are provided by voluntary organisations and by other persons for those children, being services which the authority have power to provide and which, were they to do so, they would provide as relevant services.

(2) In subsection (1) above, “ relevant services ” means services provided by a local authority under or by virtue of—

(a) this Part of this Act;

(b) the Children's Hearings (Scotland) Act 2011;

(c) Part 12 or 13 of the Children and Young People (Scotland) Act 2014; or

(d) any of the enactments mentioned in section 5(1B)(a) to (n), (r) or (t) of the Social Work (Scotland) Act 1968.

Section 21 Co-operation between authorities.

(1) Where it appears to a local authority that an appropriate person could, by doing certain things, help in the exercise of any of their functions under this Part of this Act, they may, specifying what those things are, request the help of that person.

(2) For the purposes of subsection (1) above, persons who are appropriate are—

(a) any other local authority;

(b) a health board constituted under section 2 of the National Health Service (Scotland) Act 1978;

(c) a national health service trust established under section 12A of that Act; and

(d) any person authorised by the Secretary of State for the purposes of this section;

and an appropriate person receiving such a request shall comply with it provided that it is compatible with their own statutory or other duties and obligations and (in the case of a person not a natural person) does not unduly prejudice the discharge of any of their functions.

Section 22 Promotion of welfare of children in need.

(1) A local authority shall—

(a) safeguard and promote the welfare of children in their area who are in need; and

(b) so far as is consistent with that duty, promote the upbringing of such children by their families,

by providing a range and level of services appropriate to the children’s needs.

(2) In providing services under subsection (1) above, a local authority shall have regard so far as practicable to each child’s religious persuasion, racial origin and cultural and linguistic background.

(3) Without prejudice to the generality of subsection (1) above—

(a) a service may be provided under that subsection—

(i) for a particular child;

(ii) if provided with a view to safeguarding or promoting his welfare, for his family; or

(iii) if provided with such a view, for any other member of his family; and

(b) the services mentioned in that subsection may include giving assistance in kind or, in exceptional circumstances, in cash.

(4) Assistance such as is mentioned in subsection (3)(b) above may be given unconditionally or subject to conditions as to the repayment, in whole or in part, of it or of its value; but before giving it, or imposing such conditions, the local authority shall have regard to the means of the child concerned and of his parents and no condition shall require repayment by a person at any time when in receipt of—

(za) universal credit under Part 1 of the Welfare Reform Act 2012;

(a) income supportor working families’ tax credit payable under the Social Security Contributions and Benefits Act 1992;

(aa) any element of child tax credit other than the family element or working tax credit; or

(b) an income-based jobseeker’s allowance payable under the Jobseekers Act 1995 ; or

(c) an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance).

Section 23 Children affected by disability.

(1) Without prejudice to the generality of subsection (1) of section 22 of this Act, services provided by a local authority under that subsection shall be designed—

(a) to minimise the effect on any—

(i) disabled child who is within the authority’s area, of his disability; and

(ii) child who is within that area and is affected adversely by the disability of any other person in his family, of that other person’s disability; and

(b) to give those children the opportunity to lead lives which are as normal as possible.

(2) For the purposes of this Chapter of this Part a person is disabled if he is chronically sick or disabled or has a mental disorder (as defined in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)) .

(3) Where requested to do so by —

(a) a child’s parent or guardian ; or

(b) a mental health officer (as defined in section 329 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)) who—

(i) has responsibility under that Act or the Criminal Procedure (Scotland) Act 1995 (c. 46) for a child’s case; and

(ii) makes the request for the purposes of either of those Acts,

a local authority shall, for the purpose of facilitating the discharge of such duties as the authority may have under section 22(1) of this Act (whether or not by virtue of subsection (1) above) as respects the child, carry out an assessment of the child, or of any other person in the child’s family, to determine the needs of the child in so far as attributable to his disability or to that of the other person.

(4) In determining the needs of a child under subsection (3) above, the local authority shall take account—

(a) if an adult carer provides, or intends to provide, care for the child, of the care provided by that carer,

(aa) if a young carer provides, or intends to provide, care for the child, of the care provided by that carer,

(b) in so far as it is reasonable and practicable to do so, of—

(i) the views of the parent or guardian of the child, and the child; ...

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

provided that the parent, guardian, or child in question has a wish, or as the case may be, a capacity, to express a view.

(5) In subsection (4)(a) and (aa), the reference to the care provided by a carer means—

(a) in the case of an adult carer who has an adult carer support plan, the information about that care set out in that plan,

(b) in the case of a young carer who has a young carer statement, the information about that care set out in that statement.

(6) In—

(a) determining the needs of a child under subsection (3),

(b) deciding whether to provide any services under section 22(1), and

(c) deciding how any such services are to be provided,

a local authority must take account of the views of the carer, in so far as it is reasonable and practicable to do so.

(7) In this section—

“adult carer” and “adult carer support plan” have the meanings given by the Carers (Scotland) Act 2016,

“young carer” and “young carer statement” have the meanings given by the Carers (Scotland) Act 2016.

Section 23A Sections 17, 22 and 26A: consideration of wellbeing

(1) This section applies where a local authority is exercising a function under or by virtue of section 17, 22 or 26A of this Act.

(2) The local authority must have regard to the general principle that functions should be exercised in relation to children and young people in a way which is designed to safeguard, support and promote their wellbeing.

(3) For the purpose of subsection (2) above, the local authority is to assess the wellbeing of a child or young person by reference to the extent to which the matters listed in section 96(2) of the 2014 Act are or, as the case may be, would be satisfied in relation to the child or young person.

(4) In assessing the wellbeing of a child or young person as mentioned in subsection (3) above, a local authority is to have regard to the guidance issued under section 96(3) of the 2014 Act.

(5) In this section, “ the 2014 Act ” means the Children and Young People (Scotland) Act 2014.

Section 24 Assessment of ability of carers to provide care for disabled children.

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

Section 24A Duty of local authority to provide information to carer of disabled child

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

Section 25 Provision of accommodation for children, etc.

(1) A local authority shall provide accommodation for any child who, residing or having been found within their area, appears to them to require such provision because—

(a) no-one has parental responsibility for him;

(b) he is lost or abandoned; or

(c) the person who has been caring for him is prevented, whether or not permanently and for whatever reason, from providing him with suitable accommodation or care.

(2) Without prejudice to subsection (1) above, a local authority may provide accommodation for any child within their area if they consider that to do so would safeguard or promote his welfare.

(3) A local authority may provide accommodation for any person within their area who is at least eighteen years of age but not yet twenty-one, if they consider that to do so would safeguard or promote his welfare.

(4) A local authority providing accommodation under subsection (1) above for a child who is ordinarily resident in the area of another local authority shall notify the other authority, in writing, that such provision is being made; and the other authority may at any time take over the provision of accommodation for the child.

(5) Before providing a child with accommodation under this section, a local authority shall have regard, so far as practicable, to his views (if he wishes to express them), taking account of his age and maturity; and without prejudice to the generality of this subsection a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view.

(6) Subject to subsection (7) below—

(a) a local authority shall not provide accommodation under this section for a child if any person who—

(i) has parental responsibilities in relation to him and the parental rights mentioned in section 2(1)(a) and (b) of this Act; and

(ii) is willing and able either to provide, or to arrange to have provided, accommodation for him,

objects; and

(b) any such person may at any time remove the child from accommodation which has been provided by the local authority under this section.

(7) Paragraph (a) of subsection (6) above does not apply—

(a) as respects any child who, being at least sixteen years of age, agrees to be provided with accommodation under this section; or

(b) where a residence order has been made in favour of one or more persons and that person has, or as the case may be those persons have, agreed that the child should be looked after in accommodation provided by, or on behalf of, the local authority;

and paragraph (b) of that subsection does not apply where accommodation has been provided for a continuous period of at least six months (whether by a single local authority or, by virtue of subsection (4) above, by more than one local authority), unless the person removing the child has given the local authority for the time being making such provision at least fourteen days’ notice in writing of his intention to remove the child.

(8) In this Part of this Act, accommodation means, except where the context otherwise requires, accommodation provided for a continuous period of more than twenty-four hours.

Section 26 Manner of provision of accommodation to child looked after by local authority.

(1) A local authority may provide accommodation for a child looked after by them by—

(a) placing him with—

(i) a family (other than such family as is mentioned in paragraph (a) or (b) of the definition of that expression in section 93(1) of this Act);

(ii) a relative of his; or

(iii) any other suitable person

. . . ;

(b) maintaining him in a residential establishment; or

(c) making such other arrangements as appear to them to be appropriate, including (without prejudice to the generality of this paragraph) making use of such services as are referred to in section 17(1)(b) of this Act.

(2) A local authority may arrange for a child whom they are looking after—

(a) to be placed, under subsection (1)(a) above, with a person in England and Wales or in Northern Ireland; or

(b) to be maintained in any accommodation in which—

(i) a local authority in England and Wales could maintain him by virtue of section 23(2)(b) to (e) of the Children Act 1989; or

a local authority in England and Wales could place the child in a placement falling within section 22C(6)(c) of the Children Act 1989;

(ii) an authority within the meaning of the Children (Northern Ireland) Order 1995 could maintain him by virtue of Article 27(2)(aa) of that Order.

Section 26A Provision of continuing care: looked after children

(1) This section applies where an eligible person ceases to be looked after by a local authority.

(2) An “eligible person” is a person who—

(a) is at least sixteen years of age, and

(b) is not yet such higher age as may be specified.

(3) Subject to subsection (5) below, the local authority must provide the person with continuing care.

(4) “ Continuing care ” means the same accommodation and other assistance as was being provided for the person by the authority, in pursuance of this Chapter of this Part, immediately before the person ceased to be looked after.

(5) The duty to provide continuing care does not apply if—

(a) the accommodation the person was in immediately before ceasing to be looked after was secure accommodation,

(b) the accommodation the person was in immediately before ceasing to be looked after was a care placement and the carer has indicated to the authority that the carer is unable or unwilling to continue to provide the placement, or

(c) the local authority considers that providing the care would significantly adversely affect the welfare of the person.

(6) A local authority's duty to provide continuing care lasts, subject to subsection (7) below, until the expiry of such period as may be specified.

(7) The duty to provide continuing care ceases if—

(a) the person leaves the accommodation of the person's own volition,

(b) the accommodation ceases to be available, or

(c) the local authority considers that continuing to provide the care would significantly adversely affect the welfare of the person.

(8) For the purposes of subsection (7)(b) above, the situations in which accommodation ceases to be available include—

(a) in the case of a care placement, where the carer indicates to the authority that the carer is unable or unwilling to continue to provide the placement,

(b) in the case of a residential establishment provided by the local authority, where the authority closes the establishment,

(c) in the case of a residential establishment provided under arrangements made by the local authority, where the arrangements come to an end.

(9) The Scottish Ministers may by order—

(a) make provision about when or how a local authority is to consider whether subsection (5)(c) or (7)(c) above is the case,

(b) modify subsection (5) above so as to add, remove or vary a situation in which the duty to provide continuing care does not apply,

(c) modify subsection (7) or (8) above so as to add, remove or vary a situation in which the duty to provide continuing care ceases.

(10) If a local authority becomes aware that a person who is being provided with continuing care has died, the local authority must as soon as reasonably practicable notify—

(a) the Scottish Ministers, and

(b) Social Care and Social Work Improvement Scotland.

(11) An order under this section—

(a) may make different provision for different purposes,

(b) is subject to the affirmative procedure.

(12) Before making an order under this section, the Scottish Ministers must consult—

(a) each local authority, and

(b) such other persons as they consider appropriate.

(13) In this section—

“ carer ”, in relation to a care placement, means the family or persons with whom the placement is made,

“ care placement ” means a placement such as is mentioned in section 26(1)(a) of this Act,

“ specified ” means specified by order made the Scottish Ministers.

Section 27 Day care for pre-school and other children.

(1) Each local authority shall provide such day care for children in need within their area who—

(a) are aged five or under; and

(b) have not yet commenced attendance at a school,

as is appropriate; and they may provide such day care for children within their area who satisfy the conditions mentioned in paragraphs (a) and (b) but are not in need.

(1A) A local authority must, at least once every two years—

(a) consult such persons as appear to be representative of parents of children in need within their area who satisfy the conditions mentioned in paragraphs (a) and (b) of subsection (1) above about how they should provide day care for such children in pursuance of that subsection; and

(b) after having had regard to the views expressed, prepare and publish their plans for how they intend to provide day care for such children in pursuance of that subsection.

(1B) A local authority must, at least once every two years—

(a) consult such persons as appear to be representative of parents of children within their area who satisfy the conditions mentioned in paragraphs (a) and (b) of subsection (1) above but are not in need about whether and if so how they should provide day care for such children under that subsection; and

(b) after having had regard to the views expressed, prepare and publish their plans in relation to the provision of day care for such children under that subsection.

(2) A local authority may provide facilities (including training, advice, guidance and counselling) for those—

(a) caring for children in day care; or

(b) who at any time accompany such children while they are in day care.

(3) Each local authority shall provide for children in need within their area who are in attendance at a school such care—

(a) outside school hours; or

(b) during school holidays,

as is appropriate; and they may provide such care for children within their area who are in such attendance but are not in need.

(3A) A local authority must, at least once every two years—

(a) consult such persons as appear to be representative of parents of children in need within their area who are in attendance at a school about how they should provide appropriate care for such children in pursuance of subsection (3) above; and

(b) after having had regard to the views expressed, prepare and publish their plans for how they intend to provide appropriate care for such children in pursuance of that subsection.

(3B) A local authority must, at least once every two years—

(a) consult such persons as appear to be representative of parents of children within their area who are in attendance at a school but are not in need about whether and if so how they should provide appropriate care for such children under subsection (3) above; and

(b) after having had regard to the views expressed, prepare and publish plans in relation to the provision of appropriate care for such children in their area under that subsection.

(3C) The Scottish Ministers may by order modify subsection (1A), (1B), (3A) or (3B) above so as to vary the regularity within which a local authority must consult and plan in pursuance of that subsection.

(3D) An order made under subsection (3C) above is subject to the negative procedure.

(4) In this section—

“ day care ” means any form of care provided for children during the day, whether or not it is provided on a regular basis; and

“ school ” has the meaning given by section 135(1) of the Education (Scotland) Act 1980.

Section 28 Removal of power to arrange for emigration of children.

Section 23 of the Social Work (Scotland) Act 1968 (which provides a power for local authorities and voluntary associations, with the consent of the Secretary of State, to make arrangements for the emigration of children in their care) shall cease to have effect.

Section 29 After-care.

(1) A local authority shall, unless they are satisfied that his welfare does not require it, advise, guide and assist any person in their area who is at least sixteen but not yet nineteen years of age who, either—

(a) was (on his sixteenth birthday or at any subsequent time) but is no longer looked after by a local authority; or

(b) is of such other description of person formerly but no longer looked after by a local authority as the Scottish Ministers may specify by order.

(1A) An order made under subsection (1)(b) above is subject to the affirmative procedure.

(2) If a person within the area of a local authority is at least nineteen, but is less than twenty-six , years of age and is otherwise a person such as is described in subsection (1) above, he may by application to the authority request that they provide him with advice, guidance and assistance; ...

(2A) Subsections (1) and (2) above do not apply to a person during any period when the person is being provided with continuing care under section 26A of this Act.

(3) Subject to section 73(2) of the Regulation of Care (Scotland) Act 2001 (asp 8), assistance given under subsection (1) above or (5A) or (5B) below may include assistance in kind or in cash.

(4) Where a person—

(a) who is at least sixteen years of age ceases to be looked after by a local authority; or

(b) described in subsection (1) above is being provided with advice, guidance or assistance by a local authority,

they shall, if he proposes to reside in the area of another local authority, inform that other local authority accordingly provided that he consents to their doing so.

(5) It is the duty of each local authority, in relation to any person to whom they have a duty under subsection (1) above or who makes an application under subsection (2) above, to carry out an assessment of the person’s needs.

(5A) After carrying out an assessment under subsection (5) above in pursuance of an application made by a person under subsection (2) above, the local authority—

(a) must, if satisfied that the person has any eligible needs which cannot be met other than by taking action under this subsection, provide the person with such advice, guidance and assistance as it considers necessary for the purposes of meeting those needs; and

(b) may otherwise provide such advice, guidance and assistance as it considers appropriate having regard to the person's welfare.

(5B) A local authority may (but is not required to) continue to provide advice, guidance and assistance to a person in pursuance of subsection (5A) after the person reaches the age of twenty-six.

(6) Each local authority shall establish a procedure for considering representations (including complaints) made to them by any person mentioned in subsection (1) or (2) above about the discharge of their functions under the provisions of subsections (1) to (5B) above.

(7) In subsection (1) above, the reference to having been “looked after by a local authority” shall be construed as including having been looked after by a local authority in England and Wales; and subsection (4) of section 105 of the Children Act 1989 (c.41) (construction of references to a child looked after by a local authority) shall apply for the purposes of this subsection as it applies for the purposes of that Act (“ local authority in England and Wales ” being construed in accordance with subsection (1) of that section).

(8) For the purposes of subsection (5A)(a) above, a person has “eligible needs” if the person needs care, attention or support of such type as the Scottish Ministers may by order specify.

(9) An order made under subsection (8) is subject to the affirmative procedure.

(10) If a local authority becomes aware that a person who is being provided with advice, guidance or assistance by them under this section has died, the local authority must as soon as reasonably practicable notify—

(a) the Scottish Ministers; and

(b) Social Care and Social Work Improvement Scotland.

Section 30 Financial assistance towards expenses of education or training and removal of power to guarantee indentures etc.

(1) Without prejudice to section 12 of the Social Work (Scotland) Act 1968 (general social welfare services of local authorities), a local authority may make—

(a) grants to any relevant person in their area to enable him to meet expenses connected with his receiving education or training; and

(b) contributions to the accommodation and maintenance of any such person in any place near where he may be—

(i) employed, or seeking employment; or

(ii) receiving education or training.

(2) A person is a relevant person for the purposes of subsection (1) above if—

(a) he is at least sixteen years of age but not yet twenty-six years of age; and

(b) he either—

(i) was (on his sixteenth birthday or at any subsequent time) but is no longer looked after by a local authority; or

(ii) is of such other description of person formerly but no longer looked after by a local authority as the Scottish Ministers may specify by order.

(2A) An order made under subsection (2)(b)(ii) above is subject to the affirmative procedure.

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Section 31 Review of case of child looked after by local authority.

(1) Without prejudice to their duty under section 17(1)(a) of this Act, it shall be the duty of a local authority who are looking after a child to review his case at such intervals as may be prescribed by the Secretary of State.

(2) The Secretary of State may prescribe—

(a) different intervals in respect of the first such review and in respect of subsequent reviews;

(b) the manner in which cases are to be reviewed under this section;

(c) the considerations to which the local authority are to have regard in reviewing cases under this section.

Section 32 Removal of child from residential establishment.

A local authority, notwithstanding any agreement made in connection with the placing of a child in a residential establishment under this Chapter, or Chapter 4, of this Part of this Act by them—

(a) may, at any time; and

(b) shall, if requested to do so by the person responsible for the establishment,

remove a child so placed.

Section 33 Effect of orders etc. made in different parts of the United Kingdom.

(1) The Secretary of State may make regulations providing for a prescribed order which is made by a court in England and Wales or in Northern Ireland, if that order appears to him to correspond generally to an order of a kind which may be made under this Part of this Act ..., to have effect in prescribed circumstances and for prescribed purposes of the law of Scotland as if it were an order of that kind ....

(2) The Secretary of State may make regulations providing—

(a) for a prescribed order made under this Part of this Act by a court in Scotland; ...

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

if that order ... appears to him to correspond generally to an order of a kind which may be made under any provision of law in force in England and Wales or in Northern Ireland, to have effect in prescribed circumstances and for prescribed purposes of the law of England and Wales, or as the case may be of Northern Ireland, as if it were an order of that kind.

(3) Regulations under subsection (1) or (2)(a) above may provide for the order given effect for prescribed purposes to cease to have effect for those purposes, or for the purposes of the law of the place where the order was made, if prescribed conditions are satisfied.

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

(5) Regulations under this section may modify any provision of—

(a) the Social Work (Scotland) Act 1968 or this Act in any application which the Acts may respectively have, by virtue of the regulations, in relation to an order made otherwise than in Scotland;

(b) the Children Act 1989 or the Children and Young Persons Act 1969 or sections 63 to 67 of and Schedules 6 and 7 to the Powers of Criminal Courts (Sentencing) Act 2000 in any application which those Acts may respectively have, by virtue of the regulations, in relation to an order prescribed under subsection (2)(a) above ...; or

(c) the Children (Northern Ireland) Order 1995 or the Children and Young Persons Act (Northern Ireland) 1968 in any application which they may respectively have, by virtue of the regulations, in relation to an order so prescribed ....

Section 33A Regulation of cross-border placements

(1) The Scottish Ministers may by regulations make provision in relation to cross-border placements.

(2) Regulations under subsection (1) may in particular include provision—

(a) requiring specified persons to provide or share specified information,

(b) requiring specified persons to provide, or make arrangements for the provision of, any services which are needed to support a child who is the subject of a cross-border placement,

(c) requiring specified persons to meet the costs incurred in relation to, or as a consequence of, a cross-border placement,

(d) requiring a cross-border placement to be kept under review,

(e) in connection with the safeguarding and promotion of the welfare of a child who is the subject of a cross-border placement.

(3) Regulations under subsection (1)—

(a) may modify any enactment in its application by virtue of the regulations to a cross-border placement, including—

(i) the Social Work (Scotland) Act 1968,

(ii) this Act,

(b) may make any incidental, supplementary, consequential, transitional, transitory or saving provision that the Scottish Ministers consider appropriate for the purposes of, in connection with or for giving full effect to the regulations,

(c) are subject to the affirmative procedure.

(4) In this section, “ cross-border placement ” means the placement of a child in a residential establishment in Scotland where—

(a) the child was, immediately before the placement, resident in England, Wales or Northern Ireland, and

(b) the placement is authorised under the law in England and Wales or, as the case may be, in Northern Ireland by virtue of—

(i) an order made by a court in England and Wales or in Northern Ireland,

(ii) any provision made by or under an Act of Parliament, an Act of Senedd Cymru, or Northern Ireland legislation (as defined by section 98(1) of the Northern Ireland Act 1998), whenever passed or made.

Section 35 Welfare of children in accommodation provided for purposes of school attendance.

After section 125 of the Education (Scotland) Act 1980 there shall be inserted—

Children and young persons in accommodation

Welfare of children and young persons in accommodation provided for purposes of school attendance.

(125A) Where, for the purposes of his being in attendance at a school, a child or young person is provided with residential accommodation, in a place in or outwith that school, by—

(a) an education authority, the board of management of a self-governing school or the managers of a grant-aided or independent school; or

(b) by any other person in pursuance of arrangements made by any such authority, board of management or managers,

the authority, board of management or managers in question shall have the duty to safeguard and promote the welfare of the child or young person while he is so accommodated; and the powers of inspection exercisable by virtue of section 66(1) of this Act shall include the power to inspect the place to determine whether his welfare is adequately safeguarded and promoted there.

Section 36 Welfare of certain children in hospitals and nursing homes etc.

(1) Where a child is provided with residential accommodation by a person mentioned in subsection (3) below and it appears to the person that the child either—

(a) has had no parental contact for a continuous period of three months or more; or

(b) is likely to have no parental contact for a period which, taken with any immediately preceding period in which the child has had no such contact, will constitute a continuous period of three months or more,

the person shall (whether or not the child has been, or will be, so accommodated throughout the continuous period) so notify the local authority in whose area the accommodation is provided.

(2) A local authority receiving notification under subsection (1) above shall—

(a) take such steps as are reasonably practicable to enable them to determine whether the child’s welfare is adequately safeguarded and promoted while he is so accommodated; and

(b) consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child.

(3) The persons are—

(a) any health board constituted under section 2 of the National Health Service (Scotland) Act 1978;

(b) any national health service trust established under section 12A of that Act;

(c) any person providing—

(i) an independent hospital;

(ii) a private psychiatric hospital;

(iii) an independent clinic; or

(iv) an independent medical agency,

within the meaning given to those expressions by section 10F(2) of the National Health Service (Scotland) Act 1978 (c.29) ; and

(d) any person providing a care home service (as defined by paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8)).

(4) For the purposes of subsection (1) above, a child has parental contact only when in the presence of a person having parental responsibilities in relation to him.

(5) A person duly authorised by a local authority may in the area of that authority, at all reasonable times, enter for the purposes of subsection (2) above or of determining whether there has been compliance with subsection (1) above any such place as is mentioned in sub-paragraph (i) or (ii) of subsection (3)(c) above and may for those purposes inspect any records or registers relating to that place; and subsections (2A) to (2D) and (4) of section 6 of the Social Work (Scotland) Act 1968 (exercise of powers of entry and inspection) (as in force immediately prior to their repeal by section 8 of the Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Act 2006) shall apply in respect of a person so authorised as they applied in respect of a person duly authorised under subsection (1) of that section.

Section 38 Short-term refuges for children at risk of harm.

(1) Where a child appears—

(a) to a local authority to be at risk of harm, they may at the child’s request—

(i) provide him with refuge in a residential establishment both controlled or managed by them and designated by them for the purposes of this paragraph; or

(ii) arrange for a person whose household is approved by virtue of section 5(3)(b) of the Social Work (Scotland) Act 1968 (provision for securing that persons are not placed in any household unless the household has prescribed approval) and is designated by them for the purposes of this paragraph, to provide him with refuge in that household,

for a period which does not exceed the relevant period;

(b) to a person who provides a care home service (as defined by paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8)) , or to any person for the time being employed in the management of the accomodation in question , to be at risk of harm, the person to whom the child so appears may at the child’s request provide him with refuge, for a period which does not exceed the relevant period, in the accommodation but shall do so only if and to the extent that the local authority within whose area the accommodation is situated have given their approval to the use of the accommodation (or a part of the accommodation ) for the purposes of this paragraph.

(2) The Secretary of State may by regulations make provision as to—

(a) designation, for the purposes of paragraph (a) of subsection (1) above, of establishments and households;

(b) application for, the giving of and the withdrawal of, approval under paragraph (b) of subsection (1) above;

(c) requirements (if any) which must be complied with while any such approval remains in force;

(d) the performance by a person mentioned in the said paragraph (b) of anything to be done by him under that paragraph;

(e) the performance by a local authority of their functions under this section; and

(f) the giving, to such persons or classes of person as may be specified in the regulations, of notice as to the whereabouts of a child provided with refuge under this section,

and regulations made under this subsection may include such incidental and supplementary provisions as he thinks fit.

(3) While a child is being provided with refuge under, and in accordance with regulations made under, this section, none of the enactments mentioned in subsection (4) below shall apply in relation to him unless the commencement of the period of refuge has followed within two days of the termination of a prior period of refuge so provided to him by any person.

(4) The enactments are—

(a) section 89 of this Act and, so far as it applies in relation to anything done in Scotland, section 171 of the Children's Hearings (Scotland) Act 2011 ; and

(b) section 32(3) of the Children and Young Persons Act 1969 (compelling, persuading, inciting or assisting any person to be absent from detention etc.), so far as it applies in relation to anything done in Scotland.

(5) References in this section to the relevant period shall be construed as references either to a period which does not exceed seven days or, in such exceptional circumstances as the Secretary of State may prescribe, to a period which does not exceed fourteen days.

(6) A child who is provided with refuge for a period by virtue of such arrangements as are mentioned in subsection (1)(a) above shall not be regarded as a foster child for the purposes of the Foster Children (Scotland) Act 1984 by reason only of such provision.

Section 39 Formation of children’s panel and children’s hearings.

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Section 40 Qualification and employment of reporters.

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Section 41 Safeguarding child’s interests in proceedings.

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Section 42 Power of Secretary of State to make rules governing procedure at children’s hearing etc.

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Section 43 Privacy of proceedings at and right to attend children’s hearing.

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Section 44 Prohibition of publication of proceedings at children’s hearing.

(1) No person shall publish any matter in respect of proceedings before a sheriff on an application under section 76(1) of this Act which is intended to, or is likely to, identify—

(a) the child concerned in, or any other child connected (in any way) with, the proceedings; or

(b) any address or school as being that of any such child.

(2) Any person who contravenes subsection (1) above shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale in respect of each such contravention.

(3) It shall be a defence in proceedings for an offence under this section for the accused to prove that he did not know, and had no reason to suspect, that the published matter was intended, or was likely, to identify the child or, as the case may be, the address or school.

(4) In this section “ to publish ” includes, without prejudice to the generality of that expression,—

(a) to publish matter in a programme service, as defined by section 201 of the Broadcasting Act 1990 (definition of programme service); and

(b) to cause matter to be published.

(5) The requirements of subsection (1) above may, in the interests of justice, be dispensed with by—

(a) the sheriff in any proceedings before him;

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

(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

to such extent as the sheriff ... considers appropriate.

(6) The requirements of subsection (1) do not apply in relation to the publication by or on behalf of a local authority or an adoption agency (within the meaning of the Adoption and Children (Scotland) Act 2007 (asp 4) ) of information about a child for the purposes of making arrangements in relation to the child under this Act or that Act.

Section 45 Attendance of child and relevant person at children’s hearing.

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