Legal measures

Where there is a need to for urgent action to protect a child at risk of significant harm the most appropriate and proportionate legal routes should be considered.

The Children (Scotland) Act 1995 and the Children’s Hearings (Scotland) Act 2011 provide the main legislative framework for the protection of Children in Scotland. The Children’s Hearings (Scotland) Act replaced those parts of the Children (Scotland) Act 1995 relating to the Children’s Hearings system although many parts of the Children (Scotland Act 1995 (“the 1995” Act”) remain in force.

A police constable may use emergency powers to remove a child to a place of safety where he or she is satisfied that the conditions for making a Child Protection Order Section 39 Children’s (Scotland) Act 2011 are met and that it is not practicable to apply to the Sherriff, the child requires to be removed to a place of safety to protect them from significant harm or from further harm.

When a child’s parents/carers agree the local authority may accommodate the child whilst concerns about the child’s safety, or reports of abuse or neglect can be assessed. The child’s views must be sought and considered. Every attempt should be made to maintain the child with their family and extended family or the child’s wider network should be explored as a matter of urgency.

The 2011 Act contains the grounds of referral to the Children’s Hearing system for those considered in need of compulsory supervision, and, along with the 1995 Act, they provide a number of mechanisms allowing for intervention in a child’s life when they are considered to be suffering, or at risk of suffering, significant harm.

Beyond voluntary intervention with children and their families these mechanisms take the form of court orders, namely –

• Child protection order
• Child assessment order
• Exclusion order
• Compulsory supervision orders issued by a Children’s Hearing

This is an emergency measure which aims to protect children and young people who are at risk of significant harm and should only be applied for when there is an urgent need for protective action. It authorises the applicant to remove a child from circumstances in which he or she is at risk or retain him or her in a place of safety. The reasons for decisions to apply for the order should be clearly recorded. A child protection order may also specify conditions (e.g., medical examination) attached to the order.

Only the police have statutory authority to use reasonable force to gain entry to premises. The police must therefore be involved in discussions about any case where access to the child has been refused.

The purpose of a child protection order is to ensure that, where it is necessary, urgent action can be taken to remove a child to a place of safety or to prevent the removal of a child from the place they currently are.

A child protection order can do any of the following:

• Require any person in a position to do so to produce the child to the applicant.
• Authorise removal of the child by the applicant to a place of safety, and the keeping of the child in that place.
• Authorise the prevention of the removal of the child from any place where he or she is being accommodated.
• Provide that the location of any place of safety in which the child is being kept should not be disclosed to any person or class of person specified in the Order itself.
• Authorise the carrying out of an assessment of the child’s health, development or welfare or the way in which the child has been or is being treated or neglected.

A child assessment order is an order of the court authorising an assessment of a child’s health and development or of the way a child is being treated. A child assessment order can be used if parents continue to refuse access to a child for the purpose of establishing basic facts about the child’s condition but concerns about the child’s safety are not so urgent as to require a child protection order. The order enables the court to require the parents to co-operate with an assessment, the details of which will be specific. If specified in the order it can authorise the removal of the child but only for the purpose of the assessment. An assessment order can only last for a maximum of 3 days. The order does not take away the child’s own right to refuse an assessment. The parents should be informed of the legal steps which could be used.

A Sheriff may make directions regarding the contact which the child should have with parents, other family members and any person named in the order. Any such direction must be complied with by the local authority.

While making inquiries into a child’s circumstances in terms of Section 60 of the Children’s Hearings (Scotland) Act 2011 (when it is considered that a child may be in need of protection, guidance, treatment or control and that it might be necessary for a compulsory supervision order to be made), a local authority may consider it necessary to seek a child assessment order.  

To satisfy a sheriff that such an order is necessary; the following three conditions set out in Section 36 (2) require to be met: The local authority must have reasonable cause to suspect that the child in respect of whom the order is being sought has been or is being treated (or neglected) in such a way that he or she is suffering or is likely to suffer significant harm.

• Such assessment of the child is required in order to establish whether or not there is reasonable cause to believe that the child is so treated (or neglected); and
• Such assessment is unlikely to be carried out, or be carried out satisfactorily, unless the order is granted.

A child assessment order is not an emergency order although it may be made in an emergency, for example where it is not possible to say definitively that the Child Protection Order tests have been met until an assessment has been carried out. The decision to apply for it should however be planned, and in most circumstances should only be made after a process of consultation with other agencies.

An exclusion order is a statutory measure available to protect children from significant harm by excluding an alleged abuser from the family home. An exclusion order has the effect of suspending the named person’s rights of occupancy (if any) to the family home in question.

The grounds for Exclusion orders remain those provided under the Children (Scotland) Act 1995.

The Exclusion order prevents the person, whether an occupier or not, from entering the home, except with the express permission of the local authority which applied for the order. A person named in an exclusion order may be the child's parent or a member of the child's family or anyone from whom it is considered necessary to protect a child because of the risk of significant harm or the threat of harm (for example, a visitor to the family home).

The Sheriff when making an exclusion order may do any of the following -

• Grant a warrant for the summary ejection of the named person from the home.
• Grant an interdict prohibiting the named person from entering the home without the express permission of the local authority
• Grant an interdict prohibiting the removal by the named person of any relevant item specified in the interdict from the home

With the written consent of the local authority, or an appropriate person; or by virtue of a subsequent order of the Sheriff

• Grant an interdict prohibiting the named person from entering or remaining in a specified area in the vicinity of the home.
• Grant an interdict prohibiting the taking by the named person of any step of a kind specified in the interdict in relation to the child make an order regulating the contact between the child and the named person.

An exclusion order lasts for 6 months unless it contains a direction by the Sheriff that it shall cease to have effect on an earlier date.

Any child may seek refuge, if the child appears at risk of harm they may be provided with refuge up to 7 days, in exceptional circumstances up until 14 days either by the Local Authority or by a person approved by the Local Authority for this purpose.