Emergency legal measures to protect children at risk of significant harm

When a child’s parents or carers do not object, the Local Authority may accommodate the child to keep the child safe whilst concerns about the child’s safety, or reports or suspicions of abuse or neglect, can be assessed. Parents must have an explanation of voluntary accommodation that they understand. They should know that they can seek legal advice. Others in the child’s extended family or social network may offer to look after the child in the interim. This is provided for under s25 of the Children (Scotland) Act 1995. A local authority may provide accommodation for any child within their area if they consider that to do so would safeguard or promote the child’s welfare. A local authority must provide accommodation for any child who, residing or having been found within their area, appears to them to require such provision because no-one has parental responsibility for the child, or the child is lost or abandoned, or the person who has been caring for the child is prevented, whether or not permanently and for whatever reason, from providing him with suitable accommodation or care.

Before providing this accommodation, the local authority must have regard so far as practicable to a child’s views (if the child wishes to express them), taking account of the child’s age and maturity. The local authority must not provide such accommodation for a child if a person who has parental responsibilities and the parental right to regulate the child’s residence or the right to control, direct or guide the child’s upbringing, and who is willing to provide or arrange accommodation for the child, objects. Despite this objection, the local authority may continue to provide accommodation for a child over 16 who agrees to be accommodated or where a person or persons who have been granted a residence order all agree to the accommodation. A person with  parental responsibilities and rights (as referred to above) may remove the child from such accommodation at any time, but where the child has been accommodated for a continuous period of 6 months, 14 days written notice will be required before the child can be removed.

A child may request refuge and if the child appears at risk of harm, may be provided with short term refuge (up to 7 days in defined circumstances, exceptionally up to 14 days) by the local authority or a person who is approved by the local authority for this purpose (s38 Children (Scotland) Act 1995).

In practice, child protection orders are usually applied  for by a local authority. However, anyone, including the local authority, can apply for a child protection order under the following criteria when there are reasonable grounds to believe that: the child has been, or is being, treated in such a way that the child is suffering or is likely to suffer significant harm; or the child has been, or is being, neglected, and as a result of the neglect the child is suffering or is likely to suffer significant harm; or the child is likely to suffer significant harm if the child is not removed to and kept in a place of safety; or the child is likely to suffer significant harm if the child does not remain in the place at which the child is staying (whether or not the child is resident there) and the order is necessary to protect the child from that harm or from further harm (s39 of the 2011 Act).

The local authority (but only the local authority) can also apply for a child protection order using the following criteria:

1. that the local authority has reasonable grounds to suspect that:
   1. the child has been, or is being, treated in such a way that the child is suffering or is likely to suffer significant harm
   2. the child has been, or is being neglected and as a result of the neglect the child is suffering or is likely to suffer significant harm
   3. the child will be treated or neglected in such a way that is likely to cause significant harm
2. the local authority is making enquires to allow it to decide whether to take action to safeguard the welfare of the child, or is causing those enquiries to be made, and
3. those enquiries are being frustrated by access to the child being unreasonably denied, and
4. the local authority has reasonable cause to believe that access is required as a matter of urgency (s38 of the 2011 Act)

When a Sheriff has made a child protection order and the Principal Reporter is satisfied  that the criteria for the making of the child protection order are met a children’s hearing must take place on the second working day after the child is removed to a place of safety, where the order authorises removal of the child to a place of safety. Where the order prevents the removal of a child from a place, the hearing must take place on the second working day after the order is made.

The purpose of this hearing is to consider:

• the circumstances which led to the making of the child protection order
• whether the conditions for the making of the child protection order continue to be met
• whether it is necessary that the order remain in place
• whether any variations are required to any directions attached to the order (a CPO contains ‘directions’ which function in the same way as a measure attached to a Compulsory Supervision Order)

A child protection order can have one or more of the following directions attached:

• a non-disclosure direction. This is a direction specifying that information in relation to the child, for example the place of safety where the child is being kept, must not be disclosed to a named person or class of persons
• a contact This is a direction regulating contact between the child and a named person or class of persons
• a parental responsibilities and rights direction. This is a direction regulating parental responsibilities or rights in relation to the child, for example, to provide for medical examination and/or treatment where a parent refuses to consent

The child is automatically entitled to legal aid to be assisted by a solicitor at a second working day hearing. This is subject to the child having the capacity to give instructions to a solicitor.

A police constable may immediately remove a child to a place of safety where he or she is satisfied that the conditions for making a child protection order under s.39 of the 2011 Act (above) are met; that it is not practicable to apply to a Sheriff for such an order; and that the child requires to be removed to a place of safety to protect them from significant harm or from further harm. The child can only be kept in a place of safety for a period of 24 hours and further protective measures may therefore have to be sought within that period. The constable must inform the Principal Reporter as soon as practicable after removing the child. The Principal Reporter has the power to require the constable to release the child, if satisfied that the criteria for keeping the child in a place of safety are no longer met, or it is not in the child’s best interests to remain in a place of safety (s56 of the 2011 Act).

Application can be made to a Justice of the Peace for an order requiring a child to be produced to a specified person or placing or keeping a child in a place of safety. Such an order may be granted if the Justice of the Peace is satisfied of similar criteria to that for a CPO and that it is not practicable to apply to the Sheriff for a CPO. These orders last for a maximum of 24 hours or until a Sheriff’s determination of a CPO application if earlier. The applicant must inform the Principal Reporter as soon as practicable after the order is made. The Principal Reporter has the power to terminate the order, if satisfied that the criteria for making the order are no longer met, or the order is no longer in the child’s best interests (s55 of the 2011 Act).

The 2011 Act (sections 35 and 36) makes provision for the local authority to apply for a child assessment order if it has reasonable cause to suspect that a child has been, or is being treated or neglected in such a way that the child is suffering or is likely to suffer significant harm; that an assessment is needed to  establish whether there is reasonable cause to believe that the child is being so treated or neglected; and that it is unlikely that an assessment to establish this could be carried  out (or carried out satisfactorily) without obtaining the order (for example, where those with parental responsibility are preventing an assessment of the child being undertaken to confirm or refute the concern). The child assessment order can require the parents or carers to produce the child and allow any necessary assessment (subject to the consent of the child) to take place so that practitioners can decide whether they should act to safeguard the child’s welfare. On application to the Sheriff for a child assessment order, if the Sheriff believes that the conditions for making a child protection order exist, he/she may issue a child protection order instead.

The authority may ask, or the Sherriff may direct, someone such as a GP, paediatrician or psychiatrist to carry out all or any part of the assessment. The order may also authorise the taking of the child to a specified place, and keeping them there, for the purpose of carrying out the assessment and may make directions as to contact if it does so. Practitioners must assist in carrying out these assessments when asked to do so. Where the child is of sufficient age and understanding, they may refuse consent to a medical examination or treatment whether or not a child assessment order is made. For further information, see the section above on health assessments.

An Exclusion Order may be granted when on application of a local authority when a sheriff is satisfied, that excluding a named person from the family home is necessary for the protection of the child, irrespective of whether the child is for the time being residing in the family home. The order will only be granted if it better safeguards the child’s welfare than the removal of the child from the family home, and if there will be a person specified in the application who is capable of taking responsibility for providing appropriate care for the child and any other member of the family who requires care, and who is, or will be, residing in the family home. The test for granting is that the child has suffered, is suffering, or is likely to suffer, significant harm as a result of any conduct, or any threatened or reasonably apprehended conduct, of the named person (s76 Children (Scotland) Act 1995). A power of arrest may be attached to an interdict associated with such an order. The maximum duration of such an order is six months.

Above the specific considerations relating to each emergency situation there are three  overarching principles contained in the 2011 Act which must be applied when children’s hearings and courts are making all (with limited exceptions) decisions about a child. The  2011 Act has been amended by the Children (Scotland) Act 2020, but this is not fully in force as yet.

The three principles are:

• the need to safeguard and promote the welfare of the child throughout the child’s childhood is the paramount consideration (sections 25 and 26 of the 2011 Act)
• the child must be given an opportunity to express views in a manner suitable to the child, and decision-makers must have regard to any views expressed by the child, taking into account the child’s age and maturity (section 27 of the 2011 Act). Section 3 of the 2020 Act requires decision-makers to give the child an opportunity to indicate whether the child wishes to express a view, in the manner the child prefers or in a manner that is suitable to the child (in the absence of any expressed preference or where it would not be reasonable to accommodate the child’s preference). There is an exception if, (a) the child is not capable of forming a view, or (b) the location of the child is not The 2020 Act provides that a child is to be presumed to be capable of forming a view, unless the contrary is shown
• a children’s hearing or a sheriff is only to make, vary, continue or extend orders, or grant warrants if it is better for the child that the order, interim variation of the order, or warrant were in force than not (sections 28 and 29, 2011 Act)

A fully updated child’s plan may not be available to panel members at a second working day hearing. Therefore, practitioners attending need to prepare thoroughly for the hearing. The evidence, patterns, perspectives and analysis which inform a recommendation in a child’s best interests must be presented in an accessible way in order to enable a safe, competent, child-focused process and outcome.