The Scottish Government

Sec

Summary

Guidance

1

Defines parental responsibilities.

Subsection (3): The child or someone acting on the child's behalf has title to sue or to defend any proceedings, as respects parental responsibilities

2

Defines parental rights. These largely mirror parental responsibilities.

However, S2(3) says "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."

Subsection (6) refers to "a person… who for the time being has and is exercising" rights of residence or regular contact as regards the child. Where both the child's parents fall into that category, the consent of both is required.

3

Sets out the starting point for the allocation of parental responsibilities and rights as regards mothers and married, or unmarried, fathers. Subsection (5) allows those with parental responsibilities and rights to arrange for them to be carried out by someone else on their behalf.

4

Allows the natural parents to register an agreement conferring parental responsibilities and rights on the unmarried father.

Whilst it is not specifically designated as guidance, the material issued by The Scottish Office as an accompaniment to the form prescribed for this agreement, quotes S6 with regard to the views of the child and adds, "The mother should also pay attention to the child's views if he or she wishes to express them…. If the child really understands what it is about and doesn't want the mother to make the agreement, the mother should think very hard about whether it would still be in the child's interests to make the agreement.

5

Gives some responsibilities and rights to persons with care and control of a child but no formal authority.

(1) Someone with responsibility for a child (but no parental responsibilities or rights) may take action to safeguard the child's health, development and welfare; and may give consent to medical treatment for the child but (a) only where the child cannot give consent, and (b) it is not within the carer's knowledge that the parent would refuse consent.

6

Requires those exercising parental responsibility or authority under S5 to consult children on major decisions.

(1) A person reaching any 'major decision' in fulfilment of parental responsibilities, or as carer under S. 5 (1), or a person who is exercising a parental right or giving consent, must have regard 'so far as is practicable' to the views (if the child wishes to express them) of the child concerned, taking account of the child's age and maturity …

Presumption of sufficient age and maturity at age 12.

(2) A transaction entered into in good faith by a third party and a person acting as legal representative of a child cannot be challenged on the ground the child was not consulted or that due regard was not given to the child's views.

7

Regulates the appointment of testamentary guardians, which is defined as a "major decision" for the purposes of S6 regarding children's views.

8

Addresses problems which might arise where a number of successive appointments are made with no clear expression of the appointer's intention. Specifies when appointments terminate.

9

Deals with situations in which property is due to be transferred to a parent to administer as the child's legal representative. Specifies monetary limits above which recourse may or must be made to the Accountant of Court, who may direct that the property be administered by himself, or by the child's parents or guardians (with the option of adding conditions), or who may apply to the court for appointment of a judicial factor.

10

Obliges such a person to act with reasonable prudence, to account for his or her actions, etc., and restricts liability where money used for child's welfare

11

Identifies orders the Court of Session or sheriff court might make as regards parental responsibilities and rights.

(7) (b) In considering whether or not to make any order, the court (taking account of the child's age and maturity) shall so far as is practicable give the child an opportunity to indicate whether the child wishes to express a view. If the child does, the child should be given an opportunity to express his/ her views and the court must have regard to the child's views

(9) clarifies that this provision does not require the child to be legally represented, in the proceedings, if he does not want to be

(10) presumption a child 12 years of age or more is of sufficient age and maturity to form a view

11

11

12

Requires the court to consider the arrangements for children, and decide whether to exercise its power to make orders under S11 or S54 (refer to the Children's Reporter).

If a court decides that: (a) the exercise of such powers may be appropriate; (b) it is no in a position to exercise them without further consideration; and (c) there are exceptional circumstances leading it to delay grant of decree until it is in a position to exercise those powers, it "shall postpone its decision on the granting of the decree in the action" until it is in a position to exercise them.

13

Sets out the options open to a court when a sum of money becomes payable to or for a child in court proceedings. This includes the appointment of a judicial factor, or payment to the sheriff clerk, accountant of court or parent or guardian of the child, or to the child directly.

14

Largely formal issues of jurisdiction and choice of law. However, Subsection (4) says that, even if the Scottish courts are required to take cognisance of the law of another jurisdiction in relation to orders to which S11(1) applies, nothing in that law shall affect the application of S11(7), i.e., the three fundamental principles of the 1995 Act, including the provisions relating to the views of the child.

15

Defines "child," "parent" and other significant terms. S15(5) limits the authority of the child's "legal representatives" (the child's parents in most situations) to the administration of property, or to circumstances in which the child him or herself is incapable of acting or consenting. Nevertheless, allows the legal representative to sue or defend in civil proceedings relating to a competent child, where that child so agrees."

16

Identifies three basic principles to be respected by courts and children's hearings in specified matters: paramountcy of child's welfare, consideration of child's views, and no unnecessary orders.

S16(1) sets out the welfare principle.

S16(2) says: "In the circumstances mentioned in subsection (4) below, a children's hearing or as the case may be a 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 of twelve years of age shall be presumed to be of sufficient age and maturity to form a view."

S16(5) allows a children's hearing or court to depart form the principle of the paramountcy of the child's welfare where necessary to protect the public from serious harm.

17

Defines "looked-after" children, and sets out the duties of the local authority towards them. S17(3) says: "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…" S17(4) says: 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....."

S17(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."

The Scottish Office guidance (Vol. 2, Ch. 1) refers to the need to take account of the views of looked-after children in a number of contexts. It sometimes speaks of "feelings" or "wishes" rather than views:

• monitoring of care plan: record feelings and wishes after each visit. See child and carer(s) alone as well as together. (Para 76)
• case records should make it easy to find out the views of children and parents re any decision. Should distinguish between siblings. (Para 127)
• good practice involves sharing information with looked-after children, even where they do not have a legal right of access to their records. (Para 129/30)
• local authorities should discover a child's wishes about contact with parents and other family members. If a child is resistant to contact, the local authority should help the child clarify his or her views. If a child still insists on terminating or restricting contact, the local authority should consider doing so; although the decision should not ultimately rest with the child. (Para 44)

17

S17(6): "looked-after child" means a child:

• local authorities who are satisfied that a particular placement is no longer in the child's best interests, should make arrangements to end it. Considerations in reaching such a decision include "the views of the child and his or her parents." (Para 116)
• "Before a child who is looked-after emigrates, the local authority should satisfy itself that … the child, if he or she is old enough to form an opinion, wishes to emigrate." (Para 157)
• local authorities considering the placement of siblings, should try to ensure that they are placed together, unless this would not be in the best interests of one or more of them. "The views of each child should be ascertained, as far as is possible given their age and understanding." (Para 19)

This issue has been placed here because it follows on logically from S17. It is addressed in regulations rather than the provisions of the Act.

Considerable references within Vol 2, Ch 3 of the Scottish Office guidance, e.g.

• Social workers should involve foster carers' own children in preparation process. (Para 23)
• particular attention should be paid to children with disabilities and communications needs. (Para 85)
• The more mature the child, the more fully the child will be able to enter into discussions about plans and proposals. Need for information, explanations and reassurance, especially for younger children. Children should not feel the burden of decision-making. (Para 89)

• when an allegation against a foster carer is being investigated, decisions about whether a child should remain in the foster home during the investigation should take account of welfare and safety considerations and the views of the child. (Para 67)

This issue has been placed here because it follows on logically from S17. It is addressed in regulations rather than the provisions of the Act.

Scottish Office guidance, Vol 2, Ch. 4:

• Children and their parents should be given a clear statement of their rights and responsibilities. They should have a confidential means of making complaints. They should be involved in decisions affecting them and the running of the home. (Para 23)
• The home should convey to children the practical arrangements for them to exercise their rights and responsibilities - notably rights to be involved in decisions about their own lives and the running of the home and access to independent advocates. Staff should foster a culture in which children are encouraged to express their views. (Para 24)
• Complaints procedure should be easily understood and readily accessible to the children and staff. It should include provision for children to gain access, e.g., through a private telephone, to a person independent of the establishment. (Para 25)
• Children can also be happier about food when they are consulted about the menu. (Para 28)
• Children should have some choice of leisure and recreation. (Para 29)
• Personal records should include the views of the child and his or her parents about the placement. (Para 51)
• External management should visit the establishment to talk with and listen to children, parents and staff. (Para 56)

18

As per title

19

Requires periodic publication by the local authority of plans for "relevant services" for children, preceded by a process of consultation.

(5) In preparing any plan, or carrying out any review … a local authority shall consult … (b) such voluntary organisations as appear to the authority - (i) to represent the interests of persons who us or are likely to use relevant services in that area; or …

(f) such other persons as the Secretary of State may direct.

Scottish Office Guidance, Vol 1, Ch. 2:

• Children and families currently using the services should be consulted. (Para 22)
• Before consulting on content, local authorities "may wish to consult first on … the means of taking views of children and their families" (Para 23)

20

As per title

21

As per title

22

Requires local authorities to safeguard and promote the welfare of children in need (defined in S 93) by provision of a range and level of services for such children and/or their families

Scottish Office guidance Vol 1, Ch. 1, para 22 states: "in arranging services to meet the assessed needs of individual children and their families … local authorities should … listen to children and take account of their views". However, para 16 does not require the child's views to be ascertained as part of the assessment on the basis of which the services are arranged.

Scottish Office Guidance Vol 1, Ch. 6, para 29 points out that children 'in need' may use the statutory local authority complaints procedures.

23

Defines 'disability.' Identifies the aims of services for disabled children and those children adversely affected by the disability of any person in the child's family. Obliges local authorities to assess such a child, or the other disabled person within the family, on the request of the child's parent or guardian.

Scottish Office guidance, Vol 1, Ch. 6:

• "The plan and agreement should take account of the child's view and note any areas of disagreement between the social work department, the family or other agencies" (Para 18)
• "When undertaking assessment of children affected by disability, workers should listen to the child or young person and respect his or her views … give time and privacy to help them talk about their situation and worries." (Para 21)
• "Achieving partnerships with parents and children in the planning and delivery of services to children requires that … they should be given help to express their views and wishes … professionals and other workers should listen to and take account of parents' and children's views." (Para 23)
• "It may not always be appropriate to have parents or other family members act as a means of communication between professionals and children and young people." Applies to children with complex needs or communication difficulties. Refers to availability of aids to communication. (Para 24)
• An extensive discussion on balancing child's right to state their views with the danger of overburdening children. (Paras 24-27)
• Advocacy for children and families … is one of the functions of the social worker. In addition, a child and family may want an independent person. (Para 28)

23

• A Special Educational Needs assessment should take into account the views and wishes of the child and his or her parents. (Para 47)

24

Duty on local authority to carry out an assessment if a carer so requests.

25

Sets out the duty of a local authority to provide accommodation for a child in certain circumstances, and a power to do so in other cases.

(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…

(6) and (7) prohibit the provision of accommodation against the wishes of anyone with parental responsibility who is willing and able to provide suitable accommodation. If there is a residence order, this right is restricted to the person named in the order. A young person aged 16 or over can give their own agreement, even if the parents object.

Scottish Office guidance, Vol 1, Ch. 4, merely reinforces the Act.

26

Sets out placement options within the UK.

27

Local authorities are obliged to make provision for day care, out of school care and holiday care for 'children in need' and empowered to provide it for other children. Facilities can be provided for those caring for children in day care or those who accompany them.

Refer back to guidance on S. 22.