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Guidance on Parenting Orders: Antisocial Behaviour etc. (Scotland) Act 2004

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PARENTING ORDERS

When might a parenting order be considered?

  1. In most cases, the parent for whom a parenting order is being considered will be well known to relevant local agencies, for example, local authorities, Reporters and panel members. Where the parent has been offered relevant and targeted services first and has shown that they will not engage with those services on a voluntary basis, either through a contract or otherwise, and the behaviour of the parent continues to cause concern, an application for a parenting order might be appropriate. These circumstances could come to light either through contact between the parent(s) and local authority, service provider or the children's hearings system. It is likely that the child or children of the parent for whom an order is being considered will already be well known to the children's hearings system. If this is not the case, local agencies will want to consider whether referring the child or children to the reporter is appropriate and may wish to discuss this with the local Reporter.
  2. Consideration should be given to whether there are any particular circumstances that need to be taken into account. For example circumstances when a parenting order might put the parent at risk, such as when there is domestic abuse, where the parent is often the victim of the child or where there are mental health issues. Factors affecting the parent's ability and willingness to seek and engage with services should be considered. It might also be necessary to consider whether making an order could lead to a child being accommodated as the parent cannot, or is not prepared to, sustain them at home. Where parents are already engaged to the best of their ability a parenting order is unlikely to be of any help and therefore should not be used. In such cases, other approaches to securing a child's well-being or good behaviour will need to be pursued.
  3. In deciding whether to make an application for a parenting order, the Reporter will be able to make whatever investigations they consider appropriate.
  4. Discussions should be held involving all those seeking to work or already involved with the parent(s) and their family as to the best way forward. The local authority or Reporter could then make an application for an order to the sheriff court.

Equal Opportunities

  1. Section 140 of the 2004 Act provides that any person discharging a function by virtue of the Act shall do so in a manner that encourages equal opportunities and in particular the observance of equal opportunity requirements, as defined in the Scotland Act 1998.

  2. "Equal opportunities" means the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions.

    "Equal opportunity requirements" means the requirements of the law for the time being relating to equal opportunities.

  3. Parenting orders are not intended to address behaviour that is merely different, or behaviour that is the result of a medical or developmental condition or a mental disorder and should not be used to promote the harassment of individuals or groups for behaviour that results from being of a different race or religion. Contact a Family have produced an information sheet on disorders and behaviour which is available at: http://www.cafamily.org.uk/behaviour.html

What is a parenting order?

  1. A parenting order is designed to provide the help and support a parent needs to change their behaviour. It is not designed to punish the parent. An order will be appropriate where the behaviour of the parent is such that they are not prepared to take steps to address serious concerns about their child's welfare or behaviour and where voluntary help and support offered to them has not been taken up. As set out in section 103 of the 2004 Act, a parenting order may last for up to 12 months and the parent subject to the order must comply with the requirements during the specified period. An order will also include a requirement to attend "counselling or guidance" as directed for a maximum period of 3 months during the period of the order, although if the parent has previously been the subject of a parenting order in respect of the same child that requirement is not mandatory.
  2. A parenting order will direct the parent as to how he or she should behave in respect of their child. It will require the parent to undertake certain actions which should lead to improvements in reducing the offending or antisocial behaviour of their child or improve the welfare of the child. The parent could, for example be required to:
  • Attend a support service for a set period to address relevant problems, such as drug or alcohol misuse; or
  • Participate in a recognised parenting programme.
  1. A parenting order could also require the parent to exercise control over their child's behaviour. These requirements would need to fit with those within a supervision requirement and could include ensuring their child:
  • Is clean, fed and properly clothed;
  • Attends school or other relevant educational activity;
  • Attends a support service to address relevant problems, such as drug or alcohol misuse;
  • Is receiving support for literacy and numeracy or is in a homework club;
  • Avoids contact with disruptive and possibly older children;
  • Avoids visiting certain areas, such as shopping centres, unsupervised;
  • Is home during certain hours at night and is effectively supervised.
  1. Section 110 of the 2004 Act provides that in specifying requirements in a parenting order, a court should as far as is practicable avoid conflict with the religious beliefs of the person specified in the order and any interference with their work or educational commitments. A balance will need to be struck between addressing these issues and imposing requirements that address the problems which led to the imposition of the parenting order.
  2. For the purposes of parenting orders a child is a person under the age of 16 (s117 of the 2004 Act). S117 also provides that a "parent", ie those who could be subject to a parenting order - is a relevant person as defined in section 93(2)(b) of the 1995 Act. The definition of relevant persons includes those persons who have parental responsibilities and rights either automatically or as a result of a court order and those persons who ordinarily have charge of or control over a child.
  3. Parenting orders will be made in respect of individual parents, ie if there are serious concerns about the behaviour of both parents of a child, two parenting orders should be sought whether the parents are co-habiting or living apart. These orders could have different contents and compliance with them will need to be monitored separately. Orders with different requirements could also be made in respect of two or more children within a family.
  4. Local authorities already have clear statutory duties towards children in need set out in the 1995 Act and will be held to account where they are failing to comply with their duties, for example through the local authority accountability measures, s136-137 of the 2004 Act.
  5. Concerns about the welfare or behaviour of foster children will be dealt with by local authorities through existing mechanisms.

"Counselling or Guidance"

  1. The term "counselling or guidance" (s103(1)(b) of the 2004 Act) refers to whatever help and support the parent is assessed to need - it could include services targeted at the parent alone or at a whole family. Services provided to those subject to a parenting order are in practice likely to be the same services initially offered to the parent on a voluntary basis, unless their needs have altered significantly. In applying for a parenting order, a local authority or Reporter should set out the nature of support in which the parent should participate. This should include who provides the service, when and how it is to be provided and how that fits with the family's circumstances in regard to employment, education etc, whether the service is group or individually based and whether there are any particular cultural and social factors to be considered.
  2. The court will determine the length of the requirement to seek counselling or guidance, taking account of the advice and recommendations in the application. Experience from England suggests that to fully engage a parent and encourage their continued participation, this should be no less than 6 or 7 two-hour sessions. Whatever the length of intervention, the services offered need to be well targeted, intensive and carefully monitored. The arrangements for meeting this requirement should be as flexible as possible, not least to take account of the availability and timing of such a programme. The requirement to seek counselling or guidance must be met within the 12 month duration of the order. Counselling or guidance does not have to run from the date the order is made but should start as soon as possible afterwards, taking account of the availability of the appropriate service.
  3. Parenting services accessed in response to a parenting order may carry the risk that a parent feels stigmatised or blamed. Experience from England suggests that service providers often meet considerable hostility and scepticism at the outset, but that initial negative expectations can be overcome through supportive services and skilled staff. Services have tended to work especially well when they have focused on identifying and building on parenting strengths rather than weaknesses. The integrated assessment framework does put a clear focus on recognising all aspects of the child's world and the importance of identifying positive factors which support the child, parent or family. Placing parenting services as one outcome of an overall assessment of the family situation may help reduce such feelings as parenting services may only be one part of a package being delivered to the parent, child and family.
  4. During the period that the parent attends the support service there should be a clear focus on the outcomes that are sought and an on-going assessment of the parent's needs. There should also be discussions with the parent about possible voluntary follow-up work. Voluntary follow-up will be an important element of a long-term support package and may prevent parenting and family difficulties recurring.
  5. Work with parents may take place in the home, at local facilities or both. Services provided outwith the home should where possible be delivered in places that are easy to get to, have convenient opening times and where childcare services are provided. It would also be helpful if these locations provided other accessible services which may prove to be of extra help to parents, such as those provided by family centres and community organisations.

Parenting order applications

  1. It should be normal practice to develop local agreements between the Reporter, the local authority and other partners to ensure that applications for parenting orders are placed appropriately within a continuum of intervention. Local protocols should also be established in order to maintain consistency in the application of parenting orders and to ensure the most effective use of resources. These protocols should cover the circumstances in which the authority and/or the Reporter would take forward the application and the arrangements for consultation between the two.
  2. Service providers, following parental non-cooperation with voluntary measures and subsequent multi-agency discussions, may consider that an application for a parenting order is appropriate. Section 102 of the 2004 Act provides that a parenting order may be made by a court on the application of the Principal Reporter or the local authority for the area in which the child of the parent normally resides. Subsection (1) provides that a court may not make a parenting order unless it has been notified by the Scottish Ministers that the local authority has put in place the necessary arrangements for the operation of parenting orders in that area. All courts have received formal notification.
  3. Prior to application for a parenting order, consideration should be given to the likely impact of the order on the welfare of the child or children involved. For example, what is it hoped that the order will achieve, is that realistic/achievable, is it likely to improve outcomes for all concerned and what are the risks to the family if it were to fail.
  4. The Reporter or local authority may make an application on the grounds that the child has engaged in antisocial behaviour or criminal conduct and that the order is desirable in the interests of preventing a recurrence (s102(2)). The Reporter may also apply on the ground that the order is desirable in the interests of improving the welfare of the child (s102(3)). The Reporter and the local authority are required to consult each other before making an application (s102(9)) - local authorities should also ensure that the appropriate internal consultation is carried out. Neither party is however required to apply for parenting orders, either at all or in particular circumstances.
  5. Section 116 of the 2004 Act inserts new section 75A into the 1995 Act. It gives a power to a children's hearing, when considering the circumstances of a case before it, to require the Principal Reporter to consider whether to apply for a parenting order in relation to the parent or parents of the child concerned. Further guidance and training on the role of the children's hearing will be provided to all panel members.
  6. Where a local authority or Reporter considers that an application for a parenting order is necessary it will wish to involve its own legal advisers at the earliest appropriate stage. The statutory consultation between the authority and the Reporter and discussions with other interested parties should also take place at an early stage. Having decided to apply, the applicant will need to collect evidence of the parent's failure to engage with the help and support offered to them on a voluntary basis. If the order is defended, it would be helpful to have evidence, for example that:
  • Resources and opportunities were available for the parent in a way that he or she could realistically take advantage of them on a voluntarily basis;
  • The services offered on a voluntary basis were effective and appropriate; and
  • Despite this, the parent has failed or refused to engage.
  1. The applicant should indicate in writing the possibility of an application to the parent against whom the order would be sought, offer a meeting to discuss the matter and advise them to seek legal advice from a solicitor or citizens' advice bureau. The parent may agree to modify their behaviour and engage with support on a voluntary basis so that an order is no longer necessary.
  2. The applicant should also consider what the terms of the order sought should be, including what help and support a parent is required to seek and how long the order should last (within the 12 month limit). Terms should be specific and easily understood.
  3. Having undertaken these considerations, the applicant should instruct their legal advisers to apply for an order. S102(8) of the 2004 Act provides that an application for a parenting order shall be made by summary application to the sheriff court for the area in which the parent normally resides.

Court proceedings

  1. The applicant's solicitor will lodge the application in court. The first step of the court procedure is the granting of a warrant for citation which the applicant's solicitor will serve with the application, on the defender as the parent whose behaviour is the subject of the application. The warrant of citation will normally include the date for the first hearing in the case. The application must specify the circumstances giving rise to the application. The applicant should seek to ensure that the parent is aware of the seriousness of the order and provide written information on the penalties for breach. The parent should be informed in writing that he or she should attend the hearing or be legally represented, failing which the order may be made against him or her, and that he or she has the opportunity to state his or her case. If there are concerns about the parent's literacy, it would be good practice to contact them, either in person or by telephone to ensure they understand the position.
  2. At the First Hearing for a parenting order, if the defender opposes the application, the court may order the defender to lodge answers and/or assign an early date for a full hearing on the circumstances of the case. Where the individual does not oppose the application, the court may grant the order on the motion of the applicant if satisfied that the statutory conditions have been met.
  3. Authorities should be aware that civil legal aid may be available to the defender, who meets the eligibility tests, to oppose the order. The sheriff may agree to the sisting (ie delaying) of the proceedings to allow the defender to apply for civil legal aid.
  4. Where a hearing is fixed to hear evidence, the normal rules for leading evidence will apply. The evidence in support of the application will be submitted by the applicant and it will be that evidence upon which the court will decide balanced with any evidence submitted by the defender.
  5. It is expected that ordinarily the applicant will seek legal representation from their legal advisers or solicitors to conduct parenting order proceedings. S112 of the 2004 Act does however gives Ministers the power to make regulations empowering a children's reporter to conduct parenting order proceedings before a sheriff or sheriff principal. The Executive does not currently have plans to make such regulations during the pilot phase and will consider what regulations might be required in future in the light of experience during the pilot.
  6. In determining an application for a parenting order the sheriff will consider on the evidence whether the behaviour condition, conduct condition or welfare condition (the latter in relation to applications from the Principal Reporter, see paragraph 56) have been met. The court is also required to give the parent an opportunity to be heard and the child - where that is appropriate given his or her age and maturity - an opportunity to express their views about the application (s108 of the 2004 Act). It will be important to ensure that the child has access to advice and support if required. Where the court decides it is practicable to give the child an opportunity to express views, the court will order the applicant's solicitor to intimate to the child using Form 31 in the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) Amendment (Antisocial Behaviour etc. (Scotland) Act 2004) 2004. Where the parent is present the Act provides that the court must explain in ordinary language the effect of the order as well as the consequences of breaching the order and the opportunities in relation to review and appeal of the order. The court must also obtain information about the family circumstances of the parent and the likely effect of the order on those circumstances. If the court considers it has insufficient information about the child, it will order the applicant's solicitor to obtain further information from the local authority using Form 32 in the Act of Sederunt.
  7. A court's paramount consideration in determining whether to make, vary or revoke a parenting order should be the welfare of the child concerned (s109(1)). The court must also have particular regard to any views expressed by the child and the information it gained about the circumstances of the family. The court must also consider the behaviour of the parent who is proposed to be subject to the order. This provision will allow the court to take into account whether the parent has been offered and engaged with relevant voluntary support in relation to their parenting skills and any other behaviour of the parent that appears to the court to be relevant (s109(2)).
  8. S109(4) provides the interpretation of 'relevant voluntary steps'. In determining whether to make a parenting order the court will take account of voluntary steps intended to prevent the child engaging in antisocial behaviour, criminal conduct and in the interests of improving the welfare of the child, depending on the type of application being considered.
  9. If the court is satisfied, it will consider what terms and duration would be appropriate and will then make the order.
  10. Once the order is made, the clerk of the court will serve a copy on the person subject to the order, either in person if the individual is present in court (and it is convenient for the Sheriff Clerk to do so at that time) or by registered post or recorded delivery. This is the minimum requirement for service. An authority may use a sheriff officer. The court will also give a copy of the order to the applicant on whose application the order was made.

Parenting orders in other court proceedings

  1. As well as allowing for direct applications to the sheriff court for a parenting order, the 2004 Act also allows courts to consider whether a parenting order may be in the best interests of a child in other proceedings in which a child is involved. S13 of the Act provides that where a sheriff makes an antisocial behaviour order in civil proceedings in respect of a child, the sheriff may make a parenting order as well. To do so, the sheriff must be satisfied that making the order is desirable in the interests of preventing antisocial behaviour by the child or of protecting their welfare. In such circumstances the sheriff will order the applicant in the Antisocial Behaviour Order proceedings to intimate this to the parent(s) and fix a date for the parent(s) to attend court to oppose or make representations in respect of the making of a parenting order. S114 provides that in any other relevant court proceedings a court may require the Principal Reporter to consider whether to apply for a parenting order. The court would do so where it appears from those proceedings that a parenting order might be appropriate, ie that the parent is failing in their responsibilities towards their child or children and has not engaged with voluntary support offered to them. If it is decided to pursue a parenting order application in these circumstances, the normal court procedure (set out from paragraph 62 above) will apply.

Managing a parenting order

  1. Meeting the requirements of a parenting order will often require considerable commitment from the parent and they therefore have the right to expect a service from those charged with delivering and administering orders. Local authorities should take responsibility for delivering parenting services and support for those made subject to parenting orders, although the services themselves may well be delivered by other agencies, such as voluntary organisations.
  2. It is recommended that a named person (ordinarily a member of local authority staff) be nominated as a responsible officer to oversee delivery of a parenting order. In deciding who is best placed to act as responsible officer the local authority should take account of, for example who already has an established relationship with the parent (and what the likely effect on that relationship might be), whether they are already working with the child or children of the parent and what impact this might have and the time commitment involved.
  3. The responsible officer will provide or arrange for the provision of support services and will supervise any other requirements in the order. They will need to identify and liaise with other agencies involved with the parent or their family to ensure that all interventions fit together well and are complementary. They will also take responsibility for monitoring the parent's compliance with the requirements imposed by the order.
  4. It would be good practice for the initial contact between the responsible officer and the parent to take place before the end of the next working day after the order is made. The initial meeting should be an opportunity for the responsible officer to explain further to the parent the nature of the parenting order, its purpose and how it will work in practice. The practical details of the requirements will need to be set out, the monitoring arrangements described and the consequences of failure to comply with any requirements explained. If the support services set out in the order are to be provided by someone other than the responsible officer, a pre-meeting between the parent and the provider should take place within 2 weeks of the order being made. Contact with the family should, as far as possible, fit with the family's circumstances and should not interfere with their employment or education.
  5. The success of the relationship between the responsible officer and the parent will be a key element of the successful completion of the order. Whilst the order is in force, the responsible officer should maintain regular contact with the parent. The regularity of contact should be discussed with the parent and a schedule (subject to review and revision as appropriate) established and a record of contact kept. The frequency of contact will vary from case to case depending on individual circumstances, but in no event should it be less than once a month. This will help the responsible officer determine how well the parent is complying with the requirements of the order. If the order is proving difficult to comply with through no fault of the parent, the responsible officer may consider the need to apply to the court for the order to be varied.

Appeals

  1. S106 of the 2004 Act provides that where the sheriff makes or varies a parenting order or refuses to vary an order, the decision of the sheriff may be appealed to the sheriff principal.

Review of a parenting order

  1. Once a parenting order has been made it is important that it can be reviewed when that is appropriate. Parenting orders may be varied for a number of reasons, for example, where the requirements of the order are not proving effective. S105 of the 2004 Act provides that the parent, the child or the local authority may apply for a review and that, on application, the court may decide to revoke the order or vary it by deleting or adding any requirement it contains or by alteration of the counselling period. Before making an application for review, the local authority must consult the Principal Reporter. An application for review of a parenting order should be made to the court which made the order by way of a minute in the original process. If an application for review or variation is refused by the court, another such application by the same applicant may only be made with the consent of the court that made the order, although the decision to refuse may be appealed to the sheriff principal as above.

Breach

  1. A parenting order is primarily designed to require the parent to change their behaviour. The responsible officer should seek to secure and maintain the parent's co-operation and compliance with the requirements of the order to ensure that it is completed successfully and will need to make a judgement about what is reasonable in all the circumstances of the case.
  2. If the parent fails to comply with one or more requirements of the order, it would be good practice for the responsible officer to make contact with the parent within one working day by telephone, visit or letter. If there is no acceptable reason for the non-compliance, the responsible officer should give the parent a written warning, backed up if possible by a warning in person.
  3. If the person has taken all reasonable steps to comply with the order or there is a good reason for the failure to comply it may be appropriate for the responsible officer to consider whether to apply to the court for the terms of the order to be varied.
  4. In the event of more than one unacceptable failure to comply within a period of 3 months the responsible officer should meet the parent to review the order and to consider how it can be made to work. In the light of this discussion the responsible officer should consider in consultation with the Reporter (and seeking legal advice if appropriate) whether the failure to comply should form the basis of breach proceedings. A breach of a parenting order is a criminal offence which would require to be reported to the police.
  5. Local partners will wish to consider mechanisms for referring cases to the police, taking account of the possible impact of a direct referral by the responsible officer and the potentially detrimental impact this might have on the level of cooperation from the parent and any consequential risks to the child. Partners will also wish to consider the possible impact of breach proceedings on the child or children involved and whether additional help and support may be required
  6. If the procurator fiscal raises criminal proceedings in respect of an alleged breach of an order (a criminal offence under s107 of the 2004 Act), and the parent is found guilty of or pleads guilty to such a charge, he or she will be liable to a fine not exceeding level 3 on the standard scale (currently £1,000). S107 should be read in conjunction with the amendments to the Criminal Procedure (Scotland ) Act 1995 in schedule 4 of the 2004 Act which provide that if a fine imposed under this section is not paid a court must impose a supervised attendance order ( SAO). An SAO is a community-based alternative to imprisonment for fine default. The order is available to all courts throughout Scotland and substitutes a period of constructive unpaid activity for the unpaid portion of a fine. Activities can include components of social education, financial management and unpaid work. Only where an SAO is breached will the court have its normal powers of sentence - including imprisonment - available to it.
  7. The court is required to take into account the welfare of any child of the parent subject to the order in determining what sentence to impose for breach of a parenting order (s107(3)).

Other ASB Act provisions relating to parenting orders

  1. It will be a criminal offence to publish, anywhere in the world, matters in respect of proceedings relating to parenting orders which are intended, or likely to, identify the parent, their address or the child or children concerned (s111(1)). The court may, however, in the interests of justice, decide that such a restriction should not apply (s111(2)). Children appearing as witnesses in parenting order proceedings will also be protected (s111(5). In addition, reports of proceedings for breach of a parenting order may not identify the child in whose interest the parenting order was originally granted (s111(6).
  2. Section 115 provides that any person or body, other than a court, discharging any functions in relation to parenting orders shall have regard to guidance given by the Scottish Ministers. This advice and guidance document is not the guidance provided for by s115. Statutory guidance under s115 will be produced in the light of experience in the pilot phase.

Monitoring and evaluation

  1. Local authorities and their partners involved in the delivery of parenting services should ensure they have in place arrangements to monitor and evaluate the services they provide. This will, for example, help:
  • Build evidence on the overall working of the intervention and its effectiveness in delivering its objectives;
  • Improve the quality of the service; and
  • Provide feedback to participants, staff and other relevant stakeholders, eg the Scottish Executive, those who fund the service, potential users etc.
  1. Sufficient resources should be allocated to monitoring and evaluation to ensure that the required information is collected. Service providers should take account of lessons learned from other recent youth justice evaluations in developing, implementing and maintaining monitoring and evaluation systems which should include consistent and systematic gathering and analysis of throughput, output and outcome data. They will also need to capture the views of parents on an annual basis and both before and after participation.
  2. Service evaluations should focus on understanding:
  • Processes - how well the service works in practice eg is it targeting the right people etc;
  • Outcomes - is the project achieving its aims, for both the parents and children concerned;
  • Value for money - how costs relate to outcomes.
  1. To complement monitoring and evaluation carried out by services, the Executive will also commission an independent evaluation examining the operation of the pilot phase as a whole. Outputs from this evaluation exercise are likely to include, for example: changes in parents' skills, confidence and knowledge; changes in the parent-child relationship; improvements in the child's behaviour; the impact on the family as a whole; and the impact of the relationship between parents. As part of its antisocial behaviour monitoring and evaluation framework the Executive is also collecting data on the use of various provisions of the 2004 Act, including the use of parenting orders.

Scottish Executive
April 2005

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Page updated: Friday, April 22, 2005