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ANNEX B Antisocial Behaviour etc. (Scotland) Act
2004
PART 9
PARENTING ORDERS
Applications
102 Applications
(1) The court may make a parenting order in respect
of a parent of a child where-
(a) subsection (2) or (3) applies; and
(b) the Scottish Ministers have notified the
court that the local authority for the area in
which the parent ordinarily resides has made
arrangements that would enable the order to be
complied with.
(2) This subsection applies where-
(a) the application for the order is made by the
appropriate local authority; and
(b) the court is satisfied that-
(i) the behaviour condition; or
(ii) the conduct condition,
is met.
(3) This subsection applies where-
(a) the application for the order is made by the
Principal Reporter; and
(b) the court is satisfied that-
(i) the behaviour condition;
(ii) the conduct condition; or
(iii) the welfare condition,
is met.
(4) The behaviour condition is-
(a) that the child has engaged in antisocial
behaviour; and
(b) that the making of the order is desirable in
the interests of preventing the child from engaging
in further such behaviour.
(5) The conduct condition is-
(a) that the child has engaged in criminal
conduct; and
(b) that the making of the order is desirable in
the interests of preventing the child from engaging
in further such conduct.
(6) The welfare condition is that the making of the
order is desirable in the interests of improving the
welfare of the child.
(7) For the purposes of subsection (5), a child
engages in criminal conduct if the child engages in
conduct that constitutes a criminal offence (or would
do so if the child had attained the age of 8
years).
(8) An application under this section shall be made
by summary application to the sheriff of the sheriffdom
where the parent ordinarily resides.
(9) Before an application is made under this
section-
(a) by a local authority, it shall consult the
Principal Reporter;
(b) by the Principal Reporter, the Principal
Reporter shall consult the appropriate local
authority.
(10) In this section, "appropriate local authority"
means the local authority for the area where the child
ordinarily resides.
Parenting orders
103 Parenting orders
(1) A parenting order is an order requiring the
specified person-
(a) to comply, during a specified period-
(i) beginning with the making of the order;
and
(ii) not exceeding 12 months,
with such requirements as are specified; and
(b) subject to subsection (2), to attend, during
a specified period-
(i) falling within the specified period
mentioned in paragraph (a); and
(ii) not exceeding 3 months,
such counselling or guidance sessions as may be
directed by a supervising officer appointed by the
relevant local authority.
(2) Where a parenting order has been made in respect
of the person on a previous occasion in the interests
of the child in whose interests the order is to be
made, the order need not include a requirement under
subsection (1)(b).
(3) The Scottish Ministers may by order amend the
number of months mentioned in-
(a) subsection (1)(a)(ii); and
(b) subsection (1)(b)(ii).
(4) In subsection (1), "specified" means specified
in the order.
Matters following making of order
104 Notification of making of order
(1) The clerk of the court by which a parenting
order is made shall cause a copy of the order to
be-
(a) given to the person specified in the order;
or
(b) sent to the person so specified by
registered post or the recorded delivery
service.
(2) A certificate of posting of a letter sent under
subsection (1)(b) issued by the postal operator
concerned shall be sufficient evidence of the sending
of the letter on the day specified in such
certificate.
(3) In subsection (2), "postal operator" has the
meaning given by section 125(1) of the Postal Services
Act 2000 (c.26).
105 Review of order
(1) On the application of a relevant applicant the
court that made a parenting order may, if it considers
that it would be appropriate to do so-
(a) revoke the order; or
(b) vary the order by-
(i) deleting any of the requirements
specified in the order;
(ii) adding a new requirement;
(iii) altering the period specified for the
purpose of section 103(1)(b).
(2) In subsection (1), "relevant applicant"
means-
(a) the person specified in the order;
(b) the child in respect of whom the order was
made;
(c) the local authority for the area in which
the person specified in the order ordinarily
resides.
(3) Before an application is made under subsection
(1) by a local authority, it shall consult the
Principal Reporter.
(4) Where an application under subsection (1) for
the revocation or, as the case may be, variation, of a
parenting order is refused, another such application by
the same applicant under that subsection for revocation
or, as the case may be, variation, may be made only
with the consent of the court that made the order.
(5) Where the court that made a parenting order is
satisfied that-
(a) the person specified in the order proposes
to change, or has changed, the person's place of
ordinary residence; and
(b) it is appropriate to make an order
specifying the sheriff of another sheriffdom as the
court that may entertain applications under
subsection (1),
it may make such an order; and in such a case, this
section shall be read as if references to the court
that made the order were references to that
sheriff.
106 Appeals
An interlocutor-
(a) varying, or refusing to vary, a parenting
order; or
(b) making a parenting order under section
13,
is an appealable interlocutor.
107 Failure to comply with order
(1) If the person specified in a parenting order
fails without reasonable excuse to comply with-
(a) any requirement specified in the order;
or
(b) any direction given under the order,
the person shall be guilty of an offence.
(2) A person guilty of an offence under subsection
(1) shall be liable on summary conviction to a fine not
exceeding level 3 on the standard scale.
(3) In determining the sentence to be imposed on a
person guilty of an offence under subsection (1) a
court shall take into consideration the welfare of any
child in respect of whom the person is a parent.
General requirements
108 Procedural requirements
(1) Before making, varying or revoking a parenting
order, a court shall-
(a) having regard to the age and maturity of the
child, so far as practicable-
(i) give the child an opportunity to
indicate whether the child wishes to express
views; and
(ii) if the child so wishes, give the child
an opportunity to express those views;
(b) give the parent the opportunity to be
heard;
(c) obtain information about the family
circumstances of the parent and the likely effect
of the order on those circumstances.
(2) Before making a parenting order, the court shall
explain in ordinary language-
(a) the effect of the order and of the
requirements proposed to be included in it;
(b) the consequences of failing to comply with
the order;
(c) the powers the court has under section 105;
and
(d) the entitlement of the parent to appeal
against the making of the order.
(3) Before varying or revoking a parenting order,
the court shall explain in ordinary language the effect
of the variation or, as the case may be,
revocation.
(4) Subsections (2) and (3) apply only where the
parent is present in court.
(5) Failure to comply with subsection (2) or (3)
shall not affect the validity of the order made.
(6) Without prejudice to the generality of
subsection (1)(a), a child who is at least 12 years of
age shall be presumed to be of sufficient age and
maturity to form a view.
109 General considerations relating to making,
varying and revoking order
(1) Where a court is determining whether to make,
vary or revoke a parenting order its paramount
consideration shall be the welfare of the child.
(2) Where a court is determining whether to make a
parenting order it shall have regard to-
(a) such views as the child has expressed in
relation to that matter by virtue of paragraph (a)
of subsection (1) of section 108;
(b) the information obtained in relation to that
matter by virtue of paragraph (c) of that
subsection;
(c) whether (and if so the extent to which) the
parent has, at any time that appears to the court
to be relevant, taken relevant voluntary steps;
and
(d) any other behaviour of the parent that
appears to the court to be relevant.
(3) Where a court is determining whether to vary or
revoke a parenting order it shall have regard to-
(a) such views as the child has expressed in
relation to that matter by virtue of paragraph (a)
of subsection (1) of section 108;
(b) the information obtained in relation to that
matter by virtue of paragraph (c) of that
subsection; and
(c) any behaviour of the parent that appears to
the court to be relevant.
(4) In subsection (2)(c), "relevant voluntary steps"
means-
(a) where the court is determining whether
to-
(i) make a parenting order under section 13;
or
(ii) make a parenting order under subsection
(1) of section 102 in respect of the condition
mentioned in subsection (4) of that
section,
voluntary steps intended to be in the
interests of preventing the child from engaging
in antisocial behaviour;
(b) where the court is determining whether to
make a parenting order under subsection (1) of
section 102 in respect of the condition mentioned
in subsection (5) of that section, voluntary steps
intended to be in the interests of preventing the
child from engaging in criminal conduct;
(c) where the court is determining whether to
make a parenting order under subsection (1) of
section 102 in respect of the condition mentioned
in subsection (6) of that section, voluntary steps
intended to be in the interests of improving the
welfare of the child.
110 Account to be taken of religion, work and
education
(1) A court shall ensure that the requirements of a
parenting order made by it avoid, so far as
practicable-
(a) any conflict with the religious beliefs of
the person specified in the order; and
(b) any interference with times at which that
person normally works (or carries out voluntary
work) or attends an educational establishment.
(2) The supervising officer appointed by a local
authority in respect of a parenting order shall ensure
that the directions given by the officer avoid, so far
as practicable, the matters mentioned in subsection
(1)(a) and (b).
Miscellaneous
111 Restriction on reporting proceedings
relating to parenting orders
(1) Subject to subsection (2), a person shall be
guilty of an offence if the person publishes, anywhere
in the world, any matter in respect of relevant
proceedings which is intended, or likely to,
identify-
(a) the parent concerned in the proceedings (the
"person concerned");
(b) any address as being that of the person
concerned;
(c) the child concerned in the proceedings;
(d) any other child-
(i) who is a member of the same household as
the person concerned; or
(ii) of whom the person concerned is a
parent; or
(e) any-
(i) address; or
(ii) school,
as being that of a child mentioned in paragraph
(c) or (d).
(2) In relevant proceedings, the court may, in the
interests of justice, order that subsection (1) shall
not apply to the proceedings to such extent as the
court considers appropriate.
(3) A person guilty of an offence under subsection
(1) shall be liable on summary conviction to a fine not
exceeding level 4 on the standard scale.
(4) It shall be a defence for a person charged with
an offence under subsection (1) to show that the
person-
(a) did not know; and
(b) had no reason to suspect,
that the published matter was intended, or was
likely, to identify the person concerned, child,
address or school (as the case may be).
(5) Section 46 of the Children and Young Persons
(Scotland) Act 1937 (c.37) shall apply in relation to
relevant proceedings only in respect of a person
concerned in the proceedings as a witness.
(6) A child in whose interests a parenting order has
been made shall be regarded as a person who falls
within subsection (1)(a) of section 47 of the Criminal
Procedure (Scotland) Act 1995 (c.46) for the purposes
of that section in its application to proceedings in
respect of the commission of an offence under section
107(1) in respect of that order.
(7) In this section-
"programme service" has the meaning given by section
201 of the Broadcasting Act 1990 (c.42);
"publishes" includes-
(a) causing to be published; and
(b) publishing in a programme service,
and "published" shall be construed accordingly;
and
"relevant proceedings" means-
(a) proceedings before a sheriff for the purpose
of considering whether to make a parenting order
under section 13(1);
(b) proceedings before a sheriff on an
application for the making of a parenting order
under section 102(1);
(c) proceedings before a sheriff on an
application for the variation, or revocation, of a
parenting order under section 105(1);
(d) proceedings before a sheriff for the purpose
of considering whether to make an order under
section 105(5);
(e) an appeal arising from proceedings such as
are mentioned in paragraphs (a) to (d).
112 Conduct of proceedings by
reporters
(1) The Scottish Ministers may by regulations
empower a reporter, whether or not the reporter is an
advocate or solicitor, to conduct proceedings-
(a) before a sheriff-
(i) on an application by the Principal
Reporter for the making of a parenting
order;
(ii) on an application for the variation, or
revocation, of a parenting order made on the
application of the Principal Reporter, under
section 105(1); or
(iii) for the purpose of considering whether
to make an order under section 105(5) in
respect of a parenting order made on the
application of the Principal Reporter; or
(b) before a sheriff principal, on any appeal
arising from proceedings such as are mentioned in
paragraph (a).
(2) Regulations under subsection (1) may prescribe
such requirements as the Scottish Ministers think fit
as to-
(a) qualifications;
(b) training; or
(c) experience,
necessary for a reporter to be so empowered.
(3) In this section, "reporter" means-
(a) the Principal Reporter; and
(b) any officer of the Scottish Children's
Reporter Administration to whom there is delegated,
under section 131(1) of the Local Government etc.
(Scotland) Act 1994 (c.39), any of the functions
which the Principal Reporter has under any
enactment.
113 Initial investigations by Principal
Reporter
(1) For the purpose of determining whether to make
an application for the making of a parenting order
under section 102, the Principal Reporter may make such
investigations as the Principal Reporter considers
appropriate.
(2) On a request made by the Principal Reporter for
the purpose mentioned in subsection (1), a local
authority shall supply to the Principal Reporter a
report on-
(a) the child in relation to whom the Principal
Reporter is determining whether to make the
application;
(b) the parent in relation to whom the Principal
Reporter is determining whether to make the
application; and
(c) such circumstances concerning-
(i) the child; and
(ii) the parent,
as appear to the Principal Reporter to be
relevant.
114 Power of court to direct Principal Reporter
to consider application for parenting order
Where, in any proceedings (other than proceedings under
section 4 or 102), it appears to a court that it might be
appropriate for a parenting order to be made in respect of
a parent of a child, the court may require the Principal
Reporter to consider whether to apply under section 102 for
such an order.
115 Guidance about parenting orders
A person (other than a court) shall, in discharging
functions by virtue of section 13 or this Part, have regard
to any guidance given by the Scottish Ministers about-
(a) the discharge of those functions; and
(b) matters arising in connection with the discharge
of those functions.
116 Power of hearing to direct Principal
Reporter to consider application for parenting
order
After section 75 of the Children (Scotland) Act 1995
(c.36) there shall be inserted-
"Parenting orders
75A Requirement on Principal Reporter to
consider application for parenting order
(1) Subsection (2) below applies where it appears
to-
(a) the children's hearing to whom a child's
case has been referred under section 65(1) of this
Act; or
(b) a children's hearing arranged, under section
73(8) of this Act, to review a supervision
requirement in respect of a child,
that it might be appropriate for a parenting order
to be made in respect of a parent of the child under
section 102 of the Antisocial Behaviour etc. (Scotland)
Act 2004 (asp 8) (the "2004 Act").
(2) The hearing may require the Principal Reporter
to consider whether to apply, under subsection (3) of
that section of the 2004 Act, for such an order.
(3) A requirement under subsection (2) above shall
specify-
(a) the parent in respect of whom it might be
appropriate for the order to be made; and
(b) by reference to subsections (4) to (6) of
that section of the 2004 Act, the condition in
respect of which the application might be made.
(4) In subsection (1) above, "parent" and "child"
have the same meanings as in section 117 of the 2004
Act.".
Interpretation
117 Interpretation of Part 9
In this Part-
"child" means a person who is under the age of 16
years;
"parent", means any individual who is a relevant
person as defined in section 93(2)(b) of the Children
(Scotland) Act 1995 (c.36) (the references to a
"person" in that section being read as references to an
individual);
"parenting order" has the meaning given by section
103(1).
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