Getting it right for every child: Draft Children’s Services (Scotland) Bill Consultation

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6 - Draft Bill and Explanatory Notes

Children's Services (Scotland) Bill

CONSULTATION DRAFT

CONTENTS

Section

PART 1

OVERARCHING PROVISIONS

Functions of relevant agencies

1 Well-being of children
2 Action as to well-being
3 Considering views of children
4 Collaborative working
5 Joint plans for collaborating
6 Extent to which functions are exercisable
7 Relevant agencies

Exercise of functions

8 Guidance
9 Equal opportunities

PART 2

AMENDMENT OF THE PRINCIPAL ACT

10 Panel members not restricted to own area
11 Membership of the SCRA
12 Legal representatives
13 Review where child arrested by police
14 Disclosure of information
15 Grounds for referral
16 Procedure for establishing grounds of referral
17 Interim supervision requirements
18 Duties of agencies regarding supervision requirements
19 Placing a child in secure accommodation
20 Warrants

PART 3

GENERAL

21 Interpretation
22 Commencement and short title

CONSULTATION DRAFT
Children's Services (Scotland) Bill
An Act of the Scottish Parliament to confer functions on certain bodies in relation to the wellbeing of children; to amend the Children (Scotland) Act 1995; and for connected purposes.

PART 1

OVERARCHING PROVISIONS

Functions of relevant agencies

1 Well-being of children

(1) Every relevant agency must do its best for the purposes of-

(a) assessing needs with respect to the well-being of children,

(b) identifying children who have unmet needs with respect to their well-being,

(2) Every relevant agency is to-

(a) endeavour to be alert to matters adversely affecting the well-being of children,

(b) promote the well-being of children.

(3) A relevant agency must, when acting under this Part, do so-

(a) in the best interests of the child concerned, and

(b) in accordance with such good practice as applies in the circumstances.

(4) Reference in this Part to well-being is to be construed with particular regard to the

following things-

(a) health (whether physical or mental),

(b) welfare (including care and neglect),

(d) harm, abuse and ill-treatment,

(e) emotional and behavioural issues.

2 Action as to well-being

(1) Where a relevant agency is aware of a child who has (or who may have) unmet needs

with respect to well-being, the agency must take such action as it considers appropriate.

(2) Where a relevant agency is aware that a child poses a risk to the safety of another

person, the agency must take such action as it considers appropriate.

(3) Action under subsection (1) or (2) is to be-

(a) directed towards the child or the child's circumstances, and

(b) with a view to improving the child's situation.

(4) A relevant agency which has taken action under subsection (1) or (2)-

(a) must monitor the child's situation until satisfied that it is being addressed,

(b) may, if appropriate, revise or discontinue that action.

(5) A relevant agency must record by means suitable for future reference-

(a) decisions it takes as to action under subsection (1) or (2),

(b) reasons for such decisions,

(i) subsection (1) or (2),

(ii) subsection (4)(a).

(6) Reference in this section to action by a relevant agency includes action in collaboration

with any other relevant agency.

3 Considering views of children

(1) Every relevant agency is to seek to secure effective means for ascertaining (and

recording) the views-

(a) of children,

(b) in relation to children, of relevant persons,

in connection with its decision-making as regards the well-being of children.

(2) Every relevant agency, in taking any material decision as regards a child's well-being-

(a) must have regard to such relevant views-

(i) of the child, and

(ii) in relation to the child, of a relevant person,

(b) may have regard to such relevant views of any other person,

as may reasonably be ascertained.

(3) When acting under subsection (2)(a)(i), the relevant agency must take account of the

age, maturity and capacity of the child.

(4) A child of 12 or more years of age is presumed to be of sufficient maturity and age to

form views.

4 Collaborative working

(1) In exercising their functions under this Part, the relevant agencies are (so far as

appropriate) to co-operate with each other.

(2) Each relevant agency must-

(a) secure the making of arrangements for-

(i) promoting co-operation under subsection (1),

(ii) evaluating co-operation under that subsection,

(b) participate (so far as appropriate) in those arrangements.

(3) Each relevant agency must-

(a) secure the making of arrangements for the purpose of resolving disputes between

it and other relevant agencies arising from the duty to co-operate imposed by

subsection (1),

(b) invoke those arrangements in the event of such disputes.

(4) Arrangements under subsection (2) or (3) may be made by reference to-

(a) a local authority area or any other local area,

(b) two or more relevant agencies.

(5) For the purposes of this section, reference to co-operation includes-

(a) consulting,

(b) exchanging information,

(d) collaborating, for example through-

(i) co-ordinating effort,

(ii) providing assistance,

(iii) sharing responsibility for action,

(iv) joint funding of activities.

5 Joint plans for collaborating

(1) Where under this Part two or more relevant agencies collaborate with each other, they

must-

(a) adopt a joint plan for the purpose,

(b) designate a person who is to take responsibility for ensuring that the plan is

implemented.

(2) A person designated under subsection (1)(b) as respects a plan must record by means

suitable for future reference the steps taken by the collaborating agencies in

implementation of the plan.

(3) Designation of a person under subsection (1)(b) may, having regard to the circumstances

of the case, be replaced by a subsequent designation under that subsection.

(4) Designation of a person under subsection (1)(b) does not relieve a relevant agency from

any responsibility it has in relation to the child (including responsibility for the exercise

of functions in relation to the child).

(5) But that responsibility may be discharged (and those functions exercised) through

implementation of a plan adopted under subsection (1)(a).

(6) The collaborating agencies-

(a) are to keep under review,

(b) may revise or terminate,

a plan they adopt under subsection (1)(a).

6 Extent to which functions are exercisable

(1) An agency function applies to the extent that anything which might be done in exercise

of the function would (ignoring the effect of the provision conferring the function) be

consistent with the proper exercise of the agency's other functions.

(2) A requirement for a relevant agency to exercise an agency function in relation to

children applies in relation to children residing in the agency's area.

(3) Subsection (2) does not prevent a relevant agency from doing something (whether in

collaboration with another relevant agency or otherwise) in relation to a child who

resides in another area.

(4) In this section, reference to an agency function means a function conferred on a relevant

agency by this Part.

(5) For the purposes of this Part, reference to the area of a relevant agency means-

(a) in the case of a public body, its geographical area of operation,

(b) in the case of a non-public body, the main geographical area (or areas) in which it

carries on activities relating to children.

(6) This Part is without prejudice to any functions of a relevant agency under the Principal

Act or any other enactment.

7 Relevant agencies

(1) For the purposes of this Part, each of the following is a relevant agency-

(a) any local authority, whether in its capacity as-

(i) a provider of social work services,

(ii) an education authority,

(iii) a housing authority,

or otherwise,

(b) any-

(i) Health Board,

(ii) Special Health Board,

(iii) National Health Service trust,

(d) any public body specified under subsection (3).

(2) For the purposes of this Part, a non-public body specified under subsection (4) is also a

relevant agency.

(3) The Scottish Ministers may by order specify as a relevant agency any public body.

(4) The Scottish Ministers may by order specify as a relevant agency any non-public body whose activities are-

(a) of a public character, and

(b) funded (wholly or partly) at the public expense.

(5) Specification by an order under subsection (3) or (4) may be-

(a) of a body-

(i) by name, or

(ii) by description of type (for example, by reference to functions),

(b) of a body-

(i) as a whole, or

(ii) to a particular extent (for example, in so far as its activities relate to the well-being of children).

(6) An order under subsection (3) or (4) is to be made by statutory instrument; and a statutory instrument making such an order is subject to annulment in pursuance of a resolution of the Scottish Parliament.

Exercise of functions

8 Guidance

(1) The Scottish Ministers may issue guidance to the relevant agencies on the exercise of their functions under the Principal Act and this Act.

(2) Guidance under subsection (1) may include provision as to what is (or is not) good practice in the exercise of those functions.

(3) Guidance under subsection (1) may relate to-

(a) relevant agencies generally or any particular type of relevant agency,

(b) any or all functions.

(4) But guidance under subsection (1) may not be framed by reference to a particular child.

(5) A relevant agency must have regard to guidance issued under subsection (1) to the extent that it is applicable to it.

9 Equal opportunities

(1) The relevant agencies must exercise their functions under the Principal Act and this Part in a manner which encourages equal opportunities and in particular the observance of the equal opportunity requirements.

(2) In subsection (1), "equal opportunities" and "equal opportunity requirements" have the same meanings as in Section L2 (equal opportunities) of Part II of Schedule 5 to the Scotland Act 1998 (c.46).

PART 2

AMENDMENT OF THE PRINCIPAL ACT

10 Panel members not restricted to own area

(1) In section 39 (formation of children's panels and children's hearings) of the Principal Act-

(a) for subsection (3) there is substituted-

"(3) Sittings of members of children's panels (to be known as "children's hearings") are to be constituted as described in subsections (5) and (5A).",

(b) after subsection (5) there is inserted-

"(5A) At least one member of a children's hearing is to be a member of the panel for the area for which the hearing is constituted.".

(2) In section 41(4)(i) of that Act, for the words from "children's" in the first place where it occurs to the end there is substituted "relevant children's hearing was constituted".

(3) In section 93 of that Act, in the definition of "relevant local authority", for the words from "panel" to the end there is substituted "hearing which granted the warrant or imposed the supervision requirement was constituted".

(4) In Schedule 1 (children's panels) to that Act-

(a) after paragraph 1 there is inserted-

"1A

Appointment as a member of the children's panel for an area makes the member eligible to be a member of a children's hearing constituted for any area.",

(b) in paragraph 5, the words "as are resident in the local government area for which the panel is appointed" are repealed,

(i) the existing words become sub-paragraph (1),

(ii) at the end there is added-

"(2) That list may include the name and address of any member of any other children's panel who has been a member, or is likely to be a member, of a children's hearing for the area to which that list relates.".

11 Membership of the SCRA

In paragraph 3 of Schedule 12 (status, constitution and proceedings of the Scottish Children's Reporter Administration) to the Local Government etc. (Scotland) Act 1994 (c.39), in sub-paragraph (1), for the words "one of whom shall be the Principal Reporter; the others" there is substituted "who".

12 Legal representatives

(1) After section 41 (safeguarding child's interests in proceedings) of the Principal Act there is inserted-

" 41A

Legal representatives

(1) Where a children's hearing is to be arranged in pursuance of this Part, the Principal Reporter-

(a) must consider if it is necessary to appoint a person as the child's legal representative to enable the child to participate effectively at the hearing, and

(b) if the Reporter so considers, is to make the appointment for the hearing (and any continuation of it).

(2) However, where-

(a) a children's hearing is to be arranged as described in subsection (1), and

(b) it appears to the Reporter that the hearing are likely-

(i) in making a supervision requirement, to exercise a power mentioned in section 70(9A),

(ii) in making an interim supervision requirement, to exercise the power mentioned in section 70(9A)(b), or

(iii) in granting a warrant, to require that a child be kept in secure accommodation,

the Principal Reporter must appoint a person to act as the child's legal representative at the hearing (and any continuation of it).

(3) Where a children's hearing is arranged in pursuance of this Part, the hearing-

(a) must consider if it is necessary to appoint a person as the child's legal representative to enable the child to participate effectively at the hearing, and

(b) if they so consider, are to make the appointment for the hearing (and any continuation of it).

(4) However, where-

(a) a children's hearing has been arranged as described in subsection (3), and

(b) the hearing consider it is likely that they will-

(i) in making a supervision requirement, exercise a power mentioned in section 70(9A),

(ii) in making an interim supervision requirement, exercise the power mentioned in section 70(9A)(b), or

(iii) in granting a warrant, require that a child be kept in secure accommodation,

the hearing must appoint a person to act as the child's legal representative at the hearing (and any continuation of it).

(5) A legal representative need not be appointed under this section if the child is already legally represented for the purposes of the proceedings.

(6) The expenses of a legal representative appointed under this section (except in so far as otherwise defrayed in terms of regulations made under section 101) are, in so far as reasonably incurred by the person in acting as the child's legal representative, to be borne by the local authority for whose area the children's hearing to which the appointment relates is constituted.

(7) Appointment of a legal representative under this section is not precluded by (and does not preclude) appointment of a person under section 41(1).".

(2) In section 42 (power of Secretary of State to make rules governing procedure at children's hearing etc.) of that Act-

(a) in subsection (1), for the words from "constituting" to the end there is substituted "the purposes of and in connection with children's hearings",

(b) in subsection (2)-

(i) before paragraph (a) there is inserted- "(za) constituting and arranging children's hearings and other meetings of

members of the children's panel, (zb) the regulation of procedure at such hearings and other meetings,",

(ii) in paragraph (e), for the words "the disposal of matters arising under section 41(1) of this Act" there is substituted "appointment of-

(i) persons under section 41(1),

(ii) legal representatives under section 41A,",

(iii) in paragraph (f), for the words "appointed by a children's hearing under section 41(1) of this Act" there is substituted "referred to in paragraph (e)".

(3) In section 70 (disposal of referral by children's hearing: supervision requirements, including residence in secure accommodation) of that Act, in subsection (7B)(c), for the words "of this Act to safeguard the interests of the child in" there is substituted ", or any legal representative appointed under section 41A, in relation to".

(4) In section 101 (panel for curators ad litem, reporting officers and safeguarders) of that Act-

(a) in subsection (1)-

(i) the word "and" immediately following paragraph (b) is repealed,

(ii) after paragraph (c), there is inserted ", and

(d) a panel of persons from which legal representatives may be appointed under section 41A.",

(b) in subsection (4), after the words "(1)(c)" there is inserted "or (d)".

Review where child arrested by police

In section 63 (review of case of child arrested by police) of the Principal Act-

(a) in subsection (1), for the words "he considers that compulsory measures of supervision are not required in relation to the child" there is substituted "the child is released under subsection (3) or (3A)",

(b) after subsection (3) there is inserted-

"(3A) Where, in relation to a child of whose detention the Principal Reporter has been informed, the Reporter considers that neither of the conditions mentioned in section 66(2) is met, the Reporter must direct that the child is no longer to be kept in the place of safety.",

14 Disclosure of information After section 46 of the Principal Act there is inserted- " 46A Disclosure of information

(1) A children's hearing need not, at any time prior to their disposal of the case of a child, disclose to a person any information about the child, or about the child's case, if disclosure of that information to that person would be significantly against the interests of the child.

(2) Subsection (1) applies despite any requirement under an enactment or rule of law for the children's hearing-

(a) to give the person an explanation of what has taken place at proceedings before the hearing, or

(b) to provide the person with-

(i) information about the child or the child's case, or

(ii) reasons for a decision made by the hearing.".

15 Grounds for referral

(1) For section 52 (children requiring compulsory measures of supervision) of the Principal Act, and the italic heading immediately preceding it, there is substituted-

" Grounds for referral

52A Grounds for referral

(1) For the purposes of this Part, any question arising in relation to a child as to whether there are grounds for referral is to be determined by reference to subsection (2).

(2) Grounds for referral are constituted if (and only if) all of the following conditions are met as respects the child-

(a) there is a relevant situation (the "situational condition" for referral),

(b) the child has unmet needs with respect to well-being (the "needs condition" for referral),

(c) compulsory measures of supervision are necessary in relation to those needs (the "supervision condition" for referral).

(3) In subsection (2)(b), reference to well-being is to be construed with particular regard to the things listed in section 1(4) of the Children's Services (Scotland) Act 2007 (asp 00).

(4) In this Part, reference to supervision, in relation to compulsory measures of supervision, includes (so far as appropriate) measures for the protection, guidance, treatment or control of the child.

52B Situational condition

(1) For the purposes of section 52A(2)(a), there is a relevant situation as respects a child if at least one of the factors mentioned in subsection (2) applies in the child's case.

(2) The factors are that-

(a) the child has committed an offence,

(b) the child has without reasonable excuse failed to attend school regularly,

(i) the child to come to harm,

(ii) an adverse effect on the child's health or safety, or

(ii) an adverse effect on the child's development,

(d) the child's behaviour has caused, is causing or is likely to cause-

(i) another person to come to harm,

(ii) an adverse affect on the health or safety of another person, or

(iii) an adverse affect on the development of another person,

(e) the way in which the child is cared for (in a domestic context) has caused, is causing or is likely to cause-

(i) the child to come to harm,

(ii) an adverse affect on the child's health or safety, or

(iii) an adverse affect on the child's development,

(f) the child has been abused, ill-treated or neglected,

(g) the child is, or is likely to become, a member of the same household as a child who has been abused, ill-treated or neglected,

(h) the child is a member of the same household as an adult person who is subject (in a domestic context) to abusive behaviour of a third party,

(i) the child-

(i) is, or is likely to become, a member of the same household as, or

(ii) has significant contact with,

a person whose character is such that there is reason to believe that the person might abuse or harm the child.

(3) For the purpose of subsection (2)(e), reference to care for the child includes support and guidance for, and supervision and control of, the child.

(4) For the purpose of subsection (2)(f) and (g), the commission against a child or other person of an offence mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (c.46) is conclusive as to the fact that the child or (as the case may be) other person has suffered as described in that subsection.

(5) For the purpose of subsection (2)(i), it is to be presumed from the commission by a person of an offence mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995, or under sections 1 to 3 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39), that the person is of the character described in that subsection.".

(2) In section 53 (provision of information to the Principal Reporter) of that Act-

(a) in subsection (1)-

(i) for the words "compulsory measures of supervision may be necessary" there is substituted "subsection (2C) applies",

(ii) in paragraph (b), for the words "such measures may be required" there is substituted "subsection (2D) applies",

(b) for subsection (2) there is substituted-

"(2) A person (apart from a local authority) who has reasonable cause to believe that subsection (2C) applies as respects a child may give to the Principal Reporter such information about the child as the person has been able to discover.

(2A) A relevant agency (apart from a local authority) which has reasonable cause to believe that subsection (2D) applies in respect of a child must give to the Principal Reporter such information about the child as the agency has been able to discover.

(2C) This subsection applies where there may be grounds for referral.

(2D) This subsection applies where-

(a) the needs condition for referral is met, and

(b) the situational and supervision conditions for referral may be met.",

"(8) In subsection (2A), reference to a relevant agency is to be construed in accordance with section 7 of the Children's Services (Scotland) Act 2007 (asp 00).".

(3) In section 54 (reference to the Principal Reporter by court) of that Act-

(a) in subsection (1)-

(i) for the words from "any" in the second place where it occurs to "satisfied" there is substituted "subsection (1A) applies",

(ii) for the word "condition" there is substituted "situational condition for referral with reference to the particular factors involved",

(b) after subsection (1) there is inserted-

"(1A) This subsection applies where-

(a) the situational condition for referral is met, and

(b) the needs and supervision conditions for referral may be met.",

(i) in paragraph (b), for the words "compulsory measures of supervision are necessary" there is substituted "there are grounds for referral",

(ii) the words from "; and" in the second place where it occurs to the end are repealed,

(d) after subsection (3) there is added-

"(4) And, for the purposes of the hearing, section 69(1) applies as if the situational condition for referral (as specified under subsection (1)) were established in accordance with section 68.".

(4) In section 56 (initial investigation by the Principal Reporter) of that Act, in subsection (6), for the words "compulsory measures of supervision are necessary" there is substituted "there are grounds for referral".

(5) In section 65 (referral to, and proceedings at, children's hearing) of that Act-

(a) For subsection (1) there is substituted-

"(1) The Principal Reporter is to refer to a children's hearing the case of any child in respect of whom the Reporter is satisfied that there are grounds for referral.

(1ZA) Subsection (1) is without prejudice to a requirement to refer the child's case to a children's hearing arising by virtue of-

(a) another provision of this Act, or

(b) section 12(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8).

(1ZB) The purpose of referral under subsection (1) is for the case to be considered and determined on its merits.

(1ZC) On referral under subsection (1), the Principal Reporter must-

(a) state the situational condition for referral with reference to-

(i) the particular factors involved, and

(ii) the facts or circumstances giving rise to those factors, and

(b) do so as required by any rules made by virtue of section 42(2)(c).",

(b) subsection (1A) is repealed,

(i) for the words "grounds stated by the Principal Reporter" there is substituted "situational condition",

(ii) for the words "these grounds are" there is substituted "that condition is",

(d) in subsection (5), for the word "grounds" there is substituted "situational condition",

(e) in subsection (6)-

(i) for the word "grounds" in the first place where it occurs there is substituted "situational condition",

(ii) for the words "those grounds which are" there is substituted "that condition in so far as",

(f) in subsection (7)-

(i) in paragraph (a), for the word "grounds" there is substituted "situational condition",

(ii) in paragraph (b), for the words "the grounds" there is substituted "that condition",

(iii) for the words "such grounds for the referral as are not accepted by the child and the relevant person are" there is substituted "that condition (in so far as not accepted by the child and the relevant person) is",

(g) in subsection (9)-

(i) in paragraph (a), for the word "grounds" there is substituted "situational condition",

(ii) for the words "any of the grounds of the referral are" there is substituted "that condition is",

(h) in subsection (10), for the words "grounds of" there is substituted "situational condition for",

(i) After subsection (10) there is added-

"(11) Reference to the situational condition for referral-

(a) in this section, or

(b) in section 68 or 68ZA, means that condition as stated in accordance with subsection (1ZC).".

(6) In section 68 (application to sheriff to establish grounds of referral) of that Act-

(a) in subsection (3)-

(i) for the words from "one" to "52(2)(i)" there is substituted "in an application the situational condition for the referral concerns the factor mentioned in section 52B(2)(a)",

(ii) in paragraph (b), for the word "ground" there is substituted "factor",

(b) in subsection (5)(a), for the words from "ground" to "Act" there is substituted "situational condition for referral concerns the factor mentioned in section 52B(2)(f), (g) or (i)",

(i) in paragraph (a), for the words "of the grounds" there is substituted "particular factor relevant to the situational condition",

(ii) in paragraph (b), for the words "of the grounds for referral to which the application relates" there is substituted "such factor",

(iii) for the words "ground and deem the ground" there is substituted "factor and deem that condition (in so far as concerning that factor)",

(d) in subsection (9)-

(i) for the word "grounds" in the first place where it occurs there is substituted "factors relevant to the situational condition",

(ii) for the words "those grounds" in each place where they occur there is substituted "that condition (in so far as concerning those factors)",

(e) in subsection (10), for the words "any of the grounds for the referral" there is substituted "the situational condition for the referral (in so far as concerning any particular factor)".

(7) [Sections 68A, 68B].

(8) In section 69 (continuation or disposal of referral by children's hearing) of that Act, in subsection (1), for the word "of" in the first place where it occurs there is substituted "for".

(9) [Section 85].

(10) In the Criminal Procedure (Scotland) Act 1995, in section 48 (power to refer certain children to reporter)-

(a) in subsection (1), the words from ", and" to the end are repealed,

(b) after subsection (1) there is inserted-

"(1A) Where the court refers a child to the Reporter under subsection (1), it may certify that a situational condition for referral is established (as respects the relevant factor mentioned in section 52B(2) of the Children (Scotland) Act 1995 (c.36)) for the purposes of Chapter 3 of Part II of that Act.".

(11) In section 12 of the Antisocial Behaviour etc. (Scotland) Act 2004, subsections (3) and

(4) are repealed.

Procedure for establishing grounds of referral

(1) In section 68 (application to sheriff to establish grounds of referral) of the Principal Act, after subsection (12) there is added-

"(13) This section is subject to section 68ZA.".

(2) After that section there is inserted-

" 68ZA Expedited procedure to establish grounds of referral

(1) This section applies to an application under subsection (9) of section 65 if, at a children's hearing, the relevant person (that is, the relevant person referred to in subsection (4) of that section) has accepted the situational condition for referral.

(2) The sheriff may determine the application (and deem the situational condition for referral to be established) without a hearing being held for the purpose.

(3) But a hearing on the application is to be held in the circumstances referred to in subsections (4) to (6).

(4) The circumstances are that, in considering the application, it appears to the sheriff that it is unlikely that he will find or deem the situational condition for referral to be established.

(5) The circumstances are that-

(a) the child, the relevant person or the Principal Reporter requests that a hearing on the application be held, and

(b) the sheriff is satisfied that it is necessary or expedient to hold such a hearing.

(6) The circumstances are that, in any case, the sheriff is of the opinion that it is not appropriate to determine the application without a hearing being held for the purpose.

(7) Where a hearing on the application is held under subsection (3), the sheriff may-

(a) dispense with the hearing of evidence relating to the situational condition, and

(b) deem that condition to be established for the purposes of the application, unless the sheriff is satisfied that, in all the circumstances of the case, the evidence should be heard.

(8) Where this section applies, the application is to be-

(a) where there is not to be a hearing, determined by the sheriff within 7 days of its being lodged,

(b) where there is to be a hearing, heard by the sheriff within 28 days of its being lodged.

(9) The provisions of section 68(3) to (7) and (9) to (12) apply in relation to an application to which this section applies as they apply in relation to an application to which section 68 applies.

(10) For the purpose of application by subsection (9), the words ", after the hearing of any evidence or on acceptance in accordance with subsection (8) above," where occurring in section 68(10) are to be disregarded.".

(3) In section 41 (safeguarding child's interest in proceedings) of that Act, in subsection (5)(b), after the word "68" there is inserted "or 68ZA".

(4) In section 69 (continuation or disposal of referral by children's hearing) of that Act, in subsection (1), after the word "68" there is inserted "or 68ZA".

(5) In section 85 (application for review of grounds of referral) of that Act, in subsection (1), for the words "such as is mentioned in section 68(10)" there is substituted "made by the sheriff under section 68 or 68ZA".

Interim supervision requirements

(1) After section 70 (supervision requirements) of the Principal Act, there is inserted-

" 70A Interim supervision requirements

(1) Subsection (2) applies to a children's hearing arranged to consider a child's case under a provision of this Part except section 59(2).

(2) Without prejudice to any other power enjoyed by them under this Part, the children's hearing may make an interim supervision requirement in respect of a child if they are satisfied that the conditions mentioned in subsection (3) are met.

(3) Those conditions are that the children's hearing are-

(a) unable to dispose of the case, and

(b) satisfied that compulsory measures of supervision are, pending their disposal of the case, necessary in the interests of safeguarding or promoting the child's welfare.

(4) An interim supervision requirement may not be made at a children's hearing arranged under section 63(1) unless-

(a) the Principal Reporter has stated the situational condition for referral, and

(b) the chairman of the hearing has explained that condition to-

(i) the child, and

(ii) in relation to the child, any relevant person present.

(5) An interim supervision requirement under subsection (2) is to be made for a period not exceeding 22 days.

(6) A children's hearing may, at any time prior to the expiry of an interim supervision requirement made under subsection (2), make a fresh interim supervision requirement under that subsection (whether or not with the same conditions as previously imposed).

(7) But, where-

(a) the children's hearing are unable to dispose of a child's case pending the making of an application to the sheriff under section 65(7) or (9), or pending the determination of such an application, or

(b) such an application having been determined, the case is to be considered at a subsequent children's hearing arranged (or to be arranged) by virtue of the remittal of the case to the Principal Reporter under section 68(10), the child must not be made subject to interim supervision requirements under subsection (2) for a period exceeding 66 days.

(8) In computing a 66 day limit applying in relation to-

(a) an interim supervision requirement, or

(b) a warrant granted under this Part,

a period during which a child was subject to one of those things is also to be counted as if a period during which the child was subject to the other of them.

(9) The provisions of section 70, except-

(a) subsection (1),

(b) subsections (3A) and (3B),

(d) subsection (9A)(a),

apply in relation to an interim supervision requirement as they apply in relation to a supervision requirement.

(10) A requirement included in an interim supervision requirement by reference to section 70(3)(a) may not provide that a child reside otherwise than with a person who is, in relation to the child, a relevant person.

(11) Reference in-

(a) section 3(4),

(b) section 16(4)(a)(i),

(d) section 51(5)(b),

(e) section 71,

(f) section 73(1) and (3),

(g) sections 74, 75A, and 82,

to a supervision requirement includes reference to an interim supervision requirement.

70B Application to sheriff for further interim supervision requirement

(1) Subsection (2) applies where either-

(2) Where this subsection applies, the Principal Reporter may, at any time prior to the expiry of an interim supervision requirement made under section 70A(2) or this subsection, apply to the sheriff for a further interim supervision requirement to be made in respect of the child.

(3) An interim supervision requirement under subsection (2) may only be made on cause shown and-

(a) shall expire on the earlier of-

(i) the date specified for the purpose in the interim supervision requirement, or

(ii) the date of the subsequent children's hearing arranged by virtue of the remittal mentioned in subsection (1)(b), and

(b) may contain any conditions as may be contained in an interim supervision requirement made under section 70A(2) (whether or not the same conditions as previously imposed).

(4) An application under subsection (2) may be made at the same time as, or at the diet fixed for, the hearing of an application which the Principal Reporter has been directed by a children's hearing to make under section 65(7) or (9).".

(2) In section 3 (provisions relating both to parental responsibilities and to parental rights) of that Act, in subsection (4), after the word "Act" there is inserted "or an interim supervision requirement made under section 70A or 70B".

(3) In section 51 (appeal against decision of children's hearing or sheriff) of that Act-

(a) in subsection (5)-

(i) after paragraph (a) there is inserted-

"(aa) where the appeal is against a warrant granted under section 63(5), 66(1) or 69(7)-

(i) without prejudice to paragraph (a), he shall recall the warrant, and

(ii) he may make an interim supervision requirement in its place,",

(ii) in paragraph (b), for the word "under" in each place where it occurs there is inserted "or by reference to",

(iii) in paragraph (c)(iii), after the word "70" there is inserted ", 70A or 70B",

(b) after subsection (8) there is inserted-

"(8A) An appeal under subsection (1) in respect of the making of an interim supervision requirement is to be disposed of within 7 days of its being lodged, and, if the appeal is not so disposed of, the requirement ceases to have effect.".

(4) In section 93(1) (interpretation of Part II) of that Act, after the entry for "family" there is inserted-

""interim supervision requirement" is such a requirement made under section 70A(2) or 70B(2), and includes any condition contained in the requirement or related to it,".

Duties of agencies regarding supervision requirements

(1) After section 71A of the Principal Act there is inserted-

" 71B Duties of other agencies with respect to supervision requirements

(1) A children's hearing-

(a) may impose on any relevant agency the duty, as respects a child subject to a supervision requirement, of giving effect to the requirement in such regards as the hearing considers appropriate,

(b) for the purpose of enabling a child to comply with a supervision requirement, may impose other duties on any relevant agency.

(2) Duties imposed under subsection (1)-

(a) must be specified in the supervision requirement, and

(b) are restricted to that of securing or facilitating the provision for the child of services of a kind normally provided by the relevant agency.

(3) Where a children's hearing impose duties on a relevant agency under subsection (1), they must review that imposition of duties if the agency so requests.

(4) Where (on information received from the Principal Reporter or otherwise) it appears to a children's hearing that a relevant agency is in breach of a duty imposed on it under subsection (1), the hearing may direct the Reporter to give the agency notice under subsection (5).

(5) Notice under this subsection is written notice which-

(a) sets out the breach of the duty,

(b) states that, if the agency does not comply with the duty within the period of 21 days of beginning with the day on which it received the notice, an application may be made under subsection (7).

(6) Where at the end of that period it appears to the children's hearing that the agency continues to be in breach of the duty, the hearing may authorise the Principal Reporter to make an application under subsection (7).

(7) An application under this subsection is a summary application by the Principal Reporter, with that authority, for an order under subsection (9).

(8) In deciding whether to make an application under subsection (7), the Principal Reporter is to take no account of any factor relating to the adequacy of the means available to the relevant agency to enable it to comply with the duty.

(9) On an application under subsection (7), the sheriff principal may order a relevant agency which is in breach of a duty imposed on it under section (1) to comply with the duty to such extent as the sheriff principal determines.

(10) An order under subsection (9) is final.

(11) In this section, reference to a relevant agency-

(a) excludes a local authority,

(b) otherwise, is to be construed in accordance with section 7 of the Children's Services (Scotland) Act 2007 (asp 00).".

19 Placing a child in secure accommodation

In section 70 (supervision requirement) of the Principal Act, in paragraph (a) of subsection (9A), the words from ", during" to the end are repealed.

20 Warrants

(1) In section 66 (warrant to keep child where children's hearing unable to dispose of case) of the Principal Act-

(a) in subsection (2), paragraph (a)(ii) and the words "or" immediately preceding and following it are repealed,

(b) for paragraph (a) of subsection (3) there is substituted-

"(a) to find the child, (aa) to remove the child to a place of safety, (ab) to keep or (as the case may be) continue to keep the child in a place of

safety for a period not exceeding 22 days after the warrant is granted,",

(c) in subsection (5), for the words from "its" to the end there is substituted "the expiry of a warrant granted under subsection (1), the children's hearing may grant a fresh warrant under subsection (1) (whether or not with the same conditions as previously imposed under subsection (4))",

(d) in subsection (6), for the word "they" there is substituted "a warrant under subsection (1)",

(e) in subsection (7), the words "or continue such a warrant under subsection (5) above" are repealed.

(2) In section 67 (warrant for further detention of child) of that Act-

(a) before subsection (1) there is inserted-

"(A1) Subsection (1) applies where-

(a) a child is being kept in a place of safety by virtue of a warrant granted under section 66(1) or subsection (1), and

(b) either-

(i) the children's hearing are unable to dispose of the child's case pending the making of an application to the sheriff under section 65(7) or (9), or pending the determination of such an application, or

(ii) such an application having been determined, the case is to be considered at a subsequent children's hearing arranged (or to be arranged) by virtue of the remittal of the case to the Principal Reporter under section 68(10).",

(b) in subsection (1), for the words from "Where" to "subsection" in the first place where it occurs there is substituted "Where this subsection applies",

(c) in subsection (2), in paragraph (a), for the words "specify the date on which it will expire" there is substituted "expire on the earlier of-

(i) the date specified for the purpose in the warrant,

(ii) the date of the subsequent children's hearing arranged by virtue of the remittal mentioned in subsection (A1)(b)(ii)",

(d) in subsection (4), for the word "during" there is substituted "at the diet fixed for".

(3) In section 69 (continuation or disposal of referral by children's hearing) of that Act-

(a) in subsection (1), after paragraph (a) there is inserted-

"(aa) continue the case to a subsequent hearing in accordance with subsection (2A),",

(b) after subsection (2) there is inserted-

"(2A) The children's hearing may continue the case to a subsequent hearing under this subsection if there is another reason for their being unable to dispose of the case.",

"(4) Where-

(a) there is reason to believe that a child may not comply with a requirement made under subsection (3), or

(b) a child has failed to comply with such a requirement, a children's hearing may grant a warrant under this subsection.",

(d) in subsection (5)-

(i) the word "and" immediately preceding paragraph (c) is repealed,

(ii) after paragraph (c) there is added-

"(d) to bring the child before a children's hearing at such times as may be specified in the warrant.",

(e) in subsection (7)-

(i) after the word "(2)" there is inserted "or (2A)",

(ii) for the words "requiring that the child be taken to and kept in a place of safety" there is substituted "under this subsection",

(f) after subsection (7) there is inserted-

"(7A) A warrant under subsection (7) is authority-

(a) to find the child,

(b) to remove the child to a place of safety and keep the child there,

(g) after subsection (9) there is inserted-

"(9A) A children's hearing may, at any time prior to the expiry of a warrant granted under subsection (4) or (7), make a fresh warrant under that subsection (whether or not with the same conditions as previously imposed).".

PART 3

GENERAL

21 Interpretation

(1) In this Act, the "Principal Act" is the Children (Scotland) Act 1995 (c.36).

(2) In Part 1, the expressions-

"local authority",

"relevant person", in relation to a child,

are to be construed in accordance with section 93 of the Principal Act.

(3) For the purposes of Part 1, a "child" is a person who has not attained the age of 18 years.

22 Commencement and short title

(1) The preceding provisions of this Act come into force on such day as the Scottish

Ministers may by order made by statutory instrument appoint.

(2) An order under subsection (1) may-

(a) appoint different days for different provisions,

(b) include such transitional, transitory or saving provision as the Scottish Ministers

consider necessary or expedient in connection with the provisions,

(3) This Act may be cited as the Children's Services (Scotland) Act 2007.

Explanatory Notes

Introduction

6.1 These draft Explanatory Notes have been prepared by the Scottish Executive in order to assist the reader of the draft Children's Services (Scotland) Bill and to help inform the consultation process. They do not form part of the draft Bill.

6.2 The Notes should be read in conjunction with the draft Bill. They are not, and are not meant to be, a comprehensive description of the draft Bill. So where a section, or part of a section, does not seem to require any explanation or comment, none is given.

6.3 The draft Bill is in two main parts: stand-alone provisions (Part 1 of the draft Bill) and amendments to the Children (Scotland) Act 1995 (Part 2 of the draft Bill). Other general matters are covered in Part 3 of the draft Bill. Anyone considering the detailed legislative provisions in the consultation will find it easier to understand if read in conjunction with that legislation. Throughout the Bill, the Children (Scotland) Act 1995 is referred to as the 'Principal Act'.

6.4 In due course we shall provide on the Scottish Executive website an amended version of the Children (Scotland) Act 1995 which shows the proposed amendments inserted by this draft Bill. This will allow the opportunity for respondents to see the full effect of this proposed legislation.

The draft Bill

6.5 The draft Bill seeks to introduce legislation to implement the aims of the Getting it right for every child programme by introducing changes to update the duties and responsibilities of relevant agencies who deliver children's services.

6.6 The draft Bill contains a number of provisions which confer functions on relevant agencies in relation to the well-being of children and requires them to take action to ensure children get the help they need when they need it.

6.7 Key areas covered in the draft Bill include:

The duties of relevant agencies
to assess the well-being of children
to take appropriate action to improve a child's situation
to consider the views of children and relevant persons
to establish arrangements for working together
to plan and work together when more than one agency is involved in a child's case
to implement supervision requirements set out by Children's Hearings
Changes to the grounds for referral to the Reporter and to the Children's Hearing to ensure that children are referred appropriately
Changes to procedures for Children's Hearings

Part 1 - Overarching Provisions

Functions of relevant agencies

Well-being of children - Section 1

6.8 Section 1 places a range of duties on relevant agencies with regards to the well-being of children. 'Relevant agencies' are defined within section 7.

6.9 Subsection 1 places a general duty on such agencies to assess the needs of children with respect to their well-being, to identify children who have unmet needs, and to ensure that appropriate action is taken.

6.10 Subsection 2 places duties on such agencies in regard to being alert to issues which adversely affect well-being and to promote the well-being of children.

6.11 Subsection 3 requires such agencies to act in the best interests of the child concerned and in accordance with good practice (which can be set out by Scottish Ministers within guidance issued by them under section 8).

6.12 Subsection 4 provides an illustrative list of things to which reference is to be made in construing what is meant by the term 'well-being'.

Action as to well-being - Section 2

6.13 Section 2 sets out the duties on agencies where they are aware that a child has (or may have) unmet needs.

6.14 Subsection 1 sets out a duty on relevant agencies to take action as they consider appropriate when they become aware of a child who has (or who may have) unmet needs with respect to well-being.

6.15 Subsection 2 sets out a duty on relevant agencies to take action as they consider appropriate where they are aware that a child poses a risk to the safety of another person.

6.16 Subsection 3 provides that any action taken in relation to addressing unmet needs, or in relation to where a child poses a risk to the safety of another person, should be directed towards the child or the child's circumstances, with a view to improving the child's situation.

6.17 Subsection 4 requires relevant agencies, following the taking of such action, to monitor the child's situation until satisfied that it is being addressed, and enables them to revise or discontinue the action if appropriate.

6.18 Subsection 5 requires relevant agencies to record the decisions they have taken on action and the reasons for those decisions, as well as the action it has taken or proposes to take. This subsection provides part of the framework for action plans.

6.19 Subsection 6 provides for action to be single agency or multi-agency.

Considering views of children - Section 3

6.20 Section 3 sets out duties on agencies to ascertain and have regard to the views of the child and relevant persons when making decisions as to the well-being of children.

6.21 Subsection 1 requires relevant agencies to seek to have means for ascertaining and recording the views of children and relevant persons.

6.22 Subsection 2 requires relevant agencies to have regard to the views of the child and relevant persons in taking any material decision for the purpose of the well-being of the child. Relevant agencies may choose to have regard to relevant views of other people.

6.23 Subsection 3 requires an agency, when having regard to a child's views, to take account of the age, maturity and capacity of the child. A child of 12 or more years of age is presumed to be able to form views (subsection 4).

Collaborative working - Section 4

6.24 Section 4 sets out requirements in relation to agencies collaborating with each other, and details what is to be done in this regard.

6.25 Subsection 1 sets out the general duty on agencies to co-operate in discharging their functions under Part 1 of the Bill. These include assessing needs, identifying children who have unmet needs and acting appropriately to improve a child's situation.

6.26 Subsection 2 requires agencies to make arrangements for promoting co-operation, evaluating it, and taking part in that process.

6.27 Subsection 3 places a duty on agencies to ensure that any arrangements for co-operation have adequate dispute resolution mechanisms.

6.28 Subsection 4 sets out the areas with reference to which arrangements for co-operation can be made. It is intended that local co-ordination and monitoring frameworks will be developed locally and are not to be constrained by geographical boundaries. It is envisaged that, for example, a local authority area could have a number of local co-ordination and monitoring frameworks based on geographical configuration of services and other relevant agencies.

6.29 Subsection 5 provides an illustrative list of aspects of co-operation.

Joint plans for collaborating - Section 5

6.30 Section 5 places duties on agencies when working together to produce joint plans and to appoint a person to take responsibility for implementation of the plan. It is intended that this person will fulfil the "lead professional" role as described in Getting it right for every child.

6.31 Subsection 1 requires agencies, when working with each other, to adopt a plan. It is intended that this would include a plan for taking action as to the well-being of a child. A person is to be appointed to take responsibility for ensuring that the plan is implemented.

6.32 Subsection 2 requires the designated person to record what is done in implementation of the plan.

6.33 Subsection 3 allows for the appointment of the designated person to change over time. It is envisaged that the person with such responsibility may change over time according to the needs of the child.

6.34 Subsection 4 provides that agencies are required still to meet their responsibilities to a child, notwithstanding designation of a responsible person. Subsection 5 allows these duties to be discharged by means of a joint plan.

6.35 Subsection 6 makes provision for review, revision and termination of joint plans.

Extent to which functions are exercisable - Section 6

6.36 Section 6 sets out limitations on the duties imposed on agencies in Part 1 of the draft Bill.

6.37 Subsection 1 provides that agencies should only do things under these new duties which are consistent with the proper exercise of their other functions.

6.38 Subsection 2 provides that agencies' duties extend to children residing in the agency's area. Subsection 3 provides that agencies are not prevented, because of the terms of subsection 2, from acting in relation to children residing in a different area. Subsection 4 defines agency functions for the purpose of section 6. Subsection 5 sets out the geographical limits for various relevant agencies.

Relevant agencies - Section 7

6.39 Section 7 defines relevant agencies for the purposes of Part 1 of the draft Bill. Reference is made to public bodies and non-public bodies.

6.40 Subsection 1 deals with public bodies. Those which are to be regarded as relevant agencies are local authorities (including their constituent parts), Health Boards, Special Health Boards, National Health Service trusts, and police forces. Subsection 3 allows, by order, Scottish Ministers to specify as a relevant agency any public body.

6.41 Subsections 2 and 4 allow, by order, Scottish Ministers to specify as a relevant agency any non-public body whose activities are of a public character and funded wholly or partly at the public expense.

6.42 Subsection 5 allows relevant agencies to be specified either individually or by description of type, and either as a whole or to a particular extent.

6.43 Subsection 6 sets out the Parliamentary procedure to be followed in relation to any order made by Scottish Ministers under section 7.

Exercise of functions

Guidance - Section 8

6.44 Section 8 makes express provision for Scottish Ministers to issue guidance to relevant agencies on the exercise of their functions under both the 1995 Act and the proposed Children's Services (Scotland) Act. This guidance can include good practice guidance. Subsection 5 obliges such agencies to have regard to guidance issued under this provision.

Equal opportunities - Section 9

6.45 Section 9 requires relevant agencies to exercise their functions in a manner which encourages equal opportunities and in particular the observance of the equal opportunity requirements.

Part 2 - Amendment of the Principal Act

Panel members not restricted to own area - Section 10

6.46 Section 10 removes restrictions on panel members sitting outwith their own areas.

6.47 Subsection (1) amends sections 39(3) and (5) of the 1995 Act to allow panel members from another area to sit on a Hearing. It requires that at least one member of the Hearing should be from the area for which the Hearing is constituted.

6.48 Subsections (2) and (3) amend sections 41(4)(i) and 93 of the 1995 Act to reflect these changes.

6.49 Subsection 4 amends Schedule 1 to the 1995 Act so that a children's panel member is eligible to be a member of a Children's Hearing constituted in any area, and makes other administrative provision.

Membership of the SCRA - Section 11

6.50 Section 11 amends the Local Government, etc. (Scotland) Act 1994, removing the Principal Reporter from the Administration (the Board) of the Scottish Children's Reporter Administration.

Legal representatives - Section 12

6.51 Section 12 makes detailed provision concerning appointment of legal representatives, in specified circumstances.

6.52 Subsection 1 introduces a new section 41A to the 1995 Act, setting out the criteria and process for appointment of a legal representative.

6.53 New section 41A(1) places a new duty on the Principal Reporter to consider the need to appoint a person as the child's legal representative to enable the child to participate effectively at the Hearing and, where necessary, to make such appointment.

6.54 New section 41A(2) places a new duty on the Principal Reporter to appoint a legal representative where a Hearing decision which includes secure accommodation or a movement restriction condition is likely.

6.55 New sections 41A(3) and (4) place a similar duty on the Children's Hearing. The criteria build on the current criteria in the Children's Hearings (Legal Representation) Rules 2002, expanded to include movement restriction conditions and to make reference to warrants and interim supervision requirements as set out above.

6.56 In line with existing provision, new section 41A(6) provides that the expenses of a legal representative are to be borne by the relevant local authority.

6.57 New section 41A(7) confirms that both a 'safeguarder' (as appointed under section 41(1)) and a legal representative can, if necessary, be appointed for a child. These roles fulfil different functions.

6.58 Subsection 2 makes adjustments to Scottish Ministers' power to make rules under section 42 of the 1995 Act, expanding the provision. Other adjustments (subsections 3 and 4) are made to section 70 and section 101 of the 1995 Act to take account of the new section 41A.

Review where child arrested by police - Section 13

6.59 Section 13 amends section 63 of the 1995 Act to enable the Reporter to liberate the child from detention in the place of safety while continuing to investigate and decide under section 56 whether to arrange a Hearing.

Disclosure of information - Section 14

6.60 Section 14 introduces a new section (46A) to the 1995 Act and enables a Children's Hearing to withhold information about the child where disclosure would be significantly against the child's interests. This applies at any time prior to disposal of the case.

6.61 New section 46A(2) provides for the application of this new power relating to disclosure, notwithstanding any requirement obliging an explanation to be given, or information to be provided about the case, or reasons for a decision to be given. In terms of section 46 of the 1995 Act there is a duty on the Children's Hearing to explain the substance of what has taken place to any person who has been excluded from part of the proceedings in order to obtain the views of the child or protect the child from significant distress. The Hearing need no longer provide such information if to do so would be significantly against the interests of the child. When giving reasons for a decision, other than a decision disposing of the case, the Hearing need not include information the disclosure of which would be significantly against the interests of the child.

Grounds for referral- Section 15

6.62 Section 15 changes the approach to referral to the Children's Hearing system. This is primarily set out in new sections 52A (grounds for referral) and 52B (situational condition). The new approach separates the tests for referral (referred to collectively in the Bill as the "grounds for referral") into three separate elements (referred to in the Bill as "conditions". These are:

That the child has unmet need with respect to well-being ("needs condition")
That a relevant situation applies ("situational condition")
That compulsory measures of supervision are necessary in relation to the child's needs ("supervision condition")

6.63 The needs condition mirrors the duty on agencies in section 2(1) of the draft Bill and is intended to ensure that there is a clear and consistent approach by agencies towards all children.

6.64 The new approach is also designed to provide clarity to agencies as to who should be referred by them to the Reporter.

6.65 Subsection 1 also introduces new section 52B (situational condition) to the 1995 Act and removes the existing section 52.

6.66 New section 52B sets out the 9 factors that can constitute a relevant situation. Some of these factors replicate exactly the existing conditions in section 52(2), for example, 52(2)(b) that the child has failed to attend school. Others have been developed from the existing conditions in section 52(2). They are intended to improve on the existing conditions and to address possible gaps such as self-harm by a child and exposure to domestic abuse. The factors focus on situations where a child may be subject to abuse, harm, ill-treatment, neglect or inappropriate care or supervision and there is a consequent adverse effect on a child's health, safety or development (section 52B(2)(c), (d), (e) and (f)). Section 52B(2)(g), (h) and (i) focus on where a child is, or may becomes, part of a household where there is abuse or ill-treatment and (h) explicitly covers the situation of a child being within a household where an adult is subject to domestic abuse.

6.67 Section 15(2) of the draft Bill provides for amendment to section 53 of the principal Act. It creates a duty on any relevant agency (as defined in part 1 of the draft Bill) to refer a child to the Reporter where the agency has reasonable cause to believe that the needs condition is met and that the other 2 elements (relevant situation and need for compulsion) may be met. Any other person, including individuals, may refer a child to the Reporter if they have reasonable cause to believe that the three elements of the test may be met. The police retain a duty to refer a child to the Reporter when making a report to the prosecutor.

6.68 Subsections 3 to 9 amend other relevant provisions in the 1995 Act to essentially take consequential account of the changes to the tests for referral described above. The changes will be to sections: 54 (reference to the Principal Reporter by court); 56 (initial investigation by the Principal Reporter); 65 (referral to, and proceedings at, Children's Hearing); 68 (application to sheriff to establish grounds of referral); 68A restrictions on evidence in certain cases involving sexual abuse); 68B (exceptions to restrictions under section 68A); 69 (continuation or disposal of referral by Children's Hearing); and 85 (application for review of establishment of grounds of referral. The markers at subsections 7 and 9 relating to sections 68A, 68B and 85 indicate areas which we know will need to be amended but where finalised drafting has yet to be prepared. Subsections 10 and 11 provide for consequential changes to the Criminal Procedure (Scotland) Act 1995 and the Antisocial Behaviour etc. (Scotland) Act 2004, again to ensure appropriate carry-through of the substantive changes detailed above.

Procedure for establishing grounds of referral - Section 16

6.69 Section 16 provides for an expedited procedure to determine whether the situational condition (see grounds for referral above) is established where the relevant person has accepted the situational condition but where the child is not capable of understanding or has not understood the explanation of the situational condition. The section amends the 1995 Act to introduce new section 68ZA.

6.70 Subsection 2 introduces a new section 68ZA to the 1995 Act. New sections 68ZA(1) and (2) allow the establishment of grounds for referral by the sheriff without a hearing being held for the purpose.

6.71 New sections 68ZA(3) to (6) make provision for when hearings before the sheriff on evidence are to be held. New section 68ZA(7) allows the sheriff, when having a Hearing, to dispense with the hearing of evidence unless satisfied that in all the circumstances of the case the evidence should be heard.

6.72 New section 68ZA(8) sets out time limits for the determination of an application to the sheriff under the expedited procedure. Provision is made for a time limit of 7 days to establish grounds for referral when there is not to be a hearing and if there is to be a hearing for the application to be heard within 28 days. New sections 68ZA(9) and (10) provide for amendments to the 1995 Act apply relevant parts of section 68 of that Act to the expedited procedure.

6.73 Subsections 3 to 5 of section 16 make other adjustments of a technical nature to sections 41, 69 and 85 of the 1995 Act, to include reference to the new section 68ZA.

Interim supervision requirements - section 17

6.74 Section 17 introduces interim supervision requirements as an additional option for the Children's Hearing. This section amends the 1995 Act to introduce a new section 70A.

6.75 New section 70A(2) provides that a Children's Hearing may make an interim supervision requirement provided certain conditions are met. The power to make an interim supervision requirement is without prejudice to any other power under Part II of the 1995 Act.

6.76 New section 70A(3) sets out the conditions. The Hearing must be unable to dispose of the case and an interim supervision requirement must be necessary to safeguard or promote the child's welfare.

6.77 New sections 70A(1) and (4) provide that the power to make an interim supervision requirement applies at any Hearing other than a Hearing arranged under section 59(2) (Section 59: Initial Hearing of case of child subject to Child Protection Order) and a Hearing arranged under section 63(1) where no situational condition is presented at the Hearing.

6.78 The duration of an interim supervision requirement and the making of further interim supervision requirements mirror the provisions for warrants. In terms of new section 70A(5) each interim supervision requirement may last for a maximum of 22 days. Under new section 70A(6) subsequent hearings may issue further interim supervision requirements. Under new section 70A(7) where an application to the sheriff to determine whether a situational condition is established is in process (or has been determined but the Children's Hearing has not yet taken place), the total maximum period for which Hearings may make a child subject to interim supervision requirements is 66 days.

6.79 New section 70A(8) provides for the overall maximum 66 day period to take account of any combination of days during which a child is subject to either interim supervision requirement or a warrant.

6.80 New section 70A(9) and (11) provide for consequential amendments to the 1995 Act in order to apply to interim supervision requirements some existing provisions relating to supervision requirements.

6.81 An interim supervision requirement may include a movement restriction condition under section 70(3)(b). However, new section 70A(10) provides that an interim supervision requirement may not require the child to reside anywhere other than with a relevant person.

6.82 New sections 70B(1) to (4) provide for application to the sheriff for a further interim supervision requirement where an application to the sheriff for a finding as to whether a situational condition is established is in process (or has been determined but the Children's Hearing has not yet taken place).

6.83 New section 70B(3) provides for amendment to the existing appeal process in section 51 of the 1995 Act. Amendments to section 51(5) expand the options available to the sheriff on appeal to include substituting an interim supervision requirement when an appeal against certain warrants is successful. A new section 51(8A) is added which requires an appeal against an interim supervision requirement to be disposed of within 7 days of lodging.

Duties of agencies regarding supervision requirements - section 18

6.84 Section 18 of the draft Bill provides for the insertion of a new section 71B in the 1995 Act creating a new power for a Children's Hearing to impose duties on any relevant agency.

6.85 Section 71B(1)(a) provides that a hearing may impose a duty of giving effect to a supervision requirement in such regards as the Hearing considers appropriate. This provision is based upon the existing provision in section 71(1) of the 1995 Act which places a duty on the relevant local authority to give effect to a supervision requirement, while allowing for an appropriate degree of specification.

6.86 Section 71B(1)(b) provides that a hearing may impose other duties for the purpose of enabling a child to comply with a supervision requirement. This provision is based upon the existing provision in section 70(3A) of the 1995 Act which enables a hearing to impose specified duties on the relevant local authority.

6.87 Section 71B(2) requires such duties to be set out in the supervision requirement, and details the limits on them.

6.88 Section 71B(4) to (11) provide for an enforcement process where an agency appears to be in breach of a duty. The process is based upon that which currently applies in relation to duties imposed on a local authority under section 70(3A) of the 1995 Act.

6.89 Section 71B(3) provides for an agency which has had duties imposed on it to be able to request review by a children's hearing. Further refinement of this subsection and related amendments will take place.

Placing a child in secure accommodation - section 19

6.90 Section 19 amends section 70(9A)(a) of the 1995 Act to remove the discretion of the person in charge of the residential establishment, and the chief social work officer of the relevant local authority, where a Hearing specifies that the child is liable to be placed and kept in secure accommodation.

Warrants - section 20

6.91 Section 20 of the draft Bill amends sections 66, 67 and 69 of the 1995 Act. It is intended that section 66 should apply where there is an application to the sheriff under section 65 (for a finding as to whether a situational condition is established), with section 69 applying where a situational condition is accepted or established (and no section 65 application is in process). It is intended that warrants under section 45 or 63 should continue to apply in the particular circumstances of those sections.

6.92 Section 20(1)(a) amends the conditions for granting a warrant in section 66(2) of the 1995 Act by removing reference to the child failing to comply with a requirement under section 69(3). This reference is moved to section 69(4) by section 20(3)(c).

6.93 Section 20(1)(c) removes the requirement in section 66(5) of the 1995 Act for the Principal Reporter to show cause for continuation of the warrant. It also removes the concept of continuing the warrant in force and provides for hearings to issue a fresh warrant. Section 20(1)(d) amends section 66(6) in the 1995 Act to clarify that an order in relation to secure accommodation is contained within a warrant.

6.94 Section 20(2) amends section 67 of the 1995 Act to reflect the amendments to section 66.

6.95 Section 20(3) amends section 69 of the Principal Act to reflect the amendments to section 66. Section 20(3)(b) provides for a new section 69(2A) to address continuation of a hearing under section 69 for reasons other than for further investigation.

6.96 Section 20(3)(d) and (f) are provided to ensure each warrant under section 66 or 69 provides the same authority for action in relation to the child. Section 20(3)(g) provides for a new section 69(9A), clarifying that further warrants may be granted by a hearing.

Part 3 - General

Interpretation - section 21

6.97 Subsection 3 defines children, for the purposes of Part 1 of the draft Bill, as persons under 18.

Commencement and short title - section 22

6.98 Provision is made for Scottish Ministers to bring the Act into force by order made by statutory instrument and allows for transitional provisions and savings to be made in that order.

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The Scottish Government

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Getting it right for every child: Draft Children’s Services (Scotland) Bill Consultation

6 - Draft Bill and Explanatory Notes