Before applying for any Court Order or taking emergency action, agencies will try to work with families to ensure the child is protected. Court Orders or emergency action will only be taken where it appears that a child may be at risk of ‘significant harm’ and a Court Order or emergency action is necessary to protect the child.
Child Protection Order
If it is believed that your child may be in immediate danger then an application may be made for a Child Protection Order.
Under Section 57 (1) Children (Scotland) Act 1995, anyone can apply for a Child Protection Order if they have reason to believe a child may be at risk of ‘significant harm’.
Under Section 57 (2) Children (Scotland) Act 1995, the local authority can apply for a Child Protection Order if they have reason to suspect a child to be at risk. Social Work Services usually applies for the Child Protection Order on behalf of the local authority. Application is made to a Sheriff.
If an application is successful, the Sheriff can order that your child be removed from their home to a safe place, or prevent the removal of your child, for example, from a hospital or from their grandparents’ home. The Sheriff can attach conditions to the Order to ensure the protection of your child, for example, a condition that they have no contact with a particular ‘named person’ or that your child must have a medical examination. A Child Protection Order lasts up to eight days.
If a Child Protection Order has been granted, you have the right to apply to the Sheriff for the Order to be recalled or varied. This can be done prior to the initial Children’s Hearing on the second day.
The Reporter to the Children’s Hearing can also recall this Order during this time, if it is believed the Order is no longer required.
If no application for recall is made, the Order will proceed to a full Children’s Hearing on the eighth day, at which point the Children’s Hearing can make any necessary arrangements to protect your child through other legal measures.
If a Child Protection Order is sought for your child you should seek legal advice at the start of this process. Legal aid may be available.
Child Assessment Order
Under Section 55 (1) of the Children (Scotland) Act 1995 the local authority can apply for a Child Assessment Order if they have reason to suspect that your child has suffered or is likely to suffer ‘significant harm’, that an assessment is necessary and this assessment is being denied.
A Child Assessment Order allows for your child to be seen and where necessary allows for an assessment of your child’s health and development to be undertaken.
A Child Assessment Order lasts no more than seven days.
The Sheriff can attach conditions to the Order to ensure the safety and welfare of the child and to make sure the Order is carried out. For example, the Sheriff may attach a condition that your child lives at a particular place while the assessment is being carried out.
On application to the Sheriff for a Child Assessment Order, if the Sheriff believes that the conditions for making a Child Protection Order exist, he/she will issue a Child Protection Order instead.
If a Child Assessment Order is sought for your child you should seek legal advice at the start of this process. Legal aid may be available.
Under the Age of Legal Capacity (Scotland) Act 1991, depending on their age and understanding, your child has the right to agree or refuse to have a medical examination, assessment or treatment and their consent will be sought before any medical assessment will be carried out.
Exclusion Order
Only a local authority can apply for an Exclusion Order under Section 76 (1) Children (Scotland) Act 1995.
Contained within the application there must be a person identified who is capable of taking responsibility for the child and who will live, or is living in the family home.
Where a Sheriff is satisfied that the conditions for making an Exclusion Order exist, he/she can order that a ‘named person’ be ejected or excluded from your child’s family home to ensure your child’s protection.
An Exclusion Order can last up to six months and the Sheriff can attach conditions to the Order to ensure your child’s protection. For example, the police can be issued with powers of arrest without warrant, which allows them to arrest the 'named person’ if they believe them to be in danger of breaching the Exclusion Order or one of the conditions attached. The Sheriff can also attach a condition that the ‘named person’ must not go within the vicinity of the child’s home or school or have any contact with the child.
The ‘named person’ has the right to appear in front of the Sheriff prior to an Exclusion Order being granted to state their case. The Sheriff will take their views into account before any decision to grant an Order is made.
Where a Sheriff believes grounds exist for making a Child Protection Order the Sheriff may grant a Child Protection Order instead of an Exclusion Order and the child may be removed from their home to a place of safety, rather than the ejection or exclusion of a ‘named person’ from the child’s home.
Emergency Police powers
In an emergency situation, where a police officer has reasonable cause to believe that the conditions for making a Child Protection Order are satisfied and it is not practical in the circumstances to make such an application to the Sheriff, then the officer may remove the child to a place of safety (Section 61 (5) Children (Scotland) Act 1995).
The power to remove the child only lasts 24 hours, thereafter the police (or another person) need to apply to the Sheriff for a Child Protection Order to secure the child’s place of safety.