Section 105(4).
1(1)The Lands Clauses Consolidation (Scotland) Act 1845 shall be amended in accordance with this paragraph.S
(2)In section 7 (which makes provision for certain persons to have full power to sell and convey land)—
(a)after the word “husbands,” insert “ persons who, within the meaning of Part I of the Children (Scotland) Act 1995, are entitled to act as the legal representatives of a child, ”;
(b)after the words “guardians for” the words “persons under a legal disability by reason of nonage” shall cease to have effect; and
(c)after the word “whether”, the words “persons under legal disability by reason of nonage” shall cease to have effect;
(d)after the word “such” where it appears for the sixth time, insert “ legal representatives, ”; and
(e)after the word “such” where it appears for the seventh time, the words “persons under legal disability by reason of nonage” shall cease to have effect.
(3)In section 67 (certain payments to persons under a disability to be deposited with the Bank)—
(a)after the word “husband,” insert “ a person who, within the meaning of Part I of the Children (Scotland) Act 1995, is entitled to act as a legal representative of a child ”; and
(b)the words “persons under legal disability by reason of nonage” shall cease to have effect.
(4)In section 69 (nomination of trustees to whom certain payments of under £200 may be paid)—
(a)the words “legal disability by reason of nonage” shall cease to have effect; and
(b)after the word “husbands,” insert “ legal representatives of a child (within the meaning of Part I of the Children (Scotland) Act 1995), ”.
(5)In section 70 (sums of under £20 to be paid to certain persons), after the word “husbands,” insert “ legal representatives of a child (within the meaning of Part I of the Children (Scotland) Act 1995), ”.
2(1)The Judicial Factors (Scotland) Act 1849 shall be amended in accordance with this paragraph.S
(2)In section 1 (interpretation), the words from “the word ”Guardian” to” “years;” shall cease to have effect.
(3)In section 10 (duty of accountant to supervise judicial factors and others), for the words “guardians and tutors” substitute “ , tutors ”.
(4)Section 25(2) (guardians to be subject to the provisions of the Act), shall cease to have effect.
(5)In section 27 (limitation by court of amount of caution), the words “guardians and” shall cease to have effect.
(6)In section 31 (power of court to remove tutors etc.), the word “guardian” shall cease to have effect.
(7)In section 32 (provisions of the Act not to alter existing powers, rights and duties of offices), the word “guardian,” shall cease to have effect.
(8)In section 33 (power of accountant to obtain information from banks), the words “guardians or” shall cease to have effect.
(9)In section 34 (petitions for discharge of office), in both places where it occurs, the word “guardian,” shall cease to have effect.
(10)In section 34A (act of sederunt to provide for other forms of discharge), for the words “, death or coming of age” substitute “ or death ”.
(11)In section 36 (records held by accountant to be open to inspection), the word “guardianships,” shall cease to have effect.
(12)In section 37 (accumulation of interest on accounts), the word “guardian,” shall cease to have effect.
(13)In section 40 (act of sederunt to regulateinter alia application of the Act to offices other than judicial factors), in both places where it occurs, the word “guardians,” shall cease to have effect.
3SIn section 24 of the Improvement of Land Act 1864 (representation of persons under disability in certain applications etc.), for the words from the beginning to “feoffee” where it last occurs substitute “ Any person entitled to act as the legal representative of a person under legal disability by reason of non-age or mental incapacity shall be entitled to act on behalf of that person for the purposes of this Act; and any trustee, judicial factor, executor or administrator shall, subject to any other enactment, have the same rights and powers for the purposes of this Act as if the property vested in or administered by him had been vested in him in his own right; but no such legal representative ”.
4SIn section 3 of the Judicial Factors (Scotland) Act 1880 (interpretation), in the definition of “judicial factor”—
(a)for the word “absentis,” substitute “ absentis and ”; and
(b)the words from “and” to “required,” shall cease to have effect.
5SIn section 13 of the Heritable Securities (Scotland) Act 1894 (persons to have powers conferred by Act where person subject to legal disability), for the words “and trustees” substitute “and—
(a)any person entitled, within the meaning of Part I of the Children (Scotland) Act 1995, to act as the legal representative of a child; and
(b)trustees”.
6SIn section 2 of the Trusts (Scotland) Act 1921 (interpretation)—
(a)in the definition of “trustee” the words “(including a father or mother acting as guardian of a child under the age of 16 years)” shall cease to have effect; and
(b)after the definition of “trustee” insert—
““curator” and “tutor” shall have respectively the meanings assigned to these expressions by section 1 of the Judicial Factors Act 1849;
“guardian” shall not include any person who, within the meaning of Part I of the Children (Scotland) Act 1995, is entitled to act as the legal representative of a child;”.
7(1)The Children and Young Persons (Scotland) Act 1937 shall be amended in accordance with this paragraph.S
(2)In section 12 (cruelty to persons under sixteen)—
(a)in subsection (1), for the words from “has the custody” to “that age” substitute “ who has parental responsibilities in relation to a child or to a young person under that age or has charge or care of a child or such a young person, ”;
(b)in subsection (2)(a), after the words “young person” insert “ or the legal guardian of a child or young person ”; and
(c)in subsection (4), for the words from “of whom” to “or care” substitute “ and he had parental responsibilities in relation to, or charge or care of, that child or young person ”.
(3)In section 15 (causing or allowing persons under sixteen to be used for begging), in each of subsections (1) and (2), for the words “the custody” substitute “ parental responsibilities in relation to, or having ”.
(4)In section 22 (exposing children under seven to risk of burning), for the words from “having the custody” to “seven years” substitute “ and who has parental responsibilities in relation to a child under the age of seven years or charge or care of such a child ”.
(5)In section 27 (interpretation)—
(a)the first paragraph shall cease to have effect; and
(b)in the second paragraph, for the words “the custody of” substitute “ parental responsibilities in relation to ”.
(6)In section 110(1) (interpretation)—
(a)after the definition of “local authority” insert—
““parental responsibilities” has the same meaning as in section 1(3) of the Children (Scotland) Act 1995 and includes the responsibilities which a father would have as a parent but for the operation of section 3(1)(b) of that Act;”;
(b)for the definition of “Place of Safety”, substitute
““place of safety” has the meaning give by section 93(1) of the Children (Scotland) Act 1995;”; and
(c)for the definition of “Residential establishment” substitute
““residential establishment” has the meaning given by the said section 93(1);”.
Commencement Information
I1Sch. 4 para. 7 wholly in force at 1.4.1997; Sch. 4 para. 7 not in force at Royal Assent see s. 105(1); Sch. 2 para. 7(1)(5)(6)(a) in force at 1.11.1996 by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2); Sch. 4 para. 7 in force at 1.4.1997 insofar as not already in force by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (7.3.1997) by S.I. 1997/744, arts. 2, 3)
8E+W+SIn section 182(1) of the Mines and Quarries Act 1954 (interpretation), in the definition of “parent”, for the words from “means” to “and includes” substitute “ means a parent of a young person or any person who is not a parent of his but who has parental responsibility for him (within the meaning of the M1Children Act 1989) or who has parental responsibilities in relation to him (within the meaning of section 1(3) of the Children (Scotland) Act 1995), and includes ”.
9SIn section 11(1) of the Matrimonial Proceedings (Children) Act 1958 (reports as to arrangements for future care and upbringing of children), for the words from the beginning to “the court may” substitute “ Where the court is considering any question relating to the care and upbringing of a child, it may ”.
10E+W+SIn section 176(1) of the Factories Act 1961 (interpretation)—
F1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)in the definition of “parent”, for the words from “means” to “and includes” substitute “ means a parent of a child or young person or any person who is not a parent of his but who has parental responsibility for him (within the meaning of the Children Act 1989) or who has parental responsibilities in relation to him (within the meaning of section 1(3) of the Children (Scotland) Act 1995), and includes ”.
Textual Amendments
F1Sch. 4 para. 10(a) repealed (1.9.1997) by 1996 c. 56, s. 582(2), Sch. 38 Pt. II (with Sch. 39); S.I. 1997/1623, art. 2(2)
Commencement Information
I2Sch. 4 para. 10 wholly in force at 1.4.1997; Sch. 2 para. 10 not in force at Royal Assent see s.105(1); Sch. 2 para. 10(b) in force (1.11.1996) by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2) ; Sch. 4 para. 10 in force at 1.4.1997 insofar as not already in force by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (7.3.1997) by S.I. 1997/744, arts. 2, 3)
11SIn section 145(33) of the Education (Scotland) Act 1962 (interpretation), for the words “the actual custody of” substitute “ parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to, or has the care of, ”.
12(1)The Registration of Births, Deaths and Marriages (Scotland) Act 1965 shall be amended in accordance with this paragraph.S
(2)In section 20(3)(a) (re-registration of birth of person under sixteen), for sub-paragraphs (i) and (ii) substitute “ , by any person (whether or not he has himself attained the age of sixteen years) having parental responsibilities in relation to that person; ”.
(3)In section 43 (recording of baptismal name or change of name or surname)—
(a)in subsection (3), the words from “In this” to the end shall cease to have effect;
(b)in subsections (6)(a) and (7), for the words “the parent or guardian” substitute “ the qualified applicant ”;
(c)after subsection (9) insert—
“(9A)In this section “qualified applicant” means—
(a)where only one parent has parental responsibilities in relation to the child, that parent;
(b)where both parents have such responsibilities in relation to the child, both parents; and
(c)where neither parent has such responsibilities, any other person who has such responsibilities.
(9B)A person may be a qualified applicant for the purposes of this section whether or not he has attained the age of sixteen years”; and
(d)subsection (10) shall cease to have effect.
(4)In section 53(3)(c) (offence of failure by parent to give information concerning birth), after the word “fails” insert “ without reasonable excuse ”.
(5)In section 56(1) (interpretation), after the definition of “parentage” insert—
““parental responsibilities” has the meaning given in section 1(3) of the Children (Scotland) Act 1995;”
13SWhere, at any time after the coming into force of the M2Age of Legal Capacity (Scotland) Act 1991 but before the coming into force of—
(a)sub-paragraph (2) of paragraph 12 of this Schedule, a person’s mother or father, who had not at that time attained the age of sixteen years, purported to apply under section 20(3)(a) of that Act to re-register the person’s birth, the mother, or as the case may be the father, shall be presumed to have had legal capacity to make the application; or
(b)sub-paragraph (3)(c) of that paragraph, a person who had not at that time attained the age of sixteen years purported to make an application under any provision of section 43 of that Act (“making an application” including for the purposes of this sub-paragraph, without prejudice to the generality of that expression, signing and delivering a certificate in accordance with subsection (3) of that section) the person shall be presumed to have had legal capacity to make the application.
14SIn section 8 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1966 (variation and recall of certain orders in respect of maintenance, custody etc.)—
(a)in subsection (1), after paragraph (c) insert—
“(cc)an order under section 11 of the Children (Scotland) Act 1995 (orders in respect of parental responsibilities etc.) or under any earlier enactment relating to the custody, care or supervision of a child, or access to a child;”; and
(b)in subsection (6), in the definition of “sheriff”, in paragraph (a), for the words “or (c)” substitute “ , (c) or (cc) ”.
15(1)The Social Work (Scotland) Act 1968 shall be amended in accordance with this paragraph.
(2)In section 1(1) (duty of local authority to implement statutory duties not falling on other authorities), after the word “Act” insert “ or Part II of the Children (Scotland) Act 1995 ”.
(3)In section 4 (arrangements for provision of assistance to local authorities by other bodies), after “1984” insert “ or Part II of the Children (Scotland) Act 1995 ”.
(4)In section 5 (powers of the Secretary of State in relation to certain functions of local authorities)—
(a)in subsection (1) after the word “Act” insert “ and Part II of the Children (Scotland) Act 1995 ”;
(b)in subsection (1B)—
(i)before paragraph (o), the word “and” shall cease to have effect; and
(ii)at the end add “; and
(p)Part II of the Children (Scotland) Act 1995.”;
(c)in subsection (2), in paragraph (c) for the words “and (o)” substitute “ , (o) and (p) ”; and
(d)for subsection (3) substitute—
“(3)Without prejudice to the generality of subsection (2) above, regulations under this section may make such provision as is mentioned in subsection (4) of this section as regards—
(a)the boarding out of persons other than children by local authorities and voluntary organisations, whether under any enactment or otherwise; and
(b)the placing of children under paragraph (a), or the making of arrangements in respect of children under paragraph (c), of section 26(1) of the Children (Scotland) Act 1995, by local authorities.
(4)The provision referred to in subsection (3) of this section is—
(a)for the recording—
(i)by local authorities and voluntary organisations, of information relating to those with whom persons are so boarded out, or who are willing to have persons so boarded out with them; and
(ii)by local authorities, of information relating to those with whom children are so placed or with whom such arrangements are made or who are willing to have children so placed with them or to enter into such arrangements;
(b)for securing that—
(i)persons are not so boarded out in any household unless it is for the time being approved by such local authority or voluntary organisation as may be prescribed by the regulations; and
(ii)children are not so placed or, in accordance with such arrangements, provided with accommodation, in any household unless it is for the time being approved by the local authority placing the child or as the case may be making the arrangements;
(c)for securing that, where possible, the person with whom a child is so placed or with whom such arrangements are made is either of the same religious persuasion as the child or gives an undertaking that the child shall be brought up in that persuasion;
(d)for securing—
(i)that a person who is, and the place in which he is, so boarded out by a local authority or voluntary organisation is supervised and inspected by that authority or organisation; and
(ii)that a child who is, and the place in which he is, so placed or, in accordance with such arrangements, provided with accommodation, by a local authority is supervised and inspected by that authority,
and that he shall be removed from the place in question if his welfare appears to require it.
(5)In subsections (3) and (4) of this section, “child” has the same meaning as in Chapters 2 and 3 of Part II of the Children (Scotland) Act 1995.”
(5)In section 5B (requirement to establish complaints procedures)—
(a)in subsection (4), in paragraph (b), for the words “rights in respect of” substitute “ responsibilities and parental rights (within the meaning of section 1(3) and section 2(4) respectively of the Children (Scotland) Act 1995) in relation to ”; and
(b)in subsection (5), at the end of the definition of “child”, the words from “ and ” to the end of the subsection shall cease to have effect.
(6)In section 6 (power to enter certain establishments to conduct examination)—
(a)in subsection (1)—
(i)in paragraph (a), after the word “1984” insert “ or Part II of the Children (Scotland) Act 1995 ”;
(ii)in paragraph (b), sub-paragraph (ii) shall cease to have effect;
(iii)in paragraph (c), after the word “person” insert “ , other than a child, ”; and
(iv)after paragraph (c) add—
“(cc)any place where a child is for the time being accommodated under paragraph (a) of, or by virtue of paragraph (c) of, section 26(1) of the Children (Scotland) Act 1995.”; and
(b)in subsection (2), after the words “1984” insert “ or Part II of the Children (Scotland) Act 1995 ”.
(7)For subsection (1) of section 6A (power of the Secretary of State to hold inquiries), substitute—
“(1)Without prejudice to section 6B(1) of this Act, the Secretary of State may cause an inquiry to be held into—
(a)the functions of a local authority under this Act or any of the enactments mentioned in section 5(1B) of this Act;
(b)the functions of an adoption society, within the meaning of section 65 of the M3Adoption (Scotland) Act 1978;
(c)the functions of a voluntary organisation in so far as those functions relate to establishments to which sections 61 to 68 of this Act apply;
(d)the detention of a child under—
(i)section 57 of the M4Children and Young Persons (Scotland) Act 1937; or
(ii)section 206 or 413 of the M5Criminal Procedure (Scotland) Act 1975; or
(e)the functions of the Principal Reporter under Part III of the M6Local Government (Scotland) Act 1994, the Children (Scotland) Act 1995 or any other enactment.”
(8)In section 9 (powers of the Secretary of State with regard to training etc.), in subsections (1) and (2), after the word “Act” insert “ or Part II of the Children (Scotland) Act 1995 ”.
(9)In section 10(1) (making of grants and loans for social work), for the words “and (l)” substitute “ , (l) and (p) ”.
(10)In section 11(1) (local authority authorised by Secretary of State to purchase compulsorily land), in subsection (1), after the word “Act” insert “ or Part II of the Children (Scotland) Act 1995 ”.
(11)In section 12 (general social welfare services of local authorities), for the words from “be given” in subsection (1) to “a person” in subsection (2)(b) substitute— “, subject to subsections (3) to (5) of this section, be given in kind or in cash to, or in respect of, any relevant person.
(2)A person is a relevant person for the purposes of this section if, not being less than eighteen years of age, he is”.
(12)In section 28 (burial or cremation)—
(a)in subsection (1), after the word “from,” insert “ or was a child being looked after by, ”; and
(b)after subsection (2) add—
“(3)In subsection (1) of this section, the reference to a child being looked after by a local authority shall be construed in accordance with section 17(6) of the Children (Scotland) Act 1995.”.
(13)In section 29 (power of local authority to defray expenses of parents etc. visiting persons accommodated by a local authority or attending certain funerals)—
(a)in subsection (1)—
(i)for the words from “a person” to “respect” substitute— “—
(a)a person, other than a child, in the care of the authority or receiving assistance from the authority; or
(b)a child who is being looked after by the authority,
in respect ”;
(ii)after the words “visiting the person” insert “ or child ”; and
(iii)for the words “the person”, where they occur for the second time, substitute “ him ”;
(b)in subsection (2), for the words from “a person” to “for” substitute— “—
(a)a person, other than a child, who had been in the care of the authority or receiving assistance from the authority; or
(b)a child who had been looked after by the authority,
for ”; and
(c)after subsection (2), add—
“(3)In subsections (1) and (2) above, references to a child looked after by a local authority shall be construed as is mentioned in subsection (3) of section 28 of this Act.”.
(14)Part III (children in need of compulsory measures of care) shall cease to have effect, with the exception of subsections (1) and (3) of section 31 and the amendments provided for by the said subsection (3) and contained in Schedule 2 to that Act.
(15)In section 59(1) (provision and maintenance of residential and other establishments) after the word “Act,”, where it occurs for the second time, insert “ or under Part II of the Children (Scotland) Act 1995, ”
F2(16). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(17)In section 78 (duty to make contributions in respect of children in care etc.)—
(a)in subsection (1)—
(i)for the words “has been received into care under Part II of this Act” substitute “ is being looked after by a local authority ”; and
(ii)in paragraph (a), for the words “his father and mother” substitute “ any natural person who has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to him ”; and
(b) for subsection (2) substitute—
“(2)This Part of this Act applies to any supervision requirement which, under paragraph (a) of section 70(3) of the Children (Scotland) Act 1995, requires the child concerned to reside in a place or places other than his own home.”.
(18)In section 78A (recovery of contributions), in subsection (2)(a), for the words “in their care or under their supervision” substitute “ looked after by them ”.
(19)In section 79 (recipients of contributions)—
(a)in subsection (1), for the words “in the care or under the supervision of” substitute “ looked after by ”; and
(b)in subsection (2), for the words “having the care or supervision of” substitute “ looking after ”.
(20)In section 80 (enforcement of duty to make contributions)—
(a)in subsection (1), for the words from “received” to “requirement” substitute “ looked after by a local authority ”;
(b)in subsection (4), for paragraphs (a) and (b) substitute “ throughout the period during which he is looked after by a local authority ”;
(c)in subsection (5), for the words “is the maintainable child’s father or mother” substitute “ , being a natural person, has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to the maintainable child ”; and
(d)in subsection (7), for the words “having the care or supervision of” substitute “ looking after ”.
(21)In section 82(1) (recovery of arrears of contributions), for the words “having the care or supervision of” substitute “ looking after ”.
(22)In section 83(2) (variation of trusts where person in whose care a child has been residing is for the time being residing in England, Wales or Northern Ireland), for the words “having the care or supervision of” substitute “ looking after ”.
(23)After section 83 insert—
In this Part of this Act, references to a child being looked after by a local authority shall be construed in accordance with section 17(6) of the Children (Scotland) Act 1995.”.
(24)In section 86 (adjustments between local authorities as regards certain expenditure)—
(a)in subsection (1)—
(i)in paragraph (a), after the word “Act” insert “ , or under section 25 of the Children (Scotland) Act 1995, ”; and
(ii)in paragraph (b), for the words from “of services” to “Act”, where it occurs for the second time, substitute “ , or under or by virtue of Part II of the said Act of 1995, of services and facilities for a person ordinarily so resident (including, in the case of a child, any expenses incurred after he has ceased to be a child, and, in the event of another local authority taking over, under section 25(4) of that Act, the provision of accommodation for him, ” ); and
(b)in subsection (3), after the words “1989” insert “ or provided with accommodation under paragraph (a) of, or by virtue of paragraph (c) of, section 26(1) of the Children (Scotland) Act 1995 ”.
(25)In section 87 (charges which may be made for services and accommodation), in each of subsections (1) and (1A), after the words “1984” there shall be inserted “ or under or by virtue of Part II of the Children (Scotland) Act 1995 ”.
(26)Section 88 (duty of parents to notify change of address) shall cease to have effect.
(27)In section 90(1) (power to make regulations, orders or rules), the words “(other than orders under section 52 and 58 and Part V of this Act)”) shall cease to have effect.
(28)In section 94(1) (interpretation)—
(a)the definition of “children’s panel” and of “children’s hearing” shall cease to have effect;
(b)the definition of “compulsory measures of care” shall cease to have effect;
(c)in the definition of “establishment”, after the word “Act,” insert “ or of Part II of the Children (Scotland) Act 1995, ”;
(d)the definition of “guardian” shall cease to have effect;
(e)for the definition of “parent” substitute—
““parent” means either parent or both parents, except that where the child was born out of wedlock and the parents have not subsequently married each other it means the natural mother but not the natural father;”;
(f)the definition of “place of safety” shall cease to have effect;
(g)in the definition of “prescribed”—
(i)in paragraph (a), for the words “sections 3 and 36” substitute “ section 3 ”; and
(ii)paragraph (b) shall cease to have effect;
(h)in the definition of “residential establishment”, after the word “Act” insert “ or of Part II of the Children (Scotland) Act 1995 ”;
(i)the definition of “school age” shall cease to have effect;
(j)in the definition of “supervision requirement”, for the words “section 44(1) of this Act” substitute “ section 70(1) of the Children (Scotland) Act 1995 ”.
(k)for the definition of “training school” substitute—
““training school” has the meaning assigned to it by section 180(1) of the Children and Young Persons Act (Northern Ireland) 1968;”)
(29)In section 97 (provisions of the Act which extend to England and Wales)—
(a)subsection (1), the words “section 44(1) (except head (b)) and (1A)”, “section 58” and “Part V” shall cease to have effect; and
(b)subsections (2) and (3) shall cease to have effect.
(30)In Schedule 2 (general adaptations of Part IV of M7Children and Young Persons (Scotland) Act 1937), for paragraph 1 substitute—
“1Any reference to a child or to a young person shall be construed as a reference to a child as defined in section 93(2)(b) of the Children (Scotland) Act 1995.”.
Textual Amendments
F2Sch. 4 para. 15(16) repealed (1.4.2002) by 2001 asp 8, s. 80(1), Sch. 4; S.S.I. 2002/162, art. 2 (g)(i) (subject to arts. 3-13)
Commencement Information
I3Sch. 4 para. 15 wholly in force at 1.4.1997; Sch. 4 para. 15 not in force at Royal Assent see s. 105(1); Sch. 4 para. 15(1)(5)(17(a)(ii)(20)(c)(28)(d)(e) in force at 1.11.1996 by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2); Sch. 4 para. 15 in force at 1.4.1997 insofar as not already in force by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (7.3.1997) by S.I. 1997/744, arts. 2, 3)
Marginal Citations
16SIn Schedule 5 to the Children and Young Persons Act 1969, paragraphs 57 and 65(1) (which relate to the provision of accommodation for children outside Scotland) shall cease to have effect.
17(1)The Chronically Sick and Disabled Persons Act 1970 shall be amended in accordance with this paragraph.S
(2)In section 18(2) (information as to accommodation of younger with older persons), for the words “having functions under the Social Work (Scotland) Act 1968” substitute “ , in respect of their functions both under the Social Work (Scotland) Act 1968 and under the Children (Scotland) Act 1995, ”.
(3)In section 29(2) (modifications of provisions of the Act in their application to Scotland)—
(a)in paragraph (a), at the end add “ except that in the case of persons under eighteen years of age such references shall instead be construed as references to duties to disabled children (within the meaning of Chapter 1 of Part II of the Children (Scotland) Act 1995) ”; and
(b)for paragraph (b) substitute—
“(b)any references to services provided under arrangements made by a local authority under the said section 29 shall be construed as references to services for—
(i)such chronically sick or disabled, or such mentally disordered, persons provided by virtue of the said section 12; or
(ii)such disabled children provided under section 23(1) of the said Act of 1995,
by a local authority;”.
18(1)The Sheriff Courts (Scotland) Act 1971 shall be amended in accordance with this paragraph.S
(2)In section 32(1) (power of Court of Session to regulate civil procedure in the sheriff court), after paragraph (i) insert—
“(j)permitting a person who is not an advocate or solicitor and is not represented by an advocate or solicitor to transmit, whether orally or in writing, the views of a child to the sheriff for the purposes of any enactment which makes provision (however expressed) for the sheriff to have regard to those views.”.
(3)In section 37(2A) (remit to Court of Session), for the words “the custody” substitute “ parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) in relation to a child or the ”.
Commencement Information
I4Sch. 4 para. 18 wholly in force at 1.11.1996; Sch. 4 para. 18 not in force at Royal Assent see s. 105(1); Sch. 4 para. 18(1)(2) in force at 1.11.1995 by S.I. 1995/2787, art. 3, Sch.; Sch. 4 para. 18(3) in force at 1.11.1996 by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2)
19In section 2(2A) of the Employment of Children Act 1973 (supervision by education authorities), for paragraph (b) substitute—
“(b)in Scotland, if he has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to the child or care of him.”.
20(1)The Domicile and Matrimonial Proceedings Act 1973 shall be amended in accordance with this paragraph.S
(2)In section 10 (ancillary and collateral orders)—
(a)in subsection (1)—
(i)for the words from the beginning to “in connection with” substitute “ Where after the commencement of this Act an application is competently made to the Court of Session or to a sheriff court for the making, or the variation or recall, of an order which is ancillary or collateral to ”;
(ii)the words “as respects the person or property in question” shall cease to have effect; and
(b)after subsection (1) insert—
“(1A)For the purposes of subsection (1) above, references to an application for the making, or the variation or recall, of an order are references to the making, or the variation or recall, of an order relating to children, aliment, financial provision on divorce, judicial separation, nullity of marriage or expenses.”.
(3)In paragraph 11 of Schedule 3 (sisting of consistorial action)—
(a)in sub-paragraph (1), in the definition of “the relevant order”, for the words from “made” to the end substitute “ relating to aliment or children ”; and
(b)in sub-paragraph (3), for the words “custody of a child, and the education of a child” substitute “ arrangements to be made as to with whom a child is to live, contact with a child, and any other matter relating to parental responsibilities within the meaning of section 1(3) of the Children (Scotland) Act 1995 or parental rights within the meaning of section 2(4) of that Act ”.
21(1)The Land Compensation (Scotland) Act 1973 shall be amended in accordance with this paragraph.S
(2)In section 35(3) (disturbance payments where modification of dwelling required for disabled person), in paragraph (a), after “1968” insert “ or section 23 of the Children (Scotland) Act 1995 ”.
(3)In section 80(1) (interpretation), in the definition of “disabled person”—
(a)after “means” insert “—
(a)”; and
(b)after “1972” insert “; and
(b)a child in need within the meaning of section 93(4)(a)(iii) of the Children (Scotland) Act 1995”.
22(1)The Local Government (Scotland) Act 1973 shall be amended in accordance with this paragraph.S
(2)In section 56(9) (enactments exempted from repeal by virtue of that section), for paragraph (d) substitute—
“(d)paragraphs 3 and 8 of Schedule 1 to the Children (Scotland) Act 1995 (Children’s Panel Advisory Committees and joint advisory committees);”.
(3)In Schedule 25, paragraph 41 shall cease to have effect.
(4)In Schedule 27, paragraphs 185 and 187 shall cease to have effect.
23(1)The Rehabilitation of Offenders Act 1974 shall be amended in accordance with this paragraph.S
(2)In section 3 (special provision with respect to certain disposals by children’s hearings)—
(a)for the words “Social Work (Scotland) Act 1968 is that mentioned in section 32(2)(g)” substitute “ Children (Scotland) Act 1995 is that mentioned in section 52(2)(i) ”; and
(b)for the words “to the satisfaction of the sheriff under section 42 of that Act, the acceptance or establishment” substitute “ (or deemed established) to the satisfaction of the sheriff under section 68 or 85 of that Act, the acceptance, establishment (or deemed establishment) ”.
(3)In section 5 (rehabilitation periods for particular sentences)—
(a)in subsection (3)(b), for the words “43(2) of the Social Work (Scotland) Act 1968” substitute “ 69(1)(b) and (12) of the Children (Scotland) Act 1995 ”;
(b)in subsection (5)(f), for the words “Social Work (Scotland) Act 1968” substitute “ Children (Scotland) Act 1995 ”;
(c)in subsection (10), for the words “Social Work (Scotland) Act 1968” substitute “ Children (Scotland) Act 1995 ”; and
(d)subsection (10A) shall cease to have effect.
(4)In section 7(2) (limitations on rehabilitation)—
(a) for paragraph (c) substitute—
“(c)in any proceedings relating to parental responsibilities or parental rights (within the meaning of section 1(3) and section 2(4) respectively of the Children (Scotland) Act 1995), guardianship, adoption or the provision by any person of accommodation, care or schooling for children under the age of 18 years;
(cc)in any proceedings under Part II of the Children (Scotland) Act 1995;”;
(b)paragraph (e) shall cease to have effect; and
(c)the words from “In the application” to the end shall cease to have effect.
Commencement Information
I5Sch. 4 para. 23 wholly in force at 1.4.1997; Sch. 4 para. 23 not in force at Royal Assent see s. 105(1); Sch. 4 para. 23(1)(4)(c) in force and Sch. 4 para. 23(4)(a) in force for certain purposes at 1.11.1996 by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2); Sch. 4 para. 23 in force at 1.4.1997 insofar as not already in force by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (7.3.1997) by S.I. 1997/744, arts. 2, 3)
F324S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F3Sch. 4 para. 24 repealed (1.4.1996) by 1995 c. 40, ss. 6, 7(2), Sch. 5 (with Sch. 3 paras. 1, 3, 16, 17)
F425S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F4Sch. 4 para. 25 repealed (23.10.2002) by 2002 asp 11, s. 25, Sch. 6 para. 16; S.S.I. 2002/467, art. 2
26(1)The Children Act 1975 shall be amended in accordance with this paragraph.S
(2)Sections 47 to 49 shall cease to have effect.
(3)In section 50 (payments towards maintenance for children), for the words from “custody” to “authority” substitute “ a child under the age of sixteen is residing with and being cared for (other than as a foster child) by a person other than a parent of the child, a council constituted under section 2 of the M8Local Government (Scotland) Act 1994 ”.
(4)In section 51 (restriction on removal of child where applicant has provided home for three years)—
(a)in subsection (1), for the words “custody of” substitute “ a residence order in relation to ”;
(b)for subsection (2) substitute—
“(2)In any case where subsection (1) applies, and the child—
(a)was being looked after by a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 before he began to have his home with the applicant, and
(b)continues to be looked after by such a council,
the council by whom the child is being looked after shall not remove him from the applicant’s care and possession except—
(i)with the applicant’s consent;
(ii)with the leave of the court; or
(iii)in accordance with an order made, or authority or warrant granted, under Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995.”; and
(c)at the end add—
“(5)In this section “looked after” and “residence order” have the meanings given respectively by section 17(6) and section 11(2)(c) of the Children (Scotland) Act 1995; and “residence order” shall have the same meaning in sections 52 and 53 of this Act.”.
(5)In section 52 (return of child taken away in breach of section 51), for the words “custody of” substitute “ a residence order in relation to ”.
(6)Section 53 (custody order on application for adoption in Scotland) shall cease to have effect.
(7)In section 55 (interpretation and extent), for the words “sections 47 to 54”, in both places where they occur, substitute “ sections 50 to 53 ”.
(8)Sections 73 to 84, 89, 99, 100, 102 and 103 shall cease to have effect.
(9)Section 107 (interpretation), except in so far as subsection (1) defines “adoption society”, “child” and “voluntary organisation”, shall cease to have effect.
(10)In Schedule 3 (minor and consequential amendments), paragraph 52 to 57 shall cease to have effect.
Commencement Information
I6Sch. 4 para. 26 fully in force at 22.1.2002; Sch. 4 para. 26 not in force at Royal Assent see s. 105(1); Sch. 4 para. 26(1)-(3),(4)(a)(c), (5)-(7) in force at 1.11.1996 by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2); Sch. 4 para. 26(4)(b)(9)(10) in force at 1.4.1997 by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (3.7.1997) by S.I. 1997/744, arts. 2, 3); Sch. 4 para. 26(8) in force in so far as not already in force at 22.1.2002 by S.S.I. 2002/12, art. 2
Marginal Citations
F527S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F5Sch. 4 para. 27 repealed (1.4.1996) by 1995 c. 40, ss. 6, 7(2), Sch. 5 (with Sch. 3 paras. 1, 3, 16, 17)
28(1)The Education (Scotland) Act 1980 shall be amended in accordance with this paragraph.
(2)In section 36(3) (referral to reporter of case of irregular school attendance), for the words from “may” to the end substitute “ , where no requirement arises under section 53(1) of the Children (Scotland) Act 1995 to give information about the child to the Principal Reporter, may under this subsection provide the Principal Reporter with such information. ”.
(3)In section 44—
(a)subsection (1) (referral by court to Principal Reporter of case involving offence against section 35) shall cease to have effect; and
(b)in subsection (2) (powers of court where no referral to Principal Reporter), for the words “subsection (1) above, make a direction” substitute “ section 54(1) of the Children (Scotland) Act 1995, refer the matter to the Principal Reporter ”.
(4)In section 65B(6) (sending of report in relation to recorded child)—
(a)paragraph (a) shall cease to have effect; and
(b)at the end add— “ and the local authority as education authority shall also ensure that the local authority for the purposes of Part II of the Children (Scotland) Act 1995 receive such a copy. ”.
(5)In section 135(1) (interpretation)—
(a)in the definition of “parent”, for the words “the actual custody of” substitute “ parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to, or has care of ”.
(b)the definition of “reporter of the appropriate local authority” shall cease to have effect;
(c)for the definition of “residential establishment” substitute—
““residential establishment” has the meaning given by paragraph (a) of the definition of that expression in section 93(1) of the Children (Scotland) Act 1995;”; and
(d)for the definition of “supervision requirement” substitute—
““supervision requirement” has the meaning given by section 70(1) of the said Act of 1995;”.
Commencement Information
I7Sch. 4 para. 28 wholly in force at 1.4.1997; Sch. 4 para. 28 not in force at Royal Assent see s. 105(1); Sch. 4 para. 28(1)(5)(a) in force at 1.11.1996 by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2); Sch. 4 para. 28 in force at 1.4.1997 insofar as not already in force by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (7.3.1997) by S.I. 1997/744, arts. 2, 3)
F629S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F6Sch. 4 para. 29 repealed (1.4.1996) by 1995 c. 40, ss. 6, 7(2), Sch. 5 (with Sch. 3 paras. 1, 3, 16, 17)
30SIn section 22 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (interpretation), in the definition of “child”, for the word “accepted” substitute “ treated ”.
31U.K.In Schedule 9 to the Civil Jurisdiction and Judgments Act 1982 (excluded proceedings), after paragraph 2 insert—
“2AProceedings relating to parental responsibilities within the meaning of section 1(3) of the Children (Scotland) Act 1995 or parental rights within the meaning of section 2(4) of that Act.”.
32SIn Schedule 2 to the Health and Social Services and Social Security Adjudications Act 1983, paragraphs 4 to 6 and 8 (which amend provisions of the Social Work (Scotland) Act 1968 repealed by this Act) shall cease to have effect.
33(1)The Mental Health (Scotland) Act 1984 shall be amended in accordance with this paragraph.
(2)In section 10(1) (application of provisions relating to certain patients suffering from mental disorder)—
(a)in paragraph (a), sub-paragraph (i), and the word “or” immediately following that sub-paragraph, shall cease to have effect; and
(b)after paragraph (a) insert—
“(aa)a child or young person in relation to whom parental rights and responsibilities have been transferred to a local authority by virtue of section 86(1) of the Children (Scotland) Act 1995;”.
(3)In section 54 (local authority to be deemed nearest relative of certain children and young persons), for paragraph (a) substitute—
“(a)the parental rights and responsibilities in relation to a patient who is a child or young person have been transferred to a local authority by virtue of section 86(1) of the Children (Scotland) Act 1995;”.
(4)In section 55 (nearest relative of child under guardianship etc.)—
(a)for subsection (1) substitute—
“(1)Where—
(a)a guardian has been appointed for a child who has not attained the age of eighteen years; or
(b)there is in force a residence order, or a custody order, granted by a court in the United Kingdom, or an analogous order granted by a court outwith the United Kingdom (being an order which is entitled to recognition in Scotland), identifying a person as the person with whom a child under the age of sixteen years is to live,
that guardian or person shall, to the exclusion of any other person, be deemed to be the child’s nearest relative.”;
(b)for subsection (3) substitute—
“(3)In this section “guardian” does not include a guardian under this Part of this Act or, in relation to a child, a guardian whose appointment takes effect under section 7, or on an order under section 11(1), of the Children (Scotland) Act 1995 where there is a parent who has parental responsibilities and parental rights in relation to the child.”; and
(c)subsection (4) shall cease to have effect.
Commencement Information
I8Sch. 4 para. 33 wholly in force at 1.4.1997; Sch. 4 para. 33 not in force at Royal Assent see s. 105(1); Sch. 4 para. 33(1)(4) in force at 1.11.1996 by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2); Sch. 4 para. 33 in force at 1.4.1997 insofar as not already in force by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (7.3.1997) by S.I. 1997/744, arts. 2, 3)
34SIn section 6 of the Child Abduction Act 1984 (offence in Scotland of person connected with a child taking or sending that child out of United Kingdom)—
(a)in subsection (1)(a)(i), after the word “person” insert “ or naming any person as the person with whom the child is to live ”;
(b)in subsection (2)(b), after the words “to him” insert “ or naming him as the person with whom the child is to live ”; and
(c)in subsection (3)(a)(i)(b), for the word “(whether” substitute “ or who is named as the person with whom the child is to live (whether the award is made, or the person so named is named ”.
35(1)The Foster Children (Scotland) Act 1984 shall be amended in accordance with this paragraph.S
(2)In section 2 (exceptions to definition of “foster child”)—
(a)in subsection (1), for the words “in the care of a local authority or a voluntary organisation” substitute “ being looked after by a local authority ”;
(b)in subsection (3), the words “within the meaning of the Social Work (Scotland) Act 1968” shall cease to have effect;
(c)in subsection (5), the words “; or (b) while he is a protected child within the meaning of section 32 of the said Act of 1978” shall cease to have effect; and
(d)after subsection (5) add—
“(6)The reference in subsection (1) above to a child being looked after by a local authority shall be construed as if it were a reference to which section 17(6) of the Children (Scotland) Act 1995 applies.”.
(3)In section 3(4) (saving for M9Social Work (Scotland) Act 1968), for the words “the Social Work (Scotland) Act 1968” substitute “ Part II of the Children (Scotland) Act 1995 ”.
(4)In section 7(1) (persons disqualified from keeping foster children)—
(a)in paragraph (b), after the word “1968” insert “ or under section 70 of the Children (Scotland) Act 1995 ”; and
(b)after paragraph (d) insert—
“(dd)his parental rights and parental responsibilities (within the meaning of the Children (Scotland) Act 1995) have been transferred, by an order under section 86(1) of that Act, to a local authority;”.
(5)In section 12 (removal of foster children on complaint of local authority), for subsection (5) substitute—
“(5)For the purposes of section 25 of the Children (Scotland) Act 1995 (and for the reason mentioned in subsection (1)(c) of that section) a child removed under this section shall be regarded as requiring accommodation.”.
F7(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7)In section 21(1) (interpretation)—
(a)in the definition of “residential establishment”, after the word “1968” insert “ or of Part II of the Children (Scotland) Act 1995 ”; and
(b)for the definition of “supervision requirement”, substitute—
““supervision requirement” has the meaning given by section 70(1) of the Children (Scotland) Act 1995;”.
Textual Amendments
F7Sch. 4 para. 35(6) repealed (1.8.1997) by 1997 c. 48, s. 62(1)(2), Sch. 1 para. 17, Sch. 3; S.I. 1997/1712, art. 3
Marginal Citations
36SIn section 2 of the Family Law (Scotland) Act 1985 (actions for aliment)—
(a)in subsection (2), for paragraph (c) substitute—
“(c)concerning parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) or guardianship in relation to children;”; and
(b)in subsection (4)(c), for sub-paragraph (iii) substitute—
“(iii)a person with whom the child lives or who is seeking a residence order (within the meaning of section 11(2)(c) of the Children (Scotland) Act 1995) in respect of the child.”.
37(1)The Child Abduction and Custody Act 1985 shall be amended in accordance with this paragraph.U.K.
(2)In section 9 (suspension of court’s powers in cases of wrongful removal), for paragraph (d) substitute—
“(d)making, varying or discharging an order under section 86 of the Children (Scotland) Act 1995;”.
(3)In section 20 (further provision as regards suspension of court’s powers)—
(a)for paragraph (d) substitute—
“(d)in the case of proceedings for, or for the variation or discharge of, a parental responsibilities order under section 86 of the Children (Scotland) Act 1995, make, vary or discharge any such order;”; and
(b)in subsection (5), for the words “within the meaning of Part III of M10the Social Work (Scotland) Act 1968” substitute “ (as defined in section 93(1) of the Children (Scotland) Act 1995) ”.
(4)In section 25 (termination of existing custody orders etc.), subsection (6) shall cease to have effect.
(5)In section 27(4) (interpretation), after the word “Wales” insert “ or Scotland ”.
(6)In Schedule 3 (custody orders)—
(a)in paragraph 5—
(i)for the words “custody, care or control of a child or” substitute “ residence, custody, care or control of a child or contact with, or ”;
(ii)in sub-paragraph (iii), for the words “tutory or curatory” substitute “ guardianship ”;
(iii)in sub-paragraph (iv), for the words “16(8), 16A(3) or 18(3) of the Social Work (Scotland) Act 1968” substitute “ 86 of the Children (Scotland) Act 1995 ”; and
(iv)for sub-paragraph (v), substitute—
“(v)an order made, or warrant or authorisation granted, under or by virtue of Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995 to remove the child to a place of safety or to secure accommodation, to keep him at such a place or in such accommodation, or to prevent his removal from a place where he is being accommodated (or an order varying or discharging any order, warrant or authorisation so made or granted);”;
(b)for paragraph 6 substitute—
“6A supervision requirement made by a children’s hearing under section 70 of the Children (Scotland) Act 1995 (whether or not continued under section 73 of that Act) or made by the sheriff under section 51(5)(c)(iii) of that Act and any order made by a court in England and Wales or in Northern Ireland if it is an order which, by virtue of section 33(1) of that Act, has effect as if it were such a supervision requirement.”; and
(c)paragraph 7 shall cease to have effect.
Commencement Information
I9Sch. 4 para. 37 wholly in force at 1.4.1997; Sch. 4 para. 37 not in force at Royal Assent see s. 105(1); Sch. 4 para. 37(1)(5)(6)(a)(i)(ii) in force at 1.11.1996 by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2); Sch. 4 para. 37 in force at 1.4.1997 insofar as not already in force by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (7.3.1997) by S.I. 1997/744, arts. 2, 3)
Marginal Citations
38(1)The Law Reform (Parent and Child) (Scotland) Act 1986 shall be amended in accordance with this paragraph.S
(2)In section 1 (legal equality of children), for subsection (3) substitute—
“(3)Subsection (1) above is subject to subsection (4) below, to section 9(1) of this Act and to section 3(1)(b) of the Children (Scotland) Act 1995 (parental responsibilities and parental rights of natural father).”.
(3)In section 6(2) (consent to taking of sample of blood), for the words from “guardian” to “custody or” substitute “ any person having parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to him or having ”.
39(1)The Disabled Persons (Services, Consultation and Representation) Act 1986 shall be amended in accordance with this paragraph.S
(2)In section 1(3) (regulations with respect to appointment of authorised representatives of disabled persons)—
(a)in paragraph (a), for the words from the beginning to “appoint” substitute— “may provide for—
(i)any person who has parental responsibilities in relation to a disabled person under the age of sixteen (“parental responsibilities” having the meaning given by section 1(3) of the Children (Scotland) Act 1995); or
(ii)any other person who is entitled to act as the disabled person’s legal representative (as defined in section 15(5) of the Children (Scotland) Act 1995),
to appoint ”; and
(b)in paragraph (b), for the words “in the care of” substitute “ looked after by. ”
(3)In section 2 (rights of certain authorised representatives of disabled persons)—
(a)in subsection (3)(a), for the words “the words ”the parent or guardian of” shall be inserted after the words ”if so requested by”;” substitute“ for the words “ by the disabled person ” there shall be substituted the words “ by any person appointed by virtue of regulations made under section 1(3)(a)(i) or (ii) of this Act ”;” and
(b)in subsection (5), after paragraph (bb) insert—
“(bc)in Scotland, in accommodation provided by or on behalf of a local authority under Chapter 1 of Part II of the Children (Scotland) Act 1995, or”.
(4)In section 13(8)(b) (limitation on requirement for assessment of needs)—
(a)for the words “his parent” substitute “ any person having parental responsibilities in relation to him ”; and
(b)after the word “request” insert “ (“parental responsibilities” having the meaning given in section 1(3) of the Children (Scotland) Act 1995) ”.
(5)In section 16 (interpretation)—
(a)in the definition of “disabled person”, for paragraph (b) substitute—
“(b)in relation to Scotland, means—
(i)in the case of a person aged eighteen or over, one chronically sick or disabled or one suffering from mental disorder (being, in either case, a relevant person for the purposes of section 12 of the Social Work (Scotland) Act 1968; and
(ii)in any other case, a disabled child (“disabled child” being construed in accordance with Chapter 1 of Part II of the Children (Scotland) Act 1995);”;
(b)in the definition of “guardian”, paragraph (b) shall cease to have effect;
(c)in the definition of “the welfare enactments”, in paragraph (b), for the words “and sections 7 and 8 of the 1984 Act”, substitute “ , sections 7 and 8 of the 1984 Act and Chapter 1 of Part II of the Children (Scotland) Act 1995 ”.
(d)the existing provisions as so amended shall be subsection (1) of the section and at the end of the section there shall be added—
“(2A)In this Act as it applies in relation to Scotland, any reference to a child who is looked after by a local authority shall be construed in accordance with section 17(6) of the Children (Scotland) Act 1995.”)
Commencement Information
I10Sch. 4 para. 39 wholly in force at 1.4.1997; Sch. 4 para. 39 not in force at Royal Assent see s. 105(1); Sch. 4 para. 39(1)(2)(a)(3)(a)(4)(5)(b) in force at 1.11.1996 by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2); Sch. 4 para. 39 in force at 1.4.1997 insofar as not already in force by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (7.3.1997) by S.I. 1997/744, arts. 2, 3)
40SIn section 41 of the Legal Aid (Scotland) Act 1986 (interpretation)—
(a)in the definition of “legal aid”, for the words “Part III of the Social Work (Scotland Act 1968” substitute “ Chapter 2 or Chapter 3 of Part II of the Children (Scotland) Act 1995 ” and
(b)in the definition of “person”, the existing words from “does” to the end shall be paragraph (a) and after that paragraph there shall be added— “; and
(b)includes a person under the age of sixteen years.”.
Commencement Information
I11Sch. 4 para. 40 wholly in force at 1.4.1997; Sch. 4 para. 40 not in force at Royal Assent see s. 105(1); Sch. 4 para. 40(b) in force at 1.11.1995 by S.I. 1995/2787, art. 3, Sch.; Sch. 4 para. 40 in force at 1.4.1997 insofar as not already in force by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (7.3.1997) by S.I. 1997/744, arts. 2, 3)
41(1)The Family Law Act 1986 shall be amended in accordance with this paragraph.U.K.
(2)In section 1(1)(b) (meaning of “custody order”)—
(a)for the words “custody, care or control of a child” substitute “ residence, custody, care or control of a child, contact with or ”; and
(b)in sub-paragraph (iv), for the words “for the custody of” substitute “ giving parental responsibilities and parental rights in relation to ”.
(3)In section 13 (jurisdiction ancillary to matrimonial proceedings)—
(a)in subsection (2), for the words “under section 9(1) of the M11Matrimonial Proceedings (Children) Act 1958” substitute “ in those proceedings ”; and
(b)in subsection (4), for the words “under section 9(1) of the Matrimonial Proceedings (Children) Act 1958” substitute “ in matrimonial proceedings where the court has refused to grant the principal remedy sought in the proceedings ”.
(4)In section 15 (duration, variation and recall of orders)—
(a)in subsection (1)(b), for the words “for the custody of” substitute “ relating to the parental responsibilities or parental rights in relation to ”; and
(b)in subsection (4), for the words from the beginning to “above” substitute “ Where, by virtue of subsection (1) above, a child is to live with a different person ”.
(5)In section 17 (orders for delivery of child)—
(a)in subsection (3), for the words from “is the child” to “other party” substitute “ , although not a child of both parties to the marriage, is a child of the family of those parties ”; and
(b)at the end of the section add—
“(4)In subsection (3) above, “child of the family” means any child who has been treated by both parties as a child of their family, except a child who has been placed with those parties as foster parents by a local authority or a voluntary organisation.”.
(6)For section 26 (recognition: special Scottish rule), substitute—
An order relating to parental responsibilities or parental rights in relation to a child which is made outside the United Kingdom shall be recognised in Scotland if the order was made in the country where the child was habitually resident.”.
(7)In section 33(3) (power to order disclosure of child’s whereabouts), for the words “for the custody of” substitute “ relating to parental responsibilities or parental rights in relation to ”.
(8)In section 35(3) (power to restrict removal of child from jurisdiction), for the words “whose custody” substitute “ whose care ”.
(9)In section 42 (interpretation)—
(a)in subsection (1), before the definition of “part of the United Kingdom” insert—
““parental responsibilities” and “parental rights” have the meanings respectively given by sections 1(3) and 2(4) of the Children (Scotland) Act 1995;”; and
(b)in subsection (4)(b), for the words from “of one of the parties” to the end substitute “ who has been treated by both parties as a child of their family, except a child who has been placed with those parties as foster parents by a local authority or a voluntary organisation; ”.
Marginal Citations
M116 & 7 Eliz. c.40.
F842S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F8Sch. 4 para. 42 repealed (1.4.2002) by 2001 asp 8, s. 80(1), Sch. 4; S.S.I. 2002/162, art. 2(g)(i) (subject to arts. 3-13) and repealed (30.9.2002) by 2001 asp 10, s. 112, Sch. 10 para. 23; S.S.I. 2002/321, art. 2, Sch. (subject to arts 3-5)
43SIn section 49(4)(b) of the Criminal Justice (Scotland) Act 1987 (right to have someone informed when detained), for the words “actual custody” substitute “ care ”.
44SIn paragraph (a) of the definition of “civil proceedings” in section 9 of the Civil Evidence (Scotland) Act 1988 (interpretation)—
(a)the words “under section 42 of the Social Work (Scotland) Act 1968” shall cease to have effect;
(b)after the word “application” where it first occurs insert “ under section 65(7) or (9) of the Children (Scotland) Act 1995 ”;
(c)after the word “established,” insert “ or of an application for a review of such a finding under section 85 of that Act ”;
(d)after the word “application” where it occurs for the second time insert “ or, as the case may be, the review ”; and
(e)for the words “32(2)(g)” substitute “ 52(2)(i) ”.
45SIn section 5 of the Court of Session Act 1988 (power to regulate procedure etc. by act of sederunt), after paragraph (e) insert—
“(ee)to permit a person who is not an advocate or solicitor and is not represented by an advocate or solicitor to transmit, whether orally or in writing, the views of a child to the Court for the purposes of any enactment which makes provision (however expressed) for the Court to have regard to those views;”.
46In section 22(2) of the School Boards (Scotland) Act 1988 (interpretation), in the definition of “parent”, for the word “custody” substitute “ parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to him or who has care ”.
47SIn section 80(1) of the Self-Governing Schools etc. (Scotland) Act 1989 (interpretation), in the definition of “parent”, for the words “the actual custody” substitute “ parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to him or has care ”.
48(1)The Children Act 1989 shall be amended in accordance with this paragraph.E+W+S
(2)In section 31(7)(b)(iii) (restriction on applications for care and supervision orders), for the words “the Social Work (Scotland) Act 1968” substitute “ Part II of the Children (Scotland) Act 1995 ”.
(3)In section 51(7) (enactments which do not apply where a child is granted refuge), for paragraph (b) substitute—
“(b)sections 82 (recovery of certain fugitive children) and 83 (harbouring) of the Children (Scotland) Act 1995, so far as they apply in relation to anything done in England and Wales;”.
[F9(4)In section 79(e) (application of Part X to Scotland), for the words from “in whom” to “vested” substitute “ having parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) relating to the child ”.]
(5)In Schedule 8 (privately fostered children), in paragraph 3(b), for the words “the Social Work (Scotland) Act 1968” substitute “ Part II of the Children (Scotland) Act 1995 ”.
Textual Amendments
F9Sch. 4 para. 48(4) repealed (S.) (1.4.2002) by 2001 asp 8, s. 80(1), Sch. 4; S.S.I. 2002/162, art. 2(g)(i)
Commencement Information
I12Sch. 4 para. 48 wholly in force at 1.4.1997; Sch. 4 para. 48 not in force at Royal Assent see s. 105(1); Sch. 4 para. 48(1)(4) in force at 1.11.1996 by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2); Sch. 4 para. 48 in force at 1.4.1997 insofar as not already in force by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (7.3.1997) by S.I. 1997/744, arts. 2, 3)
49(1)The Local Government and Housing Act 1989 shall be amended in accordance with this paragraph.E+W+S
(2)In section 14(5) (restriction of effect of provisions of that section in relation to certain committees), for paragraph (d) substitute—
“(d)a Children’s Panel Advisory Committee formed under paragraph 3, or a joint advisory committee formed under paragraph 8, of Schedule 1 to the Children (Scotland) Act 1995;”.
50(1)The Access to Health Records Act 1990 shall be amended in accordance with this paragraph.E+W+S
(2)In section 3(1) (right of access to health records), for paragraphs (c) and (d) substitute—
“(cc)where the patient is a child, a person having parental responsibility for him;”.
(3)In section 4 (cases where right of access may be wholly excluded)—
(a)in subsection (1), for paragraphs (a) and (b) substitute “ the patient is a child ”; and
(b)in subsection (2), for the words “(1)(c) or (d)” substitute “ (1)(cc) ”.
(4)In section 5(3) (access to records not to be given where record compiled on basis that access would not be available to particular applicant), for the words “(1)(c), (d), (e) or (f)” substitute “ (1)(cc), (e) or (f) ”.
(5)In section 11 (interpretation), for the definition of “parental responsibility” substitute—
““parental responsibility”, in the application of this Act—
(a)to England and Wales, has the same meaning as in the M12Children Act 1989; and
(b)to Scotland, shall be construed as a reference to “parental responsibilities” within the meaning given by section 1(3) of the Children (Scotland) Act 1995.”.
51E+W+SIn section 1(2)(a)(ii) (application), of the Horses (Protective Headgear for Young Riders) Act 1990, for the word “custody” substitute “ parental responsibilities (within the meaning given by section 1(3) of the Children (Scotland) Act 1995) in relation to, or has ”.
52(1)The Child Support Act 1991 shall be amended in accordance with this paragraph.E+W+S
(2)In section 3(4)(d) (interpretation), for the words from “having” to the end substitute “ with whom a child is to live by virtue of a residence order under section 11 of the Children (Scotland) Act 1995. ”.
(3)In section 5(1) (supplemental provisions as respects child support maintenance), the words “(or, in Scotland, parental rights over)”, in both places where they occur, shall cease to have effect.
(4)In section 54 (interpretation)—
(a)for the definition of “parental responsibility” substitute—
““parental responsibility”, in the application of this Act—
(a)to England and Wales, has the same meaning as in the M13Children Act 1989; and
(b)to Scotland, shall be construed as a reference to “parental responsibilities” within the meaning given by section 1(3) of the Children (Scotland) Act 1995;”; and
(b)the definition of “parental rights” shall cease to have effect.
Marginal Citations
53(1)The Age of Legal Capacity (Scotland) Act 1991 shall be amended in accordance with this paragraph.S
(2)In section 1(3) (age of legal capacity)—
(a)in sub-paragraph (i) of paragraph (f), for the words “who has no guardian or whose guardian” substitute “ in relation to whom there is no person entitled to act as his legal representative (within the meaning of Part I of the Children (Scotland) Act 1995), or where there is such a person ”; and
(b)in paragraph (g), for sub-paragraphs (i) and (ii) substitute “ exercising parental responsibilities and parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) in relation to any child of his. ”.
(3)In section 2 (exceptions to the general rule), after subsection (4) insert—
“(4A)A person under the age of sixteen years shall have legal capacity to instruct a solicitor, in connection with any civil matter, where that person has a general understanding of what it means to do so; and without prejudice to the generality of this subsection a person twelve years of age or more shall be presumed to be of sufficient age and maturity to have such understanding.
(4B)A person who by virtue of subsection (4A) above has legal capacity to instruct a solicitor shall also have legal capacity to sue, or to defend, in any civil proceedings.
(4C)Subsections (4A) and (4B) above are without prejudice to any question of legal capacity arising in connection with any criminal matter.”.
(4)In section 5(1) (construction of references to “tutor”)—
(a)the words “or tutory” shall cease to have effect; and
(b)for the words from “the guardian”, where they first appear, to the end substitute “ a person entitled to act as a child’s legal representative (within the meaning of Part I of the Children (Scotland) Act 1995), and any reference to the tutory of such a child shall be construed as a reference to the entitlement to act as a child’s legal representative enjoyed by a person by, under or by virtue of the said Part I. ”.
(5)In section 5(2) (restriction on appointment of guardian to person under sixteen), for the words from “section 3” to the end substitute “ section 7 of the Children (Scotland) Act 1995. ”.
Commencement Information
I13Sch. 4 para. 53 wholly in force at 1.11.1996; Sch. 4 para. 53 not in force at Royal Assent see s. 105(1); Sch. 4 para. 53(1)(3) in force at 1.11.1995 by S.I. 1995/2787, art. 3, Sch.; Sch. 4 para. 53(2)(4)(5) in force at 1.11.1996 by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2)
54(1)The Armed Forces Act 1991 shall be amended in accordance with this paragraph.U.K.
(2)In paragraph (f) of section 17(4) (persons to whom notice of an application for an assessment order must be given)—
(a)after the word “order” insert “—
(i)”; and
(b)at the end insert “; or
(ii)under section 88 of the Children (Scotland) Act 1995”.
(3)In paragraph (f) of section 18(7) (persons who may apply for variation etc. of assessment order)—
(a)after the word “order” insert “—
(i)”; and
(b)at the end insert “; or
(ii)under section 88 of the Children (Scotland) Act 1995”.
(4)In section 21(4) (which makes provision in relation to a child returned to the United Kingdom under a protection order under that Act) for the words “ M14Social Work (Scotland) Act 1968” substitute “ Children (Scotland) Act 1995 ”.
(5)In section 23(1) (interpretation)—
(a)in the definition of “contact order”—
(i)after the word “meaning” insert “—
(a)except in relation to an order made in Scotland,”; and
(ii)at the end, add “; and
(b)in relation to an order there made, given by section 11(2)(d) of the Children (Scotland) Act 1995.”; and
(b)in the definition of “parental responsibility”—
(i)after the word “responsibility” insert “—
(a)except in relation to Scotland,”; and
(ii)at the end add “; and
(b)in relation to Scotland, shall be construed as a reference to “parental responsibilities” within the meaning given by section 1(3) of the Children (Scotland) Act 1995;”.
Commencement Information
I14Sch. 4 para. 54 wholly in force at 1.4.1997; Sch. 4 para. 54 not in force at Royal Assent see s. 105(1); Sch. 4 para. 54(1)(5) in force at 1.11.1996 by S.I. 1996/2203, art. 3(3), Sch. (with arts. 4-7) (as amended (19.1.1997) by S.I. 1997/137, art. 2); Sch. 4 para. 54 in force at 1.4.1997 insofar as not already in force by S.I. 1996/3201, art. 3(7) (with arts. 4-6) (as amended (7.3.1997) by S.I. 1997/744, arts. 2, 3)
Marginal Citations
55E+W+SIn paragraph 61 in column 2 of Schedule 1 to the Tribunals and Inquiries Act 1992 (which specifies certain tribunals in relation to social work in Scotland)—
(a)in sub-paragraph (a), for the words “Social Work (Scotland) Act 1968 (c.49)” substitute “ Children (Scotland) Act 1995 (c.36) ”; and
(b)in sub-paragraph (b), for the words “that Act” substitute “ the Social Work (Scotland) Act 1968 (c.49) ”.
56(1)The Prisoners and Criminal Proceedings (Scotland) Act 1993 shall be amended in accordance with this paragraph.S
(2)In paragraph 8 of Schedule 3 (which provides for the definition of certain expressions in relation to the admission of documentary evidence in criminal proceedings), in the definition of “criminal proceedings”—
(a)the words “under section 42 of the Social Work (Scotland) Act 1968” shall cease to have effect;
(b)after the word “application” where it appears for the first time insert “ under section 65(7) or (9) of the Children (Scotland) Act 1995 ”;
(c)after the word “established” insert “ or for a review of such a finding under section 85 of that Act ”; and
(d)after the word “application” where it appears for the second time insert “ or, as the case may be, the review ”.
(3)In paragraph 1 of Schedule 6 (which provides for the definition of certain expressions in relation to transitional provisions), in the definition of “existing child detainee”, for the words “section 30 of the Social Work (Scotland) Act 1968” substitute “ section 93(2)(b) of the Children (Scotland) Act 1995 ”.
57(1)The Local Government etc. (Scotland) Act 1994 shall be amended in accordance with this paragraph.S
(2)In section 128 (establishment of Scottish Children’s Reporter Administration)—
(a)in subsection (3), for the words from “the 1968 Act” to the end substitute “ the Children (Scotland) Act 1995 and any other enactment conferring functions upon him ”; and
(b)in subsection (8), for the words from “the 1968 Act” to the end substitue “ the Children (Scotland) Act 1995 and any other enactment conferring functions upon him ”.
(3)In section 130 (annual reports by Principal Reporter) in sub-paragraph (i) of paragraph (a) of subsection (1), for the words “the 1968 Act and the Criminal Procedure (Scotland) Act 1975” substitute “ the Children (Scotland) Act 1995 and any other enactment (except this Act) conferring functions upon him ”.
(4)In section 132 (duty of Administration to provide accommodation for children’s hearings), for the words “section 34 of the 1968 Act” substitute “ section 39 of the Children (Scotland) Act 1995 ”.
58S+N.I.In Article 70(7) of the Children (Northern Ireland) Order 1995 (enactments not to apply where child given refuge), in sub-paragraph (c), for the words “section 71 of the Social Work (Scotland) Act 1968” substitute “ section 83 of the Children (Scotland) Act 1995 ”.
59SIn section 2 of the Civil Evidence (Family Mediation) (Scotland) Act 1995 (which provides for exceptions to the general inadmissibility of evidence concerning family mediation), in paragraph (d)(ii)—
(a)for the words “Part III of the Social Work (Scotland) Act 1968” substitute “ Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995 ”; and
(b)after the word “hearing” insert— “, before a sheriff or before a justice of the peace;
(iia)on any appeal arising from such proceedings as are mentioned in sub-paragraph (ii) above”.
60SIn section 20 of the Criminal Justice (Scotland) Act 1995 (construction of sections relating to the admissibility of certain evidence)—
(a)in subsection (3), in the definition of “criminal proceedings”—
(i)for the words from “under” to “application” where it appears for the first substitute “ of an application made under Chapter 3 of Part II of the Children (Scotland) Act 1995 ”; and
(ii)after the word “child” insert “ or for a review of such a finding ”; and
(b)in subsection (5), after the word “1968” insert “ or by virtue of Chapter 3 of Part II of the Children (Scotland) Act 1995 ”.