Children (Scotland) Act 1995

68 Application to sheriff to establish grounds of referral. S

(1) This section applies to applications under subsections (7) and (9) of section 65 of this Act and a reference in this section (except in subsection (8)) to “an application” is a reference to an application under either of those subsections.

(2) An application shall be heard by the sheriff within twenty-eight days of its being lodged.

(3) Where one of the grounds for the referral to which an application relates is the condition referred to in section 52(2)(i)—

(a) the application shall be made to the sheriff who would have jurisdiction if the child were being prosecuted for that offence; and

(b) in hearing the application in relation to that ground, the standard of proof required in criminal proceedings shall apply.

(4) A child shall—

(a) have the right to attend the hearing of an application; and

(b) subject to subsection (5) below, be under an obligation to attend such hearing;

and without prejudice to the right of each of them to be legally represented, the child and the relevant person may be represented by a person other than a legally qualified person at any diet fixed by the sheriff for the hearing of the application.

(5) Without prejudice to subsection (4)(a) above, the sheriff may dispense with the obligation imposed by subsection (4)(b) above where he is satisfied—

(a) in an application in which the ground of referral to be established is a condition mentioned in section 52(2)(d), (e), (f) or (g) of this Act, that the obligation to attend of the child is not necessary for the just hearing of that application; and

(b) in any application, that it would be detrimental to the interests of the child for him to be present at the hearing of the application.

(6) Where the child fails to attend the hearing of an application at which his obligation to attend has not been dispensed with under subsection (5) above, the sheriff may grant an order to find and keep the child; and any order under this subsection shall be authority for bringing the child before the sheriff and, subject to subsection (7) below, for keeping him in a place of safety until the sheriff can hear the application.

(7) The child shall not be kept in a place of safety by virtue of subsection (6) above after whichever is the earlier of—

(a) the expiry of fourteen days beginning with the day on which the child is found; or

(b) the disposal of the application by the sheriff.

(8) Where in the course of the hearing of an application—

(a) under section 65(7) of this Act, the child and the relevant person accept any of the grounds for referral to which the application relates, the sheriff shall; or

(b) under section 65(9) of this Act, the relevant person accepts any of the grounds for referral to which the application relates, the sheriff may, if it appears to him reasonable to do so,

dispense with the hearing of evidence relating to that ground and deem the ground to be established for the purposes of the application, unless he is satisfied that, in all the circumstances of the case, the evidence should be heard.

(9) Where a sheriff decides that none of the grounds for referral in respect of which an application has been made are established, he shall dismiss the application, discharge the referral to the children’s hearing in respect of those grounds and recall, discharge or cancel any order, warrant, or direction under this Chapter of this Act which relates to the child in respect of those grounds.

(10) Where the sheriff, after the hearing of any evidence or on acceptance in accordance with subsection (8) above, finds that any of the grounds for the referral to which the application relates is, or should be deemed to be, established—

(a) he shall remit the case to the Principal Reporter to make arrangements for a children’s hearing to consider and determine the case; and

(b) he may if he is satisfied that—

(i) keeping the child in a place of safety is necessary in the child’s best interests; or

(ii) there is reason to believe that the child will run away before the children’s hearing sit to consider the case,

issue an order requiring, subject to subsection (12) below, that the child be kept in a place of safety until the children’s hearing so sit.

(11) An order issued under subsection (10) above may, if the sheriff is satisfied

[F1 (a) that one of the conditions mentioned in section 70(10) of this Act is met; and

(b) that it is necessary for the order to do so,]

provide that the child shall be liable to be placed and kept in secure accommodation within a residential establishment at such times as the person in charge of the establishment, with the agreement of the chief social work officer of the relevant local authority, considers necessary.

(12) A child shall not be kept in a place of safety by virtue of subsection (10)(b) above after whichever is the earlier of the following—

(a) the expiry of three days beginning with the day on which he is first so kept; or

(b) the consideration of his case by the children’s hearing arranged under subsection (10)(a) above.

Textual Amendments

F1 S. 68(11)(a)(b) substituted (31.1.2005) for words in s. 68(11) by Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), ss. 144(1), 145(2), Sch. 4 para. 4(4); S.S.I. 2004/420, art. 3, Sch. 4