Social Work (Scotland) Act 1968

[F1 16 Resolution by local authority in respect of assumption and vesting of parental rights and powers. S

(1) Subject to the provisions of this Part of this Act, a local authority may resolve—

(a) that there shall vest in them the relevant parental rights and powers with respect to any child who is in their care under section 15 of this Act; or

(b) that there shall vest in a voluntary organisation which is an incorporated body, or a trust within the meaning of section 2(a) of the M1 Trusts (Scotland) Act 1921, the relevant parental rights and powers with respect to any child who is in the care of that organisation,

if it appears to the local authority—

(i) that the parents of the child are dead and that he has no guardian; or

(ii) that there exists in respect of a parent or guardian of the child (the said parent or guardian being hereafter in this Part of this Act referred to as the person on whose account the resolution was passed) any of the circumstances specified in subsection (2) of this section; or

(iii) that a resolution under this subsection is in force in terms of sub-paragraph (ii) above in relation to one parent of the child and that parent is, or is likely to become, a member of the household comprising the child and his other parent; or

(iv) that throughout the three years preceding the passing of the resolution the child has been in the care of a local authority under section 15 of this Act, or in the care of a voluntary organisation or partly the one and partly the other.

(2) The circumstances referred to in sub-paragraph (ii) of subsection (1) of this section are that the person on whose account the resolution was passed—

(a) has abandoned the child; or

(b) suffers from some permanent disability rendering him incapable of caring for the child; or

(c) while not falling within paragraph (b) of this subsection, suffers from a mental disorder (within the meaning of the [F2 M2 Mental Health (Scotland) Act 1984]) which renders him unfit to have the care of the child; or

(d) is of such habits or mode of life as to be unfit to have the care of the child; or

(e) has so persistently failed without reasonable cause to discharge the obligations of a parent or guardian as to be unfit to have the care of the child.

(3) In this section “the relevant parental rights and powers” means all the rights and powers in relation to the child (other than the right to consent or refuse to consent to the making of an application under [F3 section 18 or 55 of the Adoption Act 1976 or under section 18 or 49 of the M3 Adoption (Scotland) Act 1978] and the right to agree or refuse to agree to the making of an adoption order)—

(a) where the resolution was passed by virtue of circumstances specified in sub-paragraph (i) of subsection (1) of this section, which the deceased parents would have if they were still living;

(b) where the resolution was passed by virtue of circumstances specified in sub-paragraph (ii) of that subsection, of the person on whose account the resolution was passed;

(c) where the resolution was passed by virtue of circumstances specified in sub-paragraph (iii) of that subsection, of the parent other than the one on whose account the previous resolution was passed;

(d) where the resolution was passed by virtue of circumstances specified in sub-paragraph (iv) of that subsection, of the parents or guardian of the child.

(4) A local authority shall not pass a resolution under paragraph (b) of subsection (1) of this section unless—

(a) it is satisfied that the child is not in the care of any local authority under any enactment; and

(b) it is satisfied that it is necessary in the interests of the welfare of the child for the parental rights and powers to be vested in the voluntary organisation; and

(c) the child is living in the area of the local authority either in a residential establishment or with foster parents with whom he has been boarded out by the voluntary organisation in whose care he is; and

(d) that organisation has requested the local authority to pass the resolution.

(5) In the case of a resolution passed under sub-section (1) of this section by virtue of circumstances specified in sub-paragraph (ii), (iii) or (iv) thereof, . . . F4 the local authority, if [F5 the whereabouts of the person whose parental rights and powers have under the resolution vested in the local authority or in the voluntary organisation as the case may be] are known to them, shall forthwith after the passing of the resolution serve on him notice in writing of the passing thereof.

(6) Every notice served by a local authority under subsection (5) of this section shall inform the person on whom the notice is served of his right to object to the resolution and of the effect of any objection made by him.

(7) If, not later than one month after notice is served on a person under subsection (5) of this section, he serves a counter-notice in writing on the local authority objecting to the resolution, the resolution shall, subject to the provisions of subsection (8) of this section, lapse on the expiry of fourteen days from the service of the counter-notice.

(8) Where a counter-notice has been served on a local authority under subsection (7) of this section, the authority may, not later than fourteen days after the receipt by them of the counter-notice, make a summary application in respect thereto to the sheriff having jurisdiction in the area of the authority, and in that event the resolution shall not lapse until the determination of the application; and the sheriff may, on the hearing of the application, order that the resolution shall not lapse by reason of the service of the counter-notice:

Provided that the sheriff shall not so order unless satisfied—

(a) that it is in the interests of the child to do so; and

(b) that the grounds mentioned in subsection (1) of this section on which the local authority purported to pass the resolution were made out; and

(c) that at the time of the hearing there continued to be grounds on which a resolution under subsection (1) of this section could be founded.

(9) While a resolution passed under subsection (1) of this section by virtue of circumstances specified in sub-paragraph (ii), (iii) or (iv) thereof is in force with respect to a child, that part of subsection (3) of section 15 of this Act from the words “and nothing in this section shall authorise” onwards shall not apply in relation to the person who, but for the resolution, would have the relevant parental rights and powers in relation to the child.

(10) Any notice under this section (including a counter-notice) may be served by post, but a notice served by a local authority under subsection (5) of this section shall not be duly served by post unless it is sent by registered post or recorded delivery service.

(11) A resolution under this section shall cease to have effect if—

(a) the child becomes the subject of an adoption order within the meaning of [F6 section 38 of the M4 Adoption (Scotland) Act 1978]; or

(b) an order in respect of the child is made under [F3 section 18 or 55 of the Adoption Act 1976 or under section 18 or 49 of the Adoption (Scotland) Act 1978]; or

[F7 (c) a[F8 guardian]to the child is appointed under the Law Reform (Parent and Child) (Scotland) Act 1986; or]

(d) it is a resolution under paragraph (b) of subsection (1) of this section and a resolution is passed under subsection (1) of section 16A of this Act in respect of the child [F9 ; or]

[F9 (e) an event mentioned in paragraph (a) or (b) of section 25(1) of the Child Abduction and Custody Act 1985 occurs with respect to the child.]

(12) If the whereabouts of any parent or guardian of a child have remained unknown for twelve months, and throughout that period the child has been in the care of a local authority under section 15 of this Act, or in the care of a voluntary organisation, or partly the one and partly the other, then for the purposes of this section that parent or guardian shall be deemed to have abandoned the child.

(13) The Secretary of State may by order, a draft of which has been approved by each House of Parliament, amend sub-paragraph (iv) of subsection (1) of this section to substitute a different period for the period of three years mentioned in that sub-paragraph (or for the period which, by a previous order under this subsection, was substituted for that period).]

Textual Amendments

F1 S. 16 substituted by Children Act 1975 (c. 72, SIF 49:9,10), s. 74

F2 Words in s. 16(2)(c) substituted by virtue of Mental Health (Scotland) Act 1984 (c. 36, SIF 85), s. 127(1), Sch. 3 para. 15 where the substitution is expressed to relate to words in s. 16(3)

F3 Words substituted by Adoption (Scotland) Act 1978 (c. 28, SIF 49:11), s. 67(2), Sch. 2 paras. 3, 5, Sch. 3 para. 13

F4 Words repealed by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 7(1)(a)

F5 Words substituted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 7(1)(b)

F6 Words substituted by Adoption (Scotland) Act 1978 (c. 28, SIF 49:11), s. 67(2), Sch. 2 paras. 3, 5, Sch. 3 para. 14

F7 S. 16(11)(c) substituted by Law Reform (Parent and Child) (Scotland) Act 1986 (c. 9, SIF 49:8), s. 10(1), Sch. 1 para. 9

F8 Word in s. 16(11)(c) substituted (25.9.1991) by Age of Legal Capacity (Scotland) Act 1991 (c. 50, SIF 49:8), ss. 10(1), 11(2), Sch. 1 para.31 (with s. 1(3)).

F9 S. 16(11)(e) and the word “; or” preceding it inserted by Child Abduction and Custody Act 1985 (c. 60, SIF 20), Pt. III, ss. 25(6), 29(2)

Modifications etc. (not altering text)

C1 S. 16 applied by Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:2), s. 413(3) as substituted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), s. 59(3)

C2 S. 16(8) restricted by Child Abduction and Custody Act 1985 (c. 60, SIF 20), Pt. I, ss. 9(d), 20(2)(d), 29(2), Sch. 1 art. 16

Marginal Citations

M1 1921 c. 58.

M2 1984 c. 36

M3 1978 c. 28.

M4 1978 c. 28.