Social Work (Scotland) Act 1968

42 Conduct of children’s hearing and application to sheriff for findings. S

(1) Subject to the provisions of subsections (7)

and (8) of this section, at the commencement of a children’s hearing, and before proceeding to the consideration of the case, it shall be the duty of the chairman to explain to the child and his parent the grounds stated by the reporter for the referral of the case for the purpose of ascertaining whether these grounds are accepted in whole or in part by the child and his parent.

(2) Thereafter—

(a) where the child and his parent accept the grounds stated by the reporter for the referral the hearing shall proceed;

(b) where the child and his parent accept those grounds in part and the children’s hearing consider it proper so to do the hearing may proceed in respect of the grounds so accepted; and

(c) in any other case, unless they decide to discharge the referral, the children’s hearing shall direct the reporter to make application to the sheriff for a finding as to whether such grounds for the referral, as are not accepted by the child or his parent, are established having regard to the provisions of section 32 of this Act.

[F1 (2A) Where the ground for referral is that the child is in need of compulsory measures of care because he has committed an offence, the sheriff to whom an application under subsection (2)(c) above shall be made shall be the sheriff who would have jurisdiction if the child were being prosecuted for that offence.]

(3) It shall be the duty of the chairman of a children’s hearing who have made a direction under the last foregoing subsection to explain to the child and his parent the purpose for which the application to the sheriff is being made, and to inform the child that he is under an obligation to attend the hearing of the application, and where a child fails to attend at the hearing of the application the sheriff may issue a warrant for the apprehension of the child; and any warrant so issued shall be authority for bringing him before the sheriff and for his detention in a place of safety until the sheriff can hear the application, but a child shall not be detained under this subsection [F2 after whichever is the earlier of the following—

(a) the expiry of 14 days beginning with the day on which he was first detained;

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

(4) An application under subsection (2) of this section shall be heard by the sheriff in chambers within twenty-eight days of the lodging of the application and, without prejudice to their right to legal representation, a child or his parent may be represented at any diet fixed by the sheriff for the hearing of the application.

(5) Where a sheriff decides that none of the grounds in respect of which the application has been made has been established for the referral of a case to a children’s hearing, he shall dismiss the application and discharge the referral in respect of those grounds.

(6) [F3 Subject to subsection (6A) of this section,] Where the sheriff is satisfied on the evidence before him that any of the grounds in respect of which the application has been made has been established

[F4 (a)] he shall remit the case to the reporter to make arrangements for a children’s hearing for consideration and determination of the case [F5 ; and

(b) if he is satisfied that detention of the child is necessary in his own interest or has reason to believe that the child will run away before the children’s hearing sit to consider the case, he may issue a warrant requiring the detention of the child until the children’s hearing sit to consider the case, but a child shall not be detained under this subsection after whichever is the earlier of the following–

(i) the expiry of 3 days beginning with the day on which he was first detained;

(ii) the consideration of his case by the children’s hearing.]

, and where a ground for the referral of the case is the condition referred to in section 32(2)(g) of this Act, the sheriff in hearing the application shall apply to the evidence relating to that ground the standard of proof required in criminal procedure.

[F6 (6A) Notwithstanding the provisions of subsection (2)(c) of this section, where, in the course of the proceedings before the sheriff, the child and his parent accept any of the grounds in respect of which the application has been made, the sheriff may dispense with the hearing of evidence relating to that ground unless he is satisfied that in all the circumstances such evidence should be heard, and deem that ground to have been established for the purposes of this section.]

(7) Where a children’s hearing are satisfied that the child for any reason is not capable of understanding the explanation of the grounds of referral required by subsection (1) of this section, or in the course of, or at the conclusion of that explanation, it appears not to be understood by the child, the hearing shall, unless they decide to discharge the referral, direct the reporter to make application to the sheriff for a finding as to whether any of the grounds for the referral have been established, and the provisions of this section relating to an application to the sheriff under subsection (2)(c) thereof shall apply as they apply to an application under that subsection [F7 except that where any of the grounds for the referral are accepted by the child’s parent, whether or not accepted by the child, then, notwithstanding subsection (6A) of this section, the sheriff may dispense with the hearing of evidence relating to that ground if he is satisfied that in all the circumstances it would be reasonable to do so.]

(8) The acceptance by a parent of the grounds of referral shall not be a requirement to proceeding with a case under this section where the parent is not present.

Textual Amendments

F1 S. 42(2A) inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 21

F2 Words substituted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 49:6), s. 25(1)

F3 Words inserted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), Sch. 2 para 8(a)

F4 “(a)” inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 49:6), s. 25(2)(a)

F5 Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 49:6), s. 25(2)(b)

F6 S. 42(6A) inserted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), Sch. 2 para.8(b)

F7 Words added by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), Sch. 2 para. 8(c)

Modifications etc. (not altering text)

C1 S. 42 extended by Rehabilitation of Offenders Act 1974 (c. 53, SIF 39:1), s. 3