Children (Scotland) Act 1995

Age of Legal Capacity (Scotland) Act 1991 (c. 50) S

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

I1 Sch. 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)