What is a child protection order?
The purpose of the child protection order is to ensure that where necessary urgent action can be taken to remove a child to a place of safety or to prevent the removal of a child from a place where he or she has been accommodated.
A child protection order can do any of the following:
- require any person in a position to do so to produce the child to the applicant
- authorise removal of the child by the applicant to a place of safety, and the keeping of the child in that place
- authorise the prevention of the removal of the child from any place where he or she is being accommodated.
- provide that the location of any place of safety in which the child is being kept should not be disclosed to any person or class of person specified in the order itself.
A child subject to a child protection order is “a looked after child” under the terms of the Children (Scotland) Act 1995.
The sheriff may make directions as to contact with the child and/or medical or psychiatric examination or other assessment or interview of the child.
The duration of the order is limited to a maximum of eight working days from implementation until a Children’s Hearing meets in accordance with Section 65(2) of the Act.
Conditions to be satisfied before an order can be obtained
Under Section 57(1) of the act a local authority or any person may apply to the sheriff for a child protection order if there are reasonable grounds to believe that a child is being treated or neglected in such a way that he/she is suffering significant harm or will suffer such harm if she/he is not removed to a place of safety and that such an order is necessary to protect the child from such harm or further harm.
Under Section 58 the court may make directions relating to contact with the child and the exercise of the parental rights and responsibilities, as well as directions regarding an examination of the physical or mental state of the child.
In terms of Section 57(2) of the act, on application by a local authority (and only a local authority), the sheriff may make a child protection order if satisfied that the following conditions are met:
- that the applicants have reasonable grounds to suspect that a child is being or will be treated or neglected in such a way that he/she is suffering, or will suffer significant harm
- that the local authority are making or causing to be made inquiries to allow them to decide whether they should take any action to safeguard the welfare of the child
- That their inquiries are being frustrated by the unreasonable denial of access to the child in circumstances where the local authority has reasonable cause to believe that such access is required as a matter of urgency.
Steps to be taken before applying for an order
Before deciding to apply for a child protection order there are a number of matters which as far as is practicable should be considered:
- an assessment of the alternatives to an application for the order
- the ascertainable wishes and feelings of the child, having regard to the child’s age and understanding
- the child’s physical, emotional and educational needs, including any special need during the period of the order if made
- the likely effect on the child of a change in circumstances which might result from an application for an order
- the child’s age, gender and family circumstances
- the circumstances giving rise to the application
- the need for any directions relating to, for example, contact and assessments and which the court may attach to the child protection order if made
- the nature and effect of any other orders or requirements already made in respect of the child, for example, a residence order, contact order or supervision requirement.
- Contact should be made with the council’s legal services department for consultation.
Before making an application for a child protection order the social worker must consult with their team leader, children services who in turn should consult with the co-ordinator, children’s services.
Legal services should be contacted as soon as it appears likely that an application for a child protection order will be necessary.
Legal services will make the formal application for the order. The co-ordinator, children’s services or team leader will discuss with the appointed solicitor which social work staff will accompany the solicitor making the application.
Information required for an application
All applications for a child protection order must be made to a sheriff. Justices of the Peace cannot make child protection orders (although they can authorise the use of emergency child protection measures in specific circumstances.)
All applicants for a child protection order must demonstrate to the sheriff that the criteria for granting an order are met.
The application to the sheriff must identify the applicant and, as far as possible, the child. There must be a statement of the grounds on which the application is made and this must be accompanied by supporting evidence, written or verbal. This information is necessary to enable the sheriff to determine the application. The sheriff will give such weight as he or she thinks appropriate to any relevant hearsay, opinions, social work and other relevant records, medical reports, including any statements made to the police.
Procedure for making an application
An application should include a written account of the information available, a detailed outline of the concerns – including specific reasons why a child protection order is being sought. The application should be presented by the solicitor.
When an order is to be served and there is insufficient time to employ any of the methods specified in paragraph (2) of Rule 3.15 of the Act of Sederunt (Child Care and Maintenance Rules) 1997, the person seeking the child protection order should consider seeking a direction from the sheriff regarding effecting it orally, or in another manner.
The application to the sheriff
In presenting an application to the sheriff, legal services, social workers and team leaders need to ensure that the application satisfies the main issues of concern to the sheriff, namely that:
- the criteria are satisfied
- attempts to proceed without an order have failed or are not appropriate
- the making of an order would be better for the child than not to make an order.
The appointed solicitor and team leader must decide whether the application is to be made under Section 57 (1) or 57 (2). An application would only be made under Section 57(2) where parents/carers are preventing access to the child. Hence the lower test of “grounds to suspect” rather than “grounds to believe” that the child is at risk of significant harm is the test of the evidence put before the sheriff. Section 57 (1) refers to “any person” whereas Section 57(2) is specific to the local authority. The application should address the question of why the order is necessary to protect the child. Even where it can be shown that the grounds in Section 57 (1) (a) are satisfied it is essential to show other ways of protecting the child have been considered but are not appropriate, e.g. voluntary arrangements with the family; application for another order; placement of the child with friends or relatives.
In addition to giving evidence to the sheriff verbally, as much of the evidence as is possible should be written down as part of the application. Any written reports or statements received by the social worker should also be included.
Under Section 57 (1) the sheriff must be satisfied there is evidence to show that there are reasonable grounds to believe a child has been, or will be harmed. Therefore, an applicant will need to demonstrate what observations have been made or what information has been received which has lead to the belief that harm exists or is likely.
Evidence will be required by the sheriff to demonstrate that the harm is significant. The act does not define significant harm, but it will need to be demonstrated that the harm is not of a “minor, transient or superficial nature”. Therefore it is important that the application contains information which indicates:
- the nature of the harm
- the source of the harm
- the extent of the harm.
Where possible evidence about harm should be supported by evidence in the form of statements or reports and/or research.
Action following a sheriff’s decision
The co-ordinator, children services must ensure that attempts are made to implement the order without delay. If no attempt is made to implement the order within 24 hours it will cease to have effect.
It is the responsibility of the applicant to serve notice on various parties of the order. The order should be served on the following:
- the child
- the parent (or relevant person) whose whereabouts are known
Immediately following the granting of a child protection order team leader must ensure that all the material presented to the sheriff is made available to the authority reporter.
On serving the order advice must be given about the provision for seeking variations or discharge of the order, and this should be confirmed within an explanatory note which should be given to parents (or the relevant person) informing them of their rights and responsibilities under the order. The parents should not be given a copy of the supporting evidence submitted to the sheriff.
Following the granting of a child protection order legal services must be updated so that they can become involved in any subsequent application for a recall or variation of the order.
If there is no application for variation or recall before expiry of the order, there will be an initial hearing within two working days and a full hearing on the eighth working day. The team leader must ensure that the appropriate social work department staff are in attendance.
Application for variation or recall of the order can be made for either prior to or following the initial hearing. In the event of an application for recall or variation the social work manager should consult with the appointed solicitor to ensure that appropriate social work staff and all relevant information are available to the hearing. This will facilitate the three working day timescale for this hearing to take place to prevent the order lapsing. The child protection order ceases to have effect where the reporter determines that the conditions for making a child protection order are no longer met.
Following an application for a child protection order being granted, if the reporter, considers that the child protection order conditions are no longer satisfied, he/she can decide that the order is no longer appropriate. In these circumstances the co-ordinator, children services should consider convening a child protection initial referral discussion to decide what action if any, may be required.