What is an exclusion order and what can it do?
An exclusion order is a statutory measure available to protect children from significant harm by excluding an alleged abuser from the family home or household. An exclusion order has the effect of suspending the named person’s rights of occupancy (if any) to the
family home. It also prevents the person – whether an occupier or not – from entering the home, except with the permission of the local authority which applied for the order. A person named in an exclusion order may be the child’s parent or a member of the child’s family or anyone from whom it is considered necessary to protect a child from significant harm or the threat of harm, for example, a visitor to the family home.
Section 77 of the act allows the sheriff when making an exclusion order to do any of the following:
- grant a warrant for the summary ejection of the named person from the home
- grant an interdict prohibiting the named person from entering the home without the express permission of the local authority
- grant an interdict prohibiting the removal by the named person of any relevant item specified in the interdict from the home, except either: (a) with the written consent of the local authority, or of an appropriate person; or (b) by virtue of a subsequent order of the sheriff
- grant an interdict prohibiting the named person from entering or remaining in a specified area in the vicinity of the home
- grant an interdict prohibiting the taking by the named person of any step of a kind specified in the interdict in relation to the child
- making an order regulating the contact between the child and the named person.
An exclusion order lasts for six months unless it contains a direction by the sheriff that it shall cease to have effect on an earlier date. The local authority, the named person, the parent(s) or the person taking care of the child in the family home, and the spouse or partner may apply to the sheriff to discharge the order. Application can also be made to vary or recall any warrant, interdict, order or direction made. The duration of an exclusion order cannot be extended but a further order may be applied for. The views of the child must be sought in relation to the variation or recall of an exclusion order.
Conditions for making an order
In terms of Section 76 (2) of the act three conditions must be satisfied before the sheriff may grant the order. These are that:
- the child has suffered, is suffering, or is likely to suffer significant harm as a result of any conduct, or any threatened or reasonably apprehended conduct of the named person
- the order is necessary to protect the child – irrespective of whether the child is for the time being residing in the family home – and would better safeguard the child’s welfare than removal of the child from the home
- there will be a person in the family home able to take responsibility for providing appropriate care for the child who is the subject of the order and any other family member who needs care.
Even when a sheriff decides that an exclusion order is necessary he/she will not make the order if it appears unjustified or unreasonable having regard to all the circumstances of the case. The circumstances that he/she will consider are:
- the conduct of the child and family
- the needs and financial situation of the family members
- the extent to which the home is used for a family member’s trade or profession and likely consequences.
The sheriff when considering whether to make, vary or discharge an exclusion order, must give the child concerned, taking account of his/her age and maturity, an opportunity to express his/her views if he/she wants to and the sheriff must have regard to any views expressed. The means of taking the view of the child are for the sheriff to determine in accordance with the rule of court.
Steps to be taken in preparing an application
When consideration is being given to the necessity of making an application for an exclusion order this should be discussed with the local co-ordinator, children
services. The co-ordinator should consult with the council’s legal services if consideration is being given to an application for an exclusion order.
Before making a decision about the need for an exclusion order the co-ordinator, children services shall convene an initial referral discussion to consider the matter. The case discussion should involve representatives of appropriate agencies, in particular: health, education and housing staff, as well as the council’s legal services.
The initial referral discussion should consider whether the criteria for an exclusion order are satisfied and should pay particular attention as to whether co-operation may be obtained in any other way and whether in all the circumstances an exclusion order is the most appropriate measure to be sought.
The initial referral discussion should consider any difficulties likely to be encountered in implementing the order, if granted. In particular, it should consider whether assistance may be required from the police/sheriff officers to enforce the order.
It is unlikely that an exclusion order will be used to provide emergency protection for a child. In these circumstances an interim order should be sought. This has the same effect as an exclusion order but can be granted immediately by the sheriff before the hearing takes place. If the hearing is not held within three working days then the interim exclusion order will fall.
Exclusion orders may also be used when a child protection order has been granted but subsequent discussions have found that it would be in the best interests of the child to be returned home and the suspected adult perpetrator, who still poses a risk to the child, will not voluntarily leave the home.
Information required for an application
The main determinants of the decision to seek an order will be evidence of:
- the degree of significant harm
- the likelihood of this harm recurring
- the extent to which attempts to proceed with voluntary exclusions have failed.
Where a decision has been made to seek an order, the initial referral discussion should consider the information required from each appropriate agency to support the application. This may include, for example, school or health visitor’s reports.
The minute should record the views of the child and how these have been ascertained.
The minute should also record decisions of the initial referral discussion regarding any ancillary orders that may require to be sought in terms of Section 77 and 78.
Procedure for making an application
Following a decision to apply for an exclusion order, the co-ordinator, children services should contact the authority’s legal services and intimate the intention to make an application. The minute of the initial referral discussion and any other relevant information, including reports from other agencies such as school, health and housing, must be made available to the appointed solicitor, with a minimum of delay.
The co-ordinator, children services should consult with the appointed solicitor about whether (and if so, which) social work personnel should accompany the solicitor making the application.
The application (including service) will be made by the appointed solicitor.
Action following the sheriff’s decision
Following the granting of an exclusion order notification of the order will be intimated to the appropriate parties by the appointed solicitor.
The co-ordinator, children services should ensure that an appropriate plan to monitor the operation of the exclusion order is implemented and reviewed as appropriate.
If at any point available information suggests that conditions for a child protection order are satisfied then that order should be sought without delay. (See procedures for child protection orders.)
Following the application for an exclusion order to be granted, consideration should be given to notifying relevant authorities if this has not already been done. The task should be carried out by the social worker following consultation with their line manager. While notification for the application for an exclusion order is not a referral to the children’s reporter, notification of the granting of such an order or an interim order is treated as a referral.