Child protection in Scotland
12th December 2014
The newly published judgement of Sheriff Holligan at Edinburgh Sheriff Court regarding the “new” child protection order provisions of the Children’s Hearings (Scotland) Act 2011 is of note to anyone involved with child protection issues in Scotland. Observing that "it is hard to envisage a more important order a court can grant than one removing a child from its parents" the Sheriff reviews the provisions of the 2011 Act and makes a number of observations as to how those provisions should be interpreted and how applications should be dealt with in practice. In particular, he notes that given the complexity of the provisions and the very serious nature of the order involved, the practice of having applications presented by social workers with no legal training is inadequate and that where an order is sought the local authority “requires” to be represented by a solicitor. He also addresses the issue of whether parents have a right to be heard by the court prior to the grant of a child protection order, concluding that given the stringent nature of the test to be applied by the court, the emergency nature of the order and the short duration of any order made, there is no requirement for the parents to be given the opportunity to be heard. In doing so he distinguishes the decisions in J v The Lord Advocate and E v The Lord Advocate, decided under the “old” child protection order provisions, which have given rise to a practice in some local authority areas of prior notification of applications being given to parents. The full judgement can be found here.
