Families should be together, if possible – that is not just everyday common sense but is, in fact, enshrined in Scots law. It is something that we might treat as a given. There are, however, circumstances in which the state (the government, primarily in the form of a local authority social work department) might seek to interfere with that. That is where the question of whether it is possible for families to remain together arises.
It is important that you gain specialist legal advice as soon as possible. Our team of child protection lawyers can help you. Call us today on 0141 778 9657 or by completing our online form.
An individual with parental rights in respect of a child has the right to determine where the child resides. All mothers automatically have parental rights and fathers named on the child’s birth certificate from 4 May 2006 onwards automatically have parental rights.
There are broadly only two ways in which children can come to be removed from the care of their mother or father: (1) with parental consent; or, (2) without parental consent (by way of a court order).
This article only seeks to address situations where parental consent is sought. In circumstances where a local authority social work department considers that a child should not reside within a particular home, or with a particular person, they may seek parental consent to place the child elsewhere. Section 25 of the Children (Scotland) Act 1995 makes provision for such circumstances.
Section 25 says:
If the social work department have concerns regarding your child's care or safety, they may ask you to sign a section 25 voluntary agreement (or to verbally agree to such an arrangement). By signing this, you are agreeing to your child being placed in a kinship care or foster care placement without the need for a court order. That is a significant decision to take and one which has implications for your child and your rights as a parent.
If you change your mind or circumstances change, a parent with parental rights and responsibilities can withdraw their voluntary consent. The local authority social work department would then have to consider whether to immediately return your child to your care or, alternatively, to apply to the sheriff court for a Child Protection Order (commonly referred to as a CPO), an emergency care order which – if granted – effectively overrides the parental right to determine residence for a maximum of 8 working days.
If your child has been outwith your care for more than 6 months and you withdraw voluntary consent, the situation is slightly different as the local authority social work department have 14 days to either return your child or, alternatively, to apply to the sheriff court for a CPO.
If granted, a CPO should state where your child should live (although this is often recorded as a place of safety other than where the child ordinarily resides, without specifying any address), and what contact (if any) the child will have with various family members. This is a legal order and the decision-making regarding where your child lives and who they have contact with no longer lie with you, nor with the local authority social work department. Instead, your child’s case is then formally part of the children’s hearing system. A children’s hearing (often referred to as a children’s panel, or simply a panel) is legally required to take place two working days after the granting of any CPO. It is likely that decision-making will remain with the children’s hearing and subsequently the sheriff court in the immediate future, especially if you are without able representation.
While you are no longer making the decisions regarding your child’s care arrangements, you can have a considerable say in where your child stays and who they have contact with by fully and effectively participating in any children’s hearing or sheriff court proceedings. The best way to achieve that – and to understand your rights, your child’s rights, and the processes, rules and procedures of the children’s hearing system – is to consult with a solicitor.
So, should you sign a Section 25 agreement with the social work department allowing your child to reside outwith your care? Before making that decision, seek advice from a specialist child protection lawyer.
If you find yourself in this situation, you should obtain legal advice in this regard as soon as possible. The Child Protection team at Livingstone Brown can offer immediate, expert assistance with these and all other child protection matters. As CPOs are emergency orders, they are often sought – and granted – outwith normal business hours. Livingstone Brown operates a 24 hour dedicated telephone line to ensure that you can obtain emergency advice and representation when it is most needed – call us on 0141 778 9657 or complete our online contact form.
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