During these unprecedented times, obligations are imposed on families to remain together at home. Keeping the parent and child bond intact is often treated as a given. There can however be circumstances in which the State, in the form of the Local Authority, might seek to interfere with that. Where a child could be removed from the family home, the correct legal advice is crucial.
An individual with parental rights for a child has the right to decide where the child lives. The mother has parental rights, and fathers named on the child’s birth certificate from 4th May 2006 onwards will automatically also have parental rights.
Where social workers consider that a child should no longer reside within a particular home or with a particular person, they may seek parental consent to move that child on a ‘voluntary’ basis in terms of Section 25 of the Children (Scotland) Act 1995.
If you are contacted by the Social Work Department who express concern regarding your child’s care or safety, in the first instance you may be asked to sign a “Section 25 voluntary agreement”. If you sign such an agreement, your child can be placed in a kinship care or foster care placement without a court order being necessary. Kinship care places a child with relatives, such as grandparents. Foster care places a child in a family with whom the child has no prior connection. This is a significant decision for a parent to make and it could have far reaching implications not only for your child, but also for you as a parent. Take legal advice before signing any document that will affect your rights as a parent.
If you do give consent, you are entitled to withdraw it if you change your mind. The social work department would then need to return your child to your care immediately, or seek a court order. The most common court order sought would be a Child Protections Order (known as a “CPO”). This is an emergency order granted by a Sheriff and effectively overrides the parental right to determine where a child should stay.
During the coronavirus pandemic, the social work department can still apply to the Court for an emergency order. A CPO is granted by a court without parental participation and often without parental knowledge. After a CPO is granted, a children’s hearing (often called a Panel hearing) must take place within two working days. Decisions are then made by the Panel.
You are entitled to take part in the children’s hearing or sheriff court proceedings that follow a CPO. To effectively participate, you will need an understanding of both the process and your rights. An experienced solicitor can help you with this.
Children’s Hearings usually take place within the offices of the Children’s Reporter, with everyone who has a legal right to attend being present. Receiving an invitation to a hearing can be very daunting for a parent who has not had any experience of the system. Our solicitors can advise you on what to expect at a hearing and can attend with you, and legal aid is available.
Presently, all Children’s Hearings centres are closed. Hearings are being conducted ‘virtually’, using a video and/or audio link. Steps are being taken to arrange for parents and children to participate. If your hearing is proceeding ‘virtually’ you will receive a letter from the Children’s Reporter informing you of the date and time for the hearing and also advising how you can participate, if you choose to, using your computer or smartphone.
The thought of participating in a virtual hearing may be overwhelming. In the present Covid 19 circumstances, we can also represent you at the ‘virtual’ hearing.
Our experienced family team understand the difficult circumstances that social work involvement with your child will create. For more information or advice, please get in touch with our child law specialist, Lynne Collingham — lyc@tcyoung,.co.uk or with Evelyn Wallace —.