Jenny's Scenario
"Jenny is 13. She has been referred to the Children’s Reporter on ‘lack of parental care’ grounds and she has sought your help for an upcoming children’s hearing. The grounds of referral have been established at court and the hearing will be asked to decide if Jenny should be placed in foster care. Jenny tells you that she sees her Gran every Friday after school and stays overnight. She was always close to her Gran growing up but her Mum and her Gran had a falling out a few years ago and Mum stopped Jenny from going to visit her. Her Gran sought a s11 order for contact and was granted this by the Court, which is why Jenny now goes to her Gran’s every Friday. Jenny wants to keep seeing her Gran even if she does go to live with foster carers for a while and is worried that she won’t be able to. Her Gran has told her that she doesn’t know what will happen and that she hasn’t heard anything about a children’s hearing."
What are s.11 orders?
Section 11 orders are legal orders granted by a Sheriff under section 11 of the Children (Scotland) Act 1995. These orders regulate parental rights and responsibilities (PRRs) in relation to a child. These are private law court orders, meaning that the court proceedings are between private individuals, such as two parents, rather than between a public body and an individual.
Section 11 orders are wide in scope, and can give PRRs to someone, take them away or stop someone with PRRs from exercising them in some way. They can also regulate who the child lives with (“residence”), who the child sees (“contact”) and one-off issues such as a child’s name or what school they attend (“specific issue”)
When making any order under s11, the Sheriff must consider the child’s welfare as it’s paramount consideration, they must take into account the child’s views if they wish to express them (and they are old enough to do so), and must only make an order if it is better for the child to do so than not. In addition, the Sheriff must have regard to the need to protect the child from abuse or the effect of abuse on the child (whether that abuse was directed towards the child or someone else).
Section 11 orders can be temporary (known as ’interim’ orders) and can be changed by the Court on application, if it is in the child’s interests to do so.
Who has parental rights and responsibilities?
A birth mother has PRRs from the time of the child’s birth.
A father will have PRRs from the time of the child’s birth if they are a) married to the child’s mother at the time of conception or subsequently, or b) named as the child’s father on the child’s birth certificate (if the child was born after 4 May 2006).
There is also a mechanism where a mother can grant PRRs to the child’s natural father (but no one else) by agreement.
Who can apply for a s.11 order?
Anyone with PRRs can apply to the Court if they feel a court order is necessary to regulate PRRs in some way. Someone without PRRs can also apply for an order to seek them, like Jenny’s Gran, if they can show an interest or connection to the child. A child can themselves ask for a section 11 order, or seek to have an existing order varied if they have the capacity to instruct a solicitor to help them.
Can a child be subject to both a s11 order and a CSO?
Yes, though where the orders conflict, the terms of the CSO take priority. If a Children’s Hearing decided that Jenny seeing her Gran was not in her best interests for whatever reason, the Hearing could make it a condition of the CSO that Jenny has no contact with her Gran, and that would take precedence over the s11 order that is in place.
Does a person with a s11 order for contact with the child become a Relevant Person if the child is referred to the Children’s Hearing?
If a person has PRRs in relation to a child then they will automatically be a Relevant Person for the purposes of the Children’s Hearing. However, Jenny’s Gran does not have full PRRs, just an order for contact, and that is not enough on its own to make her a Relevant Person automatically. Remember though, that someone can be deemed to be a Relevant Person by a children’s hearing if “they have, or have had, significant involvement in the upbringing of the child” and the contact order and the circumstances around it may be a factor the children’s hearing consider should Jenny’s Gran ask the Hearing to consider Relevant Person status for her.
If someone has a contact order under s11 and they are not a relevant Person for the child in the Children’s Hearing, do they have any rights to speak to the Children’s Hearing if it makes a decision that affects their right to contact?
Yes, if someone has a s11 order for contact but they are not a Relevant Person, there is a process for them to give their views to the Hearing and ask for a contact direction to be reviewed. This is a called a ‘Contact Direction Review Hearing’.
When a Children’s Hearing makes any contact direction as part of a CSO or ICSO, if there is a person who has a s11 order who is not a Relevant Person (therefore, would not have been in attendance at the Hearing when the direction was made) the Reporter must arrange a Contact Direction Review Hearing within 5 working days of the hearing that made the contact direction. The Reporter will provide papers for the hearing to the person with the s11 order for contact that relate only to the contact direction made. The child and Relevant Persons can attend the Contact Direction Review Hearing but they don’t have to. The Hearing, having heard from those in attendance, can either confirm the decision of the previous Hearing, or can vary or remove the contact direction.
Applying this to Jenny’s situation, lets say that at the Hearing you attend with Jenny, a CSO is made requiring Jenny to live with foster carers and that she should see her Mum three times a week for 2 hours and her Gran once a week for 2 hours. The Reporter, knowing that Gran has a s11 order for contact, will arrange a Contact Direction Review Hearing and invite Jenny, her Mum and any other Relevant Persons and her Gran. IT will take place within 5 working days of the original hearing. Gran, and anyone else in attendance, will speak to the Hearing and the Hearing will make a decision either confirming the contact direction, varying it or removing it.
Jenny, her Mum as Relevant Person and her Gran, all have the right to appeal the decision of the Contact Direction Review Hearing.
Contact our helpline if you would like to discuss s.11 orders with a lawyer.
