When there are serious concerns about a childโ€™s safety at home, the court has powers under Section 76 of the Children (Scotland) Act 1995 to make an exclusion order where an application has been made by a local authority. This type of order does not remove the child from the family home. Instead, it removes the person who poses a risk (called the โ€œnamed personโ€), allowing the child to remain safely in their familiar environment.

What is an Exclusion Order?

An exclusion order is a court order which excludes a specific person from the family home where a child lives. It is usually applied for when there is evidence that a child is:

  • Suffering,
  • has suffered, or
  • is likely to suffer significant harm, because of that personโ€™s conduct or threatened conduct.

The court must also be satisfied that:

  • Removing the person from the home will protect the child better than removing the child.
  • There will be a third party (an โ€œappropriate personโ€) able to look after the child and any other dependants in the family home.

Who Can Apply?

Only a local authority can apply for an exclusion order. This is different from many family orders, which parents or carers can apply for directly.

Procedure and Safeguards

  • Before a final decision is made, the person at risk of being excluded (the โ€œnamed personโ€) must be given the chance to be heard or legally represented.
  • Anyone else notified of the application may also express their views, which the sheriff must take into account.
  • Where urgent protection is needed, the court can grant an interim exclusion order (a temporary order) pending a full hearing.

Limits and Considerations

The sheriff will not grant an exclusion order if it would be unjust or unreasonable in the circumstances. When deciding, the court must consider:

  • The behaviour of family members towards each other.
  • The financial needs and resources of the family.
  • Whether the family home or items within it are used for work or business purposes.
  • Whether the person being excluded is required to live in the property (e.g. tied accommodation provided by an employer or agricultural tenancy).

Relationship with Other Orders

If the sheriff considers that the test for a Child Protection Order (CPO) is met, they can grant a CPO instead of, or in addition to, an exclusion order.

What Counts as a Family Home?

The law defines โ€œfamily homeโ€ broadly. It includes:

  • Houses, caravans, houseboats, or other structures used as a residence.
  • Gardens and outbuildings usually occupied with the home.

The key point is that the child ordinarily lives there with someone who has parental responsibilities or who otherwise cares for them.

Why Exclusion Orders Are Important?

Exclusion orders were introduced to protect children without unnecessarily uprooting them. In the past, children were often removed from the family home and placed in foster or residential care to escape risk. Exclusion orders shift the focus โ€” instead of displacing the child, the court can remove the person causing harm.

This approach supports stability and welfare by letting children remain in their familiar environment, attend the same school, and continue daily life as normally as possible.

Key Takeaway

An exclusion order under Section 76 of the Children (Scotland) Act 1995 allows the court to remove an abusive or harmful individual from a childโ€™s home, rather than removing the child. The childโ€™s welfare and safety are always the paramount considerations, and the court will only grant such an order if it is necessary, proportionate, and reasonable in the circumstances.

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