OpenLegislation

Section 2 Exceptions to section 1.

Scotland

(1)

A child is not a foster child while he is F1being looked after by a local authority or is boarded out by an education authority.

(2)

A child is not a foster child while he is in the care of any person—

(a)

in premises in which any parent, adult relative or guardian of his is for the time being residing;

(b)

in any residential establishment;

(c)

in any school within the meaning of the M1Education (Scotland) Act 1980;

(d)

in any hospital or in any F2accommodation provided by a care home service registered under F3Part 5 of the Public Services Reform (Scotland) Act 2010;

(e)

in any home or institution not specified in this section but maintained by a public or local authority; or

F4(f)

if he has been in that person’s care for a period of less than 28 days and that person does not intend to undertake his care for any longer period.

(3)

A child is not a foster child while he is in the care of any person in compliance with a supervision order within the meaning of the M2Children and Young Persons Act 1969 or a supervision requirement F5. . . or a F6community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995 (c.46) .

(4)

A child is not a foster child while he is liable to be detained F7under the Mental Health (Care and Treatment) (Scotland) Act 2003.

(5)

A child is not a foster child—

while he is placed in the care F8... of a person who proposes to adopt him under arrangements made by an adoption agency within the meaning of section 1 of the M3Adoption Act 1976 or F9section 119(1) of the Adoption and Children (Scotland) Act 2007 (asp 4) F10. . .

(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11(6)

The reference in subsection (1) above to a child being looked after by a local authority shall be construed as if it were a reference to which section 17(6) of the Children (Scotland) Act 1995 applies.

Annotations

Textual amendments

F1: Words in s. 2(1) substituted (1.4.1997) by 1995 c. 36, s. 105(4), Sch. 4 para. 35(2)(a); S.I. 1996/3201, art. 3(7) (as amended by S.I. 1997/744, arts. 2, 3)
F2: Words in s. 2(2)(d) substituted (1.4.2002) by 2001 asp 8, s. 79, Sch. 3 para. 12(2); S.S.I. 2002/162 arts. 2(f)(h) (subject to arts. 3-13)
F3: Words in s. 2(2)(d) substituted (1.4.2011) by The Public Services Reform (Scotland) Act 2010 (Consequential Modifications) Order 2011 (S.S.I. 2011/211), art. 1, Sch. 1 para. 5(a)
F4: S. 2(2)(f) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108(4)(6), Sch. 12 para. 42, Sch. 14 para. 1(1); S.I. 1991/828, art. 3(2)
F5: Words in s. 2(3) repealed (1.4.1997) by 1995 c. 36, s. 105(4)(5), Sch. 4 para. 35(2)(b), Sch. 5; S.I. 1996/3201, art. 3(7) (as amended by S.I. 1997/744, arts. 2, 3)
F6: Words in s. 2(3) substituted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), Sch. 2 para. 36; S.S.I. 2010/413, art. 2, Sch. (with art. 3 (1))
F7: Words in s. 2(4) substituted (27.9.2005) by Mental Health (Care and Treatment0 (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), art. 1, Sch. 1 para. 16(2)
F8: Words in s. 2(5)(a) repealed (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), s. 121(2), Sch. 3; S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21) (as amended (7.5.2012) by S.S.I. 2012/99, art. 2)
F9: Words in s. 2(5)(a) substituted (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), s. 121(2), Sch. 2 para. 3; S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21) (as amended (7.5.2012) by S.S.I. 2012/99, art. 2)
F10: S. 2(5)(b) and words immediately preceeding it repealed (1.4.1997) by 1995 c. 36, s. 105(4)(5), Sch. 4 para. 35(2)(c), Sch. 5; S.I. 1996/3201, art. 3(7) (as amended by S.I. 1997/744, arts. 2, 3)
F11: S. 2(6) added (1.4.1997) by 1995 c. 36, s. 105(4), Sch. 4 para. 35(2)(d); S.I. 1996/3201, art. 3(7) (as amended by S.I. 1997/744, arts. 2, 3)

Marginal citations

M1: 1980 c. 44.
M2: 1969 c. 54.
M3: 1976 c. 36.

Modifications

C1: S. 2(5)(a) modified (1.11.1994) by S.I. 1994/2804, reg. 3, Sch. 2 para. 3
C2: S. 2(5)(a) modified (6.4.2010) by The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (S.I. 2010/985), regs. 1(1), 5, Schs. 4
C3: S. 2(5)(a) modified (21.12.2018) by The Human Fertilisation and Embryology (Parental Orders) Regulations 2018 (S.I. 2018/1412), reg. 1(2), Sch. 4 para. 12