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National Guidance for Child Protection in Scotland: Consultation



103. Since the last full review of child protection guidance in 1998, there has been a range of legislative changes. As well as focusing on legislation passed since the last review, it is also worth revisiting some of the core legislation. The relevant legislation is set out here and presented in the following categories:

  • the duties conferred on services to investigate and respond to concerns about a child's welfare, as well as the responsibilities of local authorities to develop community planning processes with partner agencies;
  • 'over-arching' legislation (for example, Data Protection) where some aspects have a particular relevance; and
  • other legislation including offences relating to children and young people and legislation relating to civil law or administrative arrangements, arranged in thematic order.

Duties to Protect

104. The legal duty to investigate and report in relation to child care issues is derived from two sources: the Police (Scotland) Act 1967 which provides the mandate for police officers; and the Children (Scotland) Act 1995, of which section 53 provides the mandate for local authorities and section 56 for Reporters to the Children's Hearing.

Police (Scotland) Act 1967

105. Although updated and amended by subsequent legislation, many of the current standard police powers emanate from this legislation. Powers to arrest and detain, duties to investigate and report (including the duty towards children), and the nature and organisation of the police service in Scotland are all contained within this legislation.

Children (Scotland) Act 1995

106. This remains one of the primary pieces of legislation providing the range and scope of local authority intervention in the lives of children and their families. The duties of the local authority within this legislation are, in the main, discharged by statutory social work services.

Social Work (Scotland) Act 1968

107. Although amended many times over the years, this legislation provides the primary mandate for social work intervention in Scotland. It is the legislation that creates the duty under section 12 to 'promote social welfare'. While this has been added to by the Children (Scotland) Act 1995 to specify 'children in need', the over-arching mandate remains that it is the duty of the local authority to ensure that such services are made available across their jurisdiction as could be considered consistent with this duty.

Local Government in Scotland Act 2003

108. Part 2 of this legislation, which is concerned mainly with issues of community planning, contains details of the duty on local authorities to establish and maintain a process of community planning which will include within its functions the scope for developing Child Protection Committees.

109. Part 3 of the Act deals with the power of local authorities to enhance well-being and again this can be interpreted as being relevant to the establishment of Child Protection Committees.

Education (Additional Support for Learning) (Scotland) 2004 and 2009

110. This legislation replaces the system created by the Education (Scotland) Act 1980 for the recording and assessment of special educational needs for children. The process of creating a 'Record of Needs' in the 1980 legislation has been replaced with a system of co-ordinated support plans for each child identified as having significant additional support needs. Under section 9 of the 2004 Act, where it has been established that a local education authority has responsibility for the child's education and the child has additional support needs, they have a duty to provide a co-ordinated support plan for the child. This legislation has been amended by the Act of 2009.

Over-arching Legislation

Data Protection Act 1998

111. While this legislation impacts on all aspects of social work intervention, some sections have a particular importance for child protection situations. The basic principles of the Act remain relevant in terms of the conditions in which any data can be 'processed' and it is the responsibility of the Data Controller within any organisation to ensure that the key principles set out in the Act are adhered to by all staff. Of particular note in the child protection context are those sections of the Act that relate to confidentiality, sharing of information and disclosure of sensitive information. More information on this legislation can be found in the chapter on information-sharing.

Human Rights Act 1998

112. All legislation passed by either the UK or Scottish Parliament should adhere to the principles of the European Convention on Human Rights. Insofar as it is possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention Rights. Sometimes there may be a potential conflict of interest between children and adults and a balancing of competing rights will be required. More information on this legislation can be found in the chapter on Principles and Standards.

UN Convention on the Rights of the Child

113. Ratified by the UK Parliament in 1990, this Convention serves to inform all subsequent child-care legislation. The rights of the child to wherever possible, express a view and have this taken into account and the right to have their interests seen as the primary interest are important aspects of this Convention. More information on this Convention can be found in the chapter on Principles and Standards.

Other Relevant Legislation

Legislation Defining Offences against Children

Sexual Offences (Amendment) Act 2000

114. This legislation deals with issues arising from offences committed against children by persons in a 'position of trust'. For the purposes of the Act, this encompasses any person who is looking after a child under the age of 18 who is being detained by order of a court and looked after and accommodated by the local authority, in a range of settings including hospitals and residential schools. The offences in question relate to a range of 'sexual activity' with the young person undertaken in the knowledge that the young person was under the age of 18. The Act also lowers the age at which some sexual acts are lawful, in some cases from 18 to 16 or 21 to 16.

Protection from Abuse (Scotland) Act 2001

115. While the primary focus of this legislation is women subjected to domestic violence and the potential legal remedies available to them, utilising aspects of this legislation can assist attempts to safeguard the interests of children, particularly given what is now known about the impact of abuse upon children. 5 The primary remedy offered by this legislation is that of powers of arrest being attached to an interdict regardless of the relationship between the abused and the abuser.

Criminal Justice (Scotland) Act 2003

116. This wide-ranging piece of legislation has important sections that relate to children and young people both in terms of the Children's Hearings system and the interpretation of what constitutes legally justifiable physical punishment. Following a consultation exercise in 2000, 6 where opinions were very divided, it became clear that there was no consensus across Scottish society on what had been portrayed as the 'smacking ban'. What section 51 does, however, clarify is that it is an offence to punish a child in any manner that involves "a blow to the head, shaking or the use of an implement". Where any such offence is committed, the defence of reasonable chastisement does not apply.

117. Sections 52 and 53 relate to changes in terms of the reporting restrictions on Children's Hearings and also the amount of information that the Principal Reporter can make available to child victims and relevant persons where the offender is also a child.

118. Section 16 addresses issues around the rights of victims to be advised of the release dates etc of offenders. This may be of relevance to children in circumstances where the perpetrator of offences against them has received a significant prison sentence.

Prohibition of Female Genital Mutilation (Scotland) Act 2005

119. This legislation makes an important statement about what is considered to be acceptable conduct in respect of female circumcision and other related matters. More information on this legislation can be found in the chapter on Indicators of Risk in the section on female genital mutilation.

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005

120. This important legislation introduced a number of new offences including an offence of 'grooming ' a child under the age of 16 for sexual purposes and meeting such a child following prior contact for the purposes of engaging in some form of illegal sexual conduct. This latter offence is often linked to previous contact via online chat-rooms where adults may pose as young people and arrange face to face meeting for the purpose of sexual contact. ( For more information on this issue, see the section on online child safety in the chapter on Indicators of Risk.)

121. Under sections 10-12, arranging or facilitating any sexual services from a young person under the age of 18 is an offence as is attempting to control a young person for the provision of such services, including pornography. In the case of the production of pornographic images, the previous upper limit was 16.

122. The legislation also introduced Risk of Sexual Harm Orders (section 2) that aim to protect children and young people from persons who may not have been convicted of any criminal offence but who have engaged in some level of sexually explicit behaviour or communication in respect of a child under 16. This is a civil matter and the Order would be sought by the Chief Police Officer from the Sheriff. It is not intended as a substitute for criminal process but rather as a means of protecting children at an earlier stage.

123. This Act also extended the powers available under the Sexual Offences Act 2003 to allow courts to impose a Risk of Sexual Harm Order at the time of conviction for a sexual offence.

124. Section 15 of the Act removed the time bar of one year that previously existed on raising an action for unlawful sexual intercourse with a girl aged 13-16. This allows victims to come back long after the offence was committed and raise and seek a criminal prosecution. There are obvious evidential issues involved but it does allow, for example, a person who was the victim of child sexual abuse to seek legal redress at a time in their life when they are better able to deal with the issues raised. Previously, such prosecutions were time barred.

Sexual Offences (Scotland) Act 2009

125. This Act translated a number of common law offences into statutory offences - for example, rape - and clarified the issue of consent, introducing a new definition of 'free agreement'. A number of what are described as 'protective' offences are introduced to allow for the protection of individuals by virtue of their age or mental capacity who may not be deemed able to engage in 'free agreement' to sexual activity. The Act introduced in sections 42-45 a new offence relating to a breach of a position of trust in respect of a child. The Act provides clear guidance as to what constitutes a position of trust in these circumstances. It updated and amended the provisions of the UK Sexual Offences (Amendment) Act 2000.

126. Section 55 also allows for a Scottish resident to be convicted of an offence committed abroad if it would be deemed a criminal offence in Scotland. It is no longer necessary for the behaviour to be illegal in the country where it occurs. Unlawful sexual intercourse with a 12 year old somewhere in Asia, for example, would be able to be prosecuted in Scotland.

Legislation on Managing Adults Who May Pose a Risk to Children

Police Act 1997

127. Part V of this legislation provides the responsibility and authority for 'disclosure checks' on individuals by local authorities or third sector organisations as well as other organisations depending on the nature of the work being undertaken; this is further supported by the Police Act 1997 (Criminal Records) (Scotland) Regulations 2006. The legislation allows such bodies to seek to obtain Criminal Record Certificates (known generally as 'disclosures') on any person who is likely to undertake direct work with children and other vulnerable groups. For such purposes, disclosure of previous criminal convictions have to be obtained at an 'enhanced' level - i.e. spent convictions under the terms of the Rehabilitation of Offenders Act 1974 are also included together with any other information considered relevant by police and other authorities. Under the legislation, checks are undertaken on foster carers, employees and any person, not holding any form of parental rights in respect of a child who may be entrusted with their regular care.

Protection of Children (Scotland) Act 2003

128. The primary focus of this legislation is the power to allow Scottish Ministers to establish a Disqualified from Working with Children List. In any circumstance where an organisation considers that someone who has access to children in a paid or voluntary capacity has harmed a child or put a child at serious risk of harm, they have a legal obligation to notify Scottish Ministers. It is not a requirement that the person concerned has been convicted of a criminal offence in respect of said child or children. Section 11(3)(a), for example, created an offence for an organisation to knowingly engage someone whom they know to have been disqualified from working in a child care position. This legislation will shortly be repealed and replaced by the Protection of Vulnerable Groups (Scotland) Act 2007.

Protection of Vulnerable Groups (Scotland) 2007

129. The Protection of Vulnerable Groups (Scotland) 2007 ( PVG) Act is Scotland's response to the principal recommendation of the Bichard Inquiry following the tragic murders in Soham in 2002. Towards the end of 2010, the Scottish Government will introduce a new membership scheme to replace and improve upon the current disclosure arrangements for people who work with vulnerable groups. The PVG Scheme is designed to deliver a fair and consistent system that will help to ensure that those who have regular contact with children and protected adults through paid and unpaid work do not have a known history of harmful behaviour. The scheme is intended to be quick and easy to use, reducing the need for PVG Scheme members to complete a detailed application form every time a disclosure check is required and strike a balance between proportionate protection and robust regulation and make it easier for employers to determine who they should check to protect their client group.

130. During the first year after its 'go-live', the PVG Scheme will only be available for those joining the vulnerable groups' workforce for the first time, moving posts or whose circumstances have changed. The whole of the current workforce will be phased into the scheme over the following three years.

Legislation on Criminal Proceedings and Witness Supports

Sexual Offences (Procedure and Evidence) (Scotland) Act 2002

131. This legislation places restrictions on when an accused person is allowed to conduct his own defence and thereby cross-examine the defendant. The categories include a range of offences against children including unlawful sexual intercourse with a girl aged 13-16 and indecent behaviour towards a girl aged 12-16. The accused is also prohibited from pre-cognition of a child witness under oath and there are also specific bail conditions relating to attempting to obtain statements from the complainer. The extent of the powers under this legislation was extended further in the Vulnerable Witnesses (Scotland) Act 2004 to include non-sexual offences involving children under 12.

Vulnerable Witnesses (Scotland) Act 2004

132. Under this legislation, which amended some sections of the Criminal Procedure (Scotland) Act 1995, children who are called upon as witnesses are no longer required to undergo a competence test to ascertain whether they can demonstrate an understanding of the distinction between telling the truth or not. Equally important is that under section 6 (which inserts section 288E to the Criminal Procedure (Scotland) Act 1995), an accused cannot conduct his own defence where the child concerned is under 12 and the offence involves sexual assault or violence.

133. One of the most important aspects of this legislation is the introduction of a range of special measures which may be put in place to support the vulnerable child when giving evidence or being cross-examined. The Act covers criminal cases, civil cases and Children's Hearings court proceedings. Standard special measures available to all child witnesses under the age of 16 are a live TV link, screens in the courtroom and the presence of a supporter in conjunction with either of these measures. Further special measures, available on application to the court, include evidence being taken in advance in the form of a prior statement (criminal cases only) or the taking of evidence by a commissioner.

134. It is important to note that a person under the age of 16, known as a 'child witness' is, per se, a 'vulnerable witness'. The provision of standard special measures will always be considered for them.

135. There is extensive guidance available on the subject 7. The 2004 Act underpins the acceptance that oral evidence is no longer the only means by which testimony can be given by children.

Additional Legislation

Asylum and Immigration (Treatment of Claimants etc) Act 2004

136. This is UK legislation and as such the subject matter is reserved. While the issues of immigration and asylum and the impact this may have on children and their families is a very broad topic, section 4 of this legislation relates to the offence of trafficking people for exploitation.

137. Immigration and asylum issues around unaccompanied children is a highly specialised aspect of the legislative framework for children and young people. The potential for exploitation and vulnerability is high and it is important that specialist legal advice is sought, even in situations that appear 'straightforward'. There are complex and contested processes of age-testing that seek to clarify the ages of unaccompanied children who arrive in this country without identifiable information and paperwork. The Scottish Refugee Council can provide initial support and information to help guide workers through the complexities of these processes.

Anti-social Behaviour (Scotland) Act 2004

138. While the primary focus of this legislation may not be child protection in its most commonly regarded forms, it is important to remember the strong links between adult behaviour and outcomes for children and young people. This legislation allows for cases of anti-social behaviour to be referred to the Children's Reporter and for 'parenting orders' to be applied to the parents of such children and young people. Bearing in mind the Kilbrandon principle of 'need not deed', this legislation could be the point of entry of some young people into the child protection arena.

Adoption and Children (Scotland) Act 2007

139. While this legislation made a number of changes to the administration of the adoption process in Scotland, it is the introduction of the Permanence Order that may have the most relevance for child protection processes. This new order, which can be awarded to local authorities allows for a greater degree of flexibility around a core of more permanent decisions about a child's care. The order allows responsibilities to be shared with carers by the local authority once the Permanence Order is in place and should be part of the single planning process for the child, responding to the differing needs and risks of the child or young person concerned. In situations where it has been decided that in order to safeguard and protect the child's welfare, it is no longer appropriate to consider returning a child to its birth family, a Permanence Order may provide the necessary stability without the child being placed within an adoptive family.

The Mental Health (Care and Treatment) (Scotland) Act 2003

140. This introduced a number of principles which those discharging functions under the Act are required to have regard to, including a specific principle for the ' welfare of the child' . It requires that any functions under the Act in relation to a child with mental disorder should be discharged in the way that best secures the welfare of the child. In particular it is necessary to take into account:

  • the wishes and feelings of the child and the views of any carers;
  • the carer's needs and circumstances which are relevant to the discharge of any function;
  • the importance of providing any carer with information as might assist them to care for the patient;
  • where the child is or has been subject to compulsory powers, the importance of providing appropriate services to that child; and
  • the importance of the function being discharged in the manner that appears to involve the minimum restriction on the freedom of the child as is necessary in the circumstances.

141. The Act is universal and applies to everyone with a mental disorder, irrespective of age but it introduced specific provisions in relation to children and has clear links to the Children's (Scotland) Act 1995. A range of powers and duties is in place for both health boards and local authorities to address the needs of children with mental health problems and with parent(s) who have mental health problems.

142. Key amongst specific provisions in the Act are:

  • the requirement on health boards to provide certain services and accommodation for patients under 18 to help prevent young people being admitted to adult acute wards and improve the provision of specialist child focussed services;
  • the requirement on health boards to enable mothers with post-natal depression and who are in hospital, through the provision of accommodation and services, to care for their child (of less than one year) in hospital, if they so wish;
  • all those discharging functions under the Act have a duty to "mitigate adverse effect of compulsory measures on parental relations" requiring all reasonable steps to be taken to reduce any adverse effect on the relationship between a child and a person with parental responsibilities for that child - whether it is the parent or child who has the mental disorder; and
  • education authorities have a duty to make arrangements for the education of pupils unable to attend school because they are subject to measures authorised by the Act or by other mental health legislation, in consequence of their mental disorder.