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National Guidance for Child Protection in Scotland 2010

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LEGISLATION RELATING TO CHILD PROTECTION

105. Legislation places a variety of duties and responsibilities on services and organisations. These can include:

  • 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;
  • 'overarching' legislation ( e.g. data protection) where some aspects are particularly relevant; and
  • other legislation including laws relating to offences against children and young people and to civil law or administrative arrangements,

106. Staff should be aware of their legal responsibilities and duties as well as understanding the legal framework within which they and other organisations and agencies operate. This chapter reviews the legislation covering the duties placed on services and outlines the key overarching legislation. For further information on other relevant legislation, see Appendix A.

Duties to protect

107. 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, section 53 of which provides the mandate for local authorities and section 56 for Reporters to the Children's Hearing.

Police (Scotland) Act 1967

108. The Police (Scotland) Act 1967 lays down the general functions and jurisdiction of the police in Scotland, in that it is the duty of constables of a police force to guard, patrol and watch so as to:

(i) prevent the commission of offences;
(ii) preserve order; and
(iii) protect life and property.

109. In addition, it is the duty of the constables of a police force, where an offence has been committed, whether within or outwith the police area for which the police force is maintained, to take all such lawful measures, and make such reports to the appropriate prosecutor, as may be necessary for the purposes of bringing the offender, with all due speed, to justice.

Children (Scotland) Act 1995

110. 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 and the duties and responsibilities it establishes are discussed at different points elsewhere in this guidance. The duties of the local authority within this legislation are, in the main, discharged by statutory social work services.

Social Work (Scotland) Act 1968

111. 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 overarching 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

112. 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.

113. 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

114. 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 8 of the 2004 Act, where a local authority has responsibility for the child's or young person's education, and it has been established that the child or young person has additional support needs, the authority has a duty to provide such support as is necessary to help them benefit from school education. Under section 9 of the 2004 Act, where a local education authority has responsibility for the child's or young person's education and it has been established that the child or young person requires a co-ordinated support plan, the education authority has a duty to provide a co-ordinated support plan for the child.

Overarching legislation

Data Protection Act 1998

115. 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. For further information, see the chapter on Information-sharing.

Human Rights Act 1998

116. 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. Sometimes there may be a potential conflict of interest between children and adults and a balancing of competing rights will be required. For further information, see the chapter on Principles and standards.

UN Convention on the Rights of the Child

117. Ratified by the UK Government in 1991, this Convention serves to inform all subsequent child care legislation. The rights of the child to express their views freely in all matters affecting them and to have them taken into account and the right to have the best interests of the child as a primary consideration in making decisions affecting the child are important aspects of this Convention. Conformity with the standards established by competent authorities is another requirement of the convention. For further information, see the chapter on Principles and standards.

UN Convention on the Rights of Persons with Disabilities

118. Ratified by the UK Government in 2009, the Convention stipulates that in order for disabled children to be able to realise the rights mentioned above, they need to be provided with disability and age-appropriate assistance.